Opinion
9:19-cv-00689-AMN-TWD
02-27-2023
RASHAD SALAAM, Plaintiff, v. GORDON STOCK and TRAVIS M. ZEHR, Defendants.
RASHAD SALAAM Plaintiff, pro se Clinton Correctional Facility LETITIA JAMES STEVE NGUYEN, ESQ. Attorney General of the State of New York Assistant Attorney General Attorney for Defendants The Capitol
RASHAD SALAAM Plaintiff, pro se Clinton Correctional Facility
LETITIA JAMES STEVE NGUYEN, ESQ. Attorney General of the State of New York Assistant Attorney General Attorney for Defendants The Capitol
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Anne M Nardacci, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). On May 30, 2019, pro se Plaintiff Rashad Salaam (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this action pursuant to 42 U.S.C. § 1983 (“Section 1983”). (Dkt. No. 1.) Plaintiff's fourth amended complaint was accepted for filing on August 11, 2021, and alleged Fourteenth Amendment equal protection and Eighth Amendment failure to protect claims against Correction Officer (“CO”) Gordon Stock and CO Travis M. Zehr. (Dkt. No. 83.)
Currently before the Court is Defendants' motion for summary judgment. (Dkt. No. 108.) For the reasons set forth below, the Court recommends Defendants' motion be granted in part and denied in part.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if “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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment motions, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys, 426 F.3d at 554 (emphasis in original). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment”).
III. DEFICIENCIES IN PLAINTIFF'S OPPOSITION SUBMISSION
While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen, 351 F.3d at 50. In opposing Defendants' motion for summary judgment, Plaintiff failed to respond to the statement of material facts filed by Defendants in the manner required under Local Rule 56.1(b). (See Dkt. No. 110.) “This requirement is not a mere formality; rather ‘this and other local rules governing summary judgment are essential tools intended to relieve the district court of the onerous task of hunting through voluminous records without guidance from the parties.'” Cao-Bossa v. New York State Dep't of Lab., No. 1:18-CV-0509 (GTS/TWD), 2021 WL 3674745, at *1 (N.D.N.Y. Aug. 19, 2021).
Local Rule 56.1(b) requires the opposing party to file a Response to the movant's Statement of Material Facts. Under the rule, the Response “shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” L.R. 56.1(b).
Nevertheless, the Second Circuit has ruled that “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules,” including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to “conduct an assiduous review of the record.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted).
In deference to Plaintiff's pro se status, the Court has reviewed the entire record. See Parker v. Fantasia, 425 F.Supp.3d 171, 176 n.2 (S.D.N.Y. 2019) (noting that special solicitude afforded to pro se litigants suggests that courts should review the record when pro se plaintiff fails to appropriately respond to defendants' properly supported statement of material facts).
IV. BACKGROUND
Plaintiff's claims stem from two specific incidents: the first on July 22, 2017, and the second on July 25, 2017. Plaintiff alleges on July 22, 2017, CO Stock was overlooking the gallery as he opened the cells for breakfast around 7:30AM and during that time, another inmate, Jason Williams (“Williams”), was able to enter Plaintiff's cell and sexually assault him. (Dkt. No. 83 at 3; Dkt. No. 108-4 at 22-23, 25; Dkt. No. 110 at 2-3.) The incident lasted around 3 minutes. (Dkt. No. 108-4 at 25.) Williams threatened to kill Plaintiff if he told anyone about the attack. (Dkt. No. 108-4 at 25-27.) Plaintiff alleges he would not have been assaulted if CO Stock would have made his rounds on time or pulled a pin during the attack. (Dkt. No. 83 at 1.)
Plaintiff alleges CO Stock knew he was at serious risk of harm due to his background. Plaintiff was sexually assaulted at other facilities and previously identified as transgender. (Dkt. No. 83 at 2-3; Dkt. No. 108-4 at 48.) This information had supposedly spread throughout his block and the prison. (Dkt. No. 83 at 2-3; Dkt. No. 108-4 at 48.) As a result, other inmates loudly taunted him, but the COs did nothing about it. Id. Plaintiff claims CO Stock would overhear the inmates in other tiers harassing him and would then walk past Plaintiff's cell grinning at him “in a childlike manner” while he continued his rounds. (Dkt. No. 83 at 2-3.)
