Opinion
9:15-CV-01078 (MAD/TWD)
05-07-2019
RASZELL REEDER, Plaintiff, v. DDS BELL, et al., Defendants.
APPEARANCES: RASZELL REEDER 94-A-6388 Plaintiff pro se Upstate Correctional Facility P.O. Box 2001 Malone, New York 12953 LETITIA JAMES Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: JOHN F. MOORE, ESQ. Assistant Attorney General
APPEARANCES: RASZELL REEDER
94-A-6388
Plaintiff pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953 LETITIA JAMES
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: JOHN F. MOORE, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
Plaintiff Raszell Reeder commenced this pro se civil rights action under 42 U.S. § 1983 on September 3, 2015. (Dkt. No. 1.) The claims remaining in the action following initial review under 28 U.S.C. §§ 1915(e) and 1915A by the Hon. Mae A. D'Agostino, U.S. District Judge, are: (1) Eighth Amendment excessive force/failure to intervene claims against Defendants former Deputy Superintendent for Security at Upstate Correctional Facility ("Upstate") Bell ("DSS Bell"), Captain Bishop ("Bishop"), Sergeant Smith ("Smith"), Corrections Officer ("C.O.") Reif ("Reif"), C.O. Ramsdell ("Ramsdell"), and Lieutenant Salls ("Salls"); and (2) Eighth Amendment conditions of confinement claim against Defendants Lieutenant Quinn ("Quinn") and Smith. (Dkt. No. 17 at 20-21.) Plaintiff's claims arise out of events that occurred during his confinement at Upstate where all of the Defendants, employees of the Department of Corrections and Community Supervision ("DOCCS"), were working during the relevant time period. (See generally Dkt. No. 1.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Following the September 17, 2018, denial of Plaintiff's motion to amend his complaint (Dkt. Nos. 95, 118), Defendants Bell and Quinn moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 121.) Plaintiff has filed responsive papers. (Dkt. No. 126.) For reasons explained below, the Court recommends that Defendants' motion for summary judgment be granted in part and denied in part.
II. RELEVANT FACTUAL BACKGROUND
A. Defendant Bell
On April 8, 2015, Plaintiff was being housed in the Special Housing Unit ("SHU") at Upstate. (Dkt. No. 121-5 at 21.) The door on Plaintiff's cell had two hatches, one at the bottom for the transfer of cleaning supplies, and the feed-up hatch in the middle for things like meals and being handcuffed. Id. at 23. Plaintiff became frustrated and kicked the lower hatch breaking the lock. Id. at 24. Approximately thirty minutes later, he mixed a combination of urine and feces and put the liquid into milk cartons to throw on whoever happened to walk by his cell. Id. at 24. Plaintiff threw the mixture out the open bottom hatch as Upstate Superintendent Uhler ("Uhler") walked by his cell, hitting Uhler and A DOCCS Assistant Commissioner. (Dkt. Nos. 121-4 at ¶ 10; 126 at 31; 121-5 at 25-26.)
DSS Bell was informed by Bishop that Plaintiff had broken the bottom hatch of the door to his cell and thrown a brownish liquid at Uhler and a DOCCS Assistant Commissioner. (Dkt. No. 121-4 at ¶ 10.) According to Plaintiff, DSS Bell and Sall, along with other members of the security staff, a contamination unit, and an extraction unit responded to the incident. Id. at 28-31.
Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
DSS Bell left before the door to Plaintiff's cell was opened. Id. at 33-34. According to DSS Bell, procedures required that Plaintiff be moved to another cell so the hatch could be repaired and the cell searched for evidence. (Dkt. No. 121-4 at ¶ 11.) DSS Bell states in his declaration that Bishop informed him Plaintiff refused to leave his cell and requested authorization from DSS Bell to extract Plaintiff by force. Id. at ¶ 11. The Unusual Incident and Use of Force Reports prepared in connection with the incident, submitted by Plaintiff, state that prior to the extraction, Plaintiff refused to exit his cell after being spoken to by all available staff. (Dkt. No. 126 at 17, 24). When DSS Bell was informed that Plaintiff had refused to comply with a lawful order to leave his cell, Bell authorized his staff to use chemical agents and, if Plaintiff still refused to exit his cell, to use physical force to extract him. Id. at ¶ 12. Plaintiff was thereafter subjected to the use of chemical agents and physical force by Upstate security staff members in extracting him from his cell. (Dkt. Nos. 121-4 at 36-77; 126 at 24.)
