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holding that "a split lip, which bled and became swollen . . . needed stitches" did not constitute a serious medical condition
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10 Civ. 5152(CS)(PED)
02-20-2013
KEITH ALLEN RICKETT, Plaintiff, v. COLONEL ORSINO, et al., Defendants.
The Honorable Cathy Seibel The Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse 300 Quarropas Street White Plains, New York 10601 Keith Allen Rickett, pro se 09-A-2663 Fishkill Correctional Facility 271 Matteawan Road P.O. Box 1245 Beacon, New York 12508 David L. Darwin, Esq. County Attorney for Orange County 15 Matthews Street, Suite 305 Goshen, New York 10924 Adam Lawrence Rodd, Esq. Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC 555 Hudson Valley Avenue Suite 100 New Windsor, New York 12553
REPORT AND RECOMMENDATION
TO: THE HONORABLE CATHY SEIBEL UNITED STATES DISTRICT JUDGE
TABLE OF CONTENTS I. Introduction ................................................................................................................... Page 1 II. Background
A. Facts .................................................................................................................. Page 2
B. Procedural History ............................................................................................ Page 10 III. Discussion
A. Legal Standards
1. 42 U.S.C. § 1983 ................................................................................... Page 12
2. Summary Judgment ............................................................................... Page 14
3. Exhaustion Under the PLRA ................................................................. Page 16
4. OCCF Grievance Procedure .................................................................. Page 18
B. Application
1. Analysis of Plaintiff's Claims
a. Cruel and Unusual Treatment Claims ....................................... Page 19
i. Compelled Forgery Claims .......................................... Page 20
ii. Elf Costume/Holiday Party Claim ................................ Page 21
iii. Physical Assault Claims ................................................ Page 23
a) Plaintiff's evidence is not wholly inconsistent such that no reasonable jury could believe his claims .................................. Page 23
b) Plaintiff fails to allege the personal involvement of any individual apart from Smith ................................................................. Page 29
iv. Deprivation of Medical Treatment Claim ..................... Page 31
b. First Amendment Claims .......................................................... Page 35
i. Interference with Mail
a) Plaintiff establishes a triable retaliation claim against Smith only for interference with his mail ...................................................... Page 37
b) Any stand-alone First Amendment claim with respect to interference with Plaintiff's non-legal mail fails ........................................... Page 38
ii. Interference with Grievance Procedures
a) Plaintiff establishes a triable retaliation claim against Smith only for interference with grievance procedures ................................ Page 39
b) Any stand-alone First Amendment claim with respect to interference with Plaintiff's access to grievance procedures fails ................ Page 40
2. Exhaustion of Administrative Remedies ............................................... Page 41
IV. Conclusion .................................................................................................................... Page 45a. Failure to exhaust may be excused where prison grievance procedures are rendered unavailable ....................... Page 41
b. There is a factual dispute concerning whether OCCF's grievance procedures were unavailable to Plaintiff because he was threatened and physically assaulted ................ Page 42
c. The factual dispute regarding Plaintiff's exhaustion excuse must be resolved at trial ................................................ Page 44
I. INTRODUCTION
Plaintiff Keith Allen Rickett ("Plaintiff"), proceeding pro se, brings this action claiming violations of his civil rights pursuant to 42 U.S.C. § 1983. In short, Plaintiff alleges that while he was incarcerated at the Orange County Correctional Facility ("OCCF"), he was compelled to forge educational records and was assaulted and otherwise retaliated against when he tried to complain about it. He also claims that he was forced to wear an elf costume at an OCCF holiday party. Currently before the Court are motions for summary judgment filed by all defendants. (Dkts. 76, 87.) The matter comes before me pursuant to an Order of Reference dated November 10, 2010. (Dkt. 16.)
For the reasons set forth below, I respectfully recommend that summary judgment be granted with respect to all claims against defendants Nona Cox ("Cox"), Marie Kirms ("Kirms"), Sherri Neiger ("Neiger"), Sheriff Dubois ("Dubois"), Colonel Orsino ("Orsino"), and Captain Rusneck ("Rusneck"). I also recommend that summary judgment be granted to defendant Sgt. Earle Smith, Jr. ("Smith") with respect to Plaintiff's document forgery claim, Plaintiff's elf costume/holiday party claim, Plaintiff's medical treatment deprivation claim, Plaintiff's mail interference claim, and Plaintiff's grievance interference claim. However, I recommend that summary judgment be denied to Smith with respect to Plaintiff's physical assault and retaliation claims.
Defendants Captain Bennett ("Bennett") and Lieutenant Dicharo ("Dicharo") also moved for summary judgment. (Dkt. 87.) Plaintiff voluntarily dismissed the action against those individuals. (Dkt. 100.)
II. BACKGROUND
All parties have submitted statements and counter-statements as required by S.D.N.Y. Local Rule 56.1. However, portions of Plaintiff's counter-statements are overly general and conclusory. In light of Plaintiff's pro se status, I have exercised my discretion and reviewed the entire record, including the pleadings and Plaintiff's deposition testimony. See, e.g., Beckles v. Bennett, No. 05 Civ. 2000(JSR), 2008 WL 821827, at *11 (S.D.N.Y. Mar. 26, 2008) (reviewing entire record where party's 56.1(b) statement was "overly general, contain[ed] legal conclusions, and omit[ted] material facts").
Unreported cases will be mailed to Plaintiff. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
Plaintiff was an inmate at OCCF between July 2008 and May 2009. (Dubois, Orsino, Bennett, Rusneck, Dicharo, & Smith's Corrected R. 56.1(a) Statement ("Dubois's 56.1") ¶ 1 (Dkt. 103); Pl.'s Opp'n Rule 56.1(b) Statement ("Pl.'s 56.1 (Dubois)") ¶ 1 (Dkt. 110); Kirms, Cox, & Neiger's R. 56.1 Statement of Material Facts ("Kirms's 56.1") ¶ 24 (Dkt. 82); Pl.'s Opp'n R. 56.1(b) Statement ("Pl.'s 56.1 (Kirms)") ¶ 1 (Dkt. 110).) He began working as an aide in OCCF's Programs Department in August 2008. (Dubois's 56.1 ¶ 10; Pl.'s 56.1 (Dubois) ¶ 10; Kirms's 56.1 ¶¶ 28, 34; Pl.'s 56.1 (Kirms) ¶ 1.) He continued to work in this position through May 2009. (Kirms's 56.1 ¶ 34; Pl.'s 56.1 (Kirms) ¶ 1.) The Programs Department contained classrooms and offices. Plaintiff's responsibilities included cleaning these rooms, "scan[ning] . . . BOCES intake ('buff') forms that [were] completed by inmates participating in the BOCES educational programs," (Dubois's 56.1 ¶ 18; see Pl.'s 56.1 (Dubois) ¶ 18), and filing, (Kirms's 56.1 ¶ 35; Pl.'s 56.1 (Kirms) ¶ 35).
Plaintiff testified that he was a pre-trial detainee at OCCF for most of this period. (See Jan. 25, 2012 Tr. ("Dep. Tr."), at 9-11 (attached to Wong-Pan Decl. (Dkt. 88), at Ex. F).)
Plaintiff submitted two separate 56.1 counter-statements which have been docketed as a single document. (Dkt. 110.) I distinguish them by referring to the group of defendants to which each 56.1 statement is responsive.
The Orange-Ulster County BOCES ("BOCES") contracted with OCCF to provide education programs to inmates. (See Smith's Aff. ¶¶ 4-5 (Dkt. 93).) During the period relevant to this lawsuit, Kirms was employed by BOCES and worked at OCCF as the Coordinator for Incarcerated Services. (Kirms's Aff. ¶¶ 1-2 (Dkt. 78).) Her "responsibilities included managing and overseeing the provision of adult and youth educational services to inmates at [OCCF]." (Id. ¶ 2.) Cox was employed by BOCES and worked at OCCF as a teacher. (Cox's Aff. ¶¶ 1-2 (Dkt. 79).) Neiger was employed by BOCES and worked at OCCF as an Adult Education Instructor. (Neiger's Aff. ¶¶ 1-2 (Dkt. 80).)
Plaintiff asserts that either on October 15, 2008, or during the first or second week of November 2008, Kirms (or both Kirms and Smith) asked him to forge student records. (See Dep. Tr., at 54-55, 61; 2d Am. Compl., at 5 (unpaginated) (Dkt. 33).) He also claims that on October 25 or November 5, 2008, Smith told him "not to mention this conversation to anyone," and that if Plaintiff did, "Bad things would happen." (2d Am. Compl., at 5.) Plaintiff states that Smith and Kirms told him "they had great influence with the Judges and the district attorney," (id.; see Dep. Tr., at 60), and that Smith told him he would "make sure that there is great trouble for [him] if [he] did not do as [he] was told," (2d Am. Compl., at 5).
Normally, allegations in a pleading are not considered affirmative evidence with respect to a motion for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986); (see Discussion infra Part 111(A)(2)); see also, e.g., Almonte v. Florio, No. 02 Civ. 6722(SAS), 2004 WL 60306, at *3 n.10 (S.D.N.Y. Jan. 13, 2004) ("a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment"). However, "[u]nsworn declarations that comply with 28 U.S.C. § 1746 may be treated as equivalent to sworn affidavits for purposes of a summary judgment motion. Such documents must include a verification by the declarant that its contents are 'true under penalty of perjury' and must be dated." Yearwood v. LoPiccolo, No. 95 Civ. 2544(DC), 1998 WL 474073, at *5 (S.D.N.Y. Aug. 10, 1998) (quoting 28 U.S.C. § 1746); see § 1746; Fed. R. Civ. P. 56(c), (e); see also, e.g., Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1998) (where a pro se complaint is sworn, the pleading and its attached exhibits may be considered on a motion for summary judgment); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (where plaintiff "verifie[s] his complaint by attesting under penalty of perjury that the statements in the complaint [are] true to the best of his knowledge," the "verified complaint is to be treated as an affidavit for summary judgment purposes"). Here, Plaintiff's pleading complies with § 1746 because it contains the requisite language and is signed and dated. (See 2d Am. Compl., at 14.) Accordingly, I construe the pleading as an affidavit and, where appropriate, refer to Plaintiff's statements contained therein. However, I do so mindful of the rule in this Circuit that a "plaintiff[ ] cannot defeat a motion for summary judgment by responding with affidavits recanting . . . earlier testimony." Margo v. Weiss, 213 F.3d 55, 60-61 (2d Cir. 2000). Accordingly, I do not consider statements that Plaintiff made in his responses to Defendants' summary judgment motions as evidence.
