Opinion
Civil Action No. 9:14-CV-1209 (GTS/DEP)
08-31-2016
MARCUS TELESFORD, Plaintiff, v. TAMER, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: MARCUS TELESFORD, Pro Se 02-A-0506 Upstate Correctional Facility P.O. Box 2001 Malone, New York 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, New York 12224 OF COUNSEL: MARK G. MITCHELL, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: MARCUS TELESFORD, Pro Se
02-A-0506
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, New York 12224 OF COUNSEL: MARK G. MITCHELL, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Marcus Telesford, a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), has brought this action pursuant to 42 U.S.C. § 1983 alleging that six DOCCS employees violated his Eighth Amendment rights in connection with a use-of-force incident that occurred at the Clinton Correctional Facility ("Clinton") on May 31, 2014. Following the close of discovery, defendants filed a motion for summary judgment seeking dismissal of plaintiff's complaint. For the reasons set forth below, I recommend defendants' motion be granted in part but otherwise denied. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS at the Upstate Correctional Facility located in Malone, New York. Dkt. No. 50. At all times relevant to his complaint, however, he was housed in Clinton, which is located in Dannemora, New York. See generally Dkt. No. 1.
According to plaintiff, corrections officers appeared at his special housing unit ("SHU") cell to search it sometime after breakfast on Saturday, May 31, 2014. Dkt. No. 64-2 at 50, 56. Plaintiff, who at the time was diagnosed with antisocial personality disorder, became immediately suspicious of the search and did not want to exit his cell. Id. at 50. When defendant Thomas Tamer, a corrections sergeant, arrived at plaintiff's cell for the purpose of overseeing an involuntary extraction of Telesford from his cell, he advised plaintiff that corrections staff was going to conduct the search and then return him to the cell. Id.; Dkt. No. 64-7 at 1-2. Plaintiff then agreed to exit his cell, provided that he would be allowed to speak with a mental health provider. Dkt. No. 64-2 at 50-51; Dkt. No. 64-7 at 2.
Defendant Traci Nycz, a nurse employed by the New York State Office of Mental Health and stationed at the satellite unit of the Central New York Psychiatric Center located at Clinton ("mental health unit"), met plaintiff once he exited his cell and asked to speak with him upstairs in the mental health unit. Dkt. No. 64-2 at 51. Plaintiff complied and was escorted to the unit which is located on the third floor of Clinton. Id. Upon meeting with defendant Nycz in the mental health unit, plaintiff told her that he was paranoid about the officers arriving at his SHU cell to search it, but that there was "nothing wrong with [him]" and he was neither suicidal nor homicidal. Id. Defendant Nycz thereafter informed plaintiff that she was admitting him to an observation cell within the mental health unit. Dkt. No. 64-2 at 51-52; Dkt. No. 64-5 at 2-3. Upon learning of that decision, plaintiff became upset. Dkt. No. 64-2 at 51-52. Plaintiff alleges that defendant Nycz had no reason to admit him to an observation cell and that she lied and falsified his mental health records to facilitate an assault that, plaintiff contends, occurred immediately after she determined he should be admitted. Dkt. No. 1 at 2.
Inmates are transferred to observation cells when they are determined to be "psychiatrically unstable, unpredictable and/or a danger to themselves or others." Dkt. No. 64-6 at 1.
Following defendant Nycz's decision to place plaintiff into an observation cell, he was escorted by corrections officers to the strip frisk area of the mental health unit. Dkt. No. 1 at 3; Dkt. No. 64-2 at 52. Defendant Tamer and defendant Christopher Trudeau, a corrections officer, then instructed plaintiff to remove his clothing. Id. During an ensuing strip frisk, defendants discovered a pen that plaintiff had hidden between his buttocks. Id. According to plaintiff, upon finding the pen, defendants Tamer and Trudeau, as well as defendants Kendrick Baker, Randy Brown, and Kevin Hart, all of whom are corrections officers and stationed within the mental health unit, assaulted him by first sweeping his legs out from under him, causing him to hit his head on the ground, and then punching and kicking him for a "brief" period of time that lasted no longer than five minutes. Id. Plaintiff alleges that at some point during the assault, defendant Tamer sat on top of him, yelled at him using derogatory terms, and stuck his finder inside plaintiff's anus. Dkt. No. 1 at 3-4; Dkt. No. 64-2 at 52-53. Following the incident, according to Telesford, defendants Tamer, Trudeau, Baker, Brown, and Hart carried him to a cell, tossing him inside and underneath a bed. Dkt. No. 1 at 4; Dkt. No. 64-2 at 53. As plaintiff was crawling out from beneath the bed, defendant Tamer struck him on the head with a baton. Id.
Defendants contend that the assault alleged by plaintiff did not occur. See, e.g., Dkt. No. 65-7 at 3. Additionally, while defendants Tamer and Trudeau admit that they were present for the strip frisk in the mental health unit, Dkt. No. 64-7 at 2-3; Dkt. No. 64-10 at 2, defendants Baker, Brown, and Hart deny that they were present for the incident. Dkt. No. 64-13 at 2; Dkt. No. 64-14 at 2; Dkt. No. 64-15 at 2. There is evidence in the record, however, reflecting that defendants Baker, Brown, and Hart were on duty in the mental health unit on the date of the incident. Dkt. No. 64-13 at 1; Dkt. No. 64-14 at 1; Dkt. No. 64-15 at 1.
According to plaintiff, he did not receive any medical attention for the injuries he sustained during the assault until Monday, June 2, 2014. Dkt. No. 1 at 4; Dkt. No. 64-2 at 53. On that date, he reported the assault to a nurse in the mental health unit and was subsequently transferred to Champlain Valley Physicians Hospital located in Plattsburgh, New York. Dkt. No. 65-2 at 138, 160. Medical records generated during that hospital visit do not indicate that plaintiff was currently suffering from any acute trauma or distress. See, e.g., id. at 160-64. In his complaint, however, plaintiff alleges that, as a result of the assault, he now suffers from migraines, painful urination, acute low-back pain, and loss of hearing, as well as psychological trauma including loss of sleep, post-traumatic stress disorder, and depression. Dkt. No. 1 at 5.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on October 3, 2014, with the filing of a complaint and accompanying application for leave to proceed in the case in forma pauperis ("IFP"). Dkt. Nos. 1, 2. On December 15, 2014, following a review of plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A, I accepted the complaint for filing and granted plaintiff's IFP motion. Dkt. No. 5.
Following the close of discovery, defendants filed the currently pending motion for summary judgment seeking dismissal of plaintiff's complaint. Dkt. No. 64. Generally, in their motion defendants contend that the record evidence does not support a reasonable factfinder's conclusion that any force was used on plaintiff during his admission to the mental health unit at Clinton, and, in any event, they are entitled to qualified immunity from suit. See generally Dkt. No. 64-23 . Plaintiff has since responded to defendants' motion, Dkt. No. 69, and defendants have submitted a reply brief in further support. Dkt. No. 72. Defendants' motion, which is now fully briefed, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact 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.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Eighth Amendment Excessive Force Claim Asserted Against Defendants Tamer, Trudeau, Baker, Brown, and Hart
Plaintiff's excessive force claim is grounded in the Eighth Amendment, which prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or 'involve[s] the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958); Gregg v. Georgia, 428 U.S. 153, 169-73 (1976)) (citations omitted). 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. Chapman, 452 U.S. 337, 349 (1981)).
A plaintiff's constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (quotation marks omitted); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). "A claim of cruel and unusual punishment in violation of the Eighth Amendment 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, 503 U.S. at 7-8; Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). To satisfy the subjective requirement in an excessive force case, the plaintiff must demonstrate 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." Wright, 554 F.3d at 268 (quotation marks omitted). This inquiry turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quotation marks omitted); accord, Blyden, 186 F.3d at 262. The Supreme Court has emphasized that the nature of the force applied is the "core judicial inquiry" in excessive force cases - not "whether a certain quantum of injury was sustained." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). Accordingly, when considering the subjective element of the governing Eighth Amendment test, a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness. Wilkins, 559 U.S. at 37; Hudson, 503 U.S. at 9.
"The objective component [of the excessive force analysis] . . . focuses on the harm done, in light of 'contemporary standards of decency.'" Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8); see also Blyden, 186 F.3d at 263 (finding the objective component "context specific, turning upon 'contemporary standards of decency'"). In assessing this component, a court must ask whether the alleged wrongdoing is objectively harmful enough to establish a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 303 (1991); accord Hudson, 503 U.S. at 8; see also Wright, 554 F.3d at 268. "But when prison officials use force to cause harm maliciously and sadistically, 'contemporary standards of decency always are violated. This is true whether or not significant injury is evident.'" Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9) (alterations omitted). The extent of an inmate's injury is but one of the factors to be considered in determining whether a prison official's use of force was "unnecessary and wanton" because "injury and force . . . are imperfectly correlated[.]" Wilkins, 559 U.S. at 38. In addition, courts consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Romano, 998 F.2d v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
When evaluating inmate claims of excessive force, courts must bear in mind that "[n]ot every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Romano, 998 F.2d at 105 (quotation marks omitted); see also Griffin, 193 F.3d at 91. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (quotation marks omitted).
In this case, the record evidence clearly reflects the existence of genuine disputes of material fact with respect to whether defendants Tamer, Trudeau, Baker, Brown, and Hart used excessive force against plaintiff on May 31, 2014. Plaintiff's deposition testimony and verified complaint suggest that those individuals assaulted him in the strip frisk area of the mental health unit during his admission to the observation cell in the mental health unit. Dkt. No. 1 at 3-4; Dkt. No. 64-2 at 52-53. Defendants' declarations submitted in support of their motion, in contrast, suggest that no force was used and that defendants Baker, Brown, and Hart were not even present for the search. Dkt. No. 64-7 at 2-3; Dkt. No. 64-10 at 2; Dkt. No. 64-13 at 2; Dkt. No. 64-14 at 2; Dkt. No. 64-15 at 2. Resolving the discrepancy between the parties' competing evidence would require the court to undertake a credibility determination that is not appropriate on summary judgment. See, e.g., Anderson, 477 U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.").
Defendants contend that the absence of any objective medical evidence to support plaintiff's allegations is sufficient to permit the court to resolve the dispute regarding the events surrounding the strip frisk. Dkt. No. 64-23 at 17-19. Specifically, defendants maintain that because plaintiff's medical records do not reflect that he suffered any injury from the alleged assault, a reasonable factfinder could conclude that, at most, only de minimis force was used against him. Id. (citing district court cases). It is well settled, however, that de minimis injuries do not necessarily establish that only de minimis force was applied. See Wright, 554 F.3d at 269 ("[O]ur Court has reversed summary dismissals of Eighth Amendment claims of excessive force even where the plaintiff's evidence of injury was slight and the proof of excessive force was weak . . . . [T]he absence of any significant injury to [the plaintiff] does not end the Eighth Amendment inquiry, for our standards of decency are violated even in the absence of such injury if the defendant's use of force was malicious or sadistic[.]"). In this case, in the event a reasonable factfinder credits plaintiff's version of the strip frisk incident, the factfinder could also reasonably conclude that defendants did not use force in an effort to restore order but instead maliciously assaulted him in response to finding contraband on his person. Accordingly, I recommend defendants' motion be denied with respect to defendants Tamer, Trudeau, Baker, Brown, and Hart. See Wright, 554 F.3d at 269 (reversing summary dismissal of the plaintiff's complaint, though suggesting that prisoner's evidence of an Eighth Amendment violation was "thin" as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the "medical records after the . . . incident with [that officer] indicated only a slight injury") (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)).
In light of the disputed record evidence regarding whether defendants used excessive force against plaintiff maliciously and sadistically, I do not recommend dismissal of this claim on qualified immunity grounds. "Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of N.Y., 689 F.3d 159, 174 (2d Cir. 2012). The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a statutory or constitutional right, and if so, whether that right "was clearly established at the time of the challenged conduct." Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (citing Reichle, 132 S. Ct. at 2093). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quotation marks and alterations omitted). However, "[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is satisfied if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986). Defendants in this case do not contend that plaintiff's right to be free from assault was not clearly established or that plaintiff's allegations regarding their specific conduct does not violate that clearly established right. Dkt. No. 64-23 at 20. Instead, defendants argue that their conduct, as alleged by plaintiff, was objectively reasonable. Id. In the event plaintiff's allegations regarding the incident on May 31, 2014 are credited, however, no officer in defendants' position would have believed that their acts were lawful.
