Opinion
9:19-cv-00072 (GTS/TWD)
09-01-2022
JULIO NOVA, Plaintiff, v. RANDAL SMITH, JAMIE WILLETT, PAUL WOODRUFF, and RICHARD BOND, Defendants.
JULIO NOVA Plaintiff, pro se LETITIA JAMES Attorney General of the State of New York Attorney for Defendants JOHN F. MOORE, ESQ. Assistant Attorney General
JULIO NOVA
Plaintiff, pro se
LETITIA JAMES
Attorney General of the State of New York
Attorney for Defendants
JOHN F. MOORE, ESQ.
Assistant Attorney General
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. Glenn T. Suddaby, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). On January 22, 2019, pro se Plaintiff Julio Nova (“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 third amended complaint was accepted for filing on March 22, 2021, and liberally construed as asserting: (1) Eighth Amendment excessive force, failure to protect, and/or failure to intervene claims against Corrections Officer (“C.O.”) Jamie Willett (“Willett”), C.O. Richard Bond (“Bond”), Deputy Superintendent of Security (“DSS”) Paul Woodruff (“Woodruff”), and Sergeant (“Sgt.”) Randal Smith (“Smith”) (together, “Defendants”); (2) Fourteenth Amendment equal protection claim against Willett; and (3) an equal rights claim pursuant to 42 U.S.C. § 1981 (“Section 1981”) against Willett. (Dkt. No. 112 at 12.)
The Court refers to Defendants' DOCCS' ranks as indicated in March 2018. Their present ranks and employment status may differ.
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Currently before the Court are Defendants' motion for partial summary judgment and Plaintiff's cross-motion for summary judgment. (Dkt. No. 156; Dkt. No. 177; Dkt. No. 182.)
Defendants' submission includes a Notice of Motion (Dkt. No. 156), Attorney Declaration with Exhibits (Dkt No. 156-1 through Dkt. No. 156-24), Statement of Material Facts (Dkt. No. 15625), Declaration of Sherri Debyah with Exhibits (Dkt. No. 156-26), Declaration of Lt. Michael Eddy with Exhibits (Dkt. No. 156-27), Declaration of Lt. Thomas Quinn with Exhibits (Dkt. No. 156-28), Declaration of Defendant Randal J. Smith with Exhibits (Dkt. No. 156-29), Declaration of Rachael Seguin with Exhibits (Dkt. No. 156-30), Declaration of Defendant Paul Woodruff with Exhibits (Dkt. No. 156-31), Memorandum of Law (Dkt. No. 156-32), and Appendix of unreported cases (Dkt. No. 156-33).
Plaintiff's submission includes a Statement in Opposition to Defendants' Statement of Material Facts (Dkt. No. 177), Declaration in Opposition to Defendants' Motion for Partial Summary Judgment (Dkt. No. 177-1), Memorandum of Law (Dkt. No. 177-2), and Declaration in Support of Motion for Summary Judgment (Dkt. No. 177-3).
Defendants also submitted an Attorney Reply Declaration/Declaration in Opposition to CrossMotion (Dkt. No. 182), Declaration of Defendant Jamie Willett with Exhibits (Dkt. No. 182-1), Declaration of Defendant Richard Bond with Exhibits (Dkt. No. 182-2), and Reply Memorandum of Law/Memorandum of Law in Opposition to Cross-Motion (Dkt. No. 183-3). Plaintiff did not submit a reply and the motions are deemed fully briefed. (See Dkt. No. 197.)
For the reasons set forth below, the Court recommends that Defendants' motion be granted in part and denied in part, and Plaintiff's motion be denied.
The facts stated herein are drawn from the parties' submissions, including Defendants' Statement of Material facts, (Dkt. No. 156-25), Plaintiff's response thereto, (Dkt. No. 177), and the attached affidavits, declarations, and exhibits. Plaintiff largely concedes the accuracy of Defendants' recitation of the specific facts, while in some cases disputing the legal significance of those facts. Compare Dkt. No. 156-25 with Dkt. No. 177. To that end, Plaintiff admits to paragraphs 1, 3, 4, 9-21, 23, 25-32, 34, 36-40, 42-56, 58, 60, 64-66, 68-70, 72, 74-75, 77-88 and 105 of Defendants' Rule 56 Statement. (Dkt. No. 177 at ¶ 3.) Plaintiff failed to respond to the assertions set forth in paragraphs 6, 33 and 35.
On March 1, 2018, while confined at Upstate, Plaintiff received six misbehavior reports arising from incidents that occurred at approximately 8:27 a.m., 9:50 a.m., 11:10 a.m. and 12:40 p.m. (Dkt. No. 156-23 at ¶¶ 1, 20, 26, 37, 42, 48, 49.) The March 1, 2018, 8:27 a.m. misbehavior report issued by non-party Officer Beane reads as follows:
On the above date and approximate time while collecting razors on upper B-gallery in 9 building I C.O. Beane arrived at 9B-48 cell and collected inmate Nova's 02A2345 razor. While inspecting Nova's razor I realized that he has tampered with the plastic around the razor and broke it. Area supervisor was notified and inmate was moved to 9B23B and PIMS level was dropped. Photos were taken of the broken razor and then disposed of.Id. at ¶ 28.
At 8:27 a.m. Plaintiff was moved to cell 9 B 23 as indicated in the misbehavior report. Id. at ¶ 31. He was escorted by non-party Officers Beane, Comstock, and Sgt. Donah. Id. at ¶ 32. Other officers appeared, including Willett. Id. at ¶ 33. Plaintiff was told multiple times to enter cell 9 B 23, but he refused. Id. at ¶¶ 34, 35. Willett was the only defendant present during the 9:50 a.m. incident. See id. at ¶¶ 46, 47, 56.
As a result of 9:50 a.m. incident, Plaintiff received three misbehaviors reports dated March 1, 2018, authored by Officer Comstock, Sgt. Donah, and Willett. Id. at ¶ 36. Officer Comstock's misbehavior report reads as follows:
On the above date and approximate time while escorting Inmate Nova DIN# 02A2345 from the lower holding pen to 9 B 23 cell, he became combative, and force became necessary and Nova kicked me Officer Comstock several times in the chin and ankle of my right side causing injury to my chin and ankle. Nova was placed in 9 B 23 cell where he was seen by medical through the door. No Further Incident.Id. at ¶ 38. Sgt. Donah's misbehavior reports explains that:
On the above date and approximate time I was called to the 9-Building lower holding pen for assistance. Once at the holding pen inmate Nova 02A2345 was refusing to comply with staff direction regarding a cell move. I gave the inmate several orders to comply and he refused at this time force was necessary to make him comply. He was forced to 9-B-23 cell where he was combative and refused to enter the cell. He was placed in the cell and refused to allow his restraints to be removed. Once the restraints were removed his hands had to be forced back into the hatch. Once the hatch was secured no further incident followed. Medical was escorted to his cell so he could be evaluated.Id. at ¶ 43. Plaintiff admits Sgt. Donah and other officers gave several orders to enter the new cell and that he refused. Id. at ¶¶ 44, 45. The misbehavior report issued by Willett states:
On the above stated date and approximate time, while assisting in the escort of inmate Nova, 02A2345 from 9 Bldg lower holding pen to 9B23B, Inmate Nova 02A2345 spit into my face and mouth through the feed up hatch from inside the cell hatch was secured and I was seen by medical.Id. at ¶ 40.