At some point in November 2008 and more than five days after Plaintiff was asked to forge student records, Plaintiff claims that he asked a corrections officer for a grievance form, was given one, and filled it out. (See Dep. Tr., at 57-61; see also id. at 120-21.) He testified that he complained in the grievance about "[t]he records, the forging of records, . . . the threats of using the influence with the Orange County courts and the District Attorneys, . . . [and] the threats of physical abuse." (Id. at 59.) He also testified that he placed the grievance form into an envelope, addressed the envelope as "Inmate Grievance," and placed it into the outgoing mailbox instead of the grievance box. (See id. at 56-59.) He states that he did so in order to deliberately bypass OCCF's grievance procedures. Specifically, he explained that:
I was kind of hoping that it would get-I don't know, I was hoping that-If it went straight to the grievance, I know that all the officers and the sergeants, they're all, you know, they're all one big, you know, family, so I was trying to get it past, uh-I was actually trying to divert it from the grievance and maybe up front would get it and because it was going out they would read it and see the severity of it and just bypass the whole grievance thing.(Id. at 116-17.)
Smith and Kirms deny threatening Plaintiff or directing him to forge any documents. (Kirms's Aff. ¶¶ 7-8, 10; Smith's Aff. ¶¶ 14-15.) Defendants also state that OCCF's records indicate that Plaintiff never requested or submitted a grievance form during the relevant time period. (Dubois's 56.1 ¶¶ 5-6; Kirms's 56.1 ¶¶ 57-58.)
Next, Plaintiff claims that at some time at the "end of November 2008" or "on or about December 2008," "Cox brought in her files," which Plaintiff was directed to forge. (2d Am. Compl., at 6.) He states that he refused to comply with those orders, which prompted Cox to call Smith. Plaintiff states that Smith entered the room, Cox informed him of Plaintiff's refusal "to be helpful," and Smith told Plaintiff "that if [he] gave [Cox] any problems he would 'Beat the shit out of'" him. (Id.) Plaintiff states that at this point, he told Smith that he wanted to file a grievance. (Id.) Plaintiff states that Smith then "grabbed [him] by the throat and started to choke [him,] telling [him] that a grievance [sic] was not going to help [him,] [a]nd that if [he] tryed [sic] to complain about this they would make sure that [he] got life in prison." (Id.) Plaintiff states that at this point, he "dicided [sic] to just do as [he] was told." (Id.)
Smith and Cox deny assaulting Plaintiff, threatening Plaintiff, directing him to forge documents, or preventing him from filing a grievance. (See Cox's Aff. ¶¶ 5-8, 10-11, 12; Smith's Aff. ¶¶ 14-18.)
Cox's Affidavit contains two paragraphs labeled "11." I refer here to the first of these.
Next, Plaintiff states that on either December 14, 2008 or at some time near Christmas 2008, he wrote a letter to his aunt. (2d Am. Compl., at 7; Dep. Tr., at 71-72; see also id. at 77.) He states that in that letter, he described the forgeries and asked his aunt to get him "help and assistance from outside." (Dep. Tr., at 73.) He states that he attempted to mail the letter but claims that the letter did not reach its recipient because it was intercepted. (See Dep. Tr., at 73-77; 2d Am. Compl., at 7.) Specifically, he states that a few days after he placed the letter into the inmate's outgoing mailbox, or, at the end of December 2008, he saw it sitting on Smith's desk. (See Dep. Tr., at 76-78; 2d Am. Compl., at 7.) Plaintiff states that Smith entered the Programs Department office where Plaintiff was working, asked Plaintiff if he knew "that they can Kill [him] and make it look like [he] killed himself," told him that "if [he] ever wr[o]te a letter to anyone again, [he would] not live to see the next day," and boasted that "they would get away with it." (2d Am. Compl., at 7.) Plaintiff states that Smith then "punched [him] in the face 2 times and pulled the letter out[,] ripped it up[,] and threw it on [his] desk." (Id.; see Dep. Tr., at 78 (stating that Smith "hit [Plaintiff] in [his] mouth").) Plaintiff states that the punch caused his tooth to split through his lip. (Dep. Tr., at 78; see also id. at 104-05.) At this point, Plaintiff states that he asked Smith for medical attention, but claims that Smith denied his request. (See id. at 106-07; 2d Am. Compl., at 8.) He did not file a written request to visit the nurse or otherwise report his injuries to OCCF staff. (Kirms's 56.1 ¶¶ 45-47; Pl.'s 56.1 (Kirms) ¶¶ 45-47; see Dep. Tr., at 107, 110.)
Plaintiff testified later in his deposition that he was "sure" that the date of the assault that appears to have been in retaliation for Plaintiff writing a letter to his aunt, was sometime in the first or second week of November 2008. (See Dep. Tr., at 105-06, 127.) Plaintiff also testified that he was assaulted on two different occasions by Smith, the first of which was in retaliation for Plaintiff's attempt to write the letter to his aunt. (See id. at 112-13.) However, I note that the earliest that Plaintiff's evidence suggests that he wrote this letter was in December 2008. When Plaintiff was asked to specifically identify the dates of any alleged assaults during his deposition, his responses were at times considerably vague and confusing. For example:
Q: Identify the dates, approximate or actual, when you were assaulted.(Id. at 127-29.) I also note that the record reflects that Plaintiff may have been ill during his deposition. (See, e.g., id. at 132.)
A: Uh, November. Around November. Uh, let's see. October, November . . . uh, October, November, uh . . . February. Now, in November 1, uh, . . . I'm not sure of the exact dates.
Q: Are you sure the exact dates of any of the occasions when you were assaulted?
A: November, I'm sure on that. I'm sure on November. That would be November, uh, '08.
Q: November of '08. And do you remember any specific-when else were you assaulted?
A: Two other occasions. I'm trying to get the-uh, the dates. Uh, November-I believe-I'm not sure. Was it '08 or '09? No, it was '08. It was '08, November.
. . .
Q: Do you know when the other two [assaults] were?
A: I'm not sure of the exact dates.
Q: Do you know approximately?
A: I know that, uh, November . . . I believe it was November '08.
Q: That was one of them?
A: That was one of them. And I'm not certain of the exact dates of the last ones.
Q: Do you know approximate dates of the next ones?
A: I'm not even sure that
Q: Are you sure it happened more than once?
A: Yes. I'm also sure-yes, I'm sure it happened more than once. . . .
Defendants deny interfering with Plaintiff's mail. (See Cox's Aff. ¶¶ 5-7; Kirms's Aff. ¶¶ 5-7; Neiger's Aff. ¶¶ 5-7; Orsino's Aff. ¶¶ 8-9; Smith's Aff. ¶ 17.) Plaintiff does not dispute that Kirms, Cox, and Neiger could not have interfered with his mail. (Kirms's 56.1 ¶¶ 63-65, 68-70; Pl.'s 56.1 (Kirms) ¶¶ 63-65, 68-70.) Smith also denies assaulting Plaintiff, threatening Plaintiff, or depriving Plaintiff of medical treatment. (Smith's Aff. ¶¶ 14, 16, 18.)
Next, Plaintiff claims that two weeks after this assault, Smith told Plaintiff that Orsino would "be coming to check on our progress" and that Orsino "knows whats [sic] going on." (2d Am. Compl., at 7.) Plaintiff states that Orsino and Smith later entered the room where Plaintiff was working, Smith told Orsino that Plaintiff was "helping us put everything in Order [sic] with the files," and Orsino responded by stating, "good because they need to be prepared in case an audit was performed." (Id.)
Plaintiff claims that, at some time after New Year's 2009, Smith spoke to Plaintiff about his grievance. (See Dep. Tr., at 121-22; see also 2d Am. Compl., at 8.) Specifically, he testified at his deposition that:
There wasn't much of a conversation. [Smith] came into the office and he said, uh-what did he say? No, I came into-I came into work that morning and, uh, I was a little nervous because of the last couple days. I was wondering, well, did it go
through or did it not. So, I come into work and I'm acting a little nervous, because I am nervous. He, uh-he's in his office. So, I goes in to do my normal duties, which is the, uh, getting the list, scan it through the buff form and, uh, then he comes out of his office, you know, and mentions something to the effect of, like. I just don't, I just don't get it. I don't get it. Like, I just don't get it. Uh, then he assaults me.(Id. at 123.) Plaintiff testified that Smith punched him once in the face and that he suffered "discomfort" from this assault. (See id. at 123-24.) Plaintiff states that he then asked Smith for medical attention, which he was denied. (Id.) Smith denies assaulting Plaintiff, depriving him of medical attention, or interfering with his attempts to file grievances. (Smith's Aff. ¶¶ 16-18.)
I note that in his pleading, Plaintiff appears to describe this assault by asserting that Smith "threw [a] small medal [sic] trash bin" at Plaintiff, which "hit [him] in the back" and caused his tooth to split "through [his] upper lip." (2d Am. Compl., at 8.)
I note Plaintiff also testified at his deposition that Smith choked him some time after New Year's 2009. He stated it was in retaliation for Plaintiff's refusal to do something "illegal" with Cox's "files" but could not remember exactly what that was. (Dep. Tr., at 136; see id. at 134-36.)
In his pleading, Plaintiff states that the next day, Smith and Kirms told him,
They have typed two letters to the judge both on my behalf. One good and one bad letter. He said that what letter the judge gets is all up to me. Then he asked me do Ithink [sic] that Ican [sic] do 25 years? I started to cry, He told me to answer his question. I said No. He said that I would be at home in prison doing 25 yrs [sic] he said that because I was a "Fagot" that I would enjoy the treatment that I would get. He said once again that all depended upon me and my ability to keep my mouth shut.(2d Am. Compl., at 8.) Kirms and Smith deny threatening Plaintiff. (Kirms's Aff. ¶ 7; Smith's Aff. ¶¶ 14.)
On or around December 24, 2008, Plaintiff attended a staff Christmas party. He was the only inmate there. At some point during the party he wore an elf costume. (Kirms's 56.1 ¶¶ 73-75; see Pl.'s 56.1 (Kirms) ¶¶ 73-75; Dep. Tr., at 83-84, 140-41; 2d Am. Compl., at 9.) Plaintiff states that Smith and Kirms asked him to wear the costume and he objected. (See Dep. Tr., at 84-85, 143; 2d Am. Compl., at 9.) Plaintiff states that Smith then "pretty much urged [him] to wear the costume," and "[o]rder[ed him] to put it on." (Dep. Tr., at 85.) He states he "was in fear for his safety when [he] was ordered to wear the elf's costume." (Pl.'s 56.1 (Kirms) ¶ 80.) He also states that after he put the costume on, Smith called him several names, which made him feel "uncomfortable" and believed that he was being "picked on." (Dep. Tr., at 87; see 2d Am. Compl., at 9.) Specifically, Plaintiff asserts that Smith called him, inter alia, a "gay elf, homo elf, . . . shaggy elf or fairy." (Dep. Tr., at 87; see 2d Am. Compl., at 9.) Plaintiff states that no other defendant called him names, but does claim that "[e]veryone else just laughed and giggled" at him. (Dep. Tr., at 87.) He also concedes that he did not sustain any physical injuries during this episode. (See Pl.'s 56.1 (Kirms) ¶ 80; Dep. Tr., at 141.) Smith and Kirms deny directing Plaintiff to wear the costume. (Kirms's Aff. ¶ 13; Smith's Aff. ¶ 20.)
