Opinion
No. 94 Civ. 466 (CSH).
April 25, 2000.
MEMORANDUM OPINION AND ORDER
Having suffered an attack at the hands of other inmates during which he sustained serious stab wounds, Plaintiff Michael J. Murchison brings this action under 42 U.S.C. § 1983, alleging that his Eighth Amendment right to be free from cruel and unusual punishment was violated. Specifically, Murchison claims that the defendants acted with deliberate indifference to his safety. The Defendants collectively move for summary judgment. For the reasons that follow, the motion is granted as to Defendants Keane and Cepeda. The motion is denied as to Defendant Davis.
I. BACKGROUND
The relevant events began in February 1991. At the time, Plaintiff was incarcerated at Sing Sing Correctional Facility and was housed in B block on X gallery, cell 492.
On February 16, 1991, while sitting in his cell, Murchison was robbed at knife-point by two inmates. Although Plaintiff was not injured, some of his personal belongings were stolen. Murchison could not identify the assailants by name. However, he did report the incident to an officer later that day, who said he would log the incident. To Plaintiffs' knowledge, there was no follow-up or investigation and the matter was dropped. Plaintiff did not file a formal grievance lest he be labeled a "snitch," and, thereby, open himself up to further attack and possible injury.
"In jail that's snitching. If you're filing a grievance, you're telling on somebody, and when you're doing it like that, usually you can get burned out or you get cut in the back of your head going to a movie. Those are things I definitely wanted to avoid, because I didn't feel that it was worth me getting cut in the back of the head or getting stabbed in the back for six or eight packs of cigarettes and maybe one or two tapes." (Murchison Depo., p. 89-90).
A week and a half later, on February 25, 1991, Plaintiffs' cell was allegedly left open illegally while he was working at the mess-hall. Upon his return, Murchison discovered that he had been robbed again. This time almost all of his personal belongings were taken. The perpetrators were unknown. Murchison reported the robbery to Officer Johnson who logged the incident. Plaintiff also filed a stolen property claim with Sergeant Brown.
Murchison then reported both incidents to Sergeant Sherrod and Lieutenant Ellington. During his discussion with Lieutenant Ellington, Plaintiff requested that he be transferred to another block because "the next thing they're probably going to try to do is burn me out," (Murchison Depo., p. 94-95), and "I fear that something worser (sic) is going to happen." (Complaint, ¶ B). As a result, Murchison was transferred to A block, J gallery, cell 170, in April 1991. Murchison did not seek protective custody. (Murchison Depo., p. 95).
Shortly after his transfer, Plaintiff began to notice small personal items missing upon his return to his cell from the movies, mess-hall and recreation. These petty thefts seemed to occur only during Defendant Correction Officer ("CO") Davis' shift, from 3:00 p.m. to 11:00 p.m. Plaintiff reported each incident to CO Davis, 2nd Officer of J and N gallery. However, CO Davis told Plaintiff there was nothing he could do.
Murchison then voiced his complaints to several other sergeants, including Sergeant Whitney, the Officer in Charge ("OIC") of A block. Plaintiff explained that "I want to get off of `J' gallery because Officer Davis seem (sic) not to care about individuals being robbed on his company . . . and that I would like to go to a company with a Self Locking device (meaning I can close the cell door myself)." (Complaint, ¶ D). Murchison's purpose in requesting a self locking cell was that he no longer need worry about his property being stolen.
Sergeant Whitney moved Plaintiff to P gallery, cell 632, which was also located in A block but had self locking cells. However, he advised Murchison that the move would be temporary. Apparently inmates are assigned to galleries based on their program. As a mess-hall worker, Murchison was assigned to J gallery. P gallery housed inmates enrolled in the education program. Therefore, without a program change, Murchison would have to return to J gallery. Although, an inmate can request a program change, the request takes some time to process. Plaintiff did request a change from mess-hall worker to porter. While locking in P gallery, Murchison was not robbed or threatened.
On April 20, 1991, while still assigned to mess-hall duty, Murchison was moved back to J gallery. Plaintiff spoke to Sergeant McKeiver and requested that he be allowed to stay in P gallery. Sergeant McKeiver conveyed this request to Defendant Sergeant Cepeda, supervisor of inmate movement and control. In response, Sergeant Cepeda stated that Plaintiff could either move back to J gallery or be keep-locked and still have to move. Murchison agreed to return to J gallery, but asked that his objection be logged. Upon his return to J gallery, personal items began missing again only during CO Davis' shift.
According to Plaintiffs' deposition, Murchison informed Sergeant Cepeda, through Sergeant McKeiver, that the reason he did not want to return to J gallery was because he feared he could not properly safeguard his belongings without a self locking cell. In response, Sergeant Cepeda offered a third choice, "PC" or protective custody, and reiterated the original two options, namely moving or keep lock, asserted in the complaint. (Murchison Depo., p. 98).
In May 1991, Murchison's program change request was granted, and he was made a porter on J gallery. Plaintiff requested the porter position, in particular, because it enabled him to keep an eye on his cell even while he was working. As a result, none of Plaintiffs' property was stolen while he was working as a porter.