Plaintiff's submissions paint a different picture of the 9:50 a.m. incident. According to Plaintiff, he was “aggressively manhandled,” forced into the cell, and punched in the back of the head “multiple times” by Willett and an unnamed officer, while Willett directed racial slurs at Plaintiff. (Dkt. No. 156-21 (“Pl.'s Dep.”) at 59-63.) Plaintiff maintains he did not become combative, nor did he kick any officers during the 9:50 a.m. incident. Id. at 78-79. Plaintiff also claims Willett “sadistically and maliciously pulled on Plaintiff's cuffs” through the cuffing port such that it caused nerve damage to Plaintiff's hands. Id. at 71-75. According to Plaintiff, he “unintentionally” spit through the feed-up hatch from inside the cell into Willett's mouth when he was “questioning [Willett] about why . . . was he hitting me.” Id. at 64; Dkt. No. 177 at ¶ 11.
In connection with the 9:50 a.m. incident, Willett prepared and signed a use of force memorandum, which reads as follows:
I was contacted via radio by Sgt. Donah to respond to the lower holding pen in 9 bldg to assist with the escort of inmate Nova 02A2345 from the lower holding pen to 9B23 cell. Upon arriving to the lower holding pen I observed Sgt. Donah giving inmate Nova 02A2345 several direct orders to walk into the cell and asking him to comply with directions and he refused to comply, stating “Fuck you I'm not going let's go motherfuckers let's do this.” Other officers involved escorted inmate Nova 02A2345 from the holding pen to lower b gallery.
After observing inmate Nova 02A2345 being combative and non compliant and refusing to enter 9B23 cell door I placed both of my hands onto his upper back area and forced him into the cell. Upon entering the cell I took control of the waist chains using both of my hands and forced inmate Nova 02A2345 to turn around and backed my way out of the cell while the door was closing. I maintained control of the waist chains with both hands until the door was closed at which time inmate Nova 02A2345 spit into my face and mouth. I continued to maintain control of the waist chain as inmate Nova 02A2345 was refusing to allow the hand restraints to be removed. I pulled rearward on the chains pulling his hands out through the hatch so restraints could be removed.(Dkt. No. 182-1 (“Willett Decl.”) at ¶ 5.) Further, Willett declares:
During the March 1, 2018 incident that occurred at approximately 9:50 a.m., I did not strike or punch Plaintiff. At no point during that incident or at any other time that day did I threaten Plaintiff or call him any racist names, including the ‘N' word, nor did I compare him to my ex-wife. I never spit on or at the Plaintiff. I
never discussed with Defendant Smith retaliating against the Plaintiff. Any force used during this incident, as described in the [use of force memorandum] was done to place Plaintiff in his cell, maintain control of the plaintiff to remove restraints, and to allow officers to leave the cell safely.Id. at ¶ 8.
Plaintiff also claims that shortly after the 9:50 a.m. incident, Willett threatened to kill him. (Dkt. No. 113 at 8.) According to Plaintiff, Smith and Bond, who were escorting Plaintiff to the facility hospital, witnessed the threat. Id. Plaintiff was very concerned “as to his personal safety,” and immediately brought his concerns “to the attention of Defendants Smith and Bond.” (Pl.'s Dep. at 88, 97-98.) Thereafter, Plaintiff witnessed a conversation between Smith and Willett and heard Smith say, “don't worry I will take care of it . . . but it has to be done right.” (Dkt. No. 113 at 9.)
At approximately 12:40 p.m., Plaintiff was escorted from the infirmary back to his cell and noticed it had been “searched and intentionally trashed.” (Pl.'s Dep. at 102, 110.) He refused to enter the cell and, without warning, was forced into the cell. Id. Plaintiff claims Smith ordered officers to place Plaintiff facing against the cell wall. Id. at 110-11. Smith left and returned with Willett moments later. Id. at 112. Plaintiff was facing the wall and handcuffed when Willett entered the cell and immediately “placed the Plaintiff in a escort hold and began taking him down to the cell floor” while “twisting his body” and “spitting on Plaintiff's face.” Id. at 114-15. Willett punched and kicked Plaintiff in the face, stomach, and chest for approximately one minute while directing racial slurs at Plaintiff. Id. at 116-19. Willett said “don't you ever do that to a correction officer again” while assaulting Plaintiff. Id. at 119. Plaintiff claims Smith and Bond witnessed the incident and did not intervene or say anything “despite Plaintiff's plea for help.” (Dkt. No. 113 at 10-11; Pl.'s Dep. at 121-22.)
Thereafter, Plaintiff's handcuffs and chains were taken off and his arms and legs were
“hog-tied” with sheets by Willett and other unnamed officers. (Pl.'s Dep. at 123-25.) The officers left Plaintiff's cell and locked it, leaving him hog-tied for over two minutes until he could loosen himself free. Id. at 126. Plaintiff testified that he had bruises “all over [his] body” including the right side of his forehead and on his chest, stomach, and arms and had blood in his urine for approximately 24 hours. Id. at 129, 131.
Plaintiff received a misbehavior report from non-party Officer LaBare dated March 1, 2018, at approximately 12:40 p.m., which reads:
On the above date and time while escorting inmate Nova, J 02A2345 back from the infirmary, he refused several direct orders from myself and Sgt. R. Smith to enter his cell. The inmate became combative and force had to be used.(Dkt. No. 156-32 at ¶¶ 50, 51.) Plaintiff admits Smith and Officer LaBare ordered him to enter the cell as indicated in the 12:40 p.m. misbehavior report. Id. at ¶ 52. The use of force report related to this incident reads, in relevant part:
Inmate Nova 02A2345 was escorted back from the infirmary to his cell, then refused to enter it. Nova refused all orders to enter the cell at that time force became necessary to gain compliance. Sgt RJ Smith ordered the officers to put Nova into his cell. Nova then became combative and resisted the officers.(Dkt. No. 156-29 (“Smith Decl.”) at ¶ 4, Exhibit A.) For his part, Smith declares:
At approximately 12:40 pm, myself and other staff were escorting Plaintiff back to his cell from the infirmary, when he refused to enter his cell. The Plaintiff was given several orders and ample time to comply, however he refused to cooperate. At this time force became necessary to gain compliance. I ordered staff to put the Plaintiff into his cell. He then became combative and resisted the officers.
Officer Boyd took control of Plaintiff's upper right arm with both his hands and forced him into the cell. Officer LaBare took control of the retention strap with his right hands and with his left hand on
Plaintiff's back he forced him into his cell. Officer Premo took control of Plaintiff's left arm with both his hands until he was forced into his cell. Officer Willett entered the cell and took control of Plaintiff's left arm with both of his hands. Officers Boyd and Willett then forced Plaintiff to the floor face down. Officer LaBare took control of Plaintiff's legs with both of his hands and helped force Plaintiff to the floor. Officer Willett wrapped Plaintiff's hands and arms with a sheet while Officer Boyd removed the mechanical restraints, and LaBare wrapped Plaintiff's legs in a sheet. Once Plaintiff was secured by the sheet, Officers Boyd and Premo force him under the bottom bunk to allow the officers to exit the cell safely. All staff exited the cell without further incident.Id. at ¶¶ 5-6. Smith swears that “[a]t no point during the Use of Force incident detailed above, did I or any other involved officers, including defendant Jamie Willett, use racial language towards the Plaintiff.” Id. at ¶ 7.
