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denying summary judgment on excessive force claim where plaintiff alleged that correction officer intentionally struck his head with baton while plaintiff laid on ground defenseless
Summary of this case from Allen v. City of New YorkOpinion
99 Civ. 10657 (LTS)(JCF)
April 22, 2002, September 17, 2002
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, and Maria Barous Hartofolis, Esq., New York, NY., Attorneys for Defendant.
CARDINALE HUESTON MARINELLI, Richard J. Cardinale, Esq. New York, NY., Attorneys for Plaintiff.
OPINION AND ORDER PARTIAILY ADOPTTNG REPORT AND RECOMMENDATION
Plaintiff Carlos Bonilla, a state prison inmate ("Plaintiff'), brings this action against correction officer Lance Brancato ("Defendant") pursuant to 42 U.S.C. § 1983. Plaintiff asserts claims under the Eighth Amendment of the United States Constitution for failure to protect and use of excessive force. Defendant denies the allegations against him and asserts that Plaintiffs claims are barred by the doctrine of collateral estoppel because Plaintiff has already litigated the relevant issues in the New York State Court of Claims ("Court of Claims"). On April 22, 2002, Magistrate Judge James C. Francis IV issued a Report and Recommendation ("Report") recommending that Defendant's motion for summary judgment be denied. On May 17, 2002, Defendant submitted a timely objection to the Report.
The Court, by order dated May 9, 2002, reset the deadline for filing objections to May 20, 2002.
In reviewing the Report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636(b)(l)(C) (West 1993 Supp. 2002). The statute provides that "[w]ithin ten days . . . any party may serve and file written objections to such proposed findings and recommendations. . . ." Id. "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When a party makes only conclusory or general objections, or simply reiterates his original arguments, however, the Court reviews the Report only for clear error. See Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in the original pleadings); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838 at *1 (S.D.N.Y. March 26, 1991) (restatement of allegations before the Court and assertion that valid constitutional claim exists insufficient to form specific objections); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections stating the magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation). Objections to a Magistrate Judge's report and recommendation "are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-82.
In his timely-filed objections, Defendant takes issue with each of the principal conclusions in the Report. Defendant contends that Judge Francis erroneously determined that principles of issue preclusion and the Rooker-Feldman doctrine do not bar litigation of the excessive force and failure to protect claims raised in the instant case. Respondent further contends that Judge Francis erred in concluding that, if such claims are subject to litigation in this Court, material issues of fact preclude the grant of summary judgment on them in Defendant's favor. Finally, Defendant urges this Court to reject Judge Francis' recommendation that Defendant's motion for summary judgment on qualified immunity grounds be denied. In light of the timely and specific objections asserted by Defendant to the Report, the Court has reviewed de novo the entire Report.
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983), discussed infra.
Preclusion
Judge Francis recommends that this Court find that Plaintiff is not foreclosed from litigating his excessive force and failure to protect claims in this Section 1983 action by the prior dismissal of the action commenced by Plaintiff in the New York State Court of Claims. Defendant asserts that Judge Francis' conclusions are inconsistent with the RookerFeldman doctrine and related principles of issue preclusion and should therefore be rejected.
Under the Rooker-Feldman doctrine, "a United States District Court has no authority to review final judgments of a state court in judicial proceedings." D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). A federal court lacks jurisdiction over any claims that were previously decided by a State Court or that are "inextricably intertwined" with a State Court's determination. Feldman, 460 U.S. at 482-484. The Second Circuit has interpreted "inextricably intertwined" to mean "at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . . subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Moccio v. New York State Office of Court Admin, 95 F.3d 195, 199-200 (2d Cir. 1996).
The law of preclusion has two branches: claim preclusion, or res judicata, which bars litigation of matters that could have been litigated in a prior action as well as relitigation of those actually litigated; and issue preclusion, or collateral estoppel. See Moccio, 95 F.3d at 200; Cox v. Colgane, No. 94 Civ. 6361 (DAB), 1998 U.S. Dist. Lexis 3934, *12 (S.D.N.Y. March 27, 1998). Where the initial action is brought in the New York State Court of Claims, res judicata does not bar subsequent litigation against state officials in their individual capacities, because the Court of Claims does not have jurisdiction to hear such claims. Cox, 1998 U.S. Dist. Lexis 3934 at *12. The application of Rooker-Feldman in the instant case thus turns on the question of whether collateral estoppel applies and the Court looks to whether "(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding . . . .The party' asserting issue preclusion bears the burden of showing that the identical issue was previously decided, while the party against whom the doctrine is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding." Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995).
Excessive Force Claim
The Report concludes that Defendant failed to sustain his burden of showing that the issue of excessive force was previously decided in the Court of Claims. This Court, having reviewed de novo the question, concurs.
Defendant notes accurately that the Court of Claims dismissed Plaintiffs entire case, and that the claims asserted by Plaintiff in that case included the excessive force claim. Plaintiff also raised the issue at trial, testifying that Defendant had hit him, and seeking to question Defendant as to why he had hit him. The Court of Claims' dismissal of the entire case thus necessarily encompassed this claim. This is not, however, the end of the inquiry under the governing principles of the New York law of claim preclusion. The issue must, to be precluded, have been actually, as well as necessarily, decided. E.g., Colon, 58 F.3d at 865. Here, Defendant has failed to show that the issue of excessive force was actually decided by the Court of Claims. At the prior trial, the judge introduced the case as one sounding in negligence and concerning an assault on Plaintiff by other inmates. (Tr. at 2-3.) In the course of the Court of Claims trial, the defense moved for dismissal, arguing specifically failure of proof on each of the three causes of action asserted in the claim. (Tr. at 29.) The court reserved decision on the motion at that time and heard further testimony. When the Court of Claims ultimately ruled at the conclusion of the trial it did not, however, address the excessive force claim. The decision, rendered from the bench and dismissing the case on grounds of failure to present a prima facie case, addressed principles relating to "[l]iability for inmate-on-inmate assault" and found no grounds for an inference or presumption of negligence. (Tr. at 41-43.) The judge did not make any findings on the issue of use of force by the officer. Id. The two-page Judgment that was subsequently entered by the Clerk of the Court of Claims likewise recited that Plaintiff claimed injuries "due to the alleged negligence of the State of New York," and characterized the dismissal as "based upon the failure of claimant to prove a prima facie case." (Court of Claims Judgment, Hartofilis Decl., Ex. C.) On this record, the Court cannot properly find that the central issues underlying Plaintiffs excessive force claim — whether he suffered injuries by reason of an assault by the Defendant correction officer and whether such assault was violative of Defendant's Eighth Amendment rights — were actually and necessarily decided in the Court of Claims proceeding. See Brooks v. Giuliani, 84 F.3d 1454, 1465 n. 12 (2d Cir. 1996) (collateral estoppel did not apply where plaintiff raised constitutional issue in prior proceeding but court did not address it); Cox v. Colgane, No. 94 Civ. 6361 (DAB), 1998 U.S. Dist. LEXIS 3934 at *16 (S.D.N.Y. March 27, 1998) (collateral estoppel did not apply where judge did not address issue in final decision even though plaintiff raised it in notice of claim and bill of particulars).
Accordingly, the Court adopts Judge Francis' recommendation that summary judgment be denied Defendant to the extent he seeks judgment in his favor on preclusion grounds with respect to the excessive force cause of action asserted in this case.
Failure to Protect Claim
The parties, and Judge Francis, agree that the issue of whether an attack on Plaintiff by other inmates was negligently permitted to occur was decided by the Court of Claims. The Report recommends, however, that summary judgment should be denied on preclusion grounds because Plaintiff did not have a full and fair opportunity to litigate the issue in the Court of Claims proceeding. Defendant objects to this recommendation, asserting that Judge Francis' analysis focuses improperly on the conduct of the trial judge, and arguing that the Magistrate Judge assumed the role of appellate court in violation of the Rooker-Feldman doctrine. (Def.'s Objections to Report at 12.) Defendant asserts that the Magistrate Judge "has gone beyond whether Plaintiff had a full and fair opportunity to litigate and instead has reviewed whether he believes that the Court of Claims Judge acted properly during the trial." (Id. at 12-13.) The Court has reviewed de novo this issue as well.
In his papers in opposition to the summary judgment motion, Plaintiff argued that the Court of Claims did not decide the failure to protect issue to the extent Plaintiffs claim is premised on the allegation that, during the alleged assault, Defendant "initially stood by and smiled." Plaintiff fails to explain how this claim is substantively different from the basic negligence claim — that Defendant breached a duty to protect Plaintiff from a known threat. In that Plaintiff testified at the trial to Defendant's alleged smiling at the initiation of the attack (Tr. at 13) and the Court of Claims specifically held that Plaintiff had failed to meet his prima facie burden to show that "[t]he State had ample notice and opportunity to intervene and failed to so," (Tr. at 43) the Court finds that the material issues relating to the failure to protect claim were actually and necessarily decided in the Court of Claims proceeding.
Plaintiff contends that Defendant may not raise a Rooker-Feldman challenge for the first time at this stage of litigation. However, a challenge under RookerFeldman is for lack of subject matter jurisdiction and may be raised at any time or sua sponte by the court. Moccio v. New York State Office of Court Admin., 95 F.3d 195, 197 (2d Cir. 1996).
The Report recommends a finding that Plaintiffs pro se status in the Court of Claims proceeding prevented him from litigating adequately his claims. Specifically, Judge Francis concludes that Plaintiff was prejudiced by appearing pro se at the Court of Claims trial because he was "limited in his ability to develop the record due to repeated interjections from the judge, and critical portions of the court proceedings were not fully translated." (Report at 17.) The Report recommends a finding that, as a result of appearing pro se, Plaintiff received an inadequate and truncated trial. (Report at 14, 15 ("a review of the trial transcript suggests that [Plaintiff] was indeed prejudiced in his ability to try the [Court of Claims] case by the lack of appointed counsel.").) Concluding that the Plaintiff was prejudiced by appearing pro se, the Report notes that "the [Court of Claims] judge refused to require the defendant to answer most of the inquiries put to him by the plaintiff, and instead answered the majority of questions himself" (Report at 15.) Also, the Report recognizes that "the plaintiff was allowed to ask fewer than five questions of the defendant and of those, the court only required the defendant to answer one." (Report at 15); (Tr. 34-41.) Additionally, the Report concludes that the Plaintiff was "further prejudiced by the fact that the court did not require verbatim translation despite the fact that Mr. Bonilla speaks Spanish as a first language." (Report at 16.)
As previously noted, the party against whom the doctrine of collateral estoppel is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding. See Moccio, 58 F.3d at 869.
Under New York law, an inquiry into whether a party had a full and fair opportunity to litigate a prior determination must concentrate on "the various elements which make up the realities of litigation.". . . Factors listed by the New York Court of Appeals to assist in this inquiry include the forum for the prior litigation, the competence and experience of counsel, the foreseeability of future litigation, and the context and circumstances surrounding the prior litigation that may have deterred the party from fully litigating the matter.
Conte v. Justice, 996 F.2d 1398, 1401 (2d Cir. 1993) (citations omitted). A plaintiffs status as a pro se litigant does not, by itself, preclude barring a claim under the doctrine of collateral estoppel, but it is relevant to a determination of the fairness of his prior opportunity to be heard. Cruz v. Root, 932 F. Supp. 66, 69 (W.D.N.Y. 1996) (citing Conte v. Justice, 996 F.2d 1398, 1400 (2d Cir. 1993)) (competence and experience of counsel is a relevant factor in determining whether a party has a full and fair chance to litigate a claim)). If a pro se plaintiff is unfamiliar with the law and is unable to present evidence on his claim or if he fails to do so, collateral estoppel may be inappropriate. Salahuddin v. Dalsheim, No. 94 Civ. 8730 (RWS), 1996 U.S. Dist. LEXIS 9531, at *22-23 (S.D.N.Y. July 9, 1996) (even though plaintiff had master's degree, a fact-finding hearing, incentive to litigate at prior proceeding, and ably participated at his hearing, collateral estoppel did not apply where he proceeded pro se and failed to develop the record); Clark v. Department of Correctional Services, 564 F. Supp. 787, 789 (S.D.N.Y. 1983) (issue not barred by collateral estoppel where pro se plaintiff lacked familiarity with the law and was unable to present his case effectively); but see Ennis v. Davies, No. 87 Civ. 1465 (LMC), 1990 U.S. Dist. LEXIS 10500 at *5 (S.D.N.Y. Aug. 15, 1990) (preclusive effect given to prior decision where pro se plaintiff had college degree, worked as a prison law librarian, had filed 39 lawsuits, and completed two courses in legal research).
Here, the record shows that Plaintiff had an opportunity to present his failure to protect claim during a bench trial conducted by a judge of the Court of Claims. He had every incentive to pursue the claim vigorously, as he was seeking to recover money damages in respect of his injuries, and the transcript of the proceeding reflects his deliberate and extensive efforts to present his version of the facts and to identify for the Court the issues relevant to his claim. The question for this Court on de novo review is, thus, whether Plaintiff was nonetheless deprived of an opportunity fully and fairly to litigate his claim and, if so, the source of that deprivation.
Having reviewed thoroughly the record, the Court shares many of Judge Francis' concerns about the way the Court of Claims proceeding was conducted. These concerns do not, however, lead the Court to the conclusion that Plaintiffs pro se status in the Court of Claims resulted in a failure to be able fully and fairly to litigate the claim. A federal district court does not have jurisdiction to review generally the conduct of state court proceedings or to sit in appellate review of state court decisions. Rooker, 263 U.S. 413; Feldman, 460 U.S. 462.
In collateral proceedings, inquiries into the full and fair ability to litigate focus properly on the litigant's incentive and ability to present his claims to the judicial tribunal, rather than on the court's conduct of the prior proceeding., mg., West v. Ruff, 961 F.2d 1064, 1065-66 (2d Cir. 1992) (opportunity to contest lacking where plaintiff had proceeded pro se in state action but was appointed counsel in parallel federal action, received only one day's notice of state trial, neither appointed counsel nor state judge was appraised of parallel litigation, and lack of notice or discovery had prevented the testimony of an eyewitness); Clark v. Dep't of Correctional Sys., 564 F. Supp. at 789; Salahuddin v. Dalsheim, 1996 U.S. Dist. LEXIS 9531, at *22-23. Plaintiff articulated for the state court the material factual underpinnings of his claim. Although the court did not permit the Plaintiff to pursue full cross-examination, Plaintiff was able to identify his material legal and factual issues and elicit some relevant testimony; the court's colloquies and ultimate decision demonstrate its recognition of the issues Plaintiff had raised. Furthermore, as Judge Francis determined, the absence of a videotape of the incident was not prejudicial because there is no evidence that the tape exists.
For all of the foregoing reasons, the Court finds that the issues material to Plaintiffs failure to protect claim were actually and necessarily decided, and that Plaintiff had a full and fair opportunity to litigate them, in the Court of Claims proceeding. Plaintiff is therefore precluded from pursuing that claim in this forum. Defendant is entitled to summary judgment on the failure to protect claim, and the Court declines to adopt the Report to the extent it recommends denial of the motion as it relates to the failure to protect claim.
Merits of Excessive Force Claim
The Report, having concluded that litigation of Plaintiffs excessive force claim is not precluded by the dismissal of his Court of Claims case, further recommends that summary judgment be denied on the merits of the claim because there are genuine issues of material fact for trial. Defendant objects to this aspect of the Report as well, arguing that there is no dispute as to whether the force used by Defendant was applied in good faith or maliciously. (Def.'s Objections to Report at 21.) The Court has reviewed this issue de novo.
A finding of excessive force requires that the defendant had a 'wanton' state of mind" when inflicting injury upon the plaintiff. Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994). A determination of wantonness "ultimately 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." Whitley v. Albers, 475 U.S. 312, 320-21 (1986), quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.), cert. denied sub. nom. John v. Johnson, 414 U.S. 1033 (1973). "[S]uch factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted," are relevant to a determination of wantonness. Whitley, 475 U.S. at 321, quoting Johnson, 482 F.2d at 1033.
Defendant asserts that he did not intentionally strike Plaintiff and, further, that Plaintiff fails to allege that Defendant's actions were intentional. (Def.'s 56.1 Stmt. ¶¶ 27-28; Def.'s Objections to Report at 22.) Defendant contends that he struck all three inmates while swinging his baton in an effort to break up the altercation and that the blow to Plaintiffs head was the accidental result of this effort. (Def's 56.1 Stmt. ¶¶ 26-27.) Defendant argues that, because he was trying to stop the assault, he could not have intentionally injured Plaintiff. (Def.'s Objections at 23.)
Plaintiff does not dispute that Defendant was attempting to stop the assault upon him by the other inmates. (Pl. 56.1 Stmt. ¶ 7.) However, Plaintiff asserts that he was "lying defensively on the ground" when Defendant "[took] his baton and [struck] [Plaintiff]" in the head. (Pl. 56.1 Stmt. ¶ 8)
The Court, in determining wantonness, must consider the relationship between the need for force and the amount of force used against the Plaintiff under the circumstances. Whitley v. Albers, 475 U.S. at 319; see, e.g., Davidson v. Flynn. 32 F.3d at 30 (even if prisoner was a flight risk, material questions of fact would still remain as to whether this risk required the amount of force applied by tightening shackles). Further, as Judge Francis notes, "[i]f the jury were to credit [Plaintiffs] version of the events, it would be entitled to infer that the [D]efendant acted maliciously." (Report at 20.) Accordingly, this Court adopts the conclusions of the Report as to the claim of excessive force and Defendant's motion for summary judgment is denied on this issue.
Merits of Failure to Protect Claim
Defendant further objects to the Report's recommendation that summary judgment be denied as to the merits of the failure to protect claim. In light of the Court's foregoing conclusion that Defendant is entitled to summary judgment on issue preclusion grounds with respect to this claim, the Court will not adopt this aspect of the Report and need not address the objection going to the merits of the claim.
Qualified Immunity
Defendant also objects to the Report's conclusion that Defendant is not entitled to summary judgment on the defense of qualified immunity. A defendant may successfully claim qualified immunity from civil suits arising from performance of discretionary functions if his conduct does not violate clearly established law or if it was objectively reasonable for him to believe that his actions were legal. Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000); see Report at 23. On a motion for summary judgment on the issue of qualified immunity, the Court can find for a defendant when
no reasonable jury, looking at the evidence in the light most favorable to . . . the plaintiff], could conclude that it was objectively unreasonable for the defendant' to believe that he was acting in a fashion that did not clearly violate an established federally protected right.
Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999), quoting Robison v. Via, 821 F.2d 913, 921 (1987); Report at 23-24. The pertinent inquiry is how a reasonable official in the defendant's position would respond. Cartier v. Lussier, 955 F.2d 841, 843 (2d Cir. 1992). Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness. Thomas, 165 F.3d at 143.
With respect to the remaining excessive force claim, Defendant asserts that he has demonstrated his entitlement to qualified immunity based on the declaration of the Deputy Superintendent of Security at Downstate Correctional Facility, which states that "[a] corrections officer is authorized, pursuant to [Department of Corrections] policy, to use [a] baton in situations such as the one that occurred [here] . . . ." (Many Decl., ¶¶ 4-5; Def.'s Objections to Report at 27.) Notwithstanding this statement, a reasonable jury could conclude that it was objectively unreasonable for Defendant to use the baton, under the facts as alleged by Plaintiff, with force sufficient to cause the injury alleged in this case. The Plaintiff alleges that he was "lying defensively" on the ground when Defendant struck him. (Pl. 56.1 Stmt. ¶ 8.) Defendant contends that he inadvertently struck Plaintiff while attempting to break up the altercation, and that the amount of force used was justified by the circumstances. (Def.'s 56.1 Stmt. ¶¶ 26-29.) Since these material facts are in dispute, summary judgment is precluded on qualified immunity. The Court adopts the Report's conclusions as to the claim of qualified immunity.
CONCLUSION
For the foregoing reasons, summary judgment is granted with respect to the failure to protect claim and denied in all other respects. The Report issued by Judge Francis, which is set forth below, is adopted except for Sections B.2 and C.2.
The parties are directed to meet promptly with Judge Francis for settlement purposes. A final pre-trial conference shall be held in this matter on December 18, 2002 at 3:00 p.m. Consultations and submissions shall be made in advance of the final pre-trial conference date, as set forth in the August 23, 2001 Pre-Trial Scheduling Order entered by Judge Francis.
Carlos Bonilla, a prison inmate, brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendant violated his civil rights. The plaintiff contends that when he was incarcerated at the Downstate Correctional Facility, Correction Officer Lance Brancato failed to protect him when two inmates assaulted him in the recreation yard. He further contends that in attempting to stop the assault, Officer Brancato used unnecessary and excessive force, seriously injuring him.
The plaintiff has withdrawn a third claim, that the defendant issued a false misbehavior report against him after the altercation. (Plaintiffs Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Memo.") at 1 n. 1).
The defendant now moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, I recommend that the motion be denied.
Background
A. Plaintiffs Version
Mr. Bonilla states that on September 6, 1997, he asked defendant Brancato, the correction officer on duty, if he could attend recreation in the Special Housing Unit ("SHU") yard alone. (Plaintiffs Statement Pursuant to Local Civil Rule 56.1 ("Pl. 56.1 Statement"), ¶ 2; Plaintiffs Deposition ("Pl. Dep.") at 37-38, attached as Exh. 1 to Declaration of Richard J. Cardinale dated March 18, 2002). Mr. Bonilla made this request out of fear for his safety. According to the plaintiff, tension between African American and Hispanic inmates had been growing, and the plaintiff, who is Hispanic, had gotten into a fight with two African American inmates a month earlier. Leading up to September 6, he had been specifically informed by other inmates, who were part of the same prison gang as the first two inmates he had fought with, that they were going to attack him when he was in the yard for recreation. (Pl. 56.1 Statement, ¶ 3; Pl. Dep. at 28, 31-34; Complaint ("Compl."), ¶ IV(2)).
Officer Brancato initially responded to the plaintiffs request by remarking that he "could care less," but he later indicated that Mr. Bonilla could participate in recreation alone. (Pl. 56.1 Statement, ¶ 4; Pl. Dep. at 43-45; Compl., ¶ IV(2)). However, soon after Officer Brancato escorted Mr. Bonilla into the SHU yard, two African American inmates joined him. (Pl. 56.1 Statement, ¶ 5; Pl. Dep. at 45-47). Within minutes they approached the plaintiff and began attacking him. According to Mr. Bonilla, Officer Brancato stood by smiling and watching the assault instead of intervening. (Pl. 56.1 Statement, ¶ 6; Pl. Dep. at 52-57; Compl., ¶ IV(1); Court of Claims Trial Transcript ("Tr.") at 13, attached as Exh. B to Declaration of Maria Barous Hartofilis dated Feb. 28, 2002 ("Hartofilis Decl.")). Officer Brancato eventually attempted to stop the assault by swinging his baton. He struck the plaintiff on the side of his head as he was lying on the ground trying to fend off the other two inmates. (Pl. 56.1 Statement, ¶ 7-8; Pl. Dep. at 57-59, 61; Compl., ¶ IV(1)). As a result of the blow to his head, Mr. Bonilla received several stitches and suffered hearing loss. He presently wears a hearing aid. (Pl. 56.1 Statement, ¶ 9; Pl. Dep. at 61-64; Compl., ¶ IV(5)(A)).
Mr. Bonilla alleges that some time after the incident, a sergeant approached him and asked him to sign a paper stating that one of the other inmates and not Officer Brancato had caused the plaintiffs head injury. Mr. Bonilla refused. (Pl. 56.1 Statement, ¶ 12; Pl. Dep. at 71-72).
As a result of the fight in the recreation yard, Mr. Bonilla was served with a misbehavior report by Officer Brancato, charging him with refusing to obey a direct order and with fighting. (Hartofilis Decl., Exh. F; Pl. 56.1 Statement, ¶ 10; Pl. Dep. at 72; Compl., ¶ IV(2)). Mr. Bonilla was found guilty of these charges after a hearing, but he appealed the decision and it was overturned. (Compl., ¶ IV(3)-(5)).
B. Defendant's Version
According to Officer Brancato, during the time of the incident, inmates at Downstate Correctional Facility were not allowed to go to the recreation yard alone unless the administration had knowledge that the inmate had a "known" enemy or risk. Individual correction officers were not given the authority to make those decisions. (Defendant's Statement Pursuant to Local Civil Rule 56.1 ("Def. 56.1 Statement"), ¶¶ 9-11; Declaration of William Many dated Feb. 27, 2002 ("Many Decl."), ¶¶ 6-8). Although an inmate could make an oral request if he wished to go to recreation alone, any request eventually had to be put in writing to take effect. (Def. 56.1 Statement, ¶ 13; Many Decl., ¶ 9).
In this case, Mr. Bonilla never submitted a written request nor advised the administration of a "known" enemy or risk. Prior to September 6, 1997, Mr. Bonilla had never orally asked to go to the recreation yard alone. (Def. 56.1 Statement, ¶¶ 15-17; Many Decl., ¶ 11). According to the defendant, on the day the fight occurred, Mr. Bonilla voluntarily chose to go to the recreation yard. He elected to remain there when he saw an African American inmate enter the yard even though he recognized him as someone who had previously attacked another Hispanic inmate. The plaintiff also continued to stay in the yard after a second African American inmate entered. (Def. 56.1 Statement, ¶¶ 22-23).
Soon after all three inmates were present in the SHU recreation yard, the plaintiff was attacked by the other two prisoners. According to Officer Brancato, he ordered them to stop fighting but all three disobeyed. He then used his baton to protect the plaintiff from the other two inmates and to break up the fight. (Def. 56.1 Statement, ¶¶ 24-26; Hartofilis Decl., Exh. F). In the process, he hit all three men. According to the defendant, he did not strike Mr. Bonilla intentionally in the head, and any force used was justified by the circumstances. (Def. 56.1 Statement, ¶¶ 26-29; Hartofilis Decl., Exh. F).
Procedural History
Based on the September 6 incident, Mr. Bonilla filed a claim with the New York Court of Claims against the State of New York in which he raised the following three claims: (1) the State and its agents were negligent for placing him in the yard with the other inmates; (2) the State's agents used unnecessary and excessive force, causing him harm; and (3) the State's agents subjected him to unlawful imprisonment because of the additional period of confinement imposed due to the misbehavior report. (Hartofilis Decl., Exh. A). On May 17, 2000, a bench trial was held before the Honorable Alton R. Waldon. On the same day, the court ruled against the plaintiff, finding that the State of New York and its agents had not been negligent. (Tr. 41-44). The plaintiff filed the instant complaint on September 7, 1999.
Discussion
A.Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Andy Warhol Foundation for the Visual Arts. Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby. Inc, 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club. Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)).
B. Collateral Estoppel
The defendant first contends that Mr. Bonilla is barred from bringing this action because the same issues he advances here were raised and dismissed in the prior state court proceeding. The doctrine of collateral estoppel precludes a party from relitigating an issue that has been resolved against him in a prior proceeding. A federal court must give the same preclusive effect to a state court decision as the state would give it. Migra v. Warren City School District Board of Education, 465 U.S. 75, 81 (1984); Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). Under New York law, collateral estoppel applies if"(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon, 58 F.3d at 869 (citations omitted); see also Sullivan, 225 F.3d at 166. The first prong requires "that the issue to be decided in the second action is material to the first action . . . and essential to the decision rendered therein." D'Andrea v. Hulton, 81 F. Supp.2d 440, 443 (W.D.N.Y. 1999). As to the second prong, "[t]here is no simple test for determining whether a party has had a "full and fair opportunity' to litigate the . . . issue sought to be precluded. Rather, the basic concern is one of fairness." Cruz v. Root, 932 F. Supp. 66, 69 (W.D.N.Y. 1996) (citing Conte v. Justice, 996 F.2d 1398, 1400 (2d Cir. 1993)).
The party asserting collateral estoppel bears the burden of showing that the identical issue was previously decided, while the party contesting its application has the burden of showing he did not receive a full and fair opportunity to litigate the claim in the prior proceeding. See Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991); Cox v. Colgane, No. 94 Civ. 6361, 1998 WL 148424, at *5 (S.D.N.Y. March 27, 1998).
1. Excessive Force
In this case, the defendant has failed to show that the issue of excessive force was previously decided. The defendant argues that "[a]lthough in the decision rendered from the bench, the court focused on the failure to protect claim, the state court's decision dismissed all three of plaintiffs claims." (Memorandum of Law in Support of Defendant Lance Brancato's Motion for Summary Judgment("Def. Memo.") at 8). In fact, the Court's written decision is barren of any reference to the plaintiffs excessive force claim. In a brief two-page opinion, Judge Waldon characterized Mr. Bonilla's claim as one of negligence and dismissed it "based upon the failure of claimant to prove a prima facie case." (Hartofilis Decl., Exh. C). Similarly, the Court's oral decision rendered from the bench at the end of the trial focused exclusively on Mr. Bonilla's failure to protect claim and did not address the allegation of excessive force in any way. (Tr. at 41-44). Also significant is the fact that the court, in opening the hearing, summarized the plaintiffs claim in the following way:
Carlos Bonilla alleges that on September 6th, 1997 at Downstate Correctional Facility, he was assaulted by two inmates while on his one-hour recreation period. And as a result of this assault, and the negligence of DOCS, he was injured and he alleges that the negligence of Department of Correctional Services personnel precipitated the assault upon himself.
(Tr. at 2-3). Again the court made no reference to Mr. Bonilla's allegation that Officer Brancato used excessive force.
The defendant correctly points out that the plaintiff raised the allegation of excessive force in his Verified Claim filed with the Court of Claims and also testified about this issue at trial. (Def. Memo. at 7). However, simply because the issue was raised does not mean that it was "actually and necessarily decided." Colon, 58 F.3d at 869; see Brooks v. Giuliani, 84 F.3d 1454, 1465 n. 12 (2d Cir. 1996) (collateral estoppel did not apply where plaintiff raised constitutional issue in prior proceeding but court did not address it); Cox, 1998 WL 148424, at *5-6 (collateral estoppel did not apply where judge did not address issue in final decision even though plaintiff raised it in notice of claim and bill of particulars).
The central issue to be decided in connection with this claim is whether Officer Brancato used excessive force on the plaintiff. Since this issue is not "material" or "essential" to the Court of Claims' prior ruling that the State of New York and its agents did not negligently place Mr. Bonilla at risk of an inmate-on-inmate assault, D'Andrea, 81 F. Supp.2d at 443, Mr. Bonilla is not collaterally estopped from litigating his excessive force claim in this case.
2. Failure to Protect
Unlike the excessive force claim, the plaintiff does not contest that the failure to protect issue was actually litigated and decided by the Court of Claims. (Pl. Memo. at 9). Therefore, the only question is whether Mr. Bonilla had a "full and fair opportunity to litigate the issue in the first proceeding." Colon, 58 F.3d at 869. The New York Court of Appeals has identified the following factors as relevant in determining whether a plaintiff had a full and fair opportunity to litigate an issue:
the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation.
Ryan v. New York Telephone Co., 62 N.Y.2d 494, 501, 478 N.Y.S.2d 823, 827 (1984) (citations omitted); see also Cox, 1998 WL 148424, at *6.
The plaintiffs primary contention in this case is that he was deprived of a full and fair opportunity to litigate because he appeared pro se before the Court of Claims. (Pl. Memo. at 9). He argues that he was "an extremely ineffective advocate" and therefore "prone to unfair treatment." (Pl. Memo. at 10).
The defendant, on the other hand, contends that Mr. Bonilla's pro se status did not impair his ability to litigate this claim. In addition, the defendant argues that Mr. Bonilla had a full and fair opportunity to litigate because the trial was a formal proceeding, the plaintiff testified and presented evidence, he had the opportunity to cross-examine defendant Brancato, and he had every incentive to litigate vigorously since the Court of Claims has the power to award damages. (Def. Memo. at 9-10).
"While [a plaintiffs] status as a pro se litigant is not by itself dispositive, . . . it is certainly important to any determination of the fairness of his prior opportunity to be heard." Cruz, 932 F. Supp. at 69 (citing West v. Ruff, 961 F.2d 1064, 1065-66 (2d Cir. 1992)); see Clark v. Department of Correctional Services, 564 F. Supp. 787, 789 (S.D.N.Y. 1983). The plaintiff in this case points to two instances where he was prejudiced by his pro se status. First, he contends that the State of New York failed to produce a videotape of the SHU yard on the day in question and did not provide any explanation for the omission. According to Mr. Bonilla, when this was brought to the trial court's attention, the judge simply insisted that he proceed with the case. (Pl. Memo. at 10). A review of the record, however, belies this assertion and indicates that the plaintiff is the one who suggested proceeding with the case. According to the transcript, Judge Waldon directly asked the State's attorney to explain the absence of the videotape, to which the attorney had no answer. While the judge was still pondering what action to take next, the plaintiff, through the interpreter, asked the court "to continue with the case." (Tr. 19-21).
In addition, the defendant has stated — and the plaintiff acknowledges this assertion — that no videotape of the September 6, 1997, event exists. (Defendant's Reply Memorandum of Law in Further Support of his Motion to Dismiss the Complaint ("Def. Reply Memo.") at 6-7 Exh. A; Pl. Memo. at 10 n. 4). Thus, the plaintiff has not shown how he was prejudiced in this instance.
The second example of prejudice alleged by the plaintiff concerns how the trial was conducted. According to the plaintiff, the trial judge "provided plaintiff with an inadequate and truncated trial, interrupted plaintiffs cross-examination, interjected its own beliefs, and indicated that it was prepared to rule on plaintiffs case before plaintiff had concluded his examination of Officer Brancato." (Pl. Memo. at 10).
A review of the trial transcript suggests that Mr. Bonilla was indeed prejudiced in his ability to try the case by the lack of appointed counsel. As the plaintiff points out, his, cross-examination of the defendant was interrupted by the trial court repeatedly. The judge refused to require the defendant to answer most of the inquiries put to him by the plaintiff, and instead answered the majority of questions himself. For example, when Mr. Bonilla asked Officer Brancato whether he had told the plaintiff that he could attend recreation alone, the defendant stated, "I don't have a response for that, sir," and proceeded to discuss prison policy. (Tr. 36-37). The judge did nothing about the officer's failure to respond. Mr. Bonilla next asked the defendant why he had failed to inform him about the prison procedure to be followed when an inmate asks for protection. The judge interjected, "I don't know it the Officer cares to respond to that." (Tr. 37). The judge went on to discuss his own background in law enforcement:
[M]y whole life has been law enforcement, and — in very high ranking capacities, and I know that as a person in charge of thousands of men, there are certain things that I don't allow them to do without authorization from me, so I would assume that the same kind of situation may exist here at times.
(Tr. 37-38).
At this point, after the plaintiff had asked only two questions of the defendant, neither of which were answered, the judge said, "I think we're going to draw this to [a] conclusion." (Tr. 38). When the plaintiff indicated he had another question, the trial judge said, "One more." (Tr. 38). All in all, the plaintiff was allowed to ask fewer than five questions of the defendant and of those, the court only required the defendant to answer one. (Tr. 34-41). The transcript indicates that the trial was indeed inadequate and truncated, as the plaintiff claims.
It also appears that the plaintiff was further prejudiced by the fact that the court did not require verbatim translation despite the fact that Mr. Bonilla speaks Spanish as a first language. An interpreter was present at the state trial and provided ongoing translation services to Mr. Bonilla most of the time. However, it appears that during the State's direct examination of defendant Brancato, no translation occurred. When it was time for the plaintiff to cross-examine the defendant, the court asked the interpreter to "interpret as best as you can the conversation which occurred just now between Mr. Brancato and Mr. Ryan and myself and Officer Brancato, so that Mr. Bonilla can be armed with that information." (Tr. 34). Since Officer Brancato's testimony took up several pages of transcript, it was unreasonable for the plaintiff not to have verbatim translation.
Collateral estoppel will apply only if it is "quite clear" that the elements have been met so that a party is not "precluded from obtaining at least one full hearing on his or her claim." Colon, 58 F.3d at 869 (citations omitted). In this case, despite the fact that the plaintiff had a formal proceeding, was able to testify, and had incentive to vigorously litigate, he did not receive a full hearing on his claim. The trial was truncated, he was limited in his ability to develop the record due to' repeated interjections from the judge, and critical portions of the court proceedings were not fully translated. Compare Salahuddin v. Dalsheim, No. 94 Civ. 8730, 1996 WL 384898, at *8-9 (S.D.N.Y. July 9, 1996) (even though plaintiff had master's degree, well written submissions, a fact-finding hearing, and incentive to vigorously litigate at prior proceeding, collateral estoppel did not apply where plaintiff proceeded pro se, failed to develop the record, and was given no advance warning of certain proceedings), Cruz, 932 F. Supp. at 70-71 (pro se plaintiffs mental confusion, lack of familiarity with the law, and fact that claims were tried in one day were relevant to determination that plaintiff was denied full and fair opportunity to litigate), see Clark, 564 F. Supp. at 789 (issue not barred by collateral estoppel where pro se plaintiff lacked familiarity with the law and was unable to present his evidence), with Ennis v. Davies, No. 87 Civ. 1465, 1990 WL 121527, at *2 (S.D.N.Y. Aug. 15, 1990) (preclusive effect given to prior decision where pro se plaintiff had college degree, worked as prison law librarian, filed 39 lawsuits, and completed two courses in legal research), aff'd, 992 F.2d 320 (2d Cir. 1993), and Cox, 1998 WL 148424, at *7 (issue barred by collateral estoppel where plaintiff was pro se but had assistance in preparing papers, testified at trial, successfully raised objections to admission of evidence, and there was no indication of procedural barriers to presentation of evidence). Thus, Mr. Bonilla is not collaterally estopped from raising his failure to protect claim in federal court.
C. The Merits
1. Excessive Force
Mr. Bonilla alleges that Officer Brancato applied unnecessary and excessive force in violation of the Eighth Amendment when he hit Mr. Bonilla on the head with his baton in the SHU yard on September 6, 1997.
Section 1983 imposes liability for conduct which deprives a person of a right secured by the Constitution or laws of the United States. 42 U.S.C. § 1983; Rizzo v. Goode, 423 U.S. 362, 370-71 (1976); Wimmer v. Suffolk County Police Department, 176 F.3d 125, 136-3 7 (2d Cir. 1999) The Eighth Amendment prohibits the infliction of cruel and unusual punishment. This includes the exercise of excessive force against an inmate because, "[wihen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being." Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (quotation and citations omitted). To establish an Eighth Amendment violation, an inmate must satisfy both a subjective and an objective test. Hudson v. McMillian, 503 U.S. 1, 8 (1992). The subjective prong requires the inmate to show that the accused prison officials "had a 'wanton' state of mind when they were engaging in the alleged misconduct." Davidson v. Flynn. 32 F.3d 27, 30 (2d Cir. 1994) (citation and footnote omitted). To fulfill the objective component, the inmate must demonstrate that the force applied was "'sufficiently serious.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
In this case, the force applied was sufficient to satisfy the objective element, and disputed issues of fact preclude summary judgment on the subjective prong. Whether conduct is wanton depends upon "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7. Certainly, Officer Brancato presents a strong case for finding that the force he applied was done in a good faith effort to break up the fight between Mr. Bonilla and the other two inmates. According to the defendant, he gave direct orders to the three inmates to stop fighting. When this order was ignored he began swinging his baton to break them up. In the process, he claims to have accidentally hit the plaintiff in the head. (Def. 56.1 Statement, ¶ 27). On the other hand, Mr. Bonilla has testified that he was lying defenseless on the ground when the defendant intentionally struck him over the head with such force that he had to be taken to the hospital for stitches. He also allegedly suffered hearing loss. (Pl. 56.1 Statement, ¶¶ 8-9). If the jury were to credit this version of the events, it would be entitled to infer that the defendant acted maliciously. The court's role on summary judgment is to identify disputed issues of fact, not to resolve them. Accordingly, judgment should not be granted on the excessive force claim.
2. Failure to Protect
Mr. Bonilla next alleges that Officer Brancato failed to protect him from the assault he suffered at the hands of two other inmates in the SHU recreation yard. Under the Eighth Amendment, prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer, 511 U.S. at 833. However, not every injury caused by one prisoner to another translates into constitutional liability for prison officials. Id. at 834. Under the Eighth Amendment, an official may be liable only if he exhibited "deliberate indifference" toward the rights of the inmate. Id. at 834 (quoting Wilson, 501 U.S. at 297). A prison official acts with deliberate indifference when the official "'knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Farmer, 511 U.S. at 837).
The plaintiff argues that Officer Brancato acted with deliberate indifference when he placed the plaintiff in the recreation SHU yard with the two African American inmates. Mr. Bonilla claims that the defendant was aware of the risk to his safety because he specifically informed the officer that he wished to attend recreation alone and explained why he was fearful. The officer allegedly responded, "I could care less." (Pl. 56.1 Statement, ¶ 4; Pl. Dep. at 43-45). Officer Brancato then placed the plaintiff in the SHU yard with two other inmates who attacked him. The plaintiff further alleges that Officer Brancato initially stood by and smiled while he was being assaulted. (Pl. Dep. at 55-57; Tr. 13).
The defendant counters that he was not aware of any risk to the plaintiffs safety. He supports this contention by pointing out that the plaintiff failed to report that he had been attacked a month earlier by two inmates, that when the plaintiff arrived at the correctional facility he was interviewed and indicated that he had no known enemies in the system, and that prior to September 6, 1997, the plaintiff had never made a request to go to the recreation yard by himself. (Def. Memo. at 13-14). None of these facts negate the possibility that Officer Brancato knew of and disregarded an excessive risk to the plaintiffs safety if, as the plaintiff alleges, he informed the defendant on September 6, 1997, that he was concerned about his safety because other inmates had threatened to assault him in the SHU yard. (Pl. 56.1 Statement, ¶ 3; Pl. Dep. at 31-32).
The defendant further argues that even if the plaintiff had informed Officer Brancato of the danger he faced, the officer was not responsible because he did not have the authority to decide who went to the recreation yard alone. (Def. Memo. at 14). Nevertheless, if Officer Brancato lacked the authority to make a final decision about which inmates could attend recreation alone, a jury could still find him deliberately indifferent if, as the officer in charge of escorting Mr. Bonilla to the yard, he knew of and disregarded the risk to Mr. Bonilla's well being by placing him in the SHU yard with the other two inmates. See Nunez v. Goord, 172 F. Supp.2d 417, 430 (S.D.N.Y. 2001) ( Eighth Amendment imposes duty on prison officials to "take reasonable measures to guarantee the safety of the inmates"). Moreover, Mr. Bonilla's claim that Officer Brancato initially told him he could go to recreation alone suggests that Officer Brancato had some discretion because he allegedly changed his mind immediately thereafter and put the other inmates in the yard with the plaintiff. (Pl. Dep. at 43-45).
There is also a factual dispute about what happened after the inmate-on-inmate fight started. Mr. Bonilla claims Officer Brancato stood by, smiling, and seemingly enjoyed the fight. (Pl. Dep. at 55-57; Tr. 13). If a jury were to credit this story, they would be entitled to conclude the officer was deliberately indifferent. Thus, since genuine issues of material fact exist, judgment should not be granted as to the plaintiffs failure to protect claim.
3. Qualified Immunity
Finally, the defendant argues that his summary judgment motion should be granted because he is entitled to qualified immunity. Government employees sued in their individual capacities enjoy qualified immunity when they perform discretionary functions if: "(1) [their] actions did not violate clearly established law, or (2) it was objectively reasonable for [them] to believe that their actions did not violate such law." Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000) (citing Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996)). On a motion for summary judgment, a qualified immunity defense must be upheld as a matter of law
when no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right.
Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (quotations and citations omitted).
In this case, it is beyond dispute that the right to be free from excessive force and the right to be protected from other prisoners have long been clearly established law. Hence, the only remaining issue is whether Officer Brancato's actions were objectively reasonable. A defendant's actions are objectively reasonable if "'officers of reasonable competence could disagree' on the legality of the defendant's actions." Salim, 93 F.3d at 91 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Here, drawing all inferences in favor of the plaintiff, no reasonably competent officer would believe it proper or legal to intentionally and forcefully hit a defenseless inmate who is lying on the ground. And no reasonably competent officer would consider it appropriate to place an inmate in the SHU yard with two other inmates who had been threatening him, and then to stand idle while the inmate is assaulted. See Thomas, 165 F.3d at 143 ("Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness."). Accordingly, the defendant is not entitled to summary judgment on qualified immunity.
Conclusion
For the reasons set forth above, I recommend that the defendant's motion for summary judgment be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, Room 426, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.