Next, Plaintiff states that some time in April 2009, Cox brought files into OCCF from the Middletown Career Center. (Cox's Aff. ¶ 10; see Dep. Tr., at 44-45, 135.) He claims that Smith and Kirms directed him to falsify these records and to forge students' signatures in these files, as well as in files that were located within OCCF prior to April 2009. (See Dep. Tr., at 33-35, 42, 46-47, 54, 62, 135-36, 148-57.) Cox, Kirms, and Smith deny directing Plaintiff to forge any records. (Cox's Aff. ¶¶ 8, 10-11; Kirms's Aff. ¶¶ 8, 10; Smith's Aff. ¶¶ 15, 18.)
I note that during Plaintiff's deposition, defense counsel asked him several times to identify the date(s) that Plaintiff was directed to forge documents. His responses were vague and confusing. For example, Plaintiff testified that:
Date-wise, I would say on or about-it was summer. It was in the summer, the ending of summer, so that would have had to have been-I want to say the end of summer, uh, June-February, March, April-okay, it was around October, September-October, September-around November, in that time span. It was in that time span, in that time span.(Dep. Tr., at 42-43.)
I refer here to the first paragraph 11. (See supra n.6.)
On May 11, 19, and 20, 2009, Plaintiff accessed the Internet and sent emails to newspapers, the New York State Attorney General's Office, the New York State Department of Education, and the Orange County District Attorney's Office. (Dubois's 56.1 ¶¶ 25-28; Pl.'s 56.1 (Dubois) ¶¶ 25-28; Kirms's 56.1 ¶¶ 85-87; see Pl.'s 56.1 (Kirms) ¶¶ 85-87; Wong-Pan Decl., at Ex. I; 2d Am. Compl., at 9.) In those emails Plaintiff claimed that he was directed to forge students' signatures on certain documents. (Kirms's 56.1 ¶ 89; Pl.'s 56.1 (Kirms) ¶ 89; see Wong-Pan Decl., at Ex. I; 2d Am. Compl., at 9.) Thereafter, OCCF staff investigated Plaintiff's Internet usage and forgery claims. (Dubois's 56.1 ¶¶ 29-31; Pl.'s 56.1 (Dubois) ¶¶ 29-30; see Russnak's Aff. ¶¶ 3-7 & Ex. A.) B. Procedural History
Among other things, the investigator's report stated "that any document from any BOCES programs with student information from outside the Orange County Jail, should not [have been] brought into the facility for any reason." (Russnak's Aff. (Dkt. 92), at Ex. A, p.2.) The investigator's report concluded by stating:
I feel poor judgment was displayed in allowing Inmate Rickett to handle paperwork belonging to students enrolled in BOCES programs outside the Orange County Jail. In fact no inmate should be permitted to handle any administrative paperwork belonging to, or the responsibility of the BOCES program within the Orange County Jail. Nor was it proper for Inmate Rickett to have the opportunity for unsupervised access to a computer and internet services. I believe that issues such as this are the responsibility of Programs Sergeant Earle Smith to identify. It is Sergeant Smith's duties to ensure that procedures such as this are not implemented or quickly identified and terminated.(Id.)
This incident was a culmination of poor judgment by BOCES staff and lapse in basic security protocol by uniformed staff. . . .
Plaintiff initiated this federal action by filing a complaint that was docketed on July 6, 2010. (Dkt. 2.) The current operative pleading is now the Second Amended Complaint ("2d Am. Compl."). Liberally read, see Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007), the 2d Am. Compl alleges the following causes of action:
(1) Defendants subjected Plaintiff to cruel and unusual punishment by forcing him to forge and falsify documents, (see 2d Am. Compl., at 4-7, 9, 15-16);
(2) Defendant(s) retaliated against Plaintiff for his attempts to tell others about the forgery scheme, (see id. at 5-8, 15);
(3) Defendant(s) deprived Plaintiff of medical treatment, (see id. at 8, 15);
(4) Defendants violated Plaintiff's First Amendment rights by interfering with his outgoing, non-legal mail and by preventing him from accessing OCCF's grievance procedures, (see id. at 5-9, 15); and
(5) Defendants violated Plaintiffs' constitutional rights by forcing him to wear an elf costume and by verbally harassing him on the basis of his race and sexual orientation, (see id. at 5, 9, 15).
I note that Plaintiff states in a 56.1 counter-statement that "not only was [sic] plaintiffs [sic] rights were [sic] violated while in the care and custody of the Orange County Jail; but [so were] . . . the rights of the students." (Pl.'s 56.1 (Kirms) ¶ 91.) He also asserts that "[n]ot only was plaintiffs [sic] safety jeprodized [sic] by Orangecounty [sic] and BOCES emploees [sic], but also the students [sic] safety was compromised as well as thier [sic] personal information . . . was provided [to Plaintiff]." (Id.) To the extent that Plaintiff seeks to assert claims on behalf of the students whose files he accessed, Plaintiff lacks standing to do so. To establish standing, a party "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499 (1975)). Plaintiff's contention that students' rights were violated or that their safety was compromised fails to allege an injury-in-fact with respect to himself. See Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quoting Warth, 422 U.S. at 498-99) (emphasis omitted) ("The doctrine of standing . . . requires federal courts to satisfy themselves that 'the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.'"); Baur v. Veneman, 352 F.3d 625, 631-32 (2d Cir. 2003) (to assert constitutional standing, plaintiff must prove he "suffered an injury-in-fact that is fairly traceable to the challenged action of the defendant, and which is likely to be redressed by the requested relief"); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012) (quoting Summers, 555 U.S. at 493) ("To have standing, a plaintiff must demonstrate an 'actual and imminent, not conjectural or hypothetical' threat of a 'concrete and particularized' injury in fact that is 'fairly traceable to the challenged action of the defendant' and that 'a favorable judicial decision will [likely] prevent or redress.'").
Plaintiff seeks, inter alia, monetary damages in the amount of $5 million. (Id. at 11.) By correspondence dated June 1, 2012, Plaintiff voluntarily dismissed the action against Bennett and Dicharo. (Dkt. 100.) After completion of discovery, Defendants moved for summary judgment on the following grounds:
(1) Plaintiff failed to exhaust his claims pursuant to the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), (see Am. Mem. of Law for Summ. J. Submitted by Defs. Dubois, Orsino, Bennett, Russnak, Dichiaro, & Smith ("Dubois's Mem."), at 17-20 (Dkt. 102); Kirms, Cox & Neiger's Mem. of Law in Supp. of Mot. ("Kirms's Mem."), at 13-15 (Dkt. 84));
(2) Plaintiff's claim that he was forged to forge documents is not a cognizable § 1983 claim, (see Dubois's Mem., at 15-17; Kirms's Mem., at 9-11);
(3) Plaintiff's claim that he was forced to wear an elf costume is not a cognizable § 1983 claim, (see Dubois's Mem., at 25-26; Kirms's Mem., at 12-13);
(4) Plaintiff's mail interference claim is not a cognizable § 1983 claim, (see Kirms's Mem., at 11-12);
(5) Plaintiff fails to demonstrate the personal involvement of Kirms, Cox, and Neiger with respect to the First Amendment claims, the claims involving the elf costume, and the assault claims, (see id. at 12-13);
(6) Plaintiff fails to demonstrate the personal involvement of Orsino, Dubois, or Russnak with respect to any of the claims, (see Dubois's Mem., at 26-27);
(7) Kirms, Cox, and Neiger are entitled to qualified immunity, (see id. at 15); and
(8) the evidence that Plaintiff submitted in support of his claims is so inconsistent that no reasonable jury could find in his favor, (see Dubois's Mem., at 21-25).
As discussed below, Plaintiff fails to state a cognizable § 1983 claim against Kirms, Cox or Neiger. Accordingly, I do not reach the question of their immunity.
I heard oral argument on November 29, 2012.
III. DISCUSSION
A. Legal Standards
1. 42 U .S.C. § 1983
Section 1983 provides, in relevant part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .42 U.S.C. § 1983. Accordingly,
To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999).
Where a defendant is sued in his or her individual capacity, the plaintiff must also show the personal involvement of that individual in the constitutional deprivation. Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); see Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)) ("'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983'"); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). To show personal involvement, the plaintiff must prove "a tangible connection between the acts of a defendant and the injuries suffered" by the plaintiff. Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). Thus, "proof of 'linkage in the prison chain of command' is insufficient" to establish liability on the basis of an individual's supervisory role or respondeat superior. Hernandez, 341 F.3d at 144 (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam)). Accordingly, for purposes of Section 1983 liability, the Second Circuit has identified five categories where "the personal involvement of a supervisory defendant may be shown." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
(1) [T]he defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Id. (citing Wright, 21 F.3d at 501).
However, the Supreme Court has more recently cast doubt on the viability of at least some of Colon's categories. In Iqbal, the Court rejected an argument that, at the pleading stage, "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Iqbal, 556 U.S. at 677. Rather, the Court held:
Respondent's conception of "supervisory liability" is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit . . . -where masters do not answer for the torts of their servants-the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title not withstanding, is only liable for his or her own misconduct.
2. Summary Judgment
Summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "When ruling on a summary judgment motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). "At summary judgment, the Court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial." West v. Whitehead, No. 04 Civ. 9283(KMK), 2008 WL 4201130, at *10 (S.D.N.Y. Sept. 11, 2008). While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
The burden of showing that no genuine issue of material fact exists rests on the movant. See Celotex, 477 U.S. at 322-23; Atl. Mut. Ins. Co. v. CSX Lines, LLC, 432 F.3d 428, 433 (2d Cir. 2005).
When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim. In that event, the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of material fact for trial in order to avoid summary judgment.Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the nonmoving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor," Anderson, 477 U.S. at 256, and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
3. Exhaustion Under the PLRA
The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This requirement "'applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.'" Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)). "[C]ompliance with state procedural rules is necessary to achieve '[t]he benefits of exhaustion [that] can be realized only if the prison grievance system is given a fair opportunity to consider the grievance.'" Id. (quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006)).