After two months passed without further incident, Plaintiff was attacked and stabbed on July 3, 1991. On that day, Murchison returned from a visit to his cell at approximately 3:20 p.m. in preparation for the afternoon facility count, which takes place around 4:00 p.m. At such time, inmates are not allowed out of their cells without permission. Those assigned to mess-hall duty are an exception, and are released so that they can prepare the evening meal. CO Davis was on duty.
In the complaint, Murchison alleges that, even though he knew Plaintiff was a porter, Defendant Davis unlocked his cell door and continued down the gallery. (Complaint, ¶ J). Knowing the cell should be locked, Plaintiff stood up intending to tell CO Davis to close his cell. However, when he peeked out of his cell down the gallery, CO Davis was gone, and instead Plaintiff was greeted by two men in hoods.
The account Plaintiff gave in his deposition varies slightly. According to Plaintiffs' deposition, his cell was unlocked so that he could reenter after his visit. CO Davis then proceeded down the gallery locking any open cells as the jail is locked down during the count. When CO Davis reached Plaintiffs' cell, "he put the key in and I assumed that he locked it, but he didn't." (Murchison Depo., p. 117). After several minutes had passed, Murchison noticed the two inmates approaching. Only as they got closer did he suspect that they might actually be coming for him. When he stood up and shook the bars of his cell, he realized it was unlocked. However, before Plaintiff had time to react, the attackers were in his cell. This discrepancy between the complaint and deposition notwithstanding, according to either version Defendant Davis, contrary to standard procedure, caused Plaintiffs' cell to be unlocked which in turn enabled Murchison's attackers to gain entrance to his cell.
The hooded inmates demanded Plaintiff turn over his personal belongings. When he resisted, one of the intruders stabbed Plaintiff in the thigh, and stated, "I mean business." As they collected Murchison's property, Plaintiff swore he would not say anything. In response, one of the assailants yelled "kill him," and they stabbed Plaintiff in the right side of his chest. As Plaintiff attempted to ward off the attack, one of the inmates lunged again with the knife. In an effort to protect his face, Murchison was stabbed in his left hand.
Although he was bleeding, Plaintiff chased his assailants down the gallery to a set of stairs. There an officer caught one of the attackers. Murchison was brought to the hospital where his wounds were treated. Plaintiff was subsequently placed in protective custody.
Plaintiff recognized one of the attackers as inmate Alonzo Pratt, who was housed in Five Building, which is a separate part of the jail from A block. The only prior dealings Plaintiff had with inmate Pratt was that Pratt once borrowed cigarettes. Pratt never replaced the cigarettes, but Plaintiff let it go. Murchison was never threatened nor involved in any altercation with Pratt or the other assailant prior to July 3, 1991.
Plaintiff maintains that even after the attack his cell was not secured and that he was robbed again.
Plaintiff commenced the present action on January 27, 1994, seeking compensatory and punitive damages. All three Defendants now move for summary judgment.
II. SUMMARY JUDGMENT STANDARD
The principles governing the grant or denial of summary judgment are well established. "[S]ummary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of New York, 132 F.3d 145, 149 (2nd Cir. 1998), cert. denied, 524 U.S. 911 (1998). In addressing a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2nd Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The party seeking summary judgment bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317. 323 (1986).
Once such a showing is made, the party opposing the motion must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ. p. 56(e). In so doing, the "non-moving party may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2nd Cir. 1998). Moreover, while the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient" to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. Instead, the non-movant must offer "concrete evidence from which a reasonable jury could return a verdict in his favor." Id. at 256. Summary judgment should only be granted if no rational factfinder could find in favor of the non-moving party. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721 (2nd Cir. 1994).
III. EIGHTH AMENDMENT CLAIM
In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court clarified the definition of "deliberate indifference" in the context of a claim brought by a prisoner, who was the victim of an inmate attack, under the federal civil rights statute, 42 U.S.C. § 1983. The Eighth Amendment, which explicitly protects prisoners from cruel and unusual punishment, guarantees a minimum standard of humane prison conditions. In addition to providing the necessities of life, food, shelter, and clothing, prison officials "must take reasonable measures to guarantee the safety of the inmates. . . . In particular . . . prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners." Farmer, 511 U.S. at 832-833 (internal citations and quotations omitted).
The Supreme Court has created a two prong test for evaluating whether a prisoner-victim has suffered a constitutional deprivation under § 1983. "First the deprivation alleged must be, objectively, sufficiently serious." Id. at 834. There is no dispute that the multiple stab wounds sustained by Plaintiff on July 3, 1991 constitute a "denial of the minimal civilized measure of life's necessities." Id. (internal citations and quotations omitted); see, e.g., Knowles v. New York City Dept. of Corrections, 904 F. Supp. 217, 221 (S.D.N.Y. 1995). Prison "conditions posing a substantial risk of serious harm," Farmer, 511 U.S. at 834, are, themselves, sufficient to satisfy the first prong of the test. In the case at bar, the conditions of incarceration, in fact, resulted in serious harm.
To satisfy the second prong of the test, Plaintiff must show that a prison official had a "sufficiently culpable sate of mind, that is, "one of `deliberate indifference' to inmate health or safety." Id. (internal citations and quotations omitted). The mens rea contemplated is akin to recklessness, something more than negligence, but less than an intention to cause harm. Id. at 835-836. The Supreme Court summed up its holding in Farmer by stating:
We hold . . . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Id. at 837. It is this element of a § 1983 claim which Defendants contend that Plaintiff is unable to sustain as a matter of law.
In addition to meeting the two prong standard set out in Farmer, it is well settled that "`personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Williams v. Smith, 781 F.2d 319, 323 (2nd Cir. 1986) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2nd Cir. 1977)). The requisite personal involvement may take one of four forms: (1) direct participation in the infraction; (2) failure of a supervisory official to remedy wrong after learning of violation; (3) creation or sanction by a supervisory official of a policy or custom under which unconstitutional practices occur; or, (4) gross negligence in managing subordinates. Williams, 781 F.2d at 323.
With these standards in mind, I turn to the case at bar.
A. Superintendent Keane
Plaintiff argues that Defendant Superintendent Keane is liable for his alleged "failure to remedy the on going violations of Plaintiffs' constitutional rights after he learned of these acts" and his gross disregard for his duty to oversee his subordinates. (Complaint, p. 6). On its face, Plaintiff alleges that Superintendent Keane was personally involved in two of the four ways outlined by the Second Circuit in Williams v. Smith. Accordingly, I previously denied Defendant Keane's motion to dismiss the complaint for failure to allege personal involvement. Murchison v. Keane, 1996 WL 363086 at 7 (S.D.N.Y. 1996). However, I noted that my holding did not preclude a motion for summary judgment following discovery.
Defendant Keane denies having knowledge of any risk to Murchison, which in turn would trigger a duty on his part to address that risk. Plaintiff has failed to demonstrate otherwise. Murchison admits that he never filed a formal grievance with respect to any of the incidents that preceded the July 3, 1991 attack and that he never wrote or communicated his complaints directly to Superintendent Keane. (Murchison Depo., p. 158-159). Even if a supervisory official lacks actual knowledge of a violation, liability may be founded on constructive notice followed by gross negligence or deliberate indifference. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1066 (2nd Cir. 1989). Murchison did inform several subordinate officers about the thefts, and asked that certain incidents be logged. However, without more, Plaintiff cannot establish even constructive notice with respect to Keane. Murchison does not allege that the Superintendent's duties include reading the log books or that officers are required to report every incident and complaint to the Superintendent. Nor does he allege that any of the officers to which he complained did, in fact, convey his concerns to Defendant Keane. Nor does Plaintiff allege a pervasive and persistent prison-wide problem of inmate thefts and attacks such that the risk should have been obvious. See, e.g., Farmer, 511 U.S. at 842. A superintendent of a prison cannot remain ignorant of the problems occurring within the facility under his command. However, at the same time, a superintendent cannot be expected to keep abreast of every incident that occurs and complaint that is registered. On this record, there is no evidence to support a finding of either actual or constructive knowledge on the part of Superintendent Keane.
However, assuming arguendo that Defendant Keane was aware of the armed robbery that occurred in February 1991 and the petty thefts that followed, Plaintiff has failed to allege any connection between Keane and the brutal attack suffered by the Plaintiff. Morales v. New York State Dept. of Corrections, 842 F.2d 27 (2nd Cir. 1988), is instructive in this regard. In that case, the plaintiff brought a § 1983 action, claiming that prison officials had failed to protect him from an attack by another inmate, with whom he had fought before. In Morales, as in the case at bar, the prison officials were charged with allowing the attacker to gain access to the Plaintiff in violation of applicable rules. The District Court dismissed the complaint against all defendants. The Court of Appeals reversed except with respect to the dismissal of the complaint against the superintendent. The Court stated that "Morales has alleged no connection between his injuries and any acts on the part of Superintendent James," Id. at 30, notwithstanding the fact that plaintiff had made several subordinate officers aware of threats to his safety, a hearing had been held after the initial fight between plaintiff and the other inmate, plaintiff and the other inmate had been officially separated, and the superintendent was aware of the other inmate's past misconduct. Moreover, the motion to dismiss was brought under Fed.R.Civ.P. 12(b)(6), requiring only that the plaintiff show that the pleadings state a claim upon which relief could be granted, as opposed to Rule 56, which requires the nonmovant to come forward with specific facts demonstrating a genuine and material issue for trial.
In an effort to explain his theory of liability with respect to Defendant Keane, Plaintiff stated: "The officer and the sergeant were working under the supervision of Superintendent Keane. I think a great mistake was made, because they are under his supervision, so I think he is responsible just as much as they are." (Murchison Depo, p. 163). Although a pro se litigant's submissions are entitled to a liberal construction, it is clear that Murchison is relying solely on Defendant Keane's office as superintendent. However, the respondeat superior theory of liability is not applicable to actions brought under § 1983, and liability will not attach based merely on "`linkage in the prison chain of command.'" Al-Jundi, 885 F.2d at 1065 (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2nd Cir. 1985)). Plaintiff has not supplemented his conclusory allegation in the complaint that Defendant Keane was grossly negligent in managing his subordinates. See Bass v. Jackson, 790 F.2d 260, 263 (2nd Cir. 1986) ("A plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered" and mere conclusory allegations will not suffice to defeat dismissal). As such, there is no genuine issue of material fact and the motion for summary judgment is granted as to Defendant Superintendent Keane.
B. Sergeant Cepeda
Plaintiff claims that Sergeant Cepeda was deliberately indifferent to his safety when he "allowed Plaintiff to be placed back in a life threatening situation." (Complaint, p. 6). Plaintiff argues, in effect, that the attack he suffered in July was foreseeable when Sergeant Cepeda denied Murchison's request to remain in P gallery with a self locking cell. As the officer responsible for inmate control and movement, Sergeant Cepeda is accountable for the decision to place Plaintiff back in J gallery, where he was subsequently attacked. Accordingly, unlike Defendant Keane, Sergeant Cepeda was personally involved.
However, Plaintiff must also show that Defendant Cepeda was aware of a substantial risk of harm and that he disregarded that risk. Plaintiff admits that he never spoke to Sergeant Cepeda directly. (Murchison Depo., p. 109). However, Sergeant MeKeiver allegedly conveyed Plaintiffs' desire to remain in P gallery to Sergeant Cepeda. Defendant Cepeda does not deny this. Nevertheless, the reason Plaintiff wanted a self locking cell was to protect his property. Plaintiff states repeatedly that he did not communicate a fear for his personal safety, let alone believe that he was in any danger.
Q. At any time prior to July 3, 1991 did you ever tell any employee of the department of correctional services that you were afraid of being injured?
A. Not afraid of being injured. I didn't really — I just felt that I didn't want my things to be taken the way they were. I felt that I could always take care of myself so I didn't. (Murchison Depo., p. 109).
"I didn't think I was going to get stabbed or anything by someone taking my property." (Murchison Depo., p. 110).
Q. When you spoke to Sergeant Cepeda about moving out of J gallery and subsequently being moved from P gallery back to J gallery, did you ever say to Sergeant Cepeda at that time that you thought or you felt threatened by Inmate Pratt or this other inmate?
A. No.
(Murchison Depo., p. 129).
Therefore, even assuming that Sergeant Cepeda was aware of the incidents preceding the move back to J gallery on April 20, 1991, there is insufficient evidence to support the contention that Defendant Cepeda disregarded a substantial risk of harm, or placed Murchison in what he now characterizes as a "life threatening situation." At that time, Plaintiff had spent no more than a few days on J gallery. He was transferred from B block to A block, J gallery in early April, and then, almost immediately, transferred to P gallery. During the few days Murchison had spent on J gallery at that time, the only items that were missing were small commissary items or food. Murchison never encountered the thieves and was never threatened. This hardly constitutes a life threatening situation. While the loss of property is regrettable, and even if Plaintiff alleged that Defendant Cepeda was somehow responsible for the loss, the petty thefts, themselves, do not rise to the level of a constitutional deprivation. See Eichwedel v. Roth, 1995 WL 66353 at 3 (N.D.Ill. 1995) ("theft of property is not a cognizable deprivation under the Eighth Amendment."); see also, Reyes v. Koehler, 815 F. Supp. 109, 114 (S.D.N.Y. 1993) (officer countenance of or participation in theft or destruction of inmate property is not a cognizable constitutional claim); Alston v. Coughlin, 668 F. Supp. 822, 842 (S.D.N.Y. 1987) (petty "thefts among inmates is probably an ineradicable part of life among prison inmates," and although related to problems of violence . . . they are not of constitutional dimensions.). Nor do the petty thefts give rise to a substantial risk of harm, especially where the inmate, himself, did not feel threatened.
Arguably, the armed robbery that occurred in February 1991 might indicate a risk to Murchison. However, it is not clear that Sergeant Cepeda was aware of this incident. Even assuming he was, the incident occurred two months earlier and while Plaintiff was housed in a different gallery and block. Plaintiff alleges no connection between that incident and either the petty thefts in J gallery or the attack in July 1991.
Moreover, according to Plaintiffs' deposition, Sergeant Cepeda offered Plaintiff the option of protective custody. (Murchison Depo. p. 98). Murchison declined the offer. Notwithstanding Plaintiffs' wishes, were there a known substantial risk of harm at the time, Sergeant Cepeda might have been deliberately indifferent by not placing Murchison in protective custody involuntarily. However, Plaintiff does not make this claim. In fact, even after the July 1991 attack, at which time Plaintiff was placed in protective custody, Murchison still disputed such placement even though one of his attackers had escaped. Plaintiff stated, "I didn't really feel the need to be put in involuntary protective custody, because I doubt it very seriously that the other guy would try to come back." (Murchison Depo., p. 160).
All Plaintiff wanted was a self locking cell so that he could safeguard his property. The reasonableness of this request is not disputed. But it does not mean that Defendant Cepeda's denial of this request is equivalent to a deliberate indifference for Plaintiffs' safety. Plaintiff had been told that his transfer to P gallery was only temporary, and was advised that he might achieve a permanent cell transfer by requesting a program change. In early May 1991, Murchison's request that he be made a porter was granted. Although this did not result in a cell transfer, it enabled him to watch his cell. From that point forward, until the attack, there were no more petty thefts. Plaintiff did not request another program change or ask to be made a porter on a different gallery after the initial change to J gallery porter. (Cepeda Aff., ¶ 30; Complaint, p. 4).
At worst, Plaintiff can argue that Defendant Cepeda was negligent by not ensuring that a cell transfer was accomplished along with Murchison's program change, thereby forcing Plaintiff to keep a constant eye on his cell in order to protect his property. Although the situation hardly sounds ideal, Sergeant Cepeda explained in his affidavit that cell transfers based on program changes receive low priority next to inmate movement for other purposes, (Cepeda Aff., ¶¶ 14, 33), and can take weeks or sometimes months to honor. (Cepeda Aff., ¶ 18). Sergeant Cepeda may have placed Murchison back in a situation where his property was at risk, but not, to Cepeda or Plaintiffs' knowledge, his person. As it turns out, the program change to porter, albeit still on J gallery, did have the intended effect of putting a stop to the thefts, which Plaintiff had complained about to Sergeant Cepeda. In any event, as explained above, mere negligence does not constitute deliberate indifference under the Farmer test.
Accordingly, the motion for summary judgment is granted as to Defendant Sergeant Cepeda.
C. Correction Officer Davis
Unlike the other defendants, Defendant Correction Officer Davis is implicated directly in both the thefts and attack suffered by Murchison. Not only did Plaintiff complain directly and repeatedly to CO Davis about the thefts, but the thefts were occurring only during Defendant Davis' shift. As part of his assignment as 2nd officer of J and N gallery, Defendant Davis necessarily was responsible for J gallery during his daily eight hour shift and had direct control over the security of Plaintiffs' cell door. Yet, despite the fact that he was seemingly in the best position to remedy or, at least, investigate the situation, CO Davis took no action in response. Nor does CO Davis make any attempt to explain how other inmates repeatedly gained access to Plaintiffs' cell during his watch. This failure alone does not state a claim under § 1983. However, when viewed in connection with the events of July 3, 1991, on which day Plaintiff was brutally attacked and stabbed, it is certainly possible for a jury to reasonably conclude that Plaintiff's "injury resulted from the defendant prison official's [CO Davis'] purposeful subjection of the prisoner to a "substantial risk of serious harm or from the official's deliberate indifference to that risk." Fischl v. Armitage, 128 F.3d 50 (2nd Cir. 1997) (citing Farmer, 511 U.S. at 834).
As with the other defendants, Plaintiff did not tell CO Davis that he felt threatened. (Murchison Depo., p. 129). However, given the degree of Davis' personal and direct responsibility for the conditions of Plaintiffs' incarceration, that specific statement is not an essential element of Plaintiffs' claim. A prison officer may be liable under § 1983 for deliberate indifference, a state of mind determined by a subjective standard. "[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for `deliberate indifference' under the Eighth Amendment. . . . Under the test we adopt today, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 839-40, 842. A prison official's knowledge of a risk may be proven by "inference from circumstantial evidence." Id. at 842.
Defendant Davis was necessarily aware that Plaintiff had objected to his placement on J gallery in light of the lack of security, and had, in fact, appealed to other officers to achieve a cell transfer. He knew that Plaintiff had managed to obtain a temporary transfer to P gallery which had self locking cells and he knew that Plaintiff requested and received a program change from mess hall worker to porter so that he could keep an eye on his cell. For the purposes of summary judgment, and absent a denial or any evidence to the contrary, I must draw the reasonable inference that Plaintiffs' concern for the security of his cell was obvious.
With all of this as background, to wit, knowledge of the thefts and leaks in security during Defendant Davis' shift, refusal to respond to Plaintiffs' complaints, and Plaintiffs' obvious and legitimate concern for security, Plaintiff alleges that shortly before the attack, CO Davis either unlocked or failed to lock Plaintiffs' cell in accordance with standard count procedures, and, thereby, enabled the assailants to gain entrance. This action or inaction, cannot be explained as mere negligence, where under either of Plaintiffs' accounts, CO Davis deliberately left Murchison's cell unlocked. This breach in security is exacerbated given the context: it occurred during a facility count and lockdown, and at least one of the attackers, inmate Pratt, was housed in Five Building, a completely separate part of the jail. Thus, not only was Plaintiffs' cell unlocked leaving Murchison vulnerable, but at least one of the attackers managed to bypass seven security gates, while armed, in order to reach Plaintiffs' cell. (Murchison Aff., ¶ 2). But cf, Policano v. Koehler, 715 F. Supp. 598 (S.D.N.Y. 1989) (action dismissed where plaintiff alleged that defendants failed to provide adequate security against attack by allowing inmates from "B" housing area to enter "A" housing area; however, all of plaintiffs' allegations were stated in terms of negligence). The attack followed shortly after CO Davis unlocked Plaintiffs' cell. Although CO Davis asserts in his affidavit that he was conducting the count in accordance with regular procedures on the day in question, he was nowhere to be found during the attack.
If, as alleged in the complaint, CO Davis unlocked the cell door, this would have required a conscious decision by Defendant Davis to do so and is highly suspect during a prisoner count and lockdown. If, as alleged in Plaintiff's deposition, CO Davis made the pretense of locking the cell door, but did not, the action is even more suspicious, for it misled Plaintiff into believing that his cell was secure when it was not.
CO Davis did submit an affidavit in support of the motion for summary judgment. In this sworn statement, CO Davis confirms that as of 2:55 p.m., "no inmates are out of their cells without permission in preparation of the evening count and meal," and that the count is conducted daily at around 4:00 p.m. (Davis Aff., ¶¶ 11, 22). He also stated that during that time, he would unlock only the cells of inmates assigned to mess hall duty. (Davis Aff., ¶ 13). For inmates returning from other areas of the prison, for example the gym or yard, so called "go back inmates," CO Davis would unlock their cells and then re-lock them once they had stepped inside. (Davis Aff., ¶¶ 19-21). CO Davis concludes by asserting that "[o]n the day of the incident, I followed these procedures." (Davis Aff., ¶ 28). This statement is contradicted by the undisputed allegation that he unlocked or failed to lock Plaintiffs' cell immediately preceding the attack.
Even if Defendant intends the Court to assume that Plaintiff were a "go back inmate," since he was returning from a visit on July 3, 1991, although there is no statement or argument to this effect, there are still genuine issues of fact for trial. First, CO Davis necessarily implies that inmate cells are locked in their absence. This is significant in light of the recurring thefts of Plaintiff's property from his cell during his absence and may contribute to a finding of deliberate indifference. Second, labeling Plaintiff a "go back inmate" still fails to explain why his cell was open long enough to allow the attackers in or where CO Davis was during the attack.
Even if CO Davis did violate standard procedure, I recognize that "mere contravention of a prison policy or regulation meant to protect inmates [does not] constitute recklessness per se." Eichwedel, 1995 WL 66353 at 5. But coupled with Plaintiffs' history of security problems, the arrival of the assailants shortly thereafter, and the mysterious disappearance of CO Davis during the attack, the existence of purposeful acts or deliberate indifference on the part of Defendant Davis presents a genuine issue of material fact for trial.
In his affidavit, CO Davis does not deny or dispute any of Plaintiffs' allegations. Nor does he offer any explanation as to why he could do nothing in response to Plaintiffs' complaints, how the thefts occurred, how Plaintiffs' attackers made there way onto J gallery, for his failure to lock Plaintiffs' cell, or for his whereabouts during the attack. There may be legitimate answers to these inquiries or, at least, responses that will demonstrate that even if CO Davis erred, his actions did not constitute deliberate indifference. However, given Plaintiffs' allegations and the inferences that can be reasonably drawn therefrom, CO Davis' generalities about standard procedure and unexplainable silence regarding the specific events on the day of the attack preclude a grant of summary judgment.
This Court has denied a defendant's motion for summary judgment in a similar case, based in part on the defendant's failure to answer the plaintiffs' allegations. In Knowles v. New York City Department of Corrections, 904 F. Supp. at 222, this Court stated:
[T]he defendant has failed to come forward with some of the most obvious evidence to attempt to show that there is no genuine issue of material fact. For example, the DOC has not submitted a single affidavit from any guard or prison official explaining the circumstances of the attack on the plaintiff and attesting to the lack of awareness of the particularized risk to the plaintiff. . . . The defendant appears to seek to take advantage of the pro se plaintiffs' failure to obtain the evidence from the prison guards. However, the defendant itself could have presented that evidence to the Court, and the Court does have a responsibility to assure that an otherwise meritorious claim is not dismissed simply because a pro se plaintiff did not know how to go about pursuing it. In any event, in determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party, and in light of the Court's heightened duty of scrutiny with regard to motions for summary judgment when a pro se litigant is involved, the Court finds that based on the current record there are indeed issues of fact suitable for trial.See also, Byrd v. Abate, 945 F. Supp. 581, 586 (S.D.N.Y. 1996) ("The burden, however, does not fall upon the plaintiff at this stage of the proceeding to demonstrate the unreasonableness of C.O. Hults' actions; rather, in a motion for summary judgment by defendants, it is defendants who must establish the reasonableness of their actions.").
Two additional cases provide further support for denying Defendant Davis's motion for summary judgment. The facts in Eichwedel v. Roth, 1995 WL 66353, are similar to the circumstances in the case at bar. Plaintiff inmate discovered property missing from his cell upon his return on several occasions and complained numerous times. These complaints, like Murchison's complaints to CO Davis, went unheeded. Subsequently, he was beaten and robbed twice. Eichwedel's claim was based on the theory that but for the opening of his cell door by the prison officials in violation of existing policy, the attacks would not have occurred. Summary judgment with respect to the guards who allegedly opened the cell door was denied.
Eichwedel was housed in a unit specifically designated for inmates who required special protection from other inmates. However, there was no evidence of a specific threat to Eichwedel or any forewarning of the attacks other than the thefts which preceded them. In denying the motion for summary judgment the court relied on Eichwedel's protective status, the prior thefts, the unheeded complaints and the violation of policy with respect to the locking of cell doors. 1995 WL 66353 at 6. With the exception of the plaintiff's protective status, all the other factors relied upon to deny the summary judgment are present in the instant case.
In Fischl v. Armitage, 128 F.3d 50, the Second Circuit denied a motion for summary judgment made by a defendant who allegedly opened a cell door enabling several inmates to attack the plaintiff. As in the instant case, the cell door was opened just prior to the attack. In contrast to the case at bar, the plaintiff in Fischl, had not seen who opened the cell door. Notwithstanding the fact that some seven other officers had access to the lockbox, the fact that the defendant in question was the officer on duty at the time the door was opened was sufficient to preclude summary judgment. The Court of Appeals reasoned that even if the defendant did not open the door, he was in the vicinity at the time of the attack. Either way, the Court of Appeals deemed the evidence sufficient to draw the inference that the defendant was personally involved in permitting the attack on the plaintiff. See also, Byrd, 945 F. Supp. 581 (denying summary judgment in favor of defendant officer who left post briefly, during which time attack on plaintiff inmate occurred).
In the case at bar, not only was CO Davis the officer on duty at the time of the attack on Murchison, but Murchison alleges, and CO Davis does not deny, that CO Davis was, in fact, responsible for unlocking his cell door. The attack occurred almost immediately thereafter. In addition, at least one of Murchison's assailants came from a completely separate section of the prison requiring that he pass through several security gates. Moreover, the attack occurred during a count and lockdown. This circumstantial evidence may support a reasonable inference that Davis was aware of the risk, or even complicitly involved in the assault. Under the summary judgment criteria, I must indulge that inference in favor of Murchison as the non-moving party.
Summary judgment in favor of Defendant Davis is not warranted.
In their memorandum in support of the motion for summary judgment, Defendants contend that "Plaintiff implicitly states that defendant Davis conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985 (3)," and then proceed to argue why such claim has no merit. (Memorandum of Law on Behalf of Defendants in Support of Their Motion, p. 19). Since I do not construe the complaint as asserting such a claim, I do not address Defendants' arguments with respect to this issue.
IV. QUALIFIED IMMUNITY
Defendants also argue that they are entitled to summary judgment on the basis of qualified immunity. Because I grant summary judgment to Defendants Keane and Cepeda on the Eighth Amendment claim, I do not address the qualified immunity issue as to them.No argument was made claiming qualified immunity on behalf of Defendant Davis. Therefore, I need not reach the issue as to CO Davis either. However, even if the argument had been advanced, CO Davis is not entitled to qualified immunity.
An official entitled to qualified immunity benefits from the principle that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When assessing whether qualified immunity should attach, there are two questions.
First, the court must determine whether the law was clearly established at the time the action occurred. Although the Supreme Court clarified the meaning of deliberate indifference in Farmer subsequent to the actions at issue in the present case, confirming that intentional conduct was not a prerequisite to a viable § 1983 claim, the Second Circuit has long adhered to this position. See, e.g., Hendricks v. Coughlin, 942 F.2d 109, 113 (2nd Cir. 1991) ("an inmate's claim that prison officials failed, as a result of their deliberate indifference, to protect him from the violent actions of other inmates may state a viable § 1983 cause of action); Morales, 842 F.2d at 30 (same); Holmes v. Goldin, 615 F.2d 83 (2nd Cir. 1980) (same); but see, Matthews v. Armitage, 36 F. Supp.2d 121, 126-127 ("The exact contours of that right, however, were not made clear until the 1994 decision in Farmer."). Therefore, the right of an inmate to be free from attacks by other inmates as a result of a prison official's purposeful acts or deliberate indifference was clearly established in 1991.
The second part of the analysis "generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken." Anderson v. Creighton, 483 U.S. 635, 635 (1987) (internal citations and quotations omitted). As already explained, see discussion supra Part III.C., given the circumstances in the case at bar, CO Davis has not established that his actions, especially unlocking Plaintiffs' cell door prior to the attack, were reasonable as a matter of law. "Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action." Harlow, 457 U.S. at 819. Since, on the present record, a jury could reasonably find that Defendant Davis permitted the attack on Murchison, he would not be protected by qualified immunity.
V. CONCLUSION
For the foregoing reasons, I grant summary judgment in favor of Defendant Superintendent Keane and Defendant Sergeant Cepeda. I deny the motion for summary judgment as to Defendant CO Davis.
The parties are directed to comply with the Scheduling Order in Pro Se Action issued on June 28, 1996, a copy of which is attached hereto. In particular, the parties are directed to the section of the order beginning at the bottom of page one, which states, "ORDERED that within two (2) weeks after the time for filing motions has passed if no motion is filed, or within two (2) weeks after decision on the motion if a motion is filed by either party, plaintiff shall file a concise, written statement of the facts of his/her case." The order then explains what Plaintiff should include in the pre-trial statement. In accordance with the order, the remaining defendant shall file and serve his pre-trial statement two weeks after Plaintiff serves his statement.
Since the dates inserted into the Scheduling Order no longer apply, pre-trial statements shall be submitted according to the following schedule.
Plaintiff shall file and serve his pre-trial statement on or before May 29, 2000.
Defendant shall file and serve his pro-trial statement on or before June 26, 2000.
Once the pro-trial statements have been filed and served, the Court will set the case down for trial.
It is SO ORDERED.
SCHEDULING ORDER IN PRO SE ACTION
Plaintiff has filed this lawsuit pro se. In order to guide the parties in their pursuit of the lawsuit, to assure that both sides become aware of the positions and contentions of the other, and to assure that the action moves swiftly, I am entering the following order. It is herebyORDERED that all pre-trial inquiry by each party into the evidence and knowledge of the other, whether by interrogatories, depositions, production of documents, or other discovery methods, be completed by October 28, 1996, and that all pre-trial motions be submitted within forty-five (45) days thereafter. Either party may request to have these dates extended, and they will be extended if the party requesting the extension demonstrates that his, her or its pursuit of the action has been diligent and that there is a good reason for extending the deadline. If no extensions are granted, no pre-trial motions or discovery will be permitted after these dates. It is further
ORDERED that within two (2) weeks after the time for filing motions has passed if no motion is filed, or within two (2) weeks after decision on the motion if a motion is filed by either party, plaintiff shall file a concise, written statement of the facts of his/her case. This pre-trial statement need take no particular form, but it must state the following: 1) a statement of the facts plaintiff hopes to prove at trial; 2) a list of all documents or other physical objects which the plaintiff plans to put before the court at trial; 3) a list of the names and addresses of all witnesses plaintiff intends to have testify at trial; and 4) a summary of the anticipated testimony of each of those witnesses and of the plaintiff, if he/she plans to testify. The statement must be sworn by the plaintiff to be true and accurate based on the facts known by the plaintiff. Plaintiff shall file an original of this statement with the Clerk of the Court and serve a copy on the attorneys for defendant[s]. The original filed with the Clerk of the Court must include a certificate stating the date a copy was mailed to the attorneys for the defendant[s]. It is further
ORDERED that defendant[s] file and serve a similar statement of their case containing the same information two (2) weeks after service of plaintiff's statement. Defendant[s] is/are further directed to file as part of his/her/its/their statement proposed conclusions of law, if the case is to be tried to the Court, or a proposed jury charge, if it will be tried before a jury. The pro se plaintiff may also file either proposed conclusions of law or a proposed jury charge, but he/she is not required to do so. It is further
ORDERED that either party may be prevented from presenting at trial any important information which is not included in the required statements. The only exceptions will be (1) matter which is determined not to have been discoverable, whether privileged or for other reasons, and (2) matter to be used solely to call into question the credibility of witnesses. It is further
ORDERED, that failure to comply with any of the terms of this Order may constitute grounds for the denial of requested relief, dismissal of the action, the entry of judgment by default, or such other action as may be just in the circumstances.
In the event a motion for summary judgment is made in this case, the Second Circuit requires that the district court explain to each pro se litigant the consequences of not responding to a summary judgment motion. In accordance with this direction, the parties are hereby notified of the requirements for responding to a motion for summary judgment pursuant to Rule 56.
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment which are filed in the District Court. The rule provides that a party may move with or without supporting affidavits for summary judgment in his favor and that "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." (See Rule 56(b) and (c).)
Most importantly, subsection (e) of Rule 56 states that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary jdugment, if appropriate, shall be entered against the adverse party." (emphasis added)
In other words, under the Rule, the opposing party has the right to present to the Court affidavits and other documentary evidence, such as depositions, answers to interrogatories, and admissions on file, that contradict or dispute the materials submitted by his or her adversary in support of the motion. By failing to do so, the opposing party runs the risk that any factual assertions made by his or her adversary in the motion will be accepted by the Court as true. The opposing party will also lose the opportunity to show that there are factual issues which need to be resolved and, as a result, may forfeit his or her right to trial against the moving party.
Of course, these instructions apply only if the other party makes a motion for summary judgment under Rule 56.
If the pro se litigant has any questions regarding this Order or the proper procedure for filing opposition papers, he or she should contact the Pro Se Office at 500 Pearl Street, Room 230, New York, New York, 10007 (Telephone (212) 637-0175).
It is SO ORDERED.