On July 25, 2017, CO Zehr was opening cells for the inmates after recreation at or around 10PM. (Dkt. No. 83 at 3-4; Dkt. No. 108-4 at 36.) The same inmate who assaulted Plaintiff three days prior, Williams, came up behind Plaintiff and cut his face with a razor. (Dkt. No. 108 4 at 35.) Plaintiff went back into his cell, but Williams followed him and cut Plaintiff's right arm before returning to his own cell. (Dkt. No. 108-4 at 35, 39-40.) The incident lasted about a minute and a half. (Dkt. No. 108-4 at 38.) CO Zehr allegedly stood at the end of the gallery watching as this occurred. (Dkt. No. 83 at 3-4.) According to Plaintiff, CO Zehr did not pull a pin or give attention to the situation. Id. Plaintiff also claims CO Zehr walked by his cell “smiling in a childish way” four to five minutes after the incident while Plaintiff was bleeding from his arm and face. (Dkt. No. 108-4 at 35-36, 40.) Plaintiff alleges he had to call CO Zehr back and ask him to go to the infirmary. (Dkt. No. 108-4 at 35-36.) CO Zehr allegedly told Plaintiff to wait, did his rounds, and then sent Plaintiff to the infirmary. (Dkt. No. 108-4 at 36.) Plaintiff still has scars on his face and arm from the incident. (Dkt. No. 108-4 at 46.)
Plaintiff claims as a result of the attacks on July 22 and July 25, 2017, other inmates have “tried” him in the shower and while using the phone; spit in his food at every meal; took his commissary and packages; and extorted his mother for money-resulting in the police being called. (Dkt. No. 83 at 4.)
The Court interprets “tried” to mean other inmates attempted to assault or start an altercation with Plaintiff.
V. DISCUSSION
Plaintiff claims COs Stock and Zehr failed to protect him from the July 22, 2017, and July 25, 2017, incidents, violating his Eighth Amendment rights. (Dkt. No. 83 at 1-4.) Plaintiff also claims COs Stock and Zehr treated him differently because he previously identified as transgender and because he murdered someone related to a CO, violating his Fourteenth Amendment equal protection rights. (Dkt. No. 83 at 3.) Defendants assert Plaintiff's claims fail as a matter of law because (1) COs Stock and Zehr were unaware of Plaintiff's risk of harm at the time of the two incidents; (2) Plaintiff was not a member of a protected class or treated differently from others similarly situated; and (3) Defendants' actions were not discriminatory. (Dkt. 108-5 at 7-14.) In the alternative, Defendants claim they are entitled to qualified immunity. (Dkt. 108-5 at 15.)
A. Fourteenth Amendment Equal Protection Claim
The Equal Protection Clause provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The Equal Protection Clause “bars the government from selective adverse treatment of individuals compared with other similarly situated individuals if ‘such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.'” Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (quoting LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980)). Governmental action may also violate the Equal Protection Clause where the defendants intentionally treat the plaintiff “differently from others with no rational basis for the difference in treatment.” Id. (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Thus, a plaintiff asserting an equal protection claim must allege facts plausibly suggesting that (1) he was treated differently from similarly situated individuals; and (2) the defendants treated him differently due to his membership in a suspect class, inhibited his exercise of a fundamental right, acted out of malice, or acted irrationally and arbitrarily.
When a suspect classification is not at issue, the Equal Protection Clause still requires that individuals be treated the same as “similarly situated” individuals. Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir. 2012). Thus, a plaintiff may bring a “class of one” equal protection claim “where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Vill. of Willowbrook, 528 U.S. at 564. In the Second Circuit, class of one plaintiffs “must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” Clubside v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (citation omitted). A high level of similarity between the plaintiff and comparators provides “an inference that the plaintiff was intentionally singled out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an improper purpose-whether personal or otherwise-is all but certain.” See Witt v. Vill. of Mamaroneck, No. 12-CV-8778 (ER), 2015 WL 1427206, at *5 (S.D.N.Y. Mar. 27, 2015), cffd, 639 Fed.Appx. 44 (2d Cir. 2016).
To summarize, to state a class of one claim, a plaintiff must allege (1) that he was intentionally treated differently from other similarly situated individuals; and (2) that the disparate treatment was either (a) “irrational and wholly arbitrary” or (b) motivated by animus. Assoko v. City of New York, 539 F.Supp.2d 728, 735 (S.D.N.Y. 2008).
1. Suspect Class
Plaintiff claims COs Stock and Zehr “neglected” to protect or “ignored” Plaintiff because he had previously identified as transgender and because he murdered someone related to a CO. (Dkt. No. 83 at 3.) To start, Plaintiff has not demonstrated he was a member of a suspect class due to his gender identity. This Circuit has previously grappled with what level of scrutiny to apply to transgender individuals and whether transgender individuals are a suspect class for equal protection purposes. See Adkins v. City of New York, 143 F.Supp.3d 134 (S.D.N.Y. 2015); White v. City of New York, 206 F.Supp.3d 920 (S.D.N.Y. 2016). However, Plaintiff no longer identified as transgender by the time the incidents occurred. (Dkt. No. 108-4 at 19-20.) Plaintiff testified he identified as transgender from 2009 to 2011. Id. In 2011, he began to identify as a cisgender man again. Id. Because Plaintiff no longer identified as transgender at the time the incidents occurred in 2017, the Court need not determine which level of scrutiny applies to transgender individuals or whether transgender individuals are a suspect class. See generally Adkins, 143 F.Supp.3d at 134; White, 206 F.Supp.3d at 920. Alternatively, Plaintiff has not demonstrated any of the criteria needed to qualify “individuals who previously identified as transgender” as a suspect class.
Cisgender means “of, relating to, or being a person whose gender identity corresponds with the sex the person had or was identified as having at birth.” Cisgender, Merriam-Webster, https://www.merriam-webster.com/dictionary/cisgender (last accessed Feb. 27, 2023.)
In Adkins, the court used the four factors outlined in Windsor v. United States, 699 F.3d 169 (2d Cir. 2012) in its determination that transgender individuals are a quasi-suspect class: (1) the group has suffered a history of persecution and discrimination; (2) the group has sufficiently discernable characteristic(s); (3) the group's characteristic(s) have no relation to ability to contribute to society; (4) the group is politically weakened or powerless. Adkins, 143 F.Supp.3d at 139-40.
Moreover, Plaintiff was not a member of a suspect class as someone convicted of murder. Lee v. Governor of State of N.Y., 87 F.3d 55, 60 (2d Cir. 1996) (“prisoners either in the aggregate or specified by offense are not a suspect class”); Mathie v. Dennison, No. 06 CIV. 3184(GEL), 2007 WL 2351072, at *8 (S.D.N.Y. Aug. 16, 2007), aff'd, 381 Fed.Appx. 26 (2d Cir. 2010) (“Prisoners are not a suspect class ....Nor are violent prisoners a suspect class. A history of violent crime is the very opposite of a morally irrelevant, immutable trait: it reflects a voluntary choice by the offender to commit a dangerous and harmful criminal act when he could have complied with the law); Scott v. Dennison, 739 F.Supp.2d 342, 362 (W.D.N.Y. 2010) (“neither violent felons nor non-violent felons are a ‘suspect class' under the United States Constitution.”)
Therefore, Plaintiff has not demonstrated he was a member of a suspect class at the time the incidents occurred.
2. Class of One
Plaintiff has also not sufficiently demonstrated he is a class of one for equal protection purposes. Plaintiff must demonstrate both (1) he was intentionally treated differently from other similarly situated individuals; and (2) the disparate treatment was either (a) “irrational and wholly arbitrary” or (b) motivated by animus. Assoko, 539 F.Supp.2d at 735. Plaintiff has provided no examples of similarly situated individuals for use of comparison. Ruggiero v. Fischer, 807 Fed.Appx. 70, 74 (2d Cir. 2020) (finding the district court properly granted summary judgment on an equal protection claim when Plaintiff “made no showing at all that he was treated differently from SHU inmates at other institutions” and “did not attempt to identify a specific comparator at [his facility] or another facility with whom he had a high degree of similarity.”); Rasheen v. Adner, 356 F.Supp.3d 222, 242 (N.D.N.Y. 2019) (dismissing complaint when Plaintiff failed “to allege any facts suggesting how he was treated differently than any similarly situated inmate” and “Plaintiff's vague and conclusory allegations [were] insufficient to plausibly suggest an equal protection violation.”); Ippolito v. Goord, No. 05-CV-6683 MAT, 2012 WL 4210125, at *19 (W.D.N.Y. Sept. 19, 2012) (“Plaintiff has offered no evidence that he was treated differently from other, similarly situated inmates. Accordingly, his ‘class of one' equal protection claim fails as a matter of law and is dismissed.”). As a result, the Court cannot determine if disparate treatment existed, and Plaintiff has not demonstrated he was a class of one for equal protection purposes. Therefore, the Court recommends granting Defendants' motion as to Plaintiff's Fourteenth Amendment equal protection claim. (Dkt. No. 108-5 at 10-16.)
B. Eighth Amendment Failure to Protect Claims
The Eighth Amendment explicitly prohibits the infliction of “cruel and unusual punishments,” U.S. Const. amend. VIII, and requires prison officials to take “reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)). In particular, prison officials “have a duty . . . to protect prisoners from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). Prison officials are liable under the Eighth Amendment for harm incurred by an inmate if they act with deliberate indifference to the inmate's safety. Morales v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988) (“[A] state prison guard's deliberate indifference to the consequences of his conduct for those under his control and dependent upon him may support a claim under [Section] 1983.”).
To prevail on a failure to protect claim, a plaintiff must demonstrate two elements, one objective and one subjective. To satisfy the objective prong, “the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. That is, the deprivation “must be, in objective terms, ‘sufficiently serious.'” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The standard “contemplates ‘a condition of urgency, one that may produce death, degeneration, or extreme pain.'” Id. (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990)). Under this standard, the plaintiff “must demonstrate that this grave harm was ‘actual or imminent.'” Dublin v. New York City Law Dep't, No. 10 Civ. 2971 (LAP), 2012 WL 4471306, at *5 (S.D.N.Y. Sept. 26, 2012) (quoting Benjamin v. Fraser, 343 F.3d 35, 51 (2d Cir. 2003)).
As to the second prong, “[t]o prove deliberate indifference, the plaintiff must show that the ‘official [knew] of and disregard[ed] an excessive risk to inmate health or safety.'” Celestin v. Premo, No. 9:12-cv-301 (GLS/RFT), 2014 WL 272443, at *5 (N.D.N.Y. Jan. 24, 2014) (quoting Farmer, 511 U.S. at 836) (alterations in original). Indeed, “[t]he 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.” Id. (emphasis in original). Mere negligence by a prison official will not suffice. Hayes, 84 F.3d at 620; Hathaway, 37 F.3d at 66 (“Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.”).
In this case, Defendants do not deny the lacerations Plaintiff received constitute a serious harm for purposes of the objective prong. (Dkt. No. 108-5 at 7.) However, they do argue Plaintiff offered no evidence to satisfy the subjective prong of the test as to CO Stock or CO Zehr. Id.
1. CO Stock
There is no indication CO Stock was aware of facts from which an inference could be drawn that Plaintiff was at a substantial risk of serious harm during the July 22, 2017, attack. CO Stock stated in his declaration on July 22, 2017, at 7:30AM, the First Officer went around to each company in A-Block and let the residents out for breakfast. (Dkt. No. 108-2 at 2). CO Stock served as Second Officer and followed behind the First Officer to inspect every A-Block cell to confirm it was vacant. Id. This is known as the “chow run.” Id. CO Stock started from the fifth floor and made his way down to the second floor, where Plaintiff was housed in A-9. Id. CO Stock states he did not observe, encounter, or interact with Plaintiff on chow run that day. (Dkt. No. 108-2 at 3.) He further states he did not witness Williams enter Plaintiff's cell or assault him at any point on July 22, 2017. Id.
Plaintiff alleges the July 22, 2017, attack occurred sometime between 7 and 7:30AM. (Dkt. No. 108-4 at 23.) Plaintiff testified CO Stock was not nearby during the attack but was above him on “[the] second or third floor.” (Dkt. No. 108-4 at 28.) Additionally, the summary judgment record does not demonstrate CO Stock was present in A-9 between 7 and 7:30AM on July 22, 2017. (Dkt. No. 108-2 at 2-3; Dkt. No. 108-4 at 28.) If CO Stock was not in A-9 during the attack, it does not appear it would have been possible for him to see or hear the attack, as companies on the same floor face away from each other and companies on separate floors are separated by concrete floors and walls. (Dkt. No. 108-2 at 2-3.) Therefore, it appears CO Stock was not and could not have been aware of a substantial risk of serious harm to Plaintiff during the attack.
Nor is there any evidence suggesting CO Stock was aware of a substantial risk of serious harm to Plaintiff prior to the attack. Plaintiff alleges CO Stock was aware of Plaintiff's risk of harm prior to the incident on July 22, 2017, due to the other inmates' loud taunting of Plaintiff about his gender identity and the sexual assaults at other prisons. (Dkt. No. 83 at 2-3; Dkt. No 108-4 at 47-48.) Plaintiff further claims CO Stock and other COs neglected him because he previously identified as transgender and because he murdered a CO's relative. (Dkt. No. 83 at 3.) However, the record evidence does not demonstrate CO Stock had any prior altercations with Plaintiff or had any prior knowledge of Plaintiff's gender identity or prior crimes; the sexual assaults at other prisons; or the other inmates' taunting of Plaintiff. (Dkt. No. 108-2 at 2; Dkt. No. 108-4 at 34.) Plaintiff offers no proof to the contrary beyond the conclusory allegation that CO Stock knew this information. (Dkt. No. 83 at 2-3.) “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Therefore, the Court recommends granting Defendants' motion on Plaintiff's Eighth Amendment failure to protect claim against CO Stock. (Dkt. No. 108-5 at 79.)
2. CO Zehr
The Court comes to a different recommendation with regard to the Eighth Amendment claim against CO Zehr. According to Plaintiff, on July 25, 2017, CO Zehr was opening cells for the inmates after recreation at or around 10PM. (Dkt. No. 83 at 3-4; Dkt. No. 108-4 at 36.) During that time, Williams came up behind Plaintiff and cut his face with a razor. (Dkt. No. 108-4 at 35-36.) Plaintiff went back into his cell, but Williams followed him and cut Plaintiff's right arm before returning to his own cell. (Dkt. No. 108-4 at 35, 39-41.) The incident lasted about a minute and a half. (Dkt. No. 108-4 at 38.) CO Zehr allegedly stood at the end of the gallery watching as this occurred. (Dkt. No. 83 at 4). According to Plaintiff, CO Zehr did not pull a pin or give attention to the situation. Id. As with CO Stock, Plaintiff claimed CO Zehr ignored or neglected him due to his prior gender identity and because he murdered someone related to a CO. (Dkt. No. 83 at 3.)
CO Zehr states in his declaration that on the evening of July 25, 2017, he was assigned to A-9. (Dkt. No 108-3 at 2.) At approximately 10:05PM, the A-9 residents returned to their cells from recreation by walking up a stairwell. Id. CO Zehr was stationed between the stairwell and the front of the company, which is closest to Cell 1, directing residents to their respective cells. Id. He further states because he was the only officer in A-9 he could not leave his post. Id. At one point he observed Williams' “outstretched arm through [Plaintiff's] cell bars” but “could not determine whose cell it belonged to” at the time. Id. He could not “observe who was inside or what Williams was doing with his extended hand.” Id. However, he claims at the time he “believed Williams was trying to pass a pack of cigarettes or something similar.” (Dkt. No. 1083 at 3.) He confirmed Plaintiff's “cell bars were already closed” but “[s]hortly afterward” he “observed another incarcerated individual obstruct[ing] [his] view of the company.” Id. CO Zehr then instructed Williams and the other inmate “to return to their cells, and they complied.” Id. When all of the A-9 residents were locked in their cells, CO Zehr conducted the count at 10:10PM. Id. When he approached Plaintiff's cell, he observed Plaintiff “was bleeding from his face and arm,” “immediately” notified his sergeant of the incident, and escorted Plaintiff to medical. Id. CO Zehr issued an Inmate Misbehavior Report to Williams as a result of the incident and testified at his August 8, 2017, disciplinary hearing. Id.
CO Zehr claims he had no prior altercations with Plaintiff or prior knowledge of his gender identity or previous crimes. (Dkt. No. 108-3 at 2.) He further claims he was not deliberately indifferent because “at no point on July 25, 2017, did [he] witness Williams cut [Plaintiff];” he did not have reason to suspect Plaintiff was at risk of being harmed; and he was unaware Plaintiff had been assaulted until he approached his cell. (Dkt. No. 108-3 at 3-4.)
However, CO Zehr's testimony at Williams' August 8, 2017, disciplinary hearing calls into question what he actually saw and inferred at the time of the July 25, 2017, incident. (Dkt. No. 108-3 at 16, 17.) At the hearing, CO Zehr testified he saw Williams walking toward 21 cell and watched as Williams “stop[ped], talk[ed], reach[ed] his hand in [Plaintiff's cell] and start[ed] making violent swinging motions inside the cell.” (Dkt. No. 108-3 at 20 (emphasis added).) While he testified he could see down the company, he claimed he could not see a weapon from where he was positioned. (Dkt. No. 108-3 at 19-20.) While this was occurring, another inmate was acting as a “look out” and was watching CO Zehr “to see if [he] was paying attention to . . . what was going on.” (Dkt. No. 108-3 at 20.) Interestingly, at this point of the hearing, the hearing officer seemingly misstates CO Zehr's prior testimony by replying “now you couldn't see what was happening inside the cell, you saw his arm kind of moving” to which CO Zehr replied “[y]up.” CO Zehr then went on to testify he did not know what was happening in the cell at the time; he did not see a weapon; and he “thought maybe [Williams] was trying to pass a pack of cigarettes or something.” (Dkt. No. 108-3 at 24-25.) When asked what he normally does if he sees an inmate being assaulted or someone attempting to assault an inmate, CO Zehr testified “[u]sually I will call a response on my radio or if I have to yell to another officer. And then I wait for additional staff to arrive to properly deal with the situation. Then, as soon as that happens, we notify the supervisor and he also responds.” (Dkt. No. 108-3 at 23.)
Defendants provide the August 8, 2017 disciplinary hearing transcript as Exhibit D of their Motion for Summary Judgment. (Dkt. No. 108-3 at 15.)
Plaintiff asserts CO Zehr watched as he was attacked by Williams the night of July 25, 2017, and did nothing. (Dkt. No. 83 at 3-4.) CO Zehr testified both that he believed Williams was handing Plaintiff cigarettes or something similar and that he saw Williams “making violent swinging motions inside [Plaintiff's] cell.” (Dkt. No. 108-3 at 20, 24-25.) Crediting Plaintiff's claims and CO Zehr's hearing testimony, a reasonable jury could find CO Zehr knew of and disregarded an excessive risk to inmate health and safety upon observing Williams' and the other inmate's actions-rendering CO Zehr deliberately indifferent. See Mills v. Fenger, 216 Fed.Appx. 7, 10 (2d Cir. 2006) (“[T]he state of the defendant's knowledge is normally a question of fact to be determined after trial.”) (internal quotation marks omitted); see also Heisler v. Kralik, 981 F.Supp. 830, 837 (S.D.N.Y. 1997), Cff'd sub nom. Heisler v. Rockland Cnty., 164 F.3d 618 (2d Cir. 1998) (denying defendant's motion for summary judgment where the plaintiff alleged that another inmate, whom plaintiff had no alleged previous altercations with, attacked him while he was being held as a pretrial detainee, and officers witnessed the assault but failed to intercede to stop it); Stewart v. Schiro, No. 13-CV-3613 (NGG)(VMS), 2015 WL 1854198, at *8 (E.D.N.Y. Apr. 22, 2015) (“[U]nder certain circumstances, the commencement of an inmate-to-inmate altercation could put a prison official on sufficient notice to render the prison official deliberately indifferent if he or she then fails to intervene in an appropriate manner”); Candelaria v. Coughlin, No. 91 Civ. 2978, 1996 WL 88555, at *9 (S.D.N.Y. Mar. 1, 1996) (inaction by a correction officer to intercede and halt an attack by a fellow prisoner is sufficient basis for deliberate indifference).
In short, the record evidence provides differing accounts of what transpired on the night of the July 25, 2017, incident and resolving what happened is a question for the jury. “While the weight of the evidence may favor [Defendants], the evidence is not so conclusive that a reasonable jury could not believe Plaintiff's assertions.” Lewis v. Hanson, No. 18-CV-0012 (LEK/DJS), 2022 WL 991729, at *9 (N.D.N.Y. Mar. 31, 2022) (citing Franklin v. Oneida Corr. Facility, No. 03-CV-1452 (LEK), 2008 WL 2690243, at *9 (N.D.N.Y. July 1, 2008) (“As tempting as it may be to conclude that defendants will ultimately prevail at trial, defendants' invitation to make a credibility determination and reject plaintiff's version of the events on motion for summary judgment is plainly unwarranted.”)); see, e.g., Cicio v. Lamora, No. 08-CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010), report-recommendation adopted by 2010 WL 1063864 (N.D.N.Y. Mar. 22, 2010) (“Plaintiff's testimony that he was beaten by [Defendant] stands in contrast to the seemingly overwhelming evidence that it did not occur as he alleges. Nonetheless, the weighing of such competing evidence, no matter how weak plaintiff's claim may appear, presents a question of credibility that must be left to the trier of fact.”).
Relatedly, the Court finds CO Zehr is not entitled to qualified immunity at this stage of the proceeding. See Villante v. Vandyke, No. 9:04CV759 FJS DRH, 2008 WL 163596, at *3 (N.D.N.Y. Jan. 15, 2008) (“Since [p]laintiff has raised an issue of fact about whether [defendants stood by and allowed other inmates to attack him . . . [d]efendants are not entitled to qualified immunity”); Decayette v. Goord, No. 9:06-CV-783, 2009 WL 1606753, at *12 (N.D.N.Y. June 8, 2009) (finding defendant should not be entitled to summary judgment on qualified immunity claim because triable issues of fact existed as to whether she was deliberately indifferent to a serious medical need of Plaintiff's and as to whether she was liable for failing to intervene during the alleged beating of Plaintiff); Rosen v. City of New York, 667 F.Supp.2d 355, 362 (S.D.N.Y. 2009) (denying summary judgment on defendants' qualified immunity claim where genuine issue of material fact existed as to whether it was reasonable for city corrections officer to believe that shouting at inmates to stop beating pretrial detainee fulfilled his duty to protect detainee).
In sum, as to the July 25, 2017, incident, Defendants have not met their burden of showing there is no genuine issue of material fact as to Plaintiff's Eighth Amendment failure to protect claim against CO Zehr. Accordingly, the Court recommends denying Defendants' motion for summary judgment as to this claim.
V. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 108) be GRANTED in part and DENIED in part as follows: (1) the Fourteenth Amendment equal protection claim against both Defendants be dismissed; (2) the Eighth Amendment failure to protect claim against Defendant CO Stock be dismissed; and (3) the Eighth Amendment failure to protect claim against Defendant CO Zehr proceed to trial; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
SO ORDERED.