"[T]he PLRA exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 81. "[T]o properly exhaust administrative remedies prisoners must 'complete the administrative review process in accordance with the applicable procedural rules'-rules that are defined not by the PLRA, but by the prison grievance process itself.'" Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88)). This "'means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).'" Hernandez v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (emphasis in original) (quoting Woodford, 548 U.S. at 90). "The exhaustion inquiry thus requires that [a court] look at the . . . prison procedures and the prisoner's grievance to determine whether the prisoner has complied with those procedures." Espinal, 558 F.3d at 124.
Although "the PLRA's exhaustion requirement is mandatory, certain caveats apply." Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (internal quotation marks and citations omitted). The Second Circuit has identified circumstances in which a prisoner's failure to properly exhaust a claim may be excused. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).
Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact available to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.Id. (internal quotation marks and citations omitted). "[T]he same facts sometimes fit into more than one of these categories" and significant overlap may therefore occur. Giano v. Goord, 380 F.3d 670, 677 n.6 (2d Cir. 2004). Factual disputes relating to whether a prisoner's failure to exhaust should be excused can generally be resolved by the court, and do not ordinarily present a jury question. Messa v. Goord, 652 F.3d 305 (2d Cir. 2011).
The Supreme Court held in Woodford that a prisoner must comply with all of the prison's grievance procedures before seeking relief in federal court. The Second Circuit has yet to address the viability of Hemphill after Woodford. See Amdor v. Andres, 655 F.3d 89, 102-03 (2d Cir. 2011) (discussing the tension between Woodford and Hemphill but declining to reach the issue). Subsequent to the Court's decision in Woodford, district courts within this Circuit have recognized this tension, but have continued to apply Hemphill. See, e.g., Toliver v. Dep't of Corr. N.Y.C., No. 10 Civ. 5807(PGG), 2012 WL 4044627, at *3 n.4 (S.D.N.Y. Sept. 11, 2012) (noting cases).
The exhaustion requirement "is not jurisdictional, and thus [allows] a district court to dismiss plainly meritless claims without addressing what may be a much more complex question, namely, whether the prisoner did in fact properly exhaust available administrative remedies." Woodford, 548 U.S. at 85 (citing 42 U.S.C. § 1997e(c)(2)).
4. OCCF Grievance Procedure
OCCF's Grievance Procedure, as outlined in the Inmate Rule Book, states the following:
GRIEVANCE PROCEDURE
. . .
2. Instructions and procedures for resolving problems and filing grievances. If you have a complaint or problem:
a. Attempt to resolve the problem with the Officer assigned to your Housing Unit or the Housing Unit Supervisor.
b. If for some reason you and the Officer or Supervisor are unable to reach an acceptable resolution, you may request and will receive a grievance form by the end of the shift, but no longer than eight (8) hours of your request.
c. Your grievance request must be submitted within five days of the incident.
d. You may request and will receive assistance in filling out the form.
e. The Chief Administrative Officer or his/her designee shall ensure that each grievance is investigated to the fullest extent necessary by an impartial person who was not personally involved in the circumstances giving rise to the grievance. A grievance that is too vague to understand or fails to set forth supporting evidence or information will be returned to the inmate. Failure to supply sufficient information or evidence within two (2) days shall be cause to deny the grievance.
f. If you are not satisfied with the Grievance Coordinators [sic] decision, you may appeal the determination to the Corrections Administrator within two business days of receiving the decision.
g. You will receive a response within five (5) business days.
h. Grievances regarding dispositions or sanctions from the disciplinary hearings, administrative segregation housing decisions, issues that are outside the authority of the Chief Administrative Officer to control, or complaints pertaining to another inmate are not grievable and will be returned to the inmate by the Grievance Coordinator.
3. Grievance Box: There is a Grievance Box on each Housing Unit which is checked each business day. Grievances or other written complaints may be placed in the box by any inmate.
4. Appeal to the Commission of Corrections:
a. If the Corrections Administrator denies your grievance, you may appeal the decision within three business days to the State Commission on Corrections. The facility is responsible for mailing the appeal to the Commission. The Grievance Coordinator will issue
(Inmate Handbook, at 34-36 (attached to Orsino's Aff. (Dkt. 89), at Ex. F); see also Inmate Rule Book, at 28-30 (attached to Exs. Submitted by Defs. Kirms, Cox & Neiger ("Kirms's Exs.") (Dkt. 83), at Ex. E).) B. Applicationa receipt indicating the date the appeal was submitted.
b. You will receive a response from the Commission within forty-five business days of their receipt of the grievance. The Chief Administrative Officer and the Grievance Coordinator will also receive a copy of the findings. If it is found in favor of the grievant, as a matter of law, the Chief Administrative Officer will provide a remedy.
Orsino is the Chief Administrative Officer of OCCF. (Orsino's Aff., ¶ 1.)
1. Analysis of Plaintiff's Claims
a. Cruel and Unusual Treatment Claims
Because Plaintiff was a pre-trial detainee at the time of the alleged incidents, his cruel and unusual treatment claims arise under the Fourteenth Amendment's Due Process Clause, and not the Eighth Amendment's Cruel and Unusual Punishment Clause. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000) ("Because as a pre-trial detainee [plaintiff] was not being 'punished,' the 'cruel and unusual punishment' proscription of the Eighth Amendment to the Constitution does not apply."); see also Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (due process clause of the Fourteenth Amendment applies to state pre-trial detainees who file suit pursuant to § 1983). However, the legal standard for claims arising under the Due Process Clause is the same as those arising under the Cruel and Unusual Punishment Clause. See, e.g., Roseboro v. Gillespie, 791 F. Supp. 2d 353, 381 n.33 (S.D.N.Y. 2011) (collecting cases); see also, e.g., Benjamin v. Flores, No. 11 Civ. 4216(ARR), 2012 WL 5289513, at *2 (E.D.N.Y. Oct. 23, 2012) (citing Hudson v. McMillian, 503 U.S. 1 (1992) and United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999)) ("the minimum standards for whether abuse by a prison guard states a constitutional claim under the Eighth Amendment . . . apply to excessive force claims brought under the Fourteenth Amendment").
Plaintiff asserts several claims alleging Defendants subjected him to cruel and unusual punishment. Liberally read, Plaintiff alleges that; (1) he was compelled to commit acts of forgery; (2) he was forced to dress as an elf; (3) he was physically assaulted; and (4) he was denied medical treatment.
"[A] prison official violates the Eighth Amendment only when two requirements are met," one, an objective test, and the other, a subjective test. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Hudson, 503 U.S. at 7-8 (excessive force claim). The objective test requires that "the deprivation alleged . . . be, objectively, sufficiently serious, [such that] a prison official's act or omission . . . result[ed] in the denial of the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834 (internal quotation marks and citations omitted). "[A] de minimis use of force will rarely suffice to state a constitutional claim." Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). However, if the claim includes an allegation of excessive force that is "repugnant to the conscience of mankind," then an Eighth Amendment claim may be brought, even where only de minimis injury resulted. Sims v. Artuz, 230 F.3d 14, 21-22 (2d Cir. 2000); see, e.g., Atkins v. Cnty. of Orange, 372 F. Supp. 2d 377, 398 (S.D.N.Y. 2005); see also, e.g., Benjamin, 2012 WL 5289513, at *4 (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)) ("'certain actions, including the malicious use of force to cause harm, constitute Eighth Amendment violations per se,' because '[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated'").
The subjective test "follows from the principle that 'only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). "To violate the Cruel and Unusual Punishments Clause, a prison official must have a 'sufficiently culpable state of mind.'" Id. (quoting Wilson, 501 U.S. at 297). More specifically, "[i]n prison-conditions cases that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. (quoting Wilson, 501 U.S. at 302-03).
i. Compelled Forgery Claims
Plaintiff alleges that Defendants violated his rights by forcing him to forge documents. (See 2d Am. Compl., at 4-7, 9, 15-16.) Defendants contend, inter alia, that this claim fails to state a cognizable Section 1983 claim. (See Dubois's Mem., at 15-17; Kirms's Mem., at 9-11; see also Dubois's Reply, at 6-7; Kirms's Reply, at 2-3.) Defendants are correct.
I note that some Defendants also argue that Plaintiff's failure to submit a legal memorandum in opposition to the motions for summary judgment operates as abandonment of Plaintiff's forgery-related claims. (See Kirms's Reply, at 3-4.) It is true that "Federal Courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way." Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003); see also, e.g., Mattison v. Potter, 515 F. Supp. 2d 356, 370 (W.D.N.Y. 2007) (collecting cases). I do not reach this question because it is clear that, on the merits, Plaintiff's compelled forgery claim is not cognizable.
Plaintiff's claim fails to satisfy the objective test under Farmer. Even if Plaintiff's allegations are true, requiring a prisoner to sign documents and fill out forms simply is not the sort of sufficiently serious action that would deny that prisoner a minimal civilized measure of life's necessities. Plaintiff has failed to show that his health or safety was in any way jeopardized as a direct consequence of this activity, and he does not contend that he was subjected to any adverse consequences as a result of his participation. Even assuming that Plaintiff experienced some moral outrage as a result of compelled participation in conduct he perceived to be illegal, emotional damages are insufficient to state a claim pursuant to Section 1983. See, e.g., Islam v. Goord, No. 05 Civ. 7502(RJH), 2006 WL 2819651, at *4 (S.D.N.Y. Sept. 29, 2006) ("A violation of a prisoner's federal rights under § 1983 requires an injury that involves more than mental or emotional pain."). Accordingly, I respectfully recommend that Defendants' motions for summary judgment be granted with regards to Plaintiff's compelled forgery claim.
ii. Elf Costume/Holiday Party Claims
Plaintiff alleges that Defendants violated his constitutional rights by forcing him to wear an elf costume and by verbally harassing him on the basis of his race and sexual orientation. (See 2d Am. Compl., at 5, 9, 15.) Defendants contend, inter alia, that this claims fails to state a cognizable Section 1983 claim. (See Dubois's Mem., at 25-26; Kirms's Mem., at 12-13; see also Dubois's Reply, at 6-7; Kirms's Reply, at 6-8.) Defendants are correct.