In connection with the 12:40 p.m. use of force incident, Willett prepared a use of force memorandum, dated March 1, 2018, which reads as follows:
On the above stated date and time I responded to 9B23 cell in response to Sgt. Smith's radio transmission. After arriving at ¶ 23 Sgt. Smith directed me to enter the cell and assist other officers in maintaining control of inmate Nova 02A2345.
Upon entering 9B23 cell I grabbed inmate Nova 02A2345 by his left arm using both of my hands and forced him to the floor. While on the floor I maintained control of Nova 02A2345 left arm with both of my hands and wrapped his hands up with a sheet. After wrapping both of inmate Nova 02A2345 hands with a sheet the mechanical restraints were removed inmate Nova 02A2345 was forced under the bed. I backed out of the cell and the door was secured. No other force was needed.
No injuries were noted and I remained on duty.(Willett Decl. at ¶ 10, Exhibit E.) Willett swears that he did not kick, strike, or punch Plaintiff during the 12:40 p.m. incident. Id. at ¶ 11. He further declares:
At no point during that incident or at any other time that day did I threaten Plaintiff or call him any racist names, including the “N”
word. I never spit on or at the Plaintiff. Any force used, as described in the memorandum at Exhibit E was, done to maintain control of the Plaintiff, and to allow officers to leave the cell safely.Id.
Bond also prepared a use of force memorandum, dated March 1, 2018, at 12:40 p.m., which reads:
On 3/1/18 at apprx. 12:40 p.m. I C.O. R. Bond Reported to 4-B-23 cell for assistance, assistance was not needed.
When I officer R. Bond responded to B-23 cell my assistance was not needed. Staff members had restrained inmate Nova. I never entered the cell, I stayed on the gallery. I could not see inside the cell because the supervisor was in the way.
I did not use force or get injured.(Dkt. No. 182-2 (“Bond Decl.”) at ¶ 7, Exhibit B.) For his part, Bond declares:
I did not use any force of any kind against Plaintiff. At no point during that incident or at any other time that day did hear any staff threaten Plaintiff or call him any racist names, including the ‘N' word. I never observed any staff spit on or at the Plaintiff. I did not intervene in any force used . . . because Sgt. Smith was standing in front of me, I could not see inside the cell, and observed no force used. However, my understanding based on what was being said, was that the Plaintiff had already been restrained. The Plaintiff never advised me that he feared for his safety or of any threat to his safety on or prior to March 1, 2018. I was not aware of any excessive force used.Id. at ¶ 8.
Woodruff was not present for, involved in, or a witness to any use of force involving Plaintiff on March 1, 2018. (Dkt. No. 156-25 at ¶ 56.) Additionally, Woodruff declares:
Before March 1, 2018, I was not aware of any institutionalized practices of DOCCS involving excessive use of force, punishment or abuse of black or Hispanic incarcerated individuals. I was not aware of an investigation conducted by the Inspector General,
ordered by former Governor Andrew Cuomo on December 2016, in regards to racial bias, or excessive use of force against inmates. I have not read any New York Times article on that subject, including before March 1, 2018. I did not receive any memorandum, as DSS, concerning an investigation conducted by the Attorney General and warning of no toleration of bias or officer brutality against inmates.
At no time prior to March 1, 2018 was I advised of “vicious propensities” of Defendants Smith, Willett or Bond, nor of any danger that these officers, or any other officer at Upstate, posed to Plaintiff, inmates named Barnes or Walker, or any other inmates.
No other inmate alerted me to vicious propensities of Defendants Bond, Smith or Willett. I was unaware of any criminal acts committed by Defendants Smith, Willett or Bond before or after March 1, 2018 as it pertains to treatment of any inmate, including Julio Nova 02-A-2345.
My duties as DSS do not directly involve provision of training to officers, including Smith, Willett or Bond, nor scheduling of those officers to particular assignments or locations within the facility.(Dkt. No. 156- 31 (“Woodruff Decl.”) at ¶¶ 4-5.)
Woodruff was assigned to conduct the Tier III hearing pertaining to the 8:27 a.m. and 9:50 a.m. misbehavior reports written against Plaintiff on March 1, 2018. Id. at ¶ 6. The hearing began on March 14, 2018, and was extended through March 28, 2018. Id. It never concluded. Id. The disciplinary infractions related to the hearing Woodruff conducted were ultimately expunged due to untimeliness. Id. at ¶ 7. During the hearing, there was no statement or testimony by Plaintiff or any staff that Willett directed any racial language towards Plaintiff on March 1, 2018. Id. at ¶ 8.
Non-party Captain Dominic conducted a Tier III disciplinary hearing regarding the 11:10 a.m. and 12:40 p.m. misbehavior reports dated March 1, 2018, and Plaintiff was found guilty of all charges. (Dkt. No. 156-25 at ¶ 58.)
Plaintiff filed three grievances concerning March 1, 2018, which were consolidated into UST-62800-18. (Dkt. No. 156-25 at ¶¶ 64, 65.) The first grievance was dated March 5, 2018. Id. at ¶ 68. It was received by the grievance office on March 7, 2018, and assigned grievance number UST-62800-18. The factual portion reads:
Pursuant to 7NYCRR§§251-1.2(F)(1); 251-1.2(b); 251-1.2(c); where it clearly state “where is necessary to use physical force, only such degree of force as is reasonably required must be used.
That on Mar. 1, 2018, approximately 12:40pm, Correctional Officer Mr. Jamie Willet, along with others whom names I do not know at the moment, maliciously and sadistically assaulted Grievant and used excessive force. (See camcorder footages, and also unit camera within 9-B1, gallery; CS204, CS205, CS206)
That the failure of Sergeant Mr. Randal Smith to intervene or protect Grievant when Officer J. Willet, along with others, used force against him, without provocation, constitutes a violation of civil rights.
The Officers' maliciously assault on Grievant was in retaliation since, allegedly, he had spit on Officer's J. Willet face and mouth on the same date in prior incident in front of 9-B1-23 cell through feed-up hatch.
That Correctional Officer J. Willet unnecessarily, with wanton intentions inflicted pain upon Grievant.
That Correctional Officer J. Willet committed the following unnecessary and wanton infliction of pain; struck with fists and kicks, delivered intentional head blows upon Grievant while he was hand-cuffed and chain around waist, slammed head into floor even though Grievant did not pose an imminent threat to the Officers. Officer J. Willet also spit on Grievant's face twice.
Action Requested: To discipline Officer J. Willet and Srg. Randal Smith and others pursuant to Employee Manual Section 24.1; also I request that a copy of this grievance be placed in their central file records.Id. at ¶ 68. Plaintiff's second grievance, dated March 11, 2018, was consolidated with UST-62800-18 and the factual portion states:
Pursuant to 7NYCRR§§251-1.2(F)(1); 251-1.2(b); 251-1.2(c); where it clearly states “where is necessary to use physical force, only such degree of force, only such degree of force as is reasonably required must be used.
That on Mar. 1, 2018, approximately 9:50AM, Correctional Officer Mr. Andrew Martin maliciously and sadistically assaulted Grievant and used excessive force (see unit camera within 9-Bl-gallery #cs204)
That Correctional Officer Mr. Andrew Martin unnecessarily, with wanton intentions inflicted pain upon Grievant.
That Correctional Officer Mr. Andrew Martin committed the following unnecessary and wanton infliction of pain; stuck with fists; delivere intentional face blows upon Grievant while he was handcuffed and with waist chain mecanisims, excessive force in bad faith by trying to brake Grievant's arm through feed-up hatch even though he did not intended to pull his arm in the cell while cuffed.
Action Requested: To discipline officer Mr. Andrew Martin pursuant to Employee Manual Sections 24.1; and 4.2. Also, Grievant request that a copy of this grievance be placed in his central file records.Id. at ¶ 72. Plaintiff's third grievance, dated March 12, 2018, was consolidated with UST-62800- 18, and the factual portion states:
Pursuant to 7NYCRR§§251-1.2 (F)(1); 251-1.2(b); 251-1.2(c); where it clearly states “where is necessary to use physical force, only such degree of force as is reasonably required must be used.
That on Mar. 1, 2018, approximately 9:50AM., and 12:40PM., Correctional Officer Mr. Aaron Beane, along with others whom names I do not know at the moment, maliciously and sadistically assaulted Grievant and used excessive force. (See 9-Bl gallery camera #cs204 (in front of B-1-23 cell) also camcorder footages of required recording of all inmates involved in use of force.)
Upon information and belief, Officer A. Beane committed the following unnecessary and wanton infliction of pain; struck with fists, delivere intentional body blows upon Grievant while he was handcuffed and with waist chain mecanisims applied, excessive force with intentions to cause serious harm.
Action Requested: To discipline Officer Aaron Beane pursuant to Employees Manual Sections 24.1; and 4.2. Also, Grievant request that he be suspended without paid and a copy of this grievant be placed in his personal file.Id. at ¶ 74.
On March 7, 2018, non-party Lt. Quinn was assigned by the Incarcerated Grievance Program (“IGP”) Supervisor to investigate consolidated grievance UST-62800-18. Id. at ¶ 77. Lt. Quinn assigned Smith to obtain statements from staff who were named in the grievances, and some other individuals who were present. Id. at ¶ 78. On March 15, 2018, Smith submitted a to/from memorandum to Lt. Quinn regarding his involvement, which reads as follows:
This program was formerly known as the “Inmate Grievance Program” but has recently been renamed.
On 1 Mar 18, I, SGT RJ Smith, supervised the escort of inmate Nova 02A2345 who was returned to his cell. 9-B-23, at approximately 12:40 pm from the infirmary. Nova refused several orders to enter his call, he then became combative and force became necessary (see UOF 18-0017). Only minimum force necessary was use to gain compliance of Nova to put him in his cell and then exit the cell safely by all Officers involved.
Officer J. Willet responded to the situation and acted in a professional manner, as described in the UOF and helped gain compliance of the combative inmate Nova. There is no further action or investigation required on this matter.Id. at ¶¶ 79, 80.
Lt. Quinn assigned non-party Lt. Eddy to interview Plaintiff regarding his grievance claims. Id. at ¶ 81. Lt. Eddy interviewed Plaintiff on March 22, 2018. Id. at ¶ 82. During the interview Plaintiff made no additional statements regarding his grievance, nor did he indicate that any individual, including Willett, used racial language towards him. Id. at ¶ 83. Lt. Eddy authored a memorandum to Lt. Quinn dated March 22, 2018, which reads as follows:
I, Lt. M. Eddy interviewed Inmate Nova, J Din# 02A2345 in front of his current cell location, 09-B1-23B at approximately 09:45am on the above date. This inmate had nothing new to offer towards this grievance.Id. at ¶ 84.
On or about April 7, 2018, the Superintendent issued a decision regarding grievance UST-62800-1, which reads:
Grievant is advised that the allegations contained in this complaint have been investigated. The investigation included an interview of the grievant by the investigating supervisor, as well as interviews of the staff members identified by the grievant.
The grievant was interviewed by a security supervisor regarding this complaint and offered no additional information to his written complaint and provided no witness to the alleged incident.
The staff members identified were interviewed and submitted written memorandum denying the allegations they assaulted the grievant.
Upon review of the information submitted, no misconduct by staff was found and no further action will be taken at this time. Grievance is denied.Id. at ¶¶ 85, 86. Plaintiff appealed the Superintendent's decision to the Central Office Review Committee (“CORC”) on April 15, 2018. Id. at ¶ 87.
III. DISCUSSION
A. Standard of Review
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, 251-52 (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. 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) (credibility issues, which are questions of fact for resolution by a jury, are inappropriately decided by a court on a motion for summary judgment).
“Where, as here, the parties have cross-moved for summary judgment, a reviewing court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” United States v. Bedi, 453 F.Supp.3d 563, 570 (N.D.N.Y. 2020) (cleaned up). “In undertaking this analysis, it bears noting that a district court is not required to grant judgment as a matter of law for one side or the other.” Id.; see also Residential Mgmt. (N.Y.) Inc. v. Fed. Ins. Co., 884 F.Supp.2d 3, 7 (E.D.N.Y. 2012) (“Cross-motions for summary judgment do not alter the basic standard, but simply require the court to determine whether either of the parties deserves judgment as a matter of law on facts that are not in dispute.”). “Moreover, the district court considering a summary judgment motion must be mindful of the underlying standards and burden of proof.” Larkins v. Cayuga Cty., No. 9:13-CV-219 (NAM/ATB), 2014 WL 4760064, at *4 (N.D.N.Y. Sept. 24, 2014) (quotation marks and alternations omitted). Thus, a plaintiff “bears a much greater initial burden; he must show that the evidence supporting his claims is so compelling that no reasonable jury could return a verdict for the defendant.” Id.
B. Local Rule 56.1
Local Rule 56.1(a) requires a party moving for summary judgment to file and serve a Statement of Material Facts. See L.R. 56.1(a) (“Any motion for summary judgment shall contain a separate Statement of Material Facts.” (emphasis added)). “The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of each material fact about which the moving party contends there exists no genuine issue.” Id. “Each fact listed shall set forth a specific citation to the record where the fact is established.” Id. “Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.” Id. (emphasis in original).