Section five of DOCCS Directive 4903, entitled "Use of Chemical Agents," authorizes the use of chemical agents when necessary to remove an inmate from his cell. (Dkt. Nos. 121-4 at ¶¶ 2-3; 124-1 at 3.) When practicable, the inmate's health record is to be reviewed prior to the administration of a chemical agent to determine whether the inmate has a health condition that would make exposure of the agents dangerous. (Dkt. Nos. 121-4 at ¶ 4; 124-1 at 3.) In this case, Upstate Nurse Rosanna Lordi reviewed Plaintiff's medical records and determined the agents would not be harmful to his health. (Dkt. No. 121-4 at ¶ 14.) When employing chemical agents, security staff is to use two one-second bursts (one application) until the inmate complies, with no more than five applications. (Dkt. Nos. 121-4 at ¶ 5; 124-1 at 3.)
DOCCS Directive 4944, entitled "Use of Physical Force," provides at III(E) that "[a]n employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary "for self-defense; to prevent injury to person or property; to enforce a lawful direction; to quell a disturbance; or to prevent an escape." (Dkt. No. 121-8 at 2.) According to DSS Bell, in accordance with Directives 4903 and 4944, chemical agents may be employed when an inmate refuses to leave his cell after being directed to do so by security staff, and an inmate may be forcibly removed from his cell if he refuses to leave his cell after five applications of the chemical agents. (Dkt. No. 121-4 at ¶¶ 8-9.)
Plaintiff claims he complied with all orders and put his hands in the feed-up hatch when directed so that he could be handcuffed for removal from his cell. (Dkt. Nos. 1-1 at 2; 121-5 at 36-38.) According to Plaintiff, instead of handcuffing him, Sall slammed the hatch door on his hands. (Dkt. No. 121-5 at 36-77.) Plaintiff claims two canisters of chemical agents were improperly used on him, and he was physically assaulted when he was extracted from his cell following the use of the chemical agents. Id.
Plaintiff has submitted no evidence that DSS Bell had any reason to disbelieve Bishop at the time of the authorization or that Bell was aware of what transpired in the extraction until he reviewed video of the incident after the fact. (Dkt. Nos. 121-5 at 84; 126 at 7.) Plaintiff acknowledged at his deposition that Bell was not present during the extraction and used no force against Plaintiff. (Dkt. No. 121-5 at 33-34, 80.) Bell also denies being present when his staff administered the chemical agents and forcibly extracted Plaintiff from his cell. (Dkt. No. 121-4 at ¶ 16.)
At his deposition, Plaintiff testified that his claim against DSS Bell is limited to authorization of the use of chemical agents, authorization of the use of two rather than just one canister, and knowledge that both canisters were faulty causing them to release too much chemical agent. (Dkt. No. 121-5 at 82-86, 107-08.) According to Bell, it was standard procedure to bring two canisters to the inmate's cell in case one malfunctions, and Plaintiff's claim that Bell authorized the use of two canisters is inaccurate, as is his claim that Bell knew the two canisters were defective. (Dkt. No. 121-4 at ¶ 13.)
B. Defendant Quinn
After Plaintiff was extracted from his cell on April 8, 2015, he was seen by a nurse, decontaminated, and moved to cell 11-C-10. (Dkt. Nos. 121-3 at ¶3; 121-9 at 115.) Plaintiff alleged in his complaint and testified at his deposition that he was left in the cell for three weeks with only undershorts and no sheets, blanket, or pillow, and that two air vents blew cold air into his cell leaving him very cold during the three weeks. Id. (Dkt. Nos. 1 at 5; 121-5 at 112-16, 119.) At his deposition, after his recollection was refreshed by a grievance he had submitted, Plaintiff acknowledged that he remained in the cell with only his undershorts from April 8 to April 23, 2015, less than three weeks. (Dkt. No. 121-5 at 125.) In Grievance No. UTS-55995-15, dated April 23, 2015, Plaintiff claimed he was without clothing, bed linen, underwear, blankets, towels, and wash cloths, and that two vents blew very cold air into his cell. (Dkt. Nos. 121-5 at 127, 134; 126 at 29.) According to Plaintiff, everything was returned to him by Defendant Smith and another officer on April 23, 2015. (Dkt. No. 121-5 at 126-27, 143.)
When questioned at his deposition whether Quinn had anything to do with the temperature in his cell, Plaintiff replied "no." (Dkt. No. 121-5 at 116.) Moreover, Plaintiff testified that he never complained to Quinn about the temperature of his cell. Id. at 117. Therefore, the Court has construed Plaintiff's conditions of confinement of claim against Quinn to be limited to personal necessities such as clothing, footwear, bed linen, underwear, blankets, pillow, towels, and toiletries.
On appeal of Grievance No. UST-55995-15, the Central Office Review Committee ("CORC") found that Defendant Smith had stated that Plaintiff's clothes became unusable during the decontamination process and were replaced, other clothing in his cell was decontaminated and returned to him, and bedding supplies were issued in a timely manner. (Dkt. No, 126 at 31.)
Plaintiff testified at his deposition that it was Smith who deprived him of his clothes (other than one pair of undershorts), sheets, blankets, and toiletries because he was the area supervisor and the one who gave the orders. Id. at 113-14. However, Plaintiff claims that Quinn was responsible for getting Plaintiff's clothes back because Office of Mental Health ("OMH") psychologist John Marinelli ("Marinelli"), who saw Plaintiff regularly during the time he was confined in the cell, reported the conditions to Quinn in his capacity as Watch Commander, and Quinn did nothing. (Dkt. Nos. 1 at 5; 121-9 at 117, 120-21.)
Plaintiff testified at his deposition that he did not know exactly what Marinelli told Quinn about the conditions under which he was being housed from April 8 through April 23, 2015. (Dkt. No. 121-9 at 122.) However, both Plaintiff and Defendants have submitted copies of a July 20, 2015, note Plaintiff sent to Marinelli in which he asked Marinelli to confirm that he had spoken to Quinn and Smith about Plaintiff being in cell 11-C-10 without "sheets, blankets, pillow, property, cosmetics, sneakers, slippers" and that he "only had on one undershorts and the two cold ventillators was on." (Dkt. Nos. 121-6 at 2; 126 at 34.) The note includes Marinelli's July 21, 2015, response in which he wrote "[y]es I spoke to them, several times. I remember you telling me this, I do not remember the dates. Check w/DOCCS about when you received the return of your items. [initialed by Marinelli]." Id.
Quotations are as written unless otherwise indicated.
1. Marinelli Declaration
Marinelli has submitted a declaration in support of Quinn's motion for summary judgment. (Dkt. No. 121-3.) According to Marinelli, he had several conversations with Plaintiff while making rounds on C Gallery in 11 building for three weeks beginning April 9, 2015, and to the best of his knowledge Plaintiff "was not just in his underwear during these conversations and was not missing any necessities such as clothes, sheets, blankets, or toiletries." Id. at ¶ 5. Marinelli has also stated that Plaintiff was fully clothed when Marinelli saw him being taken from his cell to be interviewed by the State Police on April 9, 2015. Id. at ¶ 4.
Plaintiff acknowledges in his response papers that two corrections officers gave him clothes to wear when he spoke with Inspector General Skiff on April 9, 2015, but told him he had to return all of the clothing and sneakers when he returned to the cell. (Dkt. No. 126 at 27.)
Marinelli claims Plaintiff complained about many things, including his desire to return to A gallery and wanting a pair of headphones, but in direct conflict with the representations made in his July 21, 2015, note to Plaintiff, claims to have no recollection of Plaintiff "ever complaining to him about being deprived of any necessities such as clothes, sheets, blankets, or toiletries." Id. at ¶ 6. Marinelli claims that if such complaints had been made, he would have intervened on Plaintiff's behalf. Id. According to Marinelli, shortly after Plaintiff complained about the headphones and housing, Marinelli informed Smith about the headphones, who shortly thereafter arranged for Plaintiff to receive them. Id. at ¶¶ 7-8. Marinelli also claims to have told Quinn about Plaintiff's wish to return to A Gallery. Id. at ¶ 7.