It is clear that "verbal harassment, standing alone, does not amount to a constitutional deprivation." Cole v. Fischer, 379 F. App'x 40, 43 (2d Cir. 2010); see also Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam) (same). "Absent any appreciable injury, courts routinely dismiss claims of verbal harassment brought under Section 1983." Edwards v. Horn, No. 10 Civ. 6194(RJS)(JLC), 2012 WL 760172, at *5 (S.D.N.Y. Mar. 8, 2012). Here, Plaintiff admits that he was not physically injured by this incident, (see Pl.'s 56.1 (Kirms) ¶ 80; Dep. Tr., at 141), and has offered no evidence of an "appreciable injury" apart from humiliation, Purcell, 790 F.2d at 265; see also Cole, 379 F. App'x at 43 n.1 (where plaintiff alleged that defendant made a discriminatory comment about plaintiff wearing an adult diaper, which "was not accompanied by any physical abuse, . . . [the comment] did not rise to the level of a constitutional violation"); Malik v. City of New York, No. 11 Civ. 6062(PAC)(FM), 2012 WL 3345317, at *12 (S.D.N.Y. Aug. 15, 2012) (Report & Recommendation), adopted by 2012 WL 4475156 (S.D.N.Y. Sept. 28, 2012) ("Verbal abuse, threats, and intimidation, standing alone, without injury or damage, do not amount to a constitutional deprivation."); D'Attore v. New York City, No. 10 Civ. 6646(WHP)(JCF), 2012 WL 2952853, at *6 (S.D.N.Y. July 19, 2012) (where plaintiff claimed that a defendant "directed a racial slur at him, but . . . d[id] not claim any appreciable injury flowing from the alleged mistreatment," plaintiff "failed to make out a claim"); Edwards, 2012 WL 760172, at *5 ("Because [plaintiff] does not allege any injury whatsoever, let alone one that could be considered 'appreciable,' Defendants' alleged threats, verbal harassment, or profane language do not give rise to constitutional violations and should therefore be dismissed."); c.f., e.g., Cole, 379 F. App'x at 43 (where plaintiff alleged that defendant "became physically abusive and hit plaintiff in the face while using racial epithets and referring to plaintiff's religion," the claim was cognizable under § 1983). Accordingly, I respectfully recommend that Defendants' motion for summary judgment be granted as to this claim.
To the extent Plaintiff also alleges that Defendants violated the Equal Protection Clause of the Fourteenth Amendment for the holiday party incident, (see 2d Am. Compl., at 12), I recommend that summary judgment be granted as to that claim as well. As with any Cruel and Unusual Punishment Clause claim, Plaintiff "does not claim any appreciable injury flowing from the alleged mistreatment[, and t]herefore he has failed to make out a claim for violation of equal protection." D'Attore, 2012 WL 2952853, at *6; see also, e.g., Whitcomb v. Todd, No. 04 Civ. 223 (LEK/DRH), 2008 WL 4104455, at *13 (N.D.N.Y. Sept. 3, 2008) (verbal harassment, unaccompanied by injury, is insufficient to establish a § 1983 equal protection claim); c.f., e.g., Vilkhu v. City of New York, No. 06 Civ. 2095 (CPS)(JO), 2008 WL 1991099, at *5 (E.D.N.Y. May 5, 2008) (defendant's motion for summary judgment denied where plaintiff alleged a violation of equal protection for defendants' verbal racial slurs that were accompanied by a physical assault).
iii. Physical Assault Claims
Plaintiff alleges that Smith violated his rights by physically assaulting him. Defendants deny that Plaintiff was assaulted and argue that the evidence is so inconsistent and implausible that no reasonable jury could believe his claims. (See Dubois's Mem., at 21-24; see also Dubois's Reply, at 4-6; Kirms's Reply, at 4-5.) Defendants also contend, inter alia, that summary judgment is warranted due to Plaintiff's failure to show the personal involvement of any individual defendant apart from Smith. (See id. at 26-27; Kirms's Mem., at 9-11; see also Kirms's Reply, at 4.) I agree with Defendants with respect to their personal involvement argument only.
a) Plaintiff's evidence is not wholly inconsistent such that no reasonable jury could believe his claims
It is clear that, on a motion for summary judgment, a district court "should not weigh evidence or assess the credibility of witnesses." Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citing United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994)). However, the Second Circuit recognizes that,
[I]n the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any genuine issues of material fact, without making some assessment of the plaintiff's account.Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal quotation marks and citations omitted). In Jeffreys, the plaintiff alleged in an affidavit that police officers beat him on the third floor of a school building until he was unconscious. He further alleged that when he regained consciousness, he was lying on the pavement outside the building. In his complaint, he inferred from these facts that the officers threw him out of the window. See id. at 551. However, other evidence in the record revealed that, on three separate occasions, the plaintiff confessed to medical and corrections staff that he jumped out of the window himself. See id. at 552. The record also revealed that emergency room staff who treated him after the incident found no evidence of head trauma and determined that he never lost consciousness. See id. at 552-53. Despite the factual dispute between the parties over what occurred, the district court granted the defendants' motion for summary judgment. Specifically, it concluded that no genuine issue of material fact existed because no reasonable jury could credit the factual allegations made in the complaint. See id. at 554. The Second Circuit affirmed this decision. See id. at 555.
Likewise, in Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011) (per curiam), cert. denied, 132 S. Ct. 1744 (2012), the Second Circuit affirmed the district court's decision to grant the defendant's motion for summary judgment. In that case, evidence submitted by the plaintiff in opposition to the summary judgment motion directly contradicted factual allegations made in her pleading. See Rojas, 660 F.3d at 103-06. The Second Circuit determined that the lower court did not err when, after the plaintiff failed to explain her inconsistent remarks, it granted summary judgment on the basis that no reasonable jury could credit the plaintiff's latter, inconsistent allegations. See id. at 106.
Furthermore, in Shabazz v. Pico, 994 F. Supp. 460, 469 (S.D.N.Y. 1998), a case cited by the Court of Appeals with approval, see Jeffreys, 426 F.3d at 555, the court granted the defendants' motion for summary judgment after finding that "[t]he plaintiff has changed his allegations regarding his injuries a number of times during the course of this litigation." Specifically, in his complaint, the plaintiff alleged that he suffered a serious and "protracted" physical injury. Shabazz, 994 F. Supp. at 469. At his deposition, however, he testified that he had no permanent physical injury. Id. He also testified at his deposition that his injuries included "cuts over [his] body," "bleeding," and swollen and bruised wrists. Id. However, he also sent the court a letter stating that he experienced no bleeding or bruising. Id. Finally, in his opposition to the defendants' summary judgment motion, the plaintiff stated that he received "a busted lip, head, swelling to [his] face, eye, and numbness, pain and swelling to other extremities of [his] body inter alia, with some of [his] injuries, numbness and pain lasting for at least a period of six months." Id. at 469-70. The court noted that these and other statements were so "replete with inconsistent and contradictory statements" that it was clear the plaintiff was attempting to defeat the motion by creating a material issue of fact. Id. at 470. Accordingly, the court determined that "the facts alleged [were] so contradictory that doubt [was] cast upon their plausibility," and it dismissed the claim. Id.
The Second Circuit, however, also cautioned in Jeffreys that the "rare circumstance" in which a court may grant summary judgment on the basis of the plaintiff's inconsistent testimony does not arise where "there is a plausible explanation for [such] discrepancies." Jeffreys, 426 F.3d at 555 n.2 (internal quotation omitted). It expressed this same caution again in Rojas. See Rojas, 660 F.3d at 106 (internal quotation marks and citation omitted) ("[W]e do not suggest that district courts should routinely engage in searching, skeptical analyses of parties' testimony in opposition to summary judgment. As we observed in Jeffreys, if there is a plausible explanation for discrepancies in a party's testimony, the court considering a summary judgment motion should not disregard the later testimony because an earlier account was ambiguous, confusing, or simply incomplete."). Furthermore, since Jeffreys, courts have cautioned that "the difficult burden of demonstrating that there is no evidence in the record upon which a reasonable factfinder could base a verdict in the plaintiff's favor," Jeffreys, 426 F.3d at 554, is not met "when the plaintiff's own testimony is not self-contradictory or wholly implausible on its face," D'Attore, 2012 WL 4493977, at *10; see, e.g., Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010) (finding the Jeffreys exception did not apply because the plaintiff's "testimony was not contradictory or rife with inconsistences such that it was facially implausible").
In this case, contested issues of material fact surround all of Plaintiff's physical assault contentions. Specifically, Plaintiff alleges that (1) he was punched and/or choked on more than one occasion by Smith, and (2) at least one of the assaults caused his tooth to split through his lip. The evidence that Plaintiff offers in support of these contentions consists entirely of his own, uncorroborated testimony and affidavits. Accordingly, the issue is whether Plaintiff's evidence shows the existence of a genuine issue of material fact. I conclude that his evidence is not wholly inconsistent such that a reasonable factfinder could not return a verdict in his favor.
As Defendants correctly point out, Plaintiff's deposition testimony differed in certain respects from what he alleged in his pleading (which, as discussed above, may be construed as an affidavit for purposes of this motion). For instance, at his deposition, Plaintiff could not identify the exact number of times that he was assaulted or the dates of those assaults. He also did not testify consistently with respect to the events that led up to the assaults. Nonetheless, Plaintiff's statements are not "so self-contradictory or implausible as to rule out granting them any weight whatsoever." D'Attore, 2012 WL 4493977, at *10. First, unlike the plaintiffs in Jeffreys, Rojas, and Shabazz, Plaintiff's deposition testimony did not "directly contradict[ ]" the statements made in the pleading on a material factual issue. Id. Plaintiff has consistently maintained that he was assaulted and received a split lip in retaliation for his attempt to communicate to others.
Second, a "complaint is not intended to encompass all of the evidentiary facts that may be explored in deposition." D'Attore, 2012 WL 4493977, at *11. That Plaintiff testified in his deposition about additional incidents or new details surrounding the assaults than what he previously provided in his pleading, is not wholly inconsistent. See, e.g., Latouche v. Tompkins, No. 09 Civ. 308 (NAM/RFT), 2011 WL 1103022, at *8 (N.D.N.Y. Mar. 4, 2011) (Report & Recommendation), adopted by 2011 WL 1103045 (N.D.N.Y. Mar. 23, 2011) (quoting Moore v. Casselberry, 584 F. Supp. 2d 580, 587 (W.D.N.Y. 2008)) ("while Plaintiff's testimony may be inconsistent and subject to question, 'it is not so blatantly false that the Court may simply reject it as a matter of law'").
Third, to the extent Plaintiff's statements differ as to the specific dates, times, triggering events, and the extent of the resulting injuries of the assaults, he appears to provide "plausible explanation[s]." Jeffreys, 426 F.3d at 555 n.2. Specifically, Plaintiff testified that he felt ill during his deposition and suggested that he was scared or intimidated by the presence of the individual defendants. (See Dep. Tr., at 130, 132, 137-39; Pl.'s 56.1 (Kirms) ¶ 92)); D'Attore, 2012 WL 4493977, at *10 (noting that the plaintiff's explanation for his failure to discuss the assault in statements that he made thereafter could be due to the plaintiff feeling frightened and pressured at the time).
Plaintiff also stated on the record of a February 2, 2012 conference that he did not feel safe during his deposition due to the presence of individual defendants.
Fourth, I note that it is plausible, as Plaintiff testified, that he simply forgot certain details or became confused about events that took place over three years before his deposition. (See, e.g., Dep. Tr., at 48-49, 57-58, 60, 105-06, 114-15, 118-19, 120, 122, 124, 126-41, 153); c.f., e.g., S.E.C. v. Drucker, No. 06 Civ. 1644(CM), 2007 WL 2042493, at *4-5 (S.D.N.Y. July 13, 2007) (a reasonable jury could credit the witness's "newfound certainty" about the date of an event as simply the witness's better recollection of the past event after further reflection).
Finally, to the extent Defendants argue that Plaintiff's lack of corroborating evidence regarding his injuries renders his factual allegations unbelievable, I note that "[c]ourts in this district have not required that injuries caused by the alleged excessive force be corroborated by medical records." Ninortey v. Shova, No. 05 Civ. 542(SHS), 2008 WL 4067107, at *12 (S.D.N.Y. Sept. 2, 2008). Indeed, even "the absence of visible injuries does not mean . . . that Plaintiff was not harmed. . . . or that he suffered only de minimis injuries." Id.; see also id. at *12 (citing cases). Plaintiff's testimony that he suffered a lip injury and pain is therefore not completely implausible, even in the absence of corroborating documents or witnesses.
Accordingly, I conclude that Plaintiff's case is not "the rare circumstance" where no reasonable factfinder could credit Plaintiff's version of events. Because genuine issues of material fact exist regarding Plaintiff's assault allegations, I respectfully recommend that Defendants' motion for summary judgment on this basis be denied.
b) Plaintiff fails to allege the personal involvement of any individual defendant apart from Smith
Plaintiff clearly alleges that Smith "participated directly" in the assaults. However, Plaintiff has failed to establish the personal involvement of any other individual defendant. Colon, 58 F.3d at 873. It is clear that Plaintiff does not present any evidence to show that any individual defendant either: "participated directly" in the assaults; received a report or an appeal about the assaults and "failed to remedy the wrong;" "created a policy or custom" that permitted the assaults to occur; or was "grossly negligent in supervising" Smith. Id.
Plaintiff also fails to satisfy the fifth Colon category, which provides that personal involvement may be shown where an individual defendant "exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring." Id. Plaintiff states that Kirms and Cox witnessed the assaults. (See 2d Am. Compl., at 7; Dep. Tr., at 79, 109-10.) It is true that courts within this Circuit have held that, where an individual witnessed an assault by another corrections officer but did not act to stop or otherwise prevent it, the individual may be personally involved in the constitutional deprivation. See, e.g., Latouche, 2011 WL 1103022, at *11 (where a genuine issue of fact existed as to whether the individual defendants "stood by as the other officers were beating Plaintiff, then a jury may find that [the defendants] were personally involved in the alleged constitutional violation because they exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring"); c.f., e.g., Orraca v. C.O.R. Pilatich, No. 05 Civ. 1305, 2008 WL 4443274, at *5 (N.D.N.Y. Sept. 26, 2008) (the plaintiff's conclusory statement that an individual defendant "knew" that the plaintiff would be assaulted, without further details evidencing the defendant's personal knowledge, is insufficient to demonstrate personal involvement under § 1983); id. at *7 (suggesting that personal involvement would be established with evidence that the individual defendant "knew in advance that the assault would happen, participated in that assault, witnessed that assault, or in any way failed to stop the assault"); Durran v. Selsky, 251 F. Supp. 2d 1208, 1213 (W.D.N.Y. 2003) (where the plaintiff provided no evidence that an individual defendant actually witnessed the assault, the plaintiff failed to show the personal involvement of that defendant).
However, this "affirmative duty to intercede," Durran, 251 F. Supp. 2d at 1213, does not extend to individuals who are "not supervisors" of the assaulting officer, or who otherwise "lack[ ] the authority to remedy or [to] 'take action with respect to [the] constitutional violation,'" Kregler v. City of New York, 770 F. Supp. 2d 602, 608 (S.D.N.Y. 2011) (quoting Koulkina v. City of New York, 559 F. Supp. 2d 300, 317 (S.D.N.Y. 2008)); see also O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988) (emphasis added) (collecting cases and stating that "[a] law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers"); Durran, 251 F. Supp. 2d at 1213 (emphasis added) (noting only that "[i]t is true that a correctional officer has an affirmative duty to intercede on behalf of an inmate if the officer witnesses another officer assault the inmate in violation of the inmate's Eighth Amendment rights"). Here, Kirms and Cox are neither law enforcement officers nor Smith's supervisors; they are teachers. Plaintiff submits no evidence from which a reasonable inference may be drawn that, as teachers, either Kirms or Cox had the authority to intercede in a physical altercation that they witnessed at OCCF, or were otherwise required to take some sort of action. See, e.g., Kregler, 770 F. Supp. 2d at 605, 609 n.4 (assistant commissioner and investigator of city's department of investigation were not the type of law enforcement officers who had an affirmative duty to intercede to stop a constitutional violation); see also, e.g., Laureano v. Pataki, No. 99 Civ. 10667(LAP), 2000 WL 1458807, at *4 (S.D.N.Y. Sept. 29, 2000) (plaintiff's conclusory statement that defendants either observed or otherwise were informed of the issue lacked personal knowledge and was therefore not evidence of personal involvement).
Accordingly, because Plaintiff has provided sufficient evidence of the personal involvement of Smith only, I respectfully recommend that all other Defendants be granted summary judgment with respect to this claim.
As noted above, Defendants have not sought summary judgment for Smith on this basis.
iv. Deprivation of Medical Treatment Claim
Plaintiff alleges that Defendants violated his constitutional rights by denying him medical treatment. (See 2d Am. Compl., at 8, 15.) Defendants do not specifically address this claim. However, as discussed above, Defendants deny assaulting Plaintiff and argue that his testimony is so inconsistent that no reasonable jury could believe that he was even injured. (See Dubois's Mem., at 21-24.) Defendants also contend that summary judgment is warranted due to Plaintiff's failure to show the personal involvement of any individual defendant apart from Smith. (See id. at 26-27; Kirms's Mem., at 9-11.) Upon review of the evidence, I recommend that all Defendants be granted summary judgment with respect to this claim.
"[T]o establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove 'deliberate indifference to [his] serious medical needs.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The "serious medical need" component is an objective element, and requires that "the alleged deprivation . . . be sufficiently serious, 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) (internal quotation marks and citation omitted). "Factors that have been considered include 'the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)).
The "deliberate indifference" component is a subjective element, and requires the defendant to have acted with "a sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citing Wilson, 501 U.S. at 300). This may be shown where the defendant "act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result." Id. (citing Farmer, 511 U.S. at 836-37). The plaintiff must therefore show that the defendant "knows of and disregards an excessive risk to inmate health or safety," that is, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Hathaway, 99 F.3d at 66; see also, e.g., Jones v. Lindblad, No. 05 Civ. 814S, 2009 WL 804155, at *6 (W.D.N.Y. Mar. 25, 2009) (citing Estelle, 429 U.S. at 104) ("[d]enying . . . access to medical care . . . may constitute deliberate indifference").
Here, Plaintiff fails to satisfy the objective prong. He contends that, as a result of an assault by Smith, he received a split lip, which bled and became swollen. (See 2d Am. Compl., at 4, 8; Dep. Tr., at 78-79, 104-08.) Although he stated in his pleading that this wound "needed stitches," (2d Am. Compl., at 4), he does not contend that it ever became infected or that he suffered any ongoing problems or injuries as a result of it, (see Dep. Tr., at 88-89, 140.) Moreover, at his deposition Plaintiff admitted that his lip swelled only "a little," and that the injury "wasn't big." (Id. at 104; see also id. at 108.) He also stated that the lip healed "a few weeks" after the incident. (Id. at 107.) Plaintiff also testified that as a result of a second assault by Smith, he "felt some discomfort" and did not know if he was even injured. (Id. at 125-26.)
Numerous courts in this Circuit addressing similar injuries have determined they do not constitute "serious medical condition[s]" in the context of a deliberate indifference to medical needs claim. See, e.g., Johnson v. Brown, No. 09 Civ. 2 (GTS/DEP), 2010 WL 6243352, at *15 (N.D.N.Y. Sept. 3, 2010) (Report & Recommendation), adopted by 2011 WL 1097864 (N.D.N.Y. Mar. 22, 2011) ("a busted lip, a dime-sized bruise, and general complaints of pain" did not constitute serious medical condition); Finley v. Perry, No. 06 Civ. 1524 (FJS/ATB), 2010 WL 6427496, at *2, 11 (N.D.N.Y. July 13, 2010) (Report & Recommendation), adopted by 2011 WL 1302248 (N.D.N.Y. Mar. 31, 2011) ("busted" and bleeding lip, swollen face, and bruised back did not constitute serious medical condition); Brown v. Outhouse, No. 07 Civ. 1169 (GLS/GHL), 2010 WL 3862082, at *10 (N.D.N.Y. July 9, 2010) (Report & Recommendation), adopted by 2010 WL 3862080 (N.D.N.Y. Sept. 27, 2010) ("busted" lip, cuts and scratches, and minimal swelling did not constitute serious medical condition); Porter v. Goord, No. 04 Civ. 485F, 2009 WL 2180580, at *12 (W.D.N.Y. July 22, 2009) (small bump on head and lacerations to lip and back that did not require sutures did not constitute serious medical condition); Jones, 2009 WL 804155, at *7 (swollen area behind ear and on top of head, cut inside lower lip, swollen knee and ankle with full ranges of motion, and bruise on shoulder without swelling and with full range of motion, did not constitute serious medical condition); Ford v. Phillips, No. 05 Civ. 6646(NRB), 2007 WL 946703, at *12 (S.D.N.Y. Mar. 27, 2007) (citing Estelle, 429 U.S. at 102) (minor bruises, slight bleeding, abrasions, and scratches, without degeneration or extreme pain, did not constitute serious medical condition); Ruffino v. Gomez, No. 05 Civ. 1209 (JCH), 2006 WL 3248570, at *7-8 (D. Conn. Nov. 8, 2006) (bruises, scrapes, scratches, and momentary difficulty seeing and breathing, where prisoner failed to present evidence of pain or other long-lasting effects, and where prisoner stated he was not seriously injured, did not constitute serious medical condition); Goldston v. Albany Cnty. Sheriff Dep't, No. 02 Civ. 1004, 2006 WL 2595194, at *7 (N.D.N.Y. Sept. 11, 2006) (where injuries did not also result in loss of consciousness and headaches, stitches, or blood in urine, the "lumps, bumps, bruises, scratches, minor cuts and temporary pains . . . are not, when considered either alone or together, sufficiently serious for constitutional purposes"); Benitez v. Straley, No. 01 Civ. 181(RCC)(RLE), 2006 WL 5400078, at *3, 4, 12 (S.D.N.Y. Feb. 16, 2006) (cuts on lips, head, and hands that did not require stitches did not constitute serious medical condition); Hickey v. City of New York, No. 01 Civ. 6506(GEL), 2004 WL 2724079, at *16 (S.D.N.Y. Nov. 29, 2004) (cuts and bruises did not constitute serious medical condition); Rodriguez y. Mercado, No. 00 Civ. 8588 JSRFM, 2002 WL 1997885, at *3, 8 (S.D.N.Y. Aug. 28, 2002) (bruises to head, back, and wrists with back pain and migraines did not constitute serious medical condition); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (cut on finger where skin is "ripped off did not constitute serious medical condition); Montavon v. Town of Southington, No. 95 Civ. 1141 (WWE), 1997 WL 835053, at *4 (D. Conn. Sept. 29, 1997) (cuts and scrapes unaccompanied by profuse bleeding or other conditions did not constitute serious medical condition). Accordingly, because Plaintiff cannot satisfy the objective prong, I respectfully recommend that Defendants be granted summary judgment with respect to Plaintiff's medical needs claim.
b. First Amendment Claims
Plaintiff's pleading may be read to assert several retaliation and stand-alone First Amendment claims. Plaintiff specifically alleges that: (1) his outgoing, non-legal mail was interfered with; (2) his access to OCCF's grievance procedures was interfered with; (3) Defendants interfered with his outgoing, non-legal mail and access to OCCF's grievance procedures in retaliation for his attempts to communicate to others; and (4) Defendants physically assaulted him in retaliation for his attempts to communicate to others.
To state a prima facie claim for retaliation under the First Amendment, a plaintiff must allege facts showing "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action."Burton v. Lynch, 664 F. Supp. 2d 349, 366 (S.D.N.Y. 2009) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004).
As a general interpretive matter, "the Second Circuit has admonished district courts to approach prisoner retaliation claims with skepticism and particular care, because virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as
a constitutionally proscribed retaliatory act."Burton, 664 F. Supp. 2d at 366 (quoting Bumpus v. Canfield, 495 F. Supp. 2d 316, 325 (W.D.N.Y. 2007)).
Under the first prong, protected activity includes the filing of grievances, see Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)), as well as sending and receiving mail, see Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006) (per curiam). Under the second prong, "the Second Circuit has held that in the prison context, '[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.'" Burton, 664 F. Supp. 2d at 366-67 (quoting Dawes, 239 F.3d at 493). Conduct that is "simply de minimis" however, is "outside the ambit of constitutional protection." Dawes, 239 F.3d at 492-93. Under the third prong, a causal connection between the protected activity and the adverse action requires proof that the conduct was at least a "substantial or motivating factor" in the official's decision to take the adverse action against the prisoner. Burton, 664 F. Supp. 2d at 367 (internal quotation marks and citation omitted). A court may consider a number of factors in determining this prong, including "'(i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his motivation.'" Id. (quoting Baskerville v. Blot, 224 F. Supp. 2d 723, 732-33 (S.D.N.Y. 2002)). If the plaintiff sufficiently established each prong, a defendant may establish an affirmative defense by showing, "by a preponderance of the evidence[,] that [he] would have disciplined the plaintiff 'even in the absence of the protected conduct" . . . [for] proper reasons alone." Graham, 89 F.3d at 79 (quoting Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994)).
i. Interference with Mail
a) Plaintiff establishes a triable retaliation claim against Smith only for interference with his mail
Plaintiff has established a triable retaliation claim with respect to his mail interference allegation. Plaintiff alleges that his outgoing mail was interfered with in retaliation for his attempt to complain about the incidents at OCCF. This constitutes a protected activity. See Johnson, 445 F.3d at 534. Plaintiff has testified that the letter was disposed of by Smith, that Smith threatened him with further retaliation if he attempted to write another letter, and that Smith physically assaulted him. Although Plaintiff admits that he does not have direct evidence of who removed the letter from the outgoing mailbox, (see Dep. Tr., at 74-77), he testified at his deposition that he later saw the letter on Smith's desk and that Smith confronted him about it, (id. at 77-78). A reasonable inference may be drawn from this circumstantial evidence that Smith was personally involved in this episode and directly participated by interfering with the letter's posting. See Colon, 58 F.3d at 873. Further, as discussed above, it is objectively reasonable that Smith's conduct would deter a similarly situated prisoner of ordinary firmness from attempting to communicate by writing another letter. See Burton, 664 F. Supp. 2d at 366-67; see also, e.g., Cole v. N.Y. Dep't of Corr. Servs., No. 10 Civ. 1098 (NAM/TWD), 2012 WL 4491825, at *13 (N.D.N.Y. Aug. 31, 2012) (Report & Recommendation), adopted by 2012 WL 4506010 (N.D.N.Y. Sept. 28, 2012) ("An assault by corrections officers is sufficient to 'chill a person of ordinary firmness from continuing to engage in his First Amendment activity.'"); c.f., e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317, 347 (N.D.N.Y. 2010) (collecting cases and noting that mail tampering claims do not constitute adverse action where a similarly situated prisoner of ordinary firmness would not be deterred from engaging in the protected activity). Finally, Plaintiff clearly demonstrates a causal connection between the adverse action and his protected activity. See Burton, 664 F. Supp, 2d at 367.
Although courts have upheld restrictions on this right where a "legitimate penological interest[ ]" is shown, Defendants here do not assert any reason for the alleged interference. Johnson, 445 F.3d at 534 (citing Davis, 320 F.3d at 351). Rather, they deny that it occurred at all.
It is clear that Plaintiff fails to show that any other individual defendant was personally involved. See Colon, 58 F.3d at 873.
b) Any stand-alone First Amendment claim with respect to interference with Plaintiff's non-legal mail fails
To the extent that Petitioner asserts a stand-alone First Amendment claim for interference with his mail, such a claim is not cognizable under Section 1983. It is true that "[b]oth legal and non-legal mail are protected by the First Amendment's 'right to the free flow of incoming and outgoing mail.'" Edwards, 2012 WL 760172, at *7 (quoting Davis, 320 F.3d at 351); see also, e.g., id. (quoting Cancel v. Goord, No. 00 Civ. 2042 LMM, 2001 WL 303713, at *5 (S.D.N.Y. Mar. 29, 2001)) ("'[A] prison official's interference with an inmate's mail may violate his First Amendment right to free speech, which includes the right to be free from unjustified governmental interference with communication.'"). Non-legal mail is, however, "afforded less protection than legal mail," and it is clear that "an isolated failure to mail an inmate's [non-legal] letter does not state a constitutional violation." Id. (citing Davis, 320 F.3d at 351). This is true even where the prison official's interference was intentional. Id.; see also, e.g., Battice v. Phillip, No. 04 Civ. 669 (FB)(LB), 2006 WL 2190565, at *6 (E.D.N.Y. Aug. 2, 2006) (quoting Dawes, 239 F.3d at 493) ("Even if intentional, this isolated incident is 'simply de minimis and therefore outside the ambit of constitutional protection.'"); see also Green v. Niles, No. 11 Civ. 1349(PAE), 2012 WL 987473, at *2 n.6 (S.D.N.Y. Mar. 23, 2012) (even if pleading were construed to raise a stand-alone First Amendment claim, claim was not cognizable where two pieces of outgoing, non-legal mail were intentionally interfered with).
Accordingly, I respectfully recommend that Defendants' motions for summary judgment be granted with regard to any such stand-alone claim.
ii. Interference with Grievance Procedures
a) Plaintiff establishes a triable retaliation claim against Smith only for interference with grievance procedures
Plaintiff also establishes a triable retaliation claim with respect to his attempt to file a grievance form. The Second Circuit has held that the filing of a prison grievance is protected activity insomuch as that "retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983." Graham, 89 F.3d at 80 (citing Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)); see also, e.g., Roseboro, 791 F. Supp. 2d at 367 (quoting Mateo v. Fischer, 682 F. Supp. 2d 423, 433 (S.D.N.Y. 2010)) ("'It is well settled that the filing of a prison grievance is protected activity.'"); id. at 367 n.21 (collecting cases); McCloud v. Kane, 491 F. Supp. 2d 312, 317 (E.D.N.Y. 2007) ("The Second Circuit has held that retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances and is actionable under Section 1983."); Salahuddin v. Mead, No. 95 Civ. 8581(MBM), 2002 WL 1968329, at *3 (S.D.N.Y. Aug. 26, 2002) ("Because filing a grievance is constitutionally protected, retaliation against prisoners who file grievances is actionable under § 1983."). Plaintiff then offers his own testimonial evidence that Smith spoke to him about the grievance, threatened him with further retaliation if he attempted to file another one, and physically assaulted him. As discussed above, it is objectively reasonable that Smith's conduct would deter a similarly situated prisoner of ordinary firmness from attempting to file another grievance. See Burton, 664 F. Supp. 2d at 366-67. Finally, Plaintiff clearly demonstrates a causal connection between the adverse action and his protected activity. See id. at 367.
It is clear that Plaintiff fails to show that any individual defendant other than Smith was personally involved. See Colon, 58 F.3d at 873.
b) Any stand-alone First Amendment claim with respect to interference with Plaintiff's access to grievance procedures fails
To the extent Plaintiff alleges a stand-alone claim involving interference with his access to OCCF's grievance procedures, such a claim is not cognizable under Section 1983. See, e.g., Mimms v. Carr, No. 09 Civ. 5740 (NGG)(LB), 2011 WL 2360059, at *10 (E.D.N.Y. June 9, 2011) (collecting cases and noting "[i]t is well-established that prison grievance procedures do not create a due-process-protected liberty interest"); id. (collecting cases and finding "the First Amendment rights to petition the government and access the courts are not infringed where prison officials deny inmates access to grievance procedures"). It is true that "[t]he First Amendment protects a prisoner's right to meaningful access to the courts and to petition the government for the redress of grievances." Harris v. Westchester Cnty. Dep't of Corr., No. 06 Civ. 2011(RJS), 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008). "However, 'inmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures [do] not give rise to a cognizable § 1983 claim.'" Id. (quoting Shell v. Brzezniak, 365 F. Supp. 2d 362, 369-70 (W.D.N.Y. 2005)); see also, e.g., Cancel, 2001 WL 303713, at *3 (internal citations omitted) ("While there is a First Amendment right of meaningful access to the courts and a right to petition the government for redress, inmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give rise to a claim under § 1983. When an inmate sets forth a constitutional claim in a grievance to prison officials and the grievance is ignored, the inmate has the right to directly petition the government for redress of that claim. Therefore, the refusal to process an inmate's grievance or failure to see to it that grievances are properly processed does not create a claim under § 1983").
Accordingly, I respectfully recommend that Defendants' motions for summary judgment be granted with regard to any such stand-alone claim.
2. Exhaustion of Administrative Remedies
Having concluded that Plaintiff states actionable § 1983 claims for physical assaults and for retaliation against Defendant Smith only, I now consider Defendants' argument that Plaintiff failed to exhaust those claims as is required under the PLRA. Plaintiff does not deny that he did not exhaust his claims in accordance with OCCF's policies and procedures. However, Plaintiff alleges that Defendants prevented him from filing grievances and communicating with others about the incidents by assaulting him, threatening him, and interfering with his attempts to grieve and communicate. Liberally construed, Plaintiff argues that his failure to exhaust should be excused.
As noted above, PLRA exhaustion is not jurisdictional, and district courts are free to weed out meritless claims before addressing exhaustion. See Woodford v. Ngo, 548 U.S. at 85.
a. Failure to exhaust may be excused where prison grievance procedures are rendered unavailable
The Second Circuit requires the court to "ask whether administrative remedies were in fact 'available' to the prisoner." Hemphill, 380 F.3d at 686 (citing Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004)); see also Abney, 380 F.3d at 667 (internal quotation marks and citation omitted) ("The PLRA does not require the exhaustion of all administrative remedies, but only those that are available to the inmate."). "To be 'available' under the PLRA, a remedy must afford 'the possibility of some relief for the action complained of.'" Abney, 380 F.3d at 667 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). Such a possibility will exist if "the prison provided grievance procedures that inmates . . . could utilize." Hemphill, 380 F.3d at 686.
The Court of Appeals has recognized that, in some cases, threats made by prison staff against a prisoner may render "some procedures that would ordinarily be available . . . effectively unavailable." Id. at 687. "The test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would 'a similarly situated individual of ordinary firmness' have deemed them available.'" Id. at 688 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Moreover,
[T]hreats or other intimidation by prison officials may well deter a prisoner of 'ordinary firmness' from filing an internal grievance, but not from appealing directly to individuals in positions of greater authority within the prison system, or to external structures of authority such as state or federal courts. This may be so, if for no other reason, because seeking a criminal investigation or filing a civil rights complaint may enable an inmate to draw outside attention to his complaints, thereby neutralizing threatened retaliatory conduct from prison employees.
Id.
b. There is a factual dispute concerning whether OCCF's grievance procedures were unavailable to Plaintiff because he was threatened and physically assaulted
Here, Plaintiff claims Smith threatened and physically assaulted him after he objected to forging documents and requested a grievance form. (See 2d Am. Compl., at 6.) Plaintiff further claims that, after he attempted to seek external help by writing to his aunt, Smith confronted Plaintiff with his letter, threatened to kill him if he wrote another letter, and punched him in the mouth. (See id. at 7; Dep. Tr., at 71-77.) Plaintiff also claims that Smith assaulted him in retaliation for his earlier attempt to file a written grievance some time after New Year's 2009. (See Dep. Tr., at 121-24, 134-36.) Smith denies these allegations.
A factfinder crediting Plaintiff's testimony could determine that a prisoner of ordinary firmness would conclude that OCCF's grievance procedures were not available in these circumstances. See, e.g., Lunney v. Brureton, No. 04 Civ. 2438(LAK)(GWG), 2007 WL 1544629, at *8-10 (S.D.N.Y. May 29, 2007) (grievance procedure potentially unavailable where prisoner was assaulted and threatened if he filed a grievance); Hepworth v. Suffolk Cnty., No. 02 Civ. 6473 ENV/ETB, 2006 WL 2844408, at *6 (E.D.N.Y. Sept. 29, 2006) (grievance procedure potentially unavailable where prisoner was assaulted in retaliation for testifying against corrections officers and threatened with further harm if he reported the assault); Larry v. Byno, No. 01 Civ. 1574, 2006 WL 1313344, at *1-4 (N.D.N.Y. May 11, 2006) (grievance procedure potentially unavailable where prisoner was assaulted after filing a complaint and threatened with death if he filed a further complaint); McCullough v. Burroughs, No. 04 Civ. 3216 FB LB, 2005 WL 3164248, at *1-2, *4 (E.D.N.Y. Nov. 29, 2005) (grievance procedure potentially unavailable where prisoner was assaulted by officer in retaliation for filing a grievance). Further, the alleged assaults and retaliation explain Plaintiff's reluctance to seek help from individuals external to OCCF's normal grievance procedures. See, e.g., Hepworth, 2006 WL 2844408, at *6. Accordingly, if Plaintiff's allegations are credited, then I respectfully recommend that his failure to grieve his assault and retaliation claims be excused because OCCF's grievance procedures were effectively unavailable to him.
c. The factual dispute regarding Plaintiff's exhaustion excuse must be resolved at trial
The Second Circuit recently held that factual disputes regarding exhaustion under the PLRA should ordinarily be resolved by the court as a "precondition" to trial. Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011) (per curiam). In Messa, the Court rejected a plaintiff's argument that the Seventh Amendment right to a trial by jury extends to disputed facts regarding exhaustion. The Court observed that:
Matters of judicial administration often require district judges to decide factual disputes that are not bound up with the merits of the underlying dispute. In such cases, the Seventh Amendment is not violated. Here, the factual disputes relating to exhaustion are not intertwined with the merits of [the plaintiff]'s underlying excessive force claim.Messa, 652 F.3d at 309 (internal citations omitted) (emphasis added). The Court of Appeals endorsed the trial court's decision to resolve factual disputes regarding the plaintiff's exhaustion excuses by way of a pre-trial, non-jury, evidentiary hearing. Id. at 310.
In this case, however, the exhaustion-related factual disputes are not amenable to pre-trial resolution because the facts pertaining to Plaintiff's exhaustion excuses are intertwined with the merits of his underlying claims. Indeed, for the Court to make a determination as to whether Plaintiff's failure to exhaust should be excused, the Court would necessarily have to determine whether Plaintiff was assaulted and whether he faced retaliation when he sought to file a grievance or write a complaining letter to his aunt. If the court resolved these issues in Plaintiff's favor, the jury would then have to decide these same issues again at trial in order to determine liability. As the above-quoted passage from Messa implies, in these circumstances the factual disputes concerning exhaustion must be resolved by the jury at trial. See Alliance for Envtl. Renewal v. Pyramid Crossgates Co., 436 F.3d 82, 88 (2d Cir. 2006) ("If . . . the overlap in the evidence is such that fact-finding on the jurisdictional issue will adjudicate factual issues required by the Seventh Amendment to be resolved by a jury, then the Court must leave the jurisdictional issue for the trial."); see also Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 170 n.14 (2d Cir. 2001). overruled in part on other grounds by Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011)) (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n.21 (5th Cir. 1998)) (emphasis in original) ("The existence of common factual issues is to be distinguished from the existence of overlapping evidence. For purposes of the Seventh Amendment, the question is whether factual issues overlap, thus requiring one trier-of-fact to decide a disputed issue that must be decided by a subsequent jury, not whether the two fact-finders will merely have to consider similar evidence in deciding distinct issues.").
Accordingly, I respectfully recommend that the Court proceed to trial on Plaintiff's surviving claims, and require the jury to make factual determinations regarding Plaintiff's exhaustion excuses.
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that summary judgment be GRANTED with respect to all claims against COX, KIRMS, NEIGER, DUBOIS, ORSINO, and RUSNECK. I also recommend that summary judgment be GRANTED to SMITH with respect to Plaintiff's document forgery claim, Plaintiff's elf costume/holiday party claim, Plaintiff's medical treatment deprivation claim, Plaintiff's mail interference claim, and Plaintiff's grievance interference claim. However, I recommend that summary judgment be DENIED to Smith with respect to Plaintiff's physical assault and retaliation claims. Dated: February 20, 2013
White Plains, New York
/s/_________
Paul E. Davison
United States Magistrate Judge
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days, plus an additional three (3) days, or a total of seventeen (17) days, from service of this Report and Recommendation to serve and file written objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections, if any, along with any responses to the objections, shall be filed with the Clerk of the Court with extra copies delivered to the chambers of the Honoraable Cathy Seibel, at the Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Seibel. A copy of the foregoing Report and Recommendation has been sent to the following:
The Honorable Cathy Seibel
The Honorable Charles L. Brieant, Jr. Federal Building and United States Courthouse
300 Quarropas Street
White Plains, New York 10601
Keith Allen Rickett, pro se
09-A-2663
Fishkill Correctional Facility
271 Matteawan Road
P.O. Box 1245
Beacon, New York 12508
David L. Darwin, Esq.
County Attorney for Orange County
15 Matthews Street, Suite 305
Goshen, New York 10924
Adam Lawrence Rodd, Esq.
Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC
555 Hudson Valley Avenue
Suite 100
New Windsor, New York 12553
Id.
The Second Circuit has also recently noted its skepticism with regard to whether all five categories survive Iqbal, but has declined to so far address the issue. Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012). Several district courts have determined that, in light of Iqbal, only the first and third Colon categories can remain. See Alli v. City of New York, No. 11 Civ. 7665(BSJ)(MHD), 2012 WL 4887745, at *5 (S.D.N.Y. Oct. 12, 2012) (Report & Recommendation) (collecting cases). Other courts, however, have distinguished Iqbal and opined that it applies only to intent-based claims. See id. at *6 (collecting cases); see id. (quoting Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009)) ("'[I]t was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution.' Thus . . . where the claim does not requires showing of discriminatory intent, the personal-involvement analysis set forth in Colon should still apply."). In any event, Colon has not yet been overturned and is therefore still binding on this Court. Nonetheless, even if all five of its categories still remain, as discussed below, Plaintiff still fails to allege the personal involvement of anyone but Smith.