Pursuant to Local Rule 56.1(a), Defendants filed and served a Statement of Material Facts. (Dkt. No. 156-25.) In opposing Defendants' motion, Plaintiff failed to respond to the Statement of Material Facts filed by Defendants in the manner required under Local Rule 56.1(b). (Dkt. No. 177.) “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. The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” L.R. 56.1(b) (emphasis in original). While Plaintiff admits the majority of Defendants' factual assertions set forth in their Statement of Material Facts, (see Dkt. No. 177 at ¶ 3), Plaintiff failed to respond to paragraphs 6, 66, and 35. As to the remaining paragraphs, which deny the assertion therein, Plaintiff often fails to cite to admissible evidence, contradicts his own prior testimony, or cites to purported evidence which does not raise a factual issue or controvert the assertion in Defendants' Statement of Material Facts. (See, e.g., Dkt. No. 177 at ¶¶ 2, 5, 7-8, 22, 24, 55, 56, 57, 59, 61, 62, 63, 67, 71, 73, 89-91, 92-104.)
Where, as in this case, a party has failed to respond to the movant's Statement of Material Facts in the manner required under Local Rule 56.1(b), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Defendants provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 156 at 3.)
Accordingly, the facts set forth in Defendants' Statement of Material Facts (Dkt. No. 156-25) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified pleading and opposition submission will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in Statement of Material Facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts . . . supplemented by Plaintiff's verified complaint . . . as true.”). As to any facts not contained in Defendants' Statement of Material Facts, the Court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Turning to Plaintiff's cross-motion, Plaintiff did not include a separate Statement of Material Facts as required under Local Rule 56(1)(a). (See Dkt. No. 177.) The Local Rules are not “empty formalities,” and courts within this District have denied a pro se party's motion for summary judgment based on their failure to file a Statement of Material Facts. See, e.g., A'Gard v. Locke, No. 9:14-CV-0613 (GTS/DEP), 2016 WL 8735653, at *4 (N.D.N.Y. June 24, 2016) (denying summary judgment motion because the pro se plaintiff did not comply with the applicable local rules governing motion practice by including a Statement of Material Facts) (citing Riley v. Town of Bethlehem, 5 F.Supp.2d 92, 93 (N.D.N.Y. 1998) (dismissing summary judgment motion based on moving party's failure to file a properly supported Statement of Material Facts as required under the Local Rules)), report-recommendation adopted, 2016 WL 5137273 (N.D.N.Y. Sept. 21, 2016); see also Cusamano v. Sobek, 604 F.Supp.2d 416, 426-27 & n.4 (N.D.N.Y. 2009) (Suddaby, J.) (“As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.”) (collecting cases).
Here, because Plaintiff has not complied with the Local Rules governing motion practice by including the required Statement of Material Facts, the Court recommends denying Plaintiff's cross-motion for summary judgment.
Even if the Court were to overlook Plaintiff's failure to submit a Statement of Material Facts as required by Local Rule 56(1)(a), when viewed in the evidence most favorable to Defendants as the nonmoving party, genuine disputes of a material fact in this case would preclude granting summary judgment to Plaintiff. To that end, as discussed in Part II, supra, the competing evidence rests on the credibility of Plaintiff on one hand and Defendants on the other. In these circumstances, the governing law that the evidence must be viewed in the light most favorable to the nonmoving party requires the Court to credit Defendants' version of the events for purposes of Plaintiff's cross-motion for summary judgment. Coleman v. Racette, No. 9:18-CV-0390 (MAD/CFH), 2021 WL 4312392, at *8 (N.D.N.Y. May 27, 2021), report-recommendation adopted, 2021 WL 3508342 (N.D.N.Y. Aug. 10, 2021); In re Dana Corp., 574 F.3d 128, 152 (2d Cir. 2009) (holding that a court faced with a motion for summary judgment must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh the evidence, functions which are reserved to a jury and not a judge) (citing cases). Thus, the Court would also recommend denying summary judgment to Plaintiff on the merits.
C. Exhaustion of Administrative Remedies
Defendants contend Plaintiff failed to exhaust his administrative remedies with respect to his Fourteenth Amendment equal protection and Section 1981 claims against Willett. (Dkt. No. 156-21 at 13-18.) Defendants also argue any Eighth Amendment claims against Willett regarding the March 1, 2018, 9:50 a.m. incident should be dismissed for failure to exhaust. Id. at 18-19.
Defendants presumably concede Plaintiff's Eighth Amendment claims relating to the March 1, 2018, 12:40 p.m. are exhausted. Defendants have not moved for summary judgment and dismissal of these claims for failure to exhaust.
1. Legal Standard
The Prison Litigation Reform Act of 1995 (the “PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under [Section 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA's exhaustion requirement is designed to “afford[ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Id. at 524-25. To properly exhaust his administrative remedies, an inmate must complete the administrative review process in accord with the applicable state procedural rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007).
The grievance procedure in New York is generally a three-tiered process. An inmate must first file a grievance with the Incarcerated Grievance Resolution Committee (“IGRC”) within twenty-one days of the incident. N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit.7, §§ 701.5(a)(1), (b). An adverse decision of the IGRC may be appealed to the superintendent of the facility and adverse decisions at the superintendent's level may be appealed to CORC. Id. §§ 701.5(c), (d). The grievance must contain “a concise, specific description of the problem and the action requested[.]” Id. § 701.5(a)(2).
This committee was formerly known as the “Inmate Grievance Resolution Committee,” but has recently been renamed.
Grievances claiming employee harassment, including claims of excessive force, “are of particular concern to the administration of [DOCCS] facilities,” and subject to an expedited procedure whereby the grievance goes directly to the facility superintendent. Id. § 701.8; see, e.g., Torres v. Carry, 691 F.Supp.2d 366, 369-70 (S.D.N.Y. 2009). If the grievance presents a “bona fide harassment issue,” “then the superintendent must initiate an investigation, render a decision on the grievance, and inform the inmate of the decision within 25 days of receipt of the grievance.” Williams v. Priatno, 829 F.3d 118, 120 (2d Cir. 2016); 7 NYCRR §§ 701.8(d), (f). The superintendent's decision may be appealed by filing a notice of decision to appeal with “the inmate grievance clerk within seven calendar days of receipt of that response.” 7 NYCRR § 701.8(h).
A similar expedited procedure exists for claims based on allegations of unlawful discrimination. Id. §§ 701.9 & 701.5. In cases where an inmate alleges unlawful discrimination based on race, nationality, disability, sex or sexual orientation, religion, age, or political belief, the grievance is forwarded directly to the superintendent of the facility with a copy to the Office of Diversity Management. Id. § 701.9(c). The superintendent will conduct an investigation, and any decision may be appealed to CORC within 7 days of the superintendent's response. Id. §§ 701.9(e), 701.9(f).
“Under the PLRA, a prisoner need exhaust only ‘available' administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016). The Supreme Court has identified three examples of unavailable administrative procedures: (1) those that “operate[ ] as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates; (2) those that are “so opaque that [they] become[ ], practically speaking, incapable of use,” where “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it;” and (3) those where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 643-44.
2. Analysis
Defendants make two arguments in support of partial summary judgment on exhaustion grounds. (Dkt. No. 156-32 at 13-19.) First, Defendants argue Plaintiff did not specifically name Willett in his grievance regarding the 9:50 a.m. use of force incident, justifying dismissal of any Eighth Amendment claims brought against him as to that incident. Id. at 18-19. Second, Defendants contend Plaintiff's consolidated grievance, UST-62800-18, contains no mention of racial language, racial discrimination, equal protection violations, or anything else that would have put investigating authorities on notice of such a claim and, therefore, Plaintiff's Fourteenth Amendment equal protection and Section 1981 claims must be dismissed. Id. at 17-18. Plaintiff counters he exhausted all available administrative remedies. (Dkt. No. 177-2 at 9-10.)
The Second Circuit has found “the New York IGP regulations do not state that a prisoner's grievance must name the responsible party.” Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009). “Where New York's grievance procedures do not require prisoners to identify the individuals responsible for alleged misconduct, neither does the PLRA for exhaustion purposes.” Green v. Haimes, No. 9:18-CV-703 (BKS/ATB), 2019 WL 2775589, at *5 (N.D.N.Y. May 23, 2019) (quoting Espinal, 558 F.3d at 127), report-recommendation adopted, 2019 WL 2766544 (N.D.N.Y. July 2, 2019). Rather, the inmate must provide, inter alia, “a specific description of the problem.” Id. at 127 (emphasis supplied); see also 7 NYCRR. §§ 701.5(a)(2), 701.1(8). “Ultimately, in order to exhaust, a prisoner must allege facts sufficient to alert corrections officials ‘to the nature of the claim,' and ‘provide enough information about the conduct' at issue ‘to allow prison officials to take appropriate responsive measures.”' Green, 2019 WL 2775589, at *5 (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)); see also Espinal, 558 F.3d at 126 (“The point is that prison officials ha[ve] the necessary information to investigate the complaints and the opportunity to learn which officers were involved in the alleged incident”); Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006) (“While this Court has found it appropriate to afford pro se inmates a liberal grievance pleading standard, the grievance may not be so vague as to preclude prison officials from taking appropriate measures to resolve the complaint internally”).
Here, as to Plaintiff's Eighth Amendment excessive force claim against Willett stemming from the 9:50 a.m. incident, bearing in mind that the grievance pleading standard is “liberal,” coupled with the fact that inmates are not required to name specific officers in grievances, see 7 NYCRR. § 701.5(a)(2), the Court finds Plaintiff adequately alleged facts “sufficient to alert corrections officials ‘to the nature of the claim,' and ‘provide[d] enough information about the conduct' at issue ‘to allow prison officials to take appropriate measures.'” Singh v. Lynch, 460 Fed.Appx. 45, 47 (2d Cir. 2012) (summary order) (quoting Johnson, 380 F.3d at 697). Although Plaintiff did not name Willett in connection with the 9:50 a.m. incident, the consolidated grievance included sufficient details about the alleged use of excessive force incident, including the date, time, location, cameras which would potentially have footage of the incident, and a description of the alleged assault. (Dkt. No. 156-30 at 18-23.) Thus, the Court finds the information set forth in grievance UST-62800-18 was sufficient to place DOCCS officials on notice of the alleged excessive force Plaintiff was subjected to during the 9:50 a.m. incident. As such, the Court recommends denying Defendants' motion on this ground. (Dkt. No. 156-32 at 18-19.)
The Court reaches a different result, however, with respect to Plaintiff's Fourteenth Amendment equal protection and Section 1981 racial discrimination claims. Generally, Plaintiff claims Willett discriminated against him by using racially motivated language during the alleged assaults, thus depriving Plaintiff of his “right to full and equal benefits of the law as enjoyed by white citizens.” (Dkt. No. 113 at 28-30.) As noted, Defendants argue this claim should be dismissed because Plaintiff's consolidated grievance, UST-62800-18, does not include any mention of “racial language . . . or anything else that would have put investigating authorities on notice of such a claim” and thus was insufficient to trigger the specialized investigatory process for grievances regarding allegations of unlawful discrimination. (Dkt. No. 156-32 at 17.)
Plaintiff appears to make two arguments in response: that the administrative procedure was not “available” to him because CORC failed to timely respond to UST-62800-18, and that he actually did exhaust his Fourteenth Amendment equal protection and Section 1981 race-based claims because his grievances contain the word “nondiscrimination” in the top portion of his grievance. (Dkt. No. 177 at ¶ 10; Dkt. No. 177-1 at ¶ 17; Dkt. No. 177-2 at 9-12.)
Here, there is no genuine dispute that Plaintiff exhausted grievance UST-62800-18 by appealing the consolidated grievance to CORC. Rather, the issue is whether that grievance sufficiently alerted corrections officials “to the nature” of the alleged race-based conduct by Willett, and “provide[d] enough information about the conduct” at issue “to allow prison officials to take appropriate responsive measures.” Green, 2019 WL 2775589, at *5. After careful consideration, the Court finds it did not. See, e.g., Turner v. Goord, 376 F.Supp.2d 321, 324 (W.D.N.Y. 2005) (“The mere fact that plaintiff has filed some grievance, and fully appealed all decisions on that grievance, does not automatically mean that he can now sue anyone who was in any way connected with the events giving rise to that grievance.”).
First, a plain reading of the consolidated grievances supports Defendants' argument that Plaintiff failed to mention any alleged “racial language” was used against him on March 1, 2018. Second, Plaintiff admits as much. (Dkt. No. 152-25 at ¶ 88.) Third, UST-62800-18 was processed as a harassment grievance pursuant 7 NYCRR § 701.8, but not as a discrimination grievance as governed by § 701.9. Additionally, the record demonstrates Plaintiff was interviewed by non-party Lt. Eddy during the investigation of UST-62800-18 and Plaintiff did not make any additional statements regarding racial animus in connection with his grievances. (Dkt. No. 156-25 at ¶¶ 82, 83.)
In McGee v. Haigh, this Court determined the plaintiff did not exhaust his administrative remedies because none of his grievances contained allegations of discrimination based on his sexual orientation, and thus “did not squarely place prison officials on notice of his equal protection claims.” McGee v. Haigh, No. 9:13-CV-394 (MAD/DEP), 2015 WL 1456612, at *12 (N.D.N.Y. Mar. 30, 2015); see also Young v. Goord, No. 01-CV-0626, 2002 WL 31102670, at *4 (E.D.N.Y. Sept. 3, 2002), aff'd in relevant part by Young v. Goord, 67 Fed.Appx. 638 (2d Cir. 2003) (dismissing the plaintiff's equal protection claim for failure to exhaust because “[a]t no point during the administrative proceedings did [he] raise, in words of substance, an equal protection claim based on the differential treatment of other Rastafarians”).
“Although it is true that ‘a claim may be exhausted when it is closely related to, but not explicitly mentioned in an exhausted grievance,'” Barnes v. Annucci, No. 15-CV-0777 (GLS/DEP), 2019 WL 1387460, at *10 (N.D.N.Y. March 12, 2019), it is equally true that the mere fact that a plaintiff filed and fully appealed some grievance “‘does not automatically mean that [the inmate] can now sue anyone who was in any way connected with the events giving rise to that grievance.'” Colon v. New York State Dep't of Corr. & Cmty. Supervision, No. 15-CV-7432 (NSR), 2019 WL 5294935, at *7 (S.D.N.Y. Oct. 17, 2019).
In sum, the Court finds grievance UST-62800-18 was sufficient to alert prison officials as to Plaintiff's excessive force claims relating to the March 1, 2018, 9:50 a.m. and 12:40 p.m. use of force incidents. What the grievance did not do, however, was contain the requisite “specific description of the problem” as to Plaintiff's claims of racial discrimination and or equal protection violations. See 7 NYCRR § 701.5(a)(2). Because grievance UST-62800-18 did not contain sufficient information to “afford[ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,” Johnson, 380 F.3d at 697, the Court finds Plaintiff failed to exhaust administrative remedies in relation to the Fourteenth Amendment equal protection and Section 1981 claims against Willett and summary judgment is warranted on this ground.
Therefore, the Court recommends granting Defendants' motion insofar as it seeks dismissal of Plaintiff's Fourteenth Amendment equal protection and Section 1981 claims for failure to exhaust administrative remedies. (Dkt. No. 156-32 at 17-19.)
D. Personal Involvement
Defendants seek summary judgment and dismissal of Plaintiff's Eighth amendment excessive force claims against Woodruff, Smith, and Bond, as well as all Eighth Amendment claims against Smith and Bond related to the 9:50 a.m. incident for lack of personal involvement. (Dkt. No. 156-32 at 19-20.) Defendants also contend Bond is entitled to summary judgment for lack of personal involvement as to the 12:40 p.m. incident. (Dkt. No. 182-3 at 13.)
Defendants presumably concede there are material factual disputes regarding (1) Plaintiff's excessive force claims against Willett related to the March 1, 2018, 9:50 a.m. and 12:40 p.m. incidents, and (2) Plaintiff's Eighth Amendment failure to intervene and failure to protect claims against Smith related to the March 1, 2018, 12:40 p.m. incident. Defendants have not moved for summary judgment and dismissal of these claims on the merits.
1. Legal Standard
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a Section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
“[T]here is no special rule for supervisory liability” and a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). Thus, to avoid summary judgment, a plaintiff must establish the defendant violated the constitution by his or her “own conduct, not by reason of [the defendant's] supervision of others who committed the violation” and cannot “rely on a separate test of liability specific to supervisors.” Id. The “factors” necessary to plead and establish a Section 1983 violation “‘will vary with the constitutional provision at issue' because the elements of different constitutional violations vary.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
A personal involvement inquiry on summary judgment “examines only whether there is record evidence to support a factfinder's conclusion that the individual under consideration was involved in the alleged conduct.” Brandon v. Schroyer, No. 9:13-CV-0939 (TJM/DEP), 2016 WL 1638242, at *14 (N.D.N.Y. Feb. 26, 2016) (quotation marks omitted), reportrecommendation adopted, 2016 WL 1639904 (N.D.N.Y. Apr. 25, 2016), rev'd on other grounds sub nom. Brandon v. Kinter, 938 F.3d 21 (2d Cir. 2019). A plaintiff's verified complaint and deposition testimony constitutes such evidence and “[a]ny discrepancies or inconsistencies in [the] plaintiff's testimony are for a jury to assess.” Latouche v. Tompkins, No. 9:09-CV-308 (NAM/RFT), 2011 WL 1103045, at *5 (N.D.N.Y. Mar. 23, 2011).
Briefly, to establish an Eighth Amendment excessive force claim, a plaintiff must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's actions violated “contemporary standards of decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotation marks omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). To establish liability based on the failure to intervene, a plaintiff must show that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know the victim's constitutional rights were being violated; and (3) the officer d[id] not take reasonable steps to intervene.” Tafari v. McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y. 2010). Further, to establish liability on a failure to protect claim, a plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm, and prison officials acted with deliberate indifference to that risk and the inmate's safety. Farmer v. Brennan, 511 U.S. 825, 836 (1994). Deliberate indifference exists when “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.
“Personal involvement is generally a question of fact and summary judgment may be granted only where the defendant establishes that no issues of material fact exist such that the defendant is entitled to summary judgment as a matter of law.” Guarneri v. Hazzard, No. 9:06-CV-985 (NAM/DRH), 2010 WL 1064330, at *23 (N.D.N.Y. Mar. 22, 2010) (quoting Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (citing Fed.R.Civ.P. 56(c) and cases)).
2. Analysis
Here, it is undisputed that Smith, Bond, and Woodruff did not personally participate in any use of force against Plaintiff on March 1, 2018, and Plaintiff's opposition papers appear to abandon any argument that they engaged in excessive force against him. (Dkt. No. 156-25 at ¶¶ 53, 54, 55, 56; see Dkt. No. 177-2 at 14-15, Dkt. No. 177-3 at 1-3; Dkt. No. 182-3 at 11.) Therefore, the Court finds Smith, Bond, and Woodruff are entitled to summary judgment on Plaintiff's excessive force claims for lack of personal involvement and recommends granting Defendants' motion on this ground. (Dkt. No. 156-32 at 19-20; Dkt. No. 182-3 at 11-12.)
Further, there is no dispute that Smith and Bond were not physically present for the 9:50 a.m. incident on March 1, 2018. (Dkt. No. ¶¶ 46, 47.) Neither the operative complaint nor the record now before the Court implicates any awareness on the part of or involvement by Smith and Bond in the 9:50 a.m. incident. (See, e.g., Pl.'s Dep. at 51-53 (testifying Comstock and Bean were the escorting officers present during the 9:50 a.m. incident), 120-21 (same).) Additionally, Plaintiff's opposition papers appear to abandon any claims against Smith and Bond related to the 9:50 a.m. incident. (See, e.g., Dkt. No. 177-3 at 14-15 (addressing Smith's and Bond's presence and alleged involvement with respect to the 12:40 p.m. incident only).) Accordingly, the Court finds Smith and Bond are also entitled to summary judgment on Plaintiff's failure to intervene and failure to protect claims related to 9:50 a.m. incident on March 1, 2018, for lack of personal involvement and recommends granting Defendants' motion on this ground. (Dkt. No. 156-32 at 19-20; Dkt. No. 182-3 at 11-12.)
However, to the extent Defendants assert in their opposition submission that Bond is also entitled to summary judgment on Plaintiff's failure to protect and/or failure to intervene claim related to the 12:40 p.m. incident, the Court reaches a different result. (Dkt. No. 182-3 at 13.)
To be sure, Defendants have submitted evidence indicating Bond arrived after the 12:40 p.m. use of force had concluded. (Bond Decl. at ¶¶ 7-9.) Bond also states that when he arrived. Smith was standing in front of him, he could not see into the cell, and he observed no force used. Id. Moreover, Bond swears that “Plaintiff never advised me that he feared for his safety or of any threat to his safety on or prior to March 1, 2018.” Id. at ¶ 8. Nevertheless, Plaintiff testified under oath that Willett threatened to kill him shortly after the 9:50 a.m. incident, Smith and Bond witnessed the threat, and that Plaintiff immediately brought his “personal safety” concerns to the attention of Smith and Bond. (Pl.'s Dep. at 88, 97-98.) Plaintiff also testified that during the 12:40 p.m. incident, Smith and Bond were both “inside the cell” and they did not intervene or say anything despite Plaintiff's “plea for help.” Id. at 121-22.
On this record, the Court finds there are genuine material issues of fact concerning Bond's personal involvement in the March 1, 2018, 12:40 p.m. incident. Therefore, the Court recommends denying summary judgment to Bond on this ground. (Dkt. No. 182-3 at 13.)
E. Failure to Protect and Failure to Intervene Claims against Woodruff
Defendants contend Plaintiff has no actionable claim against Woodruff for failure to protect and failure to intervene. (Dkt. No. 156-32 at 20-24.) The Court agrees.
1. Legal Standards
“The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, 511 U.S. at 833). As noted, to prevail on claim that officials failed to intervene, a plaintiff must show that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know the victim's constitutional rights were being violated; and (3) the officer d[id] not take reasonable steps to intervene.” Tafari, 714 F.Supp.2d at 342.
To prevail on a claim that officials have failed to protect an inmate from harm, a plaintiff must demonstrate that, objectively, the conditions of his incarceration posed a substantial risk of serious harm and, subjectively, that the defendant acted with deliberate indifference. See Farmer, 511 U.S. at 834; see Hayes, 84 F.3d at 620. “[A] prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.” Hayes, 84 F.3d at 620. A plaintiff must show that prison officials actually knew of, but disregarded, an excessive risk to his 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.” Farmer, 511 U.S. at 837; see Tangreti, 983 F.3d at 619.
2. Analysis
It is undisputed Woodruff was not physically present for, involved in, or a witness to any use of force involving Plaintiff on March 1, 2018. (Dkt. No. 156-25 at ¶ 56.) The evidence before the Court does not establish that Woodruff had a realistic opportunity to intervene and prevent the harm allegedly caused by the other officers on May 1, 2018. See Tafari, 714 F.Supp.2d at 342. Therefore, the Court recommends granting Defendants' motion on this ground. (Dkt. No. 156-32 at 20-24; Dkt. No. 182-3 at 11-12.)
With respect to the failure to protect claim, Plaintiff generally alleges Woodruff became aware of “the vicious propensities of Smith, Willett, and Bond” prior to the incidents on March 1, 2018, “but took no steps to train them, correct their abuse of authority or to discourage their unlawful use of their position[s].” (Dkt. No. 113 at 16.) Plaintiff also claims that various news articles, lawsuits, and memoranda alerted Woodruff to the “vicious propensities” of Smith, Willett, and Bond. Id; see also Dkt. No. 177 at ¶¶ 27, 31, 32, 35, 36. However, the record evidence demonstrates Woodruff had no knowledge of the news article, any investigation or memoranda, or criminal acts by Smith, Willett, or Bond before or after March 1, 2018, as it pertains to treatment of any inmate, including Plaintiff. (Woodruff Decl. at ¶ 5.) Plaintiff offers no proof to the contrary. (Pl.'s. Dep. at 148-50, 159-64.) “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer, 156 F.3d at 400.
Here, Plaintiff's claim against Woodruff fails under the Tangreti standards for personal involvement. As discussed, it is undisputed that Woodruff was not physically involved in the incidents at Upstate which give rise to Plaintiff's Eighth Amendment claims. Otherwise, Plaintiff has not shown Woodruff violated his constitutional rights by his own conduct. Instead, the crux of Plaintiff's claim against Woodruff is that he is liable for failing to sufficiently remedy the wrongs of his subordinates, despite having received notice of Smith and Willett's “vicious propensities.” (Dkt. No. 113 at 15-16.) These contentions closely track the pre-Tangreti standard for establishing personal involvement of a supervisory official, i.e., contemplating personal involvement where an official, after being informed of the violation through report or appeal, failed to remedy the wrong and when the official created a policy or custom under which unconstitutional practices occurred or allowed the continuation of a policy of custom. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
However, in the wake of Tangreti these allegations are insufficient to establish personal involvement of a supervisory official, and Plaintiff has otherwise failed to demonstrate Woodruff's personal involvement in the alleged conduct giving rise to Plaintiff's Eighth Amendment claims. See Hendrix v. Annucci, No. 9:20-CV-0743 (GTS/TWD), 2021 WL 4405977, at *14 (N.D.N.Y. Sept. 27, 2021) (finding no personal involvement where plaintiff's theory of supervisory liability relied on the factors outlined in Colon, and recognizing the new standard for establishing personal liability under Tangreti). On this record, the Court finds Plaintiff has not raised a triable issue of fact as to Woodruff's personal involvement.
In his opposition submission, Plaintiff claims Woodruff failed to protect him in violation of his Eighth Amendment rights because Woodruff “actually knew . . . Plaintiff had spit on defendant Willett” during the 9:50 a.m. incident (apparently because Woodruff authorized a wrist retention strap after that incident), and failed to move his cell to another area of the prison “away from Willett” and, therefore, failed to protect Plaintiff from Willett's excessive force during the 12:40 p.m. incident. (Dkt. No. 177 at ¶ 12; Dkt. No 177-2 at 8.) But the record Plaintiff cited does not state that. (See Woodruff Decl. at 21.) Again, to the extent Plaintiff contends Woodruff “failed to remedy a wrong” and/or created a policy or custom under which unconstitutional practices occurred or allowed the continues of a policy of custom, (Dkt. No. 177-2 at 12-13), the Colon factors are no longer applicable to the Court's analysis and “[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer, 156 F.3d at 400.
Accordingly, the Court recommends that Defendants' motion be granted on this ground. (Dkt. No. 156-32 at 20-24; Dkt. No. 182-3 at 11-13.)
IV. CONCLUSION
WHEREFORE for the reasons set forth above, it is hereby
RECOMMENDED that Defendants' motion for partial summary judgment (Dkt. No.
156) be GRANTED in part and DENIED in part as follows: (1) granted insofar as it seeks dismissal of Plaintiff's Fourteenth Amendment equal protection and Section 1981 claims asserted against Willett; (2) granted insofar as seeks dismissal of Plaintiff's Eighth Amendment excessive force, failure to intervene, and failure to protect claims against Woodruff; (3) granted insofar as it seeks dismissal of Plaintiff's Eighth Amendment excessive force, failure to intervene, and failure to protect claims against Smith and Bond related to the March 1, 2018, 9:50 a.m. incident; (3) granted insofar as is seeks dismissal of Plaintiff's Eighth Amendment excessive force claims against Smith and Bond related to the March 1, 2018, 12:40 p.m. incident; and (4) denied in all other respects; and it is further
RECOMMENDED that Plaintiff's cross-motion for summary judgment (Dkt. No. 177) be DENIED; and it is further
RECOMMENDED that the remaining claims be scheduled for trial: (1) Plaintiff's Eighth Amendment excessive force claims against Willett related to the March 1, 2018, 9:50 a.m. and 12:40 p.m. incidents, and (2) Plaintiff's Eighth Amendment failure to intervene and failure to protect claims against Smith and Bond related to the March 1, 2018, 12:40 p.m. incident; and it is further
RECOMMENDED that Woodruff be terminated as a defendant in this action; and it is further
ORDERED that copies of this Report-Recommendation and Order be served on the parties in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional days will be added to the fourteen (14) day-period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order 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. 6(a)(1)(C).
IT IS SO ORDERED.