Contrary to his July 21, 2015, note, Marinelli now denies ever having advised either Smith or Quinn that Plaintiff had complained about being deprived of any necessities such as clothes, sheets, blankets, or toiletries. Id. at ¶ at 9. Marinelli does acknowledge his receipt of Plaintiff's note of July 20, 2015, seeking confirmation that Marinelli had spoken to Quinn and Smith about Plaintiff having only his undershorts, being without sheets, blankets, pillow, property, cosmetics, sneakers, and slippers, and the cold air vents, as well as his July 21, 2015, response to Plaintiff acknowledging that he had done so. (Dkt. 121-6 at ¶ 6.)
However, Marinelli attempts to explain away the conflict between his July 21, 2015, affirmative response to Plaintiff and his present denial that he ever spoke to Smith or Quinn about complaints by Plaintiff that he was being deprived of those items by claiming that "[he] did not carefully read the plaintiff's request, which I now realize inaccurately stated that the plaintiff had complained to me about being deprived of "'sheets, blankets, pillow, property, cosmetics, sneakers, slippers . . .' and that I had so notified Lieutenant Quinn and Sergeant Smith." (Dkt. No. 121-3 at ¶ 10.) Plaintiff questions Marinelli's claim that he had not carefully read Plaintiff's July 20, 2015, note before responding. (Dkt. No. 126 at 28.)
Plaintiff challenges the veracity of other statements in Marinelli's declaration as well. Id. at 27-28. According to Plaintiff, Marinelli is aware that inmates are denied headphones from a Tier III disciplinary report, and that when an inmate is removed from a Company for a violent act, he cannot return to that Company. Id. at 27. Moreover, Plaintiff contends he did not ask that he be moved back to A Gallery. Id. Rather, he asked Marinelli that he be moved to another cell because of the two vents blowing cold air on him. Id.
Plaintiff also claims Marinelli is being dishonest by denying that he noticed Plaintiff had no clothes on each time he visited, and that Plaintiff had no cosmetics, underwear, footwear, mattress, or bed linen. Id. Plaintiff relies on the April 23, 2015, Male Inmate Call Out Sheet, which schedules him for a Shop Call-Out to obtain items of clothing to replace pants, shirts, socks, T-shirts, and undershorts damaged by the use of force as soon as possible. Id. at 37. Plaintiff was given a Shop Call-Out date of May 6, 2015. Id.
2. Quinn Declaration
Defendant Quinn also submitted a declaration in support of his motion. (Dkt. No. 121-2.) Quinn acknowledges being Watch Commander at Upstate from 2006 to 2016. Id. at ¶ 1. According to Quinn, as Watch Commander he was responsible for supervising the security staff at Upstate during one of the three eight hour tours of duty. Id. Quinn does not describe his duties and responsibilities in supervising the security staff in any detail, stating only that he "had no responsibility for ensuring that inmates at Upstate Correctional Facility were provided with clothes, bedding, toiletries, or any other property." Id. at ¶ 3. Quinn says nothing about whether his supervision of the security staff would have included taking action if he learned that the security staff was intentionally depriving an inmate of clothing, bedding, and the other items Plaintiff claims he did not have from April 8 through April 23, 2015. (Dkt. No. 121-2.)
Quinn denies ever being advised by Marinelli that Plaintiff had complained about being deprived of any necessities such as clothes, sheets, blankets, or toiletries. Id. at ¶ 4. Quinn claims Marinelli only told him of Plaintiff's wish to be moved to A Gallery. Id. According to Quinn, "he had absolutely no involvement with, or knowledge of, what clothes, bedding, toiletries, or other property the plaintiff did or did not have." Id. at ¶ 5.
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (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).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation). Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded 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." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "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 obliged 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, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IV. FAILURE TO RESPOND TO MOVANTS' STATEMENT OF MATERIAL FACTS
Plaintiff has failed to respond to Defendants' Statement Pursuant to L.R. 7.1(a)(3) setting forth the material facts as to which Defendants assert no genuine issue of fact exists. (See generally Dkt. No. 126.) L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."
While pro se litigants are undeniably "entitled to some measure of forbearance when defending against summary judgment motions, the deference owed to pro se litigants . . . does not extend to relieving them of the ramifications associated with the failure to comply with the courts local rules." Liberati v. Gravelle, No. 12-CV-00795 (MAD/DEP), 2013 WL 5372872, at *7 (N.D.N.Y. Sept. 24, 2013) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)); Latouche v. Tompkins, No. 09-CV-0308 (NAM), 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2911) ("a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a summary judgment motion").
