Summary
finding no "material issue of fact that [the plaintiff] suffered from a serious medical need" based on scratches, scrapes, and bruises
Summary of this case from Armand v. SimonsonOpinion
PRISONER CASE NO. 3:05-cv-1209 (JCH).
November 8, 2006
RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [Doc. No. 34]
Plaintiff Jake J. Ruffino ("Ruffino"), currently confined at the Northern Correctional Institution in Somers, Connecticut, commenced this civil rights action pro se pursuant to 28 U.S.C. § 1915. Ruffino alleges that defendants used excessive force against him and were deliberately indifferent to his serious medical needs. Defendants have filed a motion for summary judgment. For the reasons that follow, defendants' motion is granted in part and denied in part.
I. Standard of Review
In a motion for summary judgment, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Rule 56(c), Fed.R.Civ.P.; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The moving party may satisfy this burden "by showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
A court must grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.'" Miner v. Glen Falls, 999 F.2d 655, 661 (2d Cir. 1993) (citation omitted). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (quoting Anderson, 477 U.S. at 248), cert. denied, 506 U.S. 965 (1992). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
When a motion for summary judgment is supported by documentary evidence and sworn affidavits, "the nonmoving party cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quotations and citations omitted). Thus, "`[t]he mere of existence of a scintilla of evidence in support of the [plaintiffs'] position will be insufficient; there must be evidence on which the jury could reasonably find for the [plaintiffs].'" Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quotingAnderson, 477 U.S. at 252).
The court "resolve[s] all ambiguities and draw[s] all permissible factual inferences in favor of the party against whom summary judgment is sought." Patterson v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2004). Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992). If, "`as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'" Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
Where one party is proceeding pro se, the court reads the pro se party's papers liberally and interprets them to raise the strongest arguments suggested therein. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Despite this liberal interpretation, however, a "bald assertion," unsupported by evidence, cannot overcome a properly supported motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
The facts are taken from defendants' Local Rule 56(a)1 Statement [Doc. No. 34-2] and exhibits, Ruffino's Local Rule 56(a)2 Statements [Doc. Nos. 41-2, 42-4], Ruffino's affidavit [Doc. No. 41-3] and his exhibits [Doc. No. 41-5]. For the purposes of the instant motion, the court accepts facts undisputed by the parties as true and resolves disputed facts in favor of Ruffino where he provides evidence to support his allegations.
On August 19, 2003, Ruffino was confined in the Intensive Mental Health Unit ("IMHU") at Garner Correctional Institution in Newtown, Connecticut. He was talking to the inmate in the next cell when defendant Aungst told Ruffino to "shut up." Ruffino cursed at and insulted defendant Aungst, who responded by telling Ruffino that he would deny Ruffino his recreation period for that day. Ruffino did not utilize departmental procedures to report defendant Aungst's actions. Instead, he started kicking the cell door. Ruffino turned and kicked his leg backwards into the cell door because this made more noise and had a greater chance of attracting the attention of a lieutenant or supervisor. Ruffino knew, however, that the correctional officers in the unit would not call a supervisor because they knew why Ruffino was kicking the door. The only supervisor with an office in the housing unit was the unit manager. At the time of the incident, the unit manager was not in his office.
While Ruffino was kicking the door, the food trap opened, taking Ruffino by surprise. Ruffino turned around and placed his arms through the food trap even though he was aware that this action violated prison rules. Ruffino previously had been issued disciplinary reports for interfering with safety and security when he held his food trap open.
Defendants Aungst and Pelletier approached Ruffino's cell. Although he saw them approaching, Ruffino did not remove his arms from the food trap. Defendant Aungst had a plexiglass shield and defendant Pelletier had capstun in his hand. When defendant Aungst approached the food trap with the shield, Ruffino pushed the shield back. While defendant Aungst used the shield to close the food trap door on Ruffino's arms, defendant Pelletier sprayed Ruffino with capstun.
Ruffino did not removed his arms from the food trap until defendant Lieutenant Travaglin arrived. Defendant Travaglin asked Ruffino if he was going to pull his arms back into the cell. When Ruffino said yes, defendant Travaglin told defendant Aungst to remove the shield. Ruffino withdrew his arms and defendant Travaglin closed and secured the food trap. Defendant Travaglin then left the area. He did not speak to Ruffino about the incident.
As a result of the incident, Ruffino sustained scratches, scrapes and bruises to his arms. The capstun caused him difficulty seeing and breathing for a few minutes. It did not cause him sustained difficulties because it was direct hit capstun which must strike an inmate directly in the mouth or eyes to have an effect. Ruffino concedes that he was not seriously injured as a result of this incident. Although defendant Durso was in the housing unit, she did not immediately treat Ruffino. His scrapes were treated later with Bacitracin.
A short time later, Ruffino tied a noose to the vent and put it around his neck. He did not intend to hang himself, but wanted to get the attention of a mental health worker or lieutenant. Although he knew that this action would result in placement in four-point restraints in the IMHU, Ruffino has impulse control disorder and ADHD and was acting out of anger.
In response to Ruffino's apparent suicide attempt, Aungst called a medical emergency code. Several correctional officers and defendant Bona responded to the call. Once the code was called, Ruffino removed the noose from his neck. Bona told Ruffino to step to the door and turn around to be handcuffed. Ruffino refused. Defendant Bona then called the Silent Extraction Team ("SET"). Before the team arrived, Ruffino covered his cell window.
When the SET officers entered the cell, Ruffino received what he thought was a punch or blow with a blunt object to the top of his head. Ruffino sustained a 1 ½" laceration to the back of his head. The cut did not require stitches and was treated with iodine and Bacitracin. Because Ruffino was lying face-down on the floor of the cell, he could not see who entered the cell or who hit him. The incident report states that defendants Eichner and Gianetto were the SET officers who secured his upper body. Thus, Ruffino assumes that one of these defendants punched him.
Ruffino was placed in four-point restraints. His vital signs and restraints were checked every 15-20 minutes to ensure that he was getting proper circulation. After about two hours, defendant Bona checked the restraints. At this time, Ruffino threatened defendant Bona and his family.
Prior to the incident giving rise to this action, Ruffino tried to swing at a correctional officer, spit at correctional staff a few times and flooded his cell. He also threw water at correctional staff through his food trap. One day, Ruffino sprayed urine at a correctional officer through the crack in the cell door because the officer allegedly denied Ruffino breakfast. More than once, Ruffino reported that he was suicidal even though he admitted never intending to commit suicide. On at least one occasion prior to August 19, 2003, Ruffino hung a noose on the vent in his cell to protest and gain attention. Also in August 2003, Ruffino wanted to be transferred to Northern Correctional Institution.
III. Discussion
The defendants move for summary judgment as to all defendants on six grounds: (1) Ruffino cannot establish that defendants Aungst, Pelletier, Eichner and Gianetto used excessive force against him, (2) Ruffino cannot establish that defendant Durso was deliberately indifferent to a serious medical need, (3) Ruffino fails to state a claim for supervisory liability against defendants Gomez, Lahda and Foley, (4) Ruffino suffered no injury as a result of the actions of defendants Travaglin and Durso, (5) Ruffino cannot establish a claim under 42 U.S.C. §§ 1985, 1986 or 1988 and (6) the defendants are protected by qualified immunity. Ruffino opposes the motion and argues that, even if the court were to grant defendants' motion, summary judgment should not enter as to the claims against defendants Bogdanoff and Bona because neither defendant is mentioned in the motion or memorandum.
A. Use of Excessive Force Claims Against Defendants Aungst, Pelletier. Eichner and Gianetto
Ruffino asserts two claims of use of excessive force. First, he claims that defendants Aungst and Pelletier used excessive force when defendant Aungst used a plexiglass shield to close the food trap on his arms while defendant Pelletier sprayed him with a chemical agent. Second he contends that either defendant Eichner or defendant Gianetto used excessive force when one of them hit Ruffino in the back of the head while he was lying face-down with his hands behind his back.
When confronted by a disturbance, correctional officers must balance the threat the disturbance poses to inmates, staff and others against the harm the inmate might suffer if force is used. This decision is made quickly and under pressure. When considering the use of force by correctional officers, the court must determine "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (internal quotation marks and citation omitted). The court considers objective and subjective components to an excessive force claim. See id. at 8.
The objective component relates to the level of physical force used against the inmate and whether that force is repugnant to the conscience of mankind. See id. at 9-10. The subjective component focuses on whether the correctional officers had a "wanton" state of mind when they were applying the allegedly excessive force. See id. at 8. An excessive force claim cannot be decided merely by considering the extent of an inmate's injuries.See Perkins v. Brown, 285 F. Supp. 2d 279, 283 (E.D.N.Y. 2003) (acknowledging that claim of excessive force may be established even if the victim does not suffer serious or significant injury) (citations omitted). This approach is consistent with the view that "[e]xcessive force does not, in and of itself, establish malice or wantonness for Eighth Amendment purposes." Romano v. Howarth, 998 F.2d 101, 186 (2d Cir. 1993).
The court uses the extent of the inmate's injuries as one factor in determining whether the use of force could have been thought necessary by correctional staff or demonstrated an unjustified infliction of harm. See Hudson, 503 U.S. at 7. Other factors to be considered are the need for use of force, the threat perceived by correctional staff and the relationship between the perceived threat and the amount of force used. See id. For example, an inmate who does not suffer serious or significant injury may establish a claim for use of excessive force if he can show that the force used was more than de minimus or was "repugnant to the conscience of mankind" and that the defendant acted with a "sufficiently culpable state of mind."United States v. Walsh, 194 F.3d 37, 48-50 (2d Cir. 1999).
1. Defendants Aungst and Pelletier
Defendants contend that summary judgment should enter in their favor on the excessive force claim against defendants Aungst and Pelletier because Ruffino concedes that he was not seriously injured. Serious injury, however, is not essential to state a claim for use of excessive force. An inmate who is not seriously injured still may prevail on a claim for use of excessive force if he can show that the force used was repugnant to the conscience of mankind.
Relying on Ruffino's deposition testimony, defendants contend that Ruffino cannot demonstrate that defendants Aungst and Pelletier acted maliciously or sadistically. They note Ruffino's history of spitting at staff and throwing fluids out the food trap or cell door and argue that, when defendants Aungst and Pelletier approached the cell, Ruffino did not pull his arms back into his cell. Defendants state that when Aungst tried to use the shield to close the trap, Ruffino pushed against the shield instead of withdrawing his arms. At that time, defendant Pelletier deployed the capstun. Thus, defendants argue that defendants Aungst and Pelletier did not act wantonly or maliciously but used only necessary force to restore order.
Ruffino contends that defendant Aungst was angry at him and threatened to harm him before approaching the cell with the shield. When they reached Ruffino's cell, neither defendant ordered him to pull his arms back into the cell. Instead of simply using the shield to force the food trap shut, Ruffino states that defendant Aungst twisted the shield causing Ruffino's arms to be trapped between the food trap and the door at unnatural and painful angles. In addition, Ruffino disputes the amount of capstun deployed by defendant Pelletier. In support of his position, Ruffino provides the affidavit of inmate Kenny Pladsen, Jr. and the statements of inmates Newkirk and McGilton. (See Doc. No. 41-5, Ex. A I.) Ruffino also provided the incident report and disciplinary report issued by defendant Pelletier which state, in contradiction to the inmate statements, that defendant Pelletier was outside Ruffino's cell when the food trap popped open, Ruffino refused to let defendant Pelletier close the food trap and attempted to spit at defendant Pelletier through the food trap. (See Doc. No. 41-5, Ex. F H.)
The evidence provided by Ruffino demonstrates a genuine issue of material fact regarding the mental state of defendants Aungst and Pelletier. See, e.g., Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006) (affirming denial of summary judgment on excessive force claims where questions existed regarding, inter alia, whether actions of correctional staff "were necessary to maintain order or were excessive reactions by frustrated officers; and whether the amount of force used was commensurate with the situation . . . whether verbal orders or the application of less force would have been sufficient, whether or not a warning issued before application of the pepper spray"). Accordingly, defendants' motion for summary judgment is denied as to the excessive force claim against these two defendants.
2. Defendants Eichner and Gianetto
As to the second claim for use of excessive force, defendants also argue that the 1 ½" laceration, which did not require sutures, was not a serious injury. In addition, they contend that defendants Eichner and Gianetto were acting in a good faith effort to maintain and restore discipline. As stated above, a serious injury is not required to state a claim for use of excessive force. Thus, the court considers whether there is a genuine issue of material fact regarding the subjective element of the test.
Defendants note that prior to the time the SET officers entered Ruffino's cell, he had kicked his cell door, put his arms through the food trap, attached a noose to the vent and put it around his neck, covered his cell window and refused an order to be handcuffed. Ruffino alleges that he suffered one blow to the head during the extraction but does not know who struck him or exactly how the injury occurred. In opposition to defendants' motion, Ruffino states that the injury occurred after he had complied with defendant Bona's order that he lie face down with his hands behind his back. He provides Bona's admissions that Ruffino complied with his order to lie face down on the floor with his hands behind his back and was in this position when the SET entered the cell and Gianetto's admission that Ruffino did not resist at any time once the SET entered his cell. (See Doc. No. 41-5, Ex. R, Nos. 3-4, and Ex. S, No. 3.)
"Infliction of pain that is `totally without penological justification' is per se malicious." Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). See Roberts v. Samardvich, 909 F. Supp. 594, 604-05 (N.D. Ind. 1995) (denying summary judgment on excessive force claims where inmate suffered 1 laceration which stopped bleeding with twenty minutes, videotape of incident showed no use of excessive force and inmate was not resisting correctional officers). Ruffino has presented evidence that, at the time force was used against him, he was not resisting and had complied with the order to lie face down with his hands behind his back. The court concludes that there is a genuine issue of material fact regarding whether defendant Eichner or Gianetto used excessive force against Ruffino. Accordingly, defendants' motion for summary judgment is denied as to the excessive force claim against defendants Eichner and Ruffino.
B. Claim for Deliberate Indifference to a Serious Medical Need Against Defendant Durso
Ruffino contends that defendant Durso was deliberately indifferent to his serious medical need when she failed to immediately treat his injuries suffered in the use of force by defendants Aungst and Pelletier. The defendants argue that Ruffino cannot establish that defendant Durso was deliberately indifferent.
Deliberate indifference by prison officials to a prisoner's serious medical need constitutes cruel and unusual punishment in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on such a claim, however, Ruffino must allege "acts or omissions sufficiently harmful to evidence deliberate indifference" to his serious medical need. Id. at 106. He must show intent to either deny or unreasonably delay access to needed medical care or the wanton infliction of unnecessary pain by prison personnel. See id. at 104-05.
Mere negligence will not support a section 1983 claim; "the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law." Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). Thus, "not every lapse in prison medical care will rise to the level of a constitutional violation," id.; rather, the conduct complained of must "shock the conscience" or constitute a "barbarous act."McCloud v. Delaney, 677 F. Supp. 230, 232 (S.D.N.Y. 1988) (citingUnited States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970)). Inmates do not have a constitutional right to the treatment of their choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Thus, mere disagreement with prison officials about what constitutes appropriate care does not state a claim cognizable under the Eighth Amendment. See Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040 (1992).
There are both subjective and objective components to the deliberate indifference standard. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied sub nom. Foote v. Hathaway, 513 U.S. 1154 (1995). The alleged deprivation must be "sufficiently serious" in objective terms. Wilson v. Seiter, 501 U.S. 294, 298 (1991). See also Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) ("`serious medical need' requirement contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain"). The Second Circuit has identified several factors that are highly relevant to the inquiry into the seriousness of a medical condition: "`[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d. Cir. 1998) (citation omitted). In addition, where the denial of treatment causes plaintiff to suffer a permanent loss or life-long handicap, the medical need is considered serious. See Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000).
Thus, to prevail on his deliberate indifference claim, Ruffino must show that he had a serious medical need. Defendants argue that Ruffino's injuries as a result of the incident with defendants Aungst and Pelletier do not rise to the level of a serious medical need. As support, they direct the court to Ruffino's deposition where he stated that he was not seriously injured as a result of this incident. Ruffino suffered bruises, scrapes and scratches that were treated with Bacitracin. In addition, the capstun caused him difficulty seeing and breathing only for a few minutes. Ruffino neither alleges nor presents evidence that he suffered any pain or other long-lasting effects as a result of this incident.
Ruffino provides a medical incident report documenting that the scrapes and scratches were not treated immediately because defendant Durso was not permitted to enter Ruffino's cell and copies of requests for medical treatment as a result of the laceration to his head from the second incident. (See Doc. No. 41-5, Ex. K U.)
Courts considering injuries similar to those experienced by Ruffino have held that such injuries do not rise to the level of a serious medical need. See, e.g., Pinkston v. Madry, 440 F.3d 879, 891 (7th Cir. 2006) (split lip and a swollen cheek do not rise to the level of an objectively serious medical need); Davis v. Jones, 936 F.2d 971, 972-73 (7th Cir. 1991) (one-inch laceration to an arrestee's temple, neither deep enough or long enough to require stitches, and scraped elbow did not require prompt medical attention under the Eighth Amendment); Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990) (injured detainee who only required a sling, an eye-patch and some disinfectant for abrasions did not have a serious medical need); Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (inmate's swollen, bleeding wrists from handcuffs that were too tight do not constitute a serious medical need such that a delay in provision of medical care constitutes deliberate indifference); Cummings v. Caspari, 821 F. Supp. 1291, 1292-94 (E.D. Mo. 1993) (holding that plaintiff's injuries, including head injury, injuries to wrists and legs, and injury resulting from being sprayed with mace, did not constitute serious medical need within the meaning of the Eighth Amendment); Dayton v. Sapp, 668 F. Supp. 385, 389 (D. Del. 1987) (holding that police office was not liable for failure to provide medical attention where plaintiff did not request medical attention after being sprayed with mace and displayed no visible signs of physical problem).
The court concludes that Ruffino has failed to meet his burden of demonstrating a material issue of fact that he suffered from a serious medical need as a result of the first incident. Defendants' motion for summary judgment is therefore granted as to the claim against defendant Durso for deliberate indifference to a serious medical need.
C. Supervisory Liability Claims Against Defendants Gomez, Lahda and Foley
Ruffino alleges that defendants Gomez, Lahda and Foley failed to take corrective action even though it was "common knowledge" within the prison that the SET used excessive force. Defendants contend that Ruffino cannot state a claim for supervisory liability against these three defendants.
"A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort." Leonard v. Poe, 282 F.3d 123, 140 (2d Cir. 2002). Section 1983 imposes liability only on the official causing the violation. The doctrine of respondeat superior is inapplicable in section 1983 cases. See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999);Prince v. Edwards, No. 99 Civ. 8650(DC), 2000 WL 633382, at *6 (S.D.N.Y. May 17, 2000) ("Liability may not be premised on the respondeat superior or vicarious liability doctrines . . . nor may a defendant be liable merely by his connection to the events through links in the chain of command.") (internal quotations and citation omitted).
Ruffino may show supervisory liability by demonstrating one or more of the following criteria: (1) defendant actually and directly participated in the alleged acts; (2) defendant failed to remedy a wrong after being informed of the wrong through a report or appeal; (3) defendant created or approved a policy or custom that sanctioned objectionable conduct which rose to the level of a constitutional violation or allowed such a policy or custom to continue; (4) defendant was grossly negligent in his supervision of the correctional officers who committed the constitutional violation; and (5) failed to act in response to information that unconstitutional acts were occurring. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). In addition, Ruffino must demonstrate "an affirmative causal link between the supervisor's inaction and [his] injury." Leonard, 282 F.3d at 140.
Ruffino contends that he has presented evidence that defendants failed to properly train and supervise the SET officers, failed to investigate or prevent unconstitutional uses of excessive force and failed to remedy the wrongful conduct of the SET officers. Defendants argue that, even if the court were to find that defendants Eichner and Gianetto used excessive force by punching Ruffino once, the claim for supervisory liability must fail.
At his deposition, Ruffino conceded that striking a compliant inmate is against departmental rules and that correctional officers are trained not to use excessive force. (See Defs.' Local Rule 56(a)1 Statement at ¶¶ 68-69, Pl.'s Local Rule 56(a)2 Statement at ¶¶ 68-69.) Ruffino's concessions certainly do not preclude his claim that defendants Gomez, Lahda, and Foley failed to properly train the SET officers, as they do not speak to issues such as the quality of the defendants' training and/or supervision of SET officers. Still, Ruffino's acknowledgment of policies and training aimed at curbing excessive force tends to undermine an inference of supervisory liability.
Also, nowhere does Ruffino allege that defendants Gomez, Lahda and Foley were direct participants in this use of force. Instead, he alleges that because the use of excessive force by SET officers was "common knowledge" in the facility, they were on notice of the situation and failed to take any remedial action. As support for this allegation, Ruffino states that he heard about the use of excessive force from other inmates or correctional staff. Statements from other inmates, of course, would constitute inadmissible hearsay if offered to establish that SET officers actually used excessive force. These inmates' statements could, however, be used to support an inference that the SET officers' use of force was well-known in the prison. Moreover, statements from correctional staff could be admissible to create a material issue of fact both as to whether SET officers in fact used excessive force and as to whether this use of excessive force was well-known in the prison. Further supporting an inference that SET officers engaged in excessive force is Ruffino's assertion that, on "several" unspecified occasions, he witnessed SET officers injuring Garner inmates during team operations. (Doc. No. 41-3 at ¶ 59).
Though Ruffino has presented admissible evidence to indicate that SET officers used excessive force, nothing in the record suggests that the defendants Gomez, Lahda, and Foley were aware of this excessive force. Although Ruffino has presented defendant Gomez' admission that he generally reviewed all incident reports, (see Doc. No. 41-5, Ex. E at #2), the content of these incident reports is not part of the evidentiary record, and Ruffino has provided no additional, admissible evidence that these reports support his conclusion that SET officers routinely used excessive force.
The fact that Ruffino does create a material issue of fact as to whether the SET officers' use of excessive force was well-known by inmates and correctional officers, yet cannot set forth facts indicating that the defendants were aware of this behavior, still leaves room for an inference that the defendants were grossly negligent in supervising SET officers. However, Ruffino has put forward no evidence addressing the quality of SET supervision at Garner. Without such evidence, a reasonable jury could not find that the defendants' supervision of the SET officers was grossly negligent.
The court concludes that Ruffino has not met his burden of presenting admissible evidence to demonstrate a genuine issue of material fact on his supervisory liability claim against Gomez, Lahda, and Foley. Thus, the defendants' motion for summary judgment is granted as to these.
D. No Personal Injury
Defendants argue that summary judgment should enter in favor of defendant Travaglin because Ruffino suffered no injury as a result of the actions of defendant Travaglin. In opposition, Ruffino states that, although he told defendant Travaglin about the use of force by defendants Aungst and Pelletier, defendant Travaglin left Ruffino in the cell and did not order medical attention. Thus, Ruffino asserts a claim, under a theory of supervisory liability, against defendant Travaglin for deliberate indifference to his medical needs.
The court granted defendants' motion for summary judgment on Ruffino's deliberate indifference to medical needs claim because it found that Ruffino did not suffer a serious medical need as a result of the incident with defendants Aungst and Pelletier. Because the court has found no underlying claims of deliberate indifference to a serious medical need, Ruffino's claim against defendant Travaglin necessarily fails. Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003). Defendants' motion for summary judgment is granted as to the claim against defendant Travaglin.
E. Claims Pursuant to 42 U.S.C. §§ 1985, 1986, 1988
Defendants move for summary judgment on all claims filed pursuant to 42 U.S.C. §§ 1985, 1986 and 1988. Ruffino opposes the motion only as to the claims filed pursuant to section 1988. He concedes that judgment should enter in favor of defendants on the section 1985 and 1986 claims.
Section 1988(a) provides that the district courts shall exercise their jurisdiction over civil right cases in conformity with federal law where appropriate or state law. This section, however, does not provide an independent cause of action. See Moor v. Alameda County, 411 U.S. 693, 702-06, reh'g denied, 412 U.S. 963 (1973). If Ruffino is seeking attorney's fees pursuant to section 1988(b), his claim also fails. A pro se litigant is not entitled to attorney's fees under section 1988. See Kay v. Ehrler, 499 U.S. 432, 435 (1991); Presnick v. Santoro, 832 F. Supp. 521, 531 (D. Conn. 1993).
Ruffino argues that the court should deny summary judgment on his request for attorney's fees because, if the court denies this motion, he will seek appointment of counsel for trial. Ruffino's intentions, however, do not alter the fact that currently he is not entitled to attorney's fees. Accordingly, defendants' motion for summary judgment is granted on any claims pursuant to sections 1985, 1986 and 1988. If counsel is appointed in this case and prevails at trial, counsel may seek attorney's fees at that time.
F. Qualified Immunity
Finally, defendants argue that summary judgment should be granted because defendants Aungst, Pelletier, Eichner and Gianetto are protected by qualified immunity.
The doctrine of qualified immunity "shields government officials from liability for damages on account of their performance of discretionary official functions `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.Saucier v. Katz, 533 U.S. 194, 201 (2001).
In denying defendants' motion for summary judgment on the excessive force claims, the court determined that, if plaintiff prevails on his version of the incidents, he could establish a claim for use of excessive force. The Supreme Court established the test for use of excessive force in 1992. See Hudson v. McMillian, 503 U.S. 1, 6-10 (1992). In addition, in 2002, the Supreme Court stated: "Infliction of pain that is `totally without penological justification' is per se malicious." Hope v. Pelzer, 536 U.S. 730, 737 (2002) (quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Thus, on August 19, 2003, it was clearly established that correctional officers could not use force maliciously or use force where none was required. Defendants' motion for summary judgment is denied as to their claim that they were protected by qualified immunity.
G. Claims Against Defendants Bona and Bogdanoff
Although defendants move for summary judgment as to the claims against all defendants, they make no reference in their motion or memorandum to defendants Bona or Bogdanoff. For this reason, Ruffino urges the court to deny the motion as to the claims against these two defendants. To prevail on a motion for summary judgment, defendants must show that there are no genuine issues of material fact regarding each claim, that is they must show "that there is an absence of evidence to support the nonmoving party's case." PepsiCo, 315 F.3d at 105. Because defendants have not addressed the claims against defendants Bogdanoff and Bona, they have not met this burden. Accordingly, the motion for summary judgment is denied as to the claims against defendants Bogdanoff and Bona.
IV. Conclusion
Defendants' Motion for Summary Judgment [Doc. No. 34] is GRANTED as to the claims against defendants Durso, Travaglin, Gomez, Lahda and Foley and DENIED as to all other claims, specifically the claims of excessive force against Aungst, Pelletier, Eichner, and Gianetto, and the claims against Bogdanoff and Bona.
SO ORDERED at Bridgeport, Connecticut.