C. Plaintiff's Conspiracy Claim Asserted Against Defendant Nycz
As it relates to defendant Nycz, plaintiff contends that she conspired with the other five defendants to facilitate their alleged assault on him. See, e.g., Dkt. No. 1 at 2-3, 5 (describing defendant Nycz's decision to admit plaintiff to an observation cell as "a strategic play . . . so Sergent [sic] Tamer, C.O. Chris Trudeau, C.O. Kenri [sic] Baker, C.O. Kevin Hart, & C.O. Randy Brown could brutally and sadistically sexual [sic] and physically assault the plaintiff[.]"); Dkt. No. 69 at 13 (arguing that defendant Nycz knew "she was going to admit [him] into the observation cells so correction staff could assault [him]"). In their motion, defendants contend that this claim is subject to dismissal based on the merits. Dkt. No. 64-23 at 13-14.
To sustain a conspiracy claim under section 1983, "a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Mere conclusory allegations that are unsupported by any record evidence are insufficient to give rise to a genuine dispute of material fact. See, e.g., Hilson v. Maltese, No. 09-CV-1373, 2012 WL 6965105, at *6 n.10 (N.D.N.Y. Dec. 14, 2012) (Baxter, M.J.), report and recommendation adopted by 2013 WL 375489 (N.D.N.Y. Jan. 30, 2013) (Mordue, J.) ("Plaintiff's conclusory assertion . . . is not sufficient to establish a material issue of fact[.]" (listing cases)); see also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983). By their "very nature," however, conspiracies are "secretive operations" and "may have to be proven by circumstantial, rather than direct, evidence." Pangburn, 200 F.3d at 72.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this case, aside from plaintiff's mere allegation that defendant Nycz conspired with the other defendants, and admitted Telesford into an observation cell to further the goal of assaulting him, there is no evidence to support plaintiff's claim. Defendant Nycz contends that she admitted plaintiff to the observation cell based her observations during her interview of Telesford upon his arrival to the mental health unit. Dkt. No. 64-5 at 2-3. In particular, defendant Nycz noted that plaintiff "presented as aggressive and easily agitated[, h]is speech was pressured[, and h]e was also uncooperative and refused to permit [her] to take his vital signs." Id. at 2. Because she concluded that plaintiff "might be a danger to himself or others," she recommended plaintiff be admitted to an observation cell. Id. Defendant Nycz specifically denies lying about her assessment of plaintiff's condition and falsifying plaintiff's records, and she denies conspiring "with anyone." Id. at 3. For his part, plaintiff maintains that he remained "calm [and] collected" upon arriving in the mental health unit and denies presenting agitated. Dkt. No. 64-2 at 74.
Notwithstanding the existence of disputed evidence regarding plaintiff's temperament at the time defendant Nycz admitted him to the observation cell, I find that no reasonable factfinder could conclude that her decision to admit him was in furtherance of a conspiracy to assault plaintiff. Indeed, as was noted above, aside from plaintiff's allegation of a conspiracy, there is no other evidence of an agreement between defendant Nycz and the other defendants. In addition, even assuming plaintiff was not agitated upon arriving at the mental health unit, and taking as true plaintiff's allegation that he indicated to defendant Nycz he was neither suicidal or homicidal, there is no record evidence that defendant Nycz disregarded plaintiff's condition and representations for the purpose of furthering a conspiracy. Because conclusory allegations are not sufficient to support a conspiracy claim on summary judgment, I recommend that plaintiff's claim asserted against defendant Nycz be dismissed.
D. Plaintiff's Claims for Damages and Requests for Declaratory and Injunctive Relief
In his complaint, plaintiff requests the following relief:
A.) Declaratory judgment that defendant's [sic] acts and practices described [in the complaint] violated plaintiff's rights under the United States Constitution.Dkt. No. 1 at 7-8. Defendants seek dismissal of plaintiff's claims for (1) damages and retrospective injunctive relief based on Eleventh Amendment immunity, and (2) declaratory and injunctive relief based on mootness. Dkt. No. 64-23 at 21.
B.) An injunction relief
C.) Jointly and severally against each defendants punitive damages in excess of 10,000,000
D.) Jointly and severally against each defendants compensatory damages in excess of 10,000,000
E.) Plaintiff cost of this suit.
F.) Jury trial demand.
G.) That the court should grant application for assignment of counsel and
H.) For such other and further relief as this court deem appropriate and proper.
Plaintiff does not seek "retrospective injunctive relief." Dkt. No. 1 at 8.
1. Plaintiff's Damage Claims Asserted Against Defendants in Their Official Capacities
The Eleventh Amendment protects a state against suits brought in federal court by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993). This absolute immunity, which states enjoy under the Eleventh Amendment, extends to both state agencies and state officials sued for damages in their official capacities when the essence of the plaintiff's claim seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N.Y., 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.) ("[A] suit which seeks a money judgment 'which must be paid from the state treasury is barred by the Eleventh Amendment,' even though it is nominally asserted against an individual official." (quoting Edelman, 415 U.S. at 663)); see also Richards v. State of N.Y. App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing, inter alia, Cory v. White, 457 U.S. 85, 89-91, (1982)). "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").
Plaintiff's damage claims in this action against the named-defendants in their official capacities are, in reality, claims against the State of New York, and therefore are subject to dismissal. Daisernia, 582 F. Supp. at 798-99. Accordingly, I recommend that, to the extent that any of the claims asserted in plaintiff's complaint are asserted against any of the named defendants in their official capacities, those claims be dismissed with prejudice.
2. Plaintiff's Requests for Declaratory and Injunctive Relief
Plaintiff seeks declaratory and injunctive relief against defendants, all of whom are indisputably stationed at Clinton, for an incident that occurred at Clinton. Dkt. No. 1 at 8. Plaintiff, however, is presently incarcerated in the Upstate Correctional Facility. Dkt. No. 50. Because the Second Circuit has held that an inmate's request for prospective injunctive relief against corrections staff at a particular correctional institution becomes moot when he is discharged or transferred to a different correctional institution, I recommend plaintiff's claims seeking declaratory and injunctive relief be dismissed. See, e.g., Day v. Chaplin, 354 F. App'x 472, 473 (2d Cir. 2009) (citing Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976)); Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996)); see also Young v. Coughlin, 866 F.2d 567, 568 n.1 (2d Cir 1989) ("Since [the plaintiff] is no longer incarcerated at Auburn, but was transferred to Attica Correctional Facility, his claim for declaratory and injunctive relief is moot.").
IV. SUMMARY AND RECOMMENDATION
There is evidence in the record from which a reasonable factfinder could conclude that defendants Tamer, Trudeau, Baker, Brown, and Hart used excessive force against plaintiff on May 31, 2014. Plaintiff's conspiracy claim against defendant Nycz, however, is supported by conclusory allegations and is therefore subject to dismissal. In addition, plaintiff's claim for damages against the remaining defendants in their official capacities, and his claims for declaratory and injunctive relief, are subject to dismissal. Accordingly, it is respectfully
RECOMMENDED that defendants' motion for summary judgment, Dkt. No. 64, be GRANTED in part and DENIED in part as follows:
1. Plaintiff's conspiracy claim asserted against defendant Nycz should be DISMISSED and she should be DISMISSED from the action;
2. Plaintiff's damage claims asserted against all defendants in their official capacities should be DISMISSED;
3. Plaintiff's claims seeking declaratory and injunctive relief should be DISMISSED; and
4. Plaintiff's Eighth Amendment excessive force claim seeking compensatory and punitive damages and asserted against defendants Tamer, Trudeau, Baker, Brown, and Hart in their individual capacities should survive defendants' motion and proceed to trial.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
The clerk of the court is respectfully directed to serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 31, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge