Summary
enumerating the different ways in which personal involvement on the part of a supervisory official may be found
Summary of this case from Connell v. City of New YorkOpinion
No. 00 Civ. 3725 (SAS).
May 16, 2001
Plaintiff (Pro Se): Peter Showers 00-A-3691 Sing Sing Correctional Facility.
For Defendants: Paul M. Villanueva Assistant Corporation Counsel.
OPINION AND ORDER
Plaintiff, incarcerated and proceeding pro Se, brings an excessive force claim against defendants under 42 U.S.C. § 1983 for injuries he sustained while in the custody of the New York City Department of Correction ("NYCDOC"). plaintiff has also requested the assistance of counsel. Defendants Warden Eastmond, Captain Salvio, Correction Officer Shark, Correction Officer Gervasi and Commissioner Kerik, sued in both their official and individual capacities, have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, summary judgment is granted as to defendants Warden Eastmond, Captain Salvio and Commissioner Kerik (the "supervisory officers") and is denied as to Correction Officers Shark and Gervasi (the "subordinate officers"). Lastly, plaintiff's application for the assistance of counsel is granted.
Defendants Officer Sanchaz, Yates and Spinelli have not been served to date. Plaintiff's complaint was filed on May 17, 2000. Because the 120-day period in which to serve has long since expired, these defendants are dismissed for failure to serve. See Fed.R.Civ.P. 4(m).
I. FACTS
Plaintiff's allegations arise out of an alleged incident that occurred while plaintiff was an inmate at the George R. Vierno Center ("GRVC") located on Rikers Island. On January 1, 2000, plaintiff was housed in GRVC's punitive segregation unit. See Deposition of Peter Showers ("Showers Dep."), Exhibit C to the Declaration of Paul M. Villanueva, attorney for defendants ("Villanueva Decl."), at 25. On that day, Correction Officer Sanchaz asked plaintiff if he wanted to shower. See id. at 28. Plaintiff agreed and shortly after lunch, Correction Officer Sanchaz handcuffed and led plaintiff to the shower room where he took a shower. See Id. at 29.
After his shower, plaintiff, who was left unescorted, began wishing other inmates a "Happy New Year." See Id. at 30-31. Plaintiff claims that Correction Officer Sanchaz got angry because plaintiff was taking too long to get back to his cell and "stormed off." See Id. at 30. Officer Sanchaz allegedly returned with five other officers including Shark, Gervasi, Yates and Spinelli. See id. at 31. Plaintiff stated that Officer Shark told him to "take it to the cell." See Id. Plaintiff responded by saying "are you talking to me?" and "you can't be talking to me like that." See Id. at 31, 35-36.
Officer Shark then struck plaintiff with his baton, hitting him in the shoulder. See Id. at 32. When he hit the floor, plaintiff grabbed the baton but Officer Shark continued to kick him in the head. See id. at 33. Plaintiff claims that he was repeatedly punched, kicked, slapped and dragged by the subordinate officers. See Id. at 34-35. Plaintiff was then dragged to his cell and left handcuffed there for three hours. See Id. at 40. As a result of the assault, plaintiff suffered a swollen left eye, lumps on his head and left arm, and bruises on his rib cage and back. See Id. at 42; see also Complaint, First and Second Causes of Action.
Plaintiff's account is corroborated by another inmate, Jason Gonzalez, who was also housed at the GRVC on January 1. 2000. According to Gonzalez, Officers Gervasi and Yates dragged plaintiff across the floor and hit him repeatedly with their baton3 while Officer Shark kicked and stomped plaintiff's head into the concrete floor and kicked him directly in the eye. See Affidavit of Jason Gonzalez ("Gonzalez Aff."), attached to Plaintiff's Response to Defendants' Motion for Summary Judgment ("Pl. Opp.").
This aspect is also corroborated by Gonzalez who states that "the officers then dragged him again, this time to his cell where they left him handcuffed in the cell for several hours. Gonzalez Aff.
Plaintiff was examined by medical personnel on January 3, 2000. See Showers Dep. at 43. Plaintiff, who now claims he was intimidated by the Officer who took him to the clinic, told the doctor that he slipped and fell. See Id. at 41. The doctor responded that a "slip and fall doesn't cause so much puffiness in the eye." See Id. Plaintiff informed the doctor of an old injury to his right eye and complained of bruises and lumps in the back of his head. See Id. at 42. While plaintiff claims that he could not see on January 3, 2000, see Id. at 43-44, the medical report indicates that there was no subconjuctival hemorrhaging, no photophobia, no blurry vision, no extraocular eye movement, and no neurological deficit. See Injury to Inmate Report, Exhibit D to the Villanueva Declaration. Plaintiff was given ice packs and a prescription for some eye drops and an x-ray was taken of plaintiff's left eye. See Id.; see also Showers Dep. at 42.
Plaintiff claims that as a result of the incident he suffers from migraines, sleeplessness, eye pain, and a loss of vision. Showers Dep. at 51-52. Plaintiff further claims that he is now forced to wear corrective lenses. See Id. at 53.
II. DISCUSSION
A. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law[,]' (while] (am issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145. 150 (2d Cir. 2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). However, the non-moving party may not "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "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), cert. denied, 120 S.Ct. 2688 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (internal quotation marks, citations, and alterations omitted).
Where a party is proceeding pro se, his papers should be read liberally, see Haines V. Kerner, 404 U.S. 519, 520 (1972), and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks and citation omitted). Proceeding pro se, however, does not relieve a party from the formalities of summary judgment, see Gittens v. Garlocks Sealing Techs., 19 F. Supp.2d 104, 110 (W.D.N.Y. 1998), and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
B. Plaintiff Has Stated a Valid Eighth Amendment Claim Against Correction Officers Shark and Gervasi
The Eighth Amendment's prohibition of "cruel and unusual punishments" prohibits prison officials from using excessive against prisoners. See Hudson v. McMillian, 503 U.S. 1, 9 (1992). To establish an Eighth Amendment violation, an inmate must satisfy both an objective test and a subjective test. See Id. at 8. To satisfy the objective test, an inmate must demonstrate that the force applied was "'sufficiently serious.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The subjective test requires an inmate to show that prison officials "had a 'wanton' state of mind when they were engaging in the alleged misconduct." Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994). In determining whether conduct is wanton,
a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.Johnson v. Click, 481 F.2d 1028, 1033 (2d Cir. 1973), overruled on other grounds, Graham v. Connor, 490 U.S. 386 (1989).
Here, defendants do not contend that the force used was commensurate with any perceived security risk or was otherwise justified. Their defense is that plaintiff has fabricated the entire story. See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Def. Mem.") at 6 ("plaintiff's own version of the incident is internally inconsistent and therefore false"). Defendants also argue that the medical records do not corroborate plaintiff's story. See Id. at 6-7 ("The records of the New York City Department of Correction further indicate that no incident concerning plaintiff occurred on January 1, 2000 or that any signs of a physical altercation existed subsequent to the alleged event.")
While the Eleventh Circuit has found it appropriate to require corroboration with medical records at the summary judgment stage, see Bennett v. Parker, 898 F.2d 1530, 1534 (11th Cir. 1990), this does not appear to be the law in this Circuit. See Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (no showing of extreme injury required when claim is that prison officials used excessive force). See also Hudson, 503 U.S. at 9 ("When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . This is true whether or not significant injury is evident.") (citation omitted); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999); Robinson v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (even if the injuries suffered "were not permanent or severe" an inmate may still recover if "the force used was unreasonable and excessive"). Defendants' reliance on the absence of corroborating medical records is therefore misplaced.
In addition, the medical records here are somewhat ambiguous. For example, the Injury to Inmate Report states that plaintiff complained of a swollen left eye. Furthermore, the fact that the report does not describe plaintiff's contusions and bruising does not necessarily prove that they did not exist.
Nor do defendants dispute that the amount of force alleged by plaintiff was gratuitous and excessive. What defendants are really asking this Court to do is decide an issue of fact, namely whether the beating really took place. The fact that plaintiff testified to the beating at his deposition is sufficient to raise a genuine issue of material fact. See Payne v. Coughlin, No. 82 Civ. 2284, 1987 WL 10739, at *3 (S.D.N.Y. May 6, 1987) (deficiencies in plaintiff's case went to credibility, a question for the jury). This Court is both unwilling and unable to decide this issue against plaintiff on summary judgment. See Crawford v. Braun, No. 99 Civ. 5851, 2001 WL 127306, at *4 (S.D.N.Y. Feb. 9, 2001) ("the court's role on summary judgment is to identify disputed issues of fact, not to resolve them"). Accordingly, plaintiff's Eighth Amendment claim against defendants Shark and Gervasi in their individual capacity cannot be dismissed.
C. Plaintiff Has Not Shown Personal Involvement on the Part of the Supervisory Defendants
Plaintiff's claims against the supervisory defendants in their individual capacity must be dismissed for lack of personal involvement. "Where damages are sought in a Section 1983 action, the defendant must be responsible for the alleged constitutional deprivation: '[T]he general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.'" Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1984)). See also McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) ("[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.")
A supervisory official may be personally involved in a section 1983 violation in several ways: (1) the official may have directly participated in the violation; (2) the official, after learning of the violation, may have failed to remedy the wrong; (3) the official may have created a policy or custom under which unconstitutional practices occurred; (4) the official may have been grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) the official may have exhibited deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
Here, plaintiff has failed to allege any facts which would support the imposition of liability on any of the foregoing theories. Plaintiff has not alleged any direct involvement on the part of the supervisory defendants. In fact, plaintiff concedes that Captain Salvio was not present at the time of the alleged assault and is named as a defendant solely because the incident occurred during his shift. See Showers Dep. at 38. In addition, Warden Eastmond is named as a defendant because he is responsible for the operation and maintenance of the Rikers Island correctional facility and the ultimate safety of all inmates detained therein. See Complaint ¶ 8. Commissioner Kerik is a defendant because he is ultimately responsible for the safety of all prisoners detained by the City of New York. See id. ¶ 9.
Captain Salvio learned of the incident on January 3, 2000, see Showers Dep. at 39, and therefore was not in a position to prevent it. See Eng v. Coughlin, 684 F. Supp. 56, 66 (S.D.N Y 1988). Similarly, plaintiff's allegation that defendants Salvio, Eastmond and Kerik "were well aware of other such assaults," see P1. Opp. at 1-2, does not show deliberate indifference on their part. See Safadi v. Almanzar, No. 98 Civ. 7995, 2000 WL 1738403, at *4 (S.D.N.Y. Nov. 22, 2000) ("Prison officials are not omniscient, and the fact that certain incidents may have occurred, without more, does not support an inference that the warden, still less the Commissioner, were or should have been aware of them.")
Although plaintiff alleges that the supervisory defendants were grossly negligent in managing the subordinate officers, see P1. Opp. at 2, he does not offer any specific facts or examples upon which he bases this conclusory allegation. See Safadi, 2000 WL 1738403, at *7 ("But a bare statement that prison officials failed to train or supervise subordinate officers, unsupported by any additional evidence of gross negligence or specific allegations of misfeasance, is insufficient to raise a triable issue."). Prison officials may not "be held personally responsible simply because [they were] in a high position of authority in the prison system." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Because there is a complete dearth of evidence concerning the supervisory defendants' personal involvement in the alleged beating, they are dismissed from this lawsuit.
D. Plaintiff's Claims Against Defendants in Their Official Capacity Must Be Dismissed for Failure to Allege a Custom or Policy
"In order to hold a municipality liable under § 1983 for the conduct of its employees below the policymaking level, a plaintiff 'must show that the violation of his constitutional rights resulted from a municipal custom or policy.'" Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991)). Furthermore, "there must be proof of such a custom or policy in order to permit recovery on claims against individual municipal employees in their official capacities, since such claims are tantamount to claims against the municipality itself." Id. (citing Hafer v. Melo, 112 S.Ct. 358, 361-62 (1991)). While plaintiff has not sued the City of New York directly, he has brought claims against the defendants in their official capacity. Accordingly, for these claims to survive, plaintiff must sufficiently allege a custom or policy.
A plaintiff claiming injury at the hands of law enforcement officers need not show the municipality had an explicitly stated rule or regulation, but instead may establish the pertinent custom or policy by showing that the municipality, alerted to the possible use of excessive force by its police officers, exhibited deliberate indifference, e.g., by ignoring an obvious need for more or better training or supervision to protect against constitutional violations as demonstrated through proof of repeated complaints of civil rights violations. The requisite policy may also be established by proof of a practice so persistent and widespread that it constitutes a custom or usage and implies the constructive knowledge of policy-making officials.Pollard v. City of New York, No. 96 Civ. 5829, 1997 WL 626395, at *1 (S.D.N.Y. Oct. 9, 1997) (internal quotation marks and citations omitted, emphasis added).
Plaintiff has not alleged repeated complaints of civil rights violations, nor has he shown that the type of beating he suffered is a widespread practice of the NYCDOC. What he has done is allege a single incident of excessive force by municipal employees below the policymaking level. This does not constitute evidence of a custom or policy. See Dwares, 985 F.2d at 100 ("A single incident alleged in a complaint, especially if it involved only actors below the policymaking level, generally will not suffice to raise an inference of the existence of a custom or policy."); Villante v. Department of Corr. of the City of New York, 786 F.2d 516, 519 (2d Cir. 1986) ("an isolated act of excessive force by a single, non-policymaking municipal employee, standing alone, is insufficient evidence"). Accordingly, plaintiff's official-capacity claims are dismissed as to all defendants.
E. Plaintiff's Request for the Assistance of Counsel
There is no constitutional right to appointed counsel in civil cases. Moreover, due to the scarcity of volunteer attorneys, the Second Circuit has cautioned against the routine appointment of pro bono counsel in civil cases. See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
In Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), the Second Circuit set forth the factors a court should consider in deciding whether to grant an indigent pro se plaintiff's request for appointment of counsel. As a threshold requirement, the court must decide whether the petitioner's claim "seems likely to be of substance." Id. at 61. If the petitioner satisfies this requirement, the court must next consider such factors as:
the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.Id. at 61-62.
Here, the evidence is more than conflicting, it is diametrically, opposed. Thus, cross-examination of the subordinate officers will be the major proof presented to the jury. As plaintiff is an inmate unfamiliar with the nuances of trial procedure, it appears that appointment of counsel is more likely to lead to a just determination of his claims.
III. CONCLUSION
For the reasons stated above, summary judgment is granted as to defendants Eastmond, Salvio and Kerik, who are dismissed from this lawsuit. Also dismissed are all of plaintiffs' official-capacity claims. Plaintiff's individual capacity claims against defendants Shark and Gervasi remain. Plaintiff's request for the appointment of counsel is hereby granted. A status conference is scheduled for June 24, 2001 at 4:30 p.m.
SO ORDERED