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (requirement that pro se be advised of possible consequences of failing to respond to summary judgment motion, including movant's statement of material facts pursuant to local rules); L.R. 56.2 ("Notice to Pro Se Litigants of the Consequences of Failing to Respond to a Summary Judgment Motion").
Both defense counsel and the Clerk's Office provided Plaintiff with copies of the requisite notice of the consequences of his failure to respond properly to Defendants' summary judgment motion, including the failure to respond to Defendants statement of material facts. (Dkt. Nos. 121 at 4; 122 at 2.)
Courts in this district have found it appropriate to enforce L.R. 7.1(a)(3) and its predecessor L.R. 7.1(f), by deeming facts set forth in a statement of material facts not in dispute to have been admitted based upon the opposing party's failure to properly respond to the statement. See, e.g., Borihane v. Outhouse, No. 9:05-CV-1256 (NAM/DEP), 2007 WL 2071698, at *3 (N.D.N.Y. July 18, 2007) (following L.R. 7.1(a)(3) and accepting statement of material facts as uncontroverted) (citing Elgamil v. Syracuse Univ., No. 99-CV-611 (NPM/GLS), 2000 WL 1264122, at * 1 (N.D.N.Y. Aug. 22, 2000) (listing cases)).
However, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules, "including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record on the Defendants' motion.
V. ANALYSIS
A. Defendant Bell
Plaintiff claims that Defendant Bell violated his Eighth Amendment right to be free from excessive force by authorizing the use of force and chemical agents by DOCCS personnel in extracting Plaintiff from his cell. (Dkt. Nos. 1 at 5; 121-5 at 82-83.) Plaintiff further claims that Bell authorized the use of two containers of chemical agents when only one was allowed, and that Bell knew both containers were faulty and released too much of the chemical agent. (Dkt. Nos. 1 at 5; 121-5 at 86.)
1. Legal Standards for Eighth Amendment Excessive Force
"The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . . including the unnecessary and wanton infliction of pain." Giffen v. Crispen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and internal quotation marks omitted). An Eighth Amendment excessive force claim has two components - "one subjective focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)).
"The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright, 554 F.3d at 268)) (internal quotation marks omitted). The test for wantonness on an excessive force claim "is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id. (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, "a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.") (citation and internal quotation marks omitted)).
The objective component requires a showing that the "conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citation omitted).
2. Application
The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (noting that a defendant may not be held liable in a § 1983 action merely because he or she held a high position of authority). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
Plaintiff makes no claim that DSS Bell was present during the use of chemical agents or any use of physical force in extracting Plaintiff from his cell. (Dkt. No. 121-5 at 33-34.) The undisputed evidence establishes that DSS Bell authorized the use of chemical agents and, if necessary, physical force to extract Plaintiff from his cell only after being informed by Bishop that Plaintiff was refusing to leave his cell. (Dkt. No. 121-4 at ¶ 11.) There is no evidence whatsoever in the summary judgment record supporting Plaintiff' conclusory assertions that DSS Bell was aware that the chemical agents he had authorized were used improperly, i.e., two instead of only one canister, that the canisters were defective thus allowing too much of the chemical agents to be released, or that Plaintiff was subjected to excessive physical force during the extraction. To the contrary, DSS Bell has stated in his declaration that it was standard procedure for staff to bring a back-up canister in case one malfunctioned, and there was no indication that either canister taken to Plaintiff's cell was defective. (Dkt. No. 121-4 at ¶¶ 13-14.) Moreover, Plaintiff appears to be claiming that DSS Bell only learned about the manner in which the chemical agents were used and alleged excessive force when he watched videos of the incident after the fact when it would have been too late for him to intervene. (Dkt. No. 126 at 7.)
In light of the foregoing, the Court finds that none of the Colon criteria apply, and there is no showing that DSS Bell had the necessary level of culpability to satisfy the subjective component of Plaintiff's excessive force claim. See Scarbrough v. Thompson, No. 10-CV- 901, 2012 WL 7761439, at *10 (N.D.N.Y. Dec. 12, 2012) (summary judgment granted to supervisory officials who authorized the use of chemical agents in a cell extraction but were not present at the extrication and were unaware that excessive force would be used on the plaintiff). Therefore, the Court finds that DSS Bell is entitled to summary judgment and recommends the District Court grant his motion.
B. Defendant Quinn
1. Legal Standards for an Eighth Amendment Conditions of Confinement Claim
Plaintiff has alleged an Eighth Amendment conditions of confinement claim against Quinn for his failure to remedy certain conditions under which Plaintiff was housed in cell 11-C-10 from April 8 to April 23 of 2015. (Dkt. No. 1 at 5.) While the Eighth Amendment "does not mandate comfortable prisons . . . neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Champion, 452 U.S. 337, 349 (1981) (internal quotation marks omitted)); Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013).
A claim alleging prison conditions have violated the Eighth Amendment must satisfy both an objective and a subjective component. Walker, 717 F.3d at 125. To satisfy the objective component, a plaintiff must establish that he was incarcerated under conditions that resulted in a "sufficiently serious" deprivation, such as the denial of a "life[ ] necessit[y]" or a "substantial risk of serious harm." Farmer, 511 U.S. at 834. An inmate must show "that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Walker, 717 F.3d at 125. Health includes the risk of serious damage to "physical and mental soundness." Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). Prison officials violate the Eighth Amendment when they "deprive an inmate of his 'basic human needs' such as food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125 (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam)). There is no "static test" for determining whether a deprivation is serious enough to violate an inmate's Eighth Amendment rights. Id. (citing Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)). "The conditions themselves must be evaluated in light of contemporary standards of decency." Jabbar, 683 F.3d at 57 (citation and internal quotation marks omitted).
To satisfy the subjective component a plaintiff must establish that the "defendant official acted with a sufficiently culpable state of mind . . ., such as deliberate indifference to inmate health or safety." Walker, 717 F.3d at 125 (citations and internal quotation marks omitted). To constitute deliberate indifference under the subjective element, "[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety." Jabbar, 683 F.3d at 57; see also Trammel v. Keane, 338 F.3d 155, 162-63 (2d Cir. 2003) (the state of mind for the subjective element in cases involving prison conditions is "deliberate indifference to inmate health or safety."). "The official must be both 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. Mere negligence is not enough. Id. at 835.
2. Application
Plaintiff claims Marinelli, whom he saw regularly during the period of deprivation, spoke to Quinn in his capacity as Watch Commander about the deprivations from which Plaintiff was suffering, and Quinn took no action. (Dkt. Nos. 1 at 5; 121-9 at 117, 120-21.) Plaintiff relies, in part, on the notes he and Marinelli exchanged on July 20 and 21, 2015, in which Marinelli confirmed he had spoken to Quinn and Smith about the deprivations several times in support of his conditions of confinement claim against Quinn. (Dkt. 1-1 at 6.)
In opposing Plaintiff's motion, Marinelli denies the representation he made in his July 21, 2015, note to Plaintiff, and Quinn denies ever being told or knowing about the deprivations. (Dkt. Nos. 121-2 at ¶ 5; 121-3 at ¶ 9.) Moreover, although Quinn denies that he had any responsibility for ensuring that inmates were provided with clothes, bedding, toiletries, or any other property, he does not address what duties, if any, he would have as Watch Commander if he were informed that the security staff he supervised was depriving Plaintiff of those things. (See Dkt. No. 121-2.)
On a summary judgment motion, a court may not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). "The weighing of the evidence and the determination as to which version of the events to accept are matters for the jury." Id. at 856. See also Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996) (on a summary judgment motion "the court should not weigh evidence or assess the credibility of witnesses . . . . These determinations are within the sole province of the jury." ).
The Court finds that viewing the evidence most favorable to Plaintiff, Marinelli's July 21, 2015, note acknowledging he had spoken to Quinn several times regarding the deprivations, raises a credibility issue with regard to Quinn's knowledge of the deprivations. The Court further finds that the credibility assessment is not one for the Court, and that the weighing of the evidence and determinations as to which version of events to accept is for the jury. Therefore, the Court recommends that Defendant Quinn's motion for summary judgment be denied.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 121) be GRANTED in part and DENIED in part; and it is further
RECOMMENDED that the motion be GRANTED as to Defendant Bell and DENIED as to Defendant Quinn; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: May 7, 2019
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge