Opinion
Civil Action No. 9:13-CV-0939 (TJM/DEP)
02-28-2017
CHAMMA K. BRANDON, Plaintiff, v. DR. GLEN SCHROYER, et al., Defendants.
APPEARANCES: FOR PETITIONER: CHAMMA K. BRANDON, Pro se 12-A-5715 Sing Sing Correctional Facility 354 Hunter Street Ossining, NY 10562 FOR RESPONDENTS: LEMIRE, JOHNSON & HIGGINGS, LLC 2534 Route 9 P.O. Box 2485 Malta, NY 12020 THUILLEZ, FORD, GOLD, BUTLER & MONROE, LLP 20 Corporate Woods Blvd., 3rd Floor Albany, NY 12211 OF COUNSEL: BRADLEY J. STEVENS, ESQ. KELLY M. MONROE, ESQ. MOLLY C. CASEY, ESQ.
APPEARANCES: FOR PETITIONER: CHAMMA K. BRANDON, Pro se
12-A-5715
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562 FOR RESPONDENTS: LEMIRE, JOHNSON & HIGGINGS, LLC
2534 Route 9
P.O. Box 2485
Malta, NY 12020 THUILLEZ, FORD, GOLD, BUTLER &
MONROE, LLP
20 Corporate Woods Blvd., 3rd Floor
Albany, NY 12211 OF COUNSEL: BRADLEY J. STEVENS, ESQ. KELLY M. MONROE, ESQ.
MOLLY C. CASEY, ESQ. DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff Chamma K. Brandon, a prison inmate formerly confined in the Clinton County Jail ("CCJ"), against several individuals working at that facility. In one of his remaining claims in the action, plaintiff contends that defendants Eric Blaise and Margaret Clancy, two CCJ corrections employees, failed to protect him from a hostile and mentally ill fellow inmate, and, as a result, the inmate spit at him.
Defendants Blaise and Clancy have now moved for the entry of summary judgment dismissing plaintiff's remaining claim asserted against them, both on the procedural ground that plaintiff failed to exhaust available administrative remedies before filing suit and on the merits. For the reasons set forth below, I recommend that the motion be granted. 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 the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff was confined in the CCJ, beginning on January 14, 2012, and again following his re-arrest on March 2, 2012. Dkt. No. 17 at 3, 12-13. Plaintiff's incarceration at the CCJ ended on December 28, 2012, when he was transferred into the custody of the New York State Department of Corrections and Community Supervision. Id. at 11.
While at the CCJ, plaintiff was housed in cell OBSV2-2 from November 10, 2012, until November 19, 2012. Dkt. No. 122-3 at 3; Dkt. No. 122-9 at 2. That placement resulted from plaintiff's involvement in a fight with another inmate. Dkt. No. 122-9 at 2; see also Dkt. No. 122-2 at 1-12. The OBSV2 unit at the CCJ consists of three cells separated by concrete walls to prevent physical interaction between inmates housed in the units. Dkt. No. 122-9 at 2-3; see also Dkt. No. 122-5 at 2-3.
Fellow inmate Terrance Somma, who plaintiff refers to in his amended complaint as "Tiny" and who he characterizes as "hostile and mentally deranged," Dkt. No. 17 at 31, was transferred into cell OBSV2-1, which is next to the cell in which plaintiff was housed, on November 17, 2012, also due to his involvement in a fight with a fellow inmate. Dkt. No. 122-9 at 2; see also Dkt. No. 122-4 at 2-8. The decision to transfer inmate Somma into the cell adjacent to plaintiff's was made by defendant Clancy, a corrections sergeant, in her discretion. Dkt. No. 122-9 at 3; see also Dkt. No. 122-8 at 2.
On November 18, 2012, defendant Blaise, a corrections officer, instructed plaintiff to exit his cell and collect all of the food trays from the unit, and promised that, in return, plaintiff would be allowed to remain out of his cell for an extra fifteen minutes. Dkt. No. 17 at 31. Plaintiff responded by informing defendant Blaise that he had been verbally assaulted by inmate Somma the night before and stating that he "would rather not pick up [his] tray." Id. Plaintiff alleges that defendant Blaise then said to him, "[D]on't worry about him, he's a punk. Besides, from what I heard, I'm sure if I let him out, you'd kick his ass." Id.
As plaintiff was in the course of picking up trays, defendant Blaise witnessed inmate Somma spitting on plaintiff. Dkt. No. 17 at 31; Dkt. 122-7 at 2. At no point during the encounter did inmate Somma physically touch plaintiff. Dkt. No. 122-7 at 3. Following the incident, defendant Clancy spoke with inmate Somma concerning the matter and warned him that further disruptive behavior would result in discipline. Dkt. No. 122-8 at 3.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about August 8, 2013, and later filed an amended complaint, the currently operative pleading, on August 15, 2014. Dkt. Nos. 1, 17. In his amended complaint, which spans forty-four pages, is comprised of 336 paragraphs, and is accompanied by approximately 177 pages of exhibits, plaintiff chronicles various occurrences at the CCJ giving rise to his various claims. See generally Dkt. No. 17. The causes of action set forth in that pleading include deliberate medical indifference, religious deprivation, retaliation, conspiracy, and failure to protect him from harm. Id. As defendants, plaintiff's amended complaint named the County of Clinton and ten other defendants, including a jail doctor, a jail nurse, a food service manager, and seven corrections personnel. Id.
At a result of prior court decisions, the sole remaining claims in the action are asserted against Dr. Glen Schroyer, Corrections Officer Blaise, and Corrections Sergeant Clancy. Plaintiff's claims against defendant Schroyer were the subject of a motion for summary judgment filed on March 9, 2016. Dkt. No. 100. In a report issued on July 13, 2016, I recommended to Senior District Judge Thomas J. McAvoy that plaintiff's remaining claim against defendant Schroyer be dismissed. Dkt. No. 136. That report and recommendation, together with objections filed by the plaintiff, remain pending before Judge McAvoy.
On June 1, 2016, with permission from the court, defendants Blaise and Clancy filed a second motion for summary judgment seeking dismissal of plaintiff's remaining failure to protect claim asserted against them. Dkt. No. 122. Plaintiff has responded in opposition to defendants' motion, Dkt. No. 152, and defendants Blaise and Clancy have since filed a reply in further support of their motion. Dkt. No. 158. Defendants' motion, which is now fully briefed and ripe for determination, 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).
An earlier summary judgment motion filed on behalf of some of the defendants, including defendants Blaise and Clancy, did not address plaintiff's failure to protect claim against defendants Blaise and Clancy. Dkt. No. 75. In the court's order acting on that motion, those two defendants were given permission to file a second summary judgment motion addressing that claim. Dkt. No. 99 at 55; Dkt. No. 112 at 2.
III. DISCUSSION
A. Summary Judgment Standard
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. Failure to Exhaust
In their motion, defendants argue that plaintiff is procedurally barred from pursuing his failure to protect claims against defendants Blaise and Clancy based upon his failure to properly exhaust available administrative remedies before commencing suit. Dkt. No. 122-10 at 8-9. Plaintiff has responded by arguing that he in fact filed a grievance, and, when he did not receive a response, appealed to the Chief Administrative Officer and then to the Citizen's Policy and Complaint Review Council. Dkt. No. 152 at 6.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Section 1997e(a)'s exhaustion provision is mandatory and applies to all inmate lawsuits regarding the conditions of their confinement. Ross, 136 S. Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 84 (2006); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002); Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016). In the event a defendant establishes that the inmate-plaintiff failed fully comply with the administrative process prior to commencing an action in federal court, the plaintiff's complaint is subject to dismissal. See Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."); see also Wilson v. McKenna, 661 F. App'x 750, 752 (2d Cir. 2016). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
In this case, there is no evidence in the record concerning the procedures in place for inmates at the CCJ to follow in order to lodge complaints regarding prison conditions. Indeed, although defendants seek dismissal of plaintiff's remaining claims asserted against them on this procedural basis, and have provided some evidence in support, Dkt. No. 122-9 at 3, they have failed to include any evidence or explanation of the procedures available to CCJ inmates. See generally Dkt. No. 122-10 at 8-9. Accordingly, in light of plaintiff's sworn statement that he filed a grievance concerning the failure of defendants Blaise and Clancy to protect him from an inevitable altercation with inmate Somma, Dkt. No. 152 at 2, and that he appealed to "the Chief Administrative Officer" and "the Citizen's Policy and Complaint Review Council" when he did not receive a response to his grievance, I find there are factual disputes that must be resolved prior to rendering a determination on defendants' exhaustion defense. For this reason, I recommend that defendants' motion be denied to the extent it seeks dismissal of plaintiff's failure to protect claims on the basis of exhaustion.
In addition to plaintiff's contention that he filed a grievance concerning the incident involving inmate Somma, he also contends that he filed a grievance against defendants Blaise and Clancy based on their alleged refusal to provide him with a grievance form immediately following the attack. Dkt. No. 152 at 6. In the event plaintiff's statements are construed as alleging that he only filed grievances specifically complaining of the assault by inmate Somma and defendants' failure to provide him with a grievance (rather than specifically grieving defendants' failure to protect plaintiff from harm), there is sufficient evidence in the record to create a genuine dispute of fact concerning whether the grievance procedure was actually available to plaintiff in light of his allegations that defendants interfered with his ability to obtain a grievance after the attack. See Ross, 136 S. Ct. at 1860 (finding that administrative remedies may be deemed unavailable to prisoners when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation"). Thus, defendants' exhaustion defense fails at this juncture for this reason, as well. Under ordinary circumstances, I would recommend to the assigned district judge that he conduct a fact-finding hearing regarding exhaustion pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011). In light of my recommendation below, however, that plaintiff's failure to protect claim be dismissed on the merits, an exhaustion hearing is not necessary.
C. Failure to Protect
In their motion, defendants mount a two-pronged attack against plaintiff's failure to protect claim. Dkt. No. 122-10 at 10-11. First, they argue that there is no record evidence that they were or should have been aware of, but disregarded, a substantial risk to plaintiff's safety. Id. at 11. Second, defendants contend that because plaintiff was not physically attacked, but only spit upon, any harm resulting from defendants' failure to protect him was de minimis, and not constitutionally significant. Id. at 10-11.
It is well-established that prison officials have a duty to intervene and prevent a cruel and unusual punishment, prohibited by the Eighth Amendment, from occurring or continuing. Farmer v. Brennan, 511 U.S. 825, 836 (1994); Hayes v. N.Y. City Dep't of Corrs., 84 F.3d 614, 620 (2d Cir. 1996). That duty extends an obligation upon prison officials to protect inmates from harm inflicted by fellow inmates. Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) ("The failure of custodial officers to employ reasonable measures to protect an inmate from violence by other prison residents has been considered cruel and unusual punishment.")
A plaintiff asserting a failure to protect claim must prove that the defendant actually knew of and disregarded an excessive risk of harm to his health and safety. Hayes, 84 F.3d at 620. This "reckless disregard" to a plaintiff's health and safety can be proven by evidence establishing "a pervasive risk of harm to inmates . . . and a failure by prison officials to reasonably respond to that risk." Knowles v. N.Y. Dep't of Corrs., 904 F. Supp. 217, 222 (S.D.N.Y. 1995) (quotation marks omitted). Said differently, to establish liability on the part of a defendant under this theory, "the plaintiff must adduce evidence establishing that the officer had (1) a realistic opportunity to intervene and prevent the harm, (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated, and (3) that officer does not take reasonable steps to intervene." Henry v. Dinelle, No. 10-CV-0456, 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) (Suddaby, J.) (citing Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008)); see also Farmer, 511 U.S. at 842 ("[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm."); O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988) (finding no realistic opportunity to intervene where "three blows were struck in . . . rapid succession").
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this case, turning first to defendants' second argument for dismissal of plaintiff's claims on the merits, defendants contend that plaintiff suffered a de minimis injury, which does not give rise to a constitutionally cognizable cause of action. Dkt. No. 122-10 at 10-11. As recently as 2015, however, the Second Circuit has reiterated that a "serious injury is unequivocally not a necessary element of an Eighth Amendment claim." Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). Although a plaintiff's injury certainly is relevant to an Eighth Amendment analysis, it is not dispositive with respect to liability. Willey, 801 F.3d at 68. For that reason, I do not find defendants' argument with respect to the injury plaintiff suffered is an appropriate basis for dismissal of plaintiff's claims.
Defendants also argue, however, that they had no reason to know that plaintiff was exposed to a substantial risk of serious harm when defendant Blaise instructed plaintiff to collect the food trays in the OBSV2 unit. Dkt. No. 122-10 at 11. Although there is evidence that plaintiff informed defendant Blaise that inmate Somma had verbally harassed him the night before the incident, in my view, the focus of the analysis in this case is whether plaintiff experienced conditions of confinement that placed him at substantial risk of serious harm. See Farmer, 511 U.S. at 834 ("For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm."). It is undisputed that inmate Somma remained locked in his cell during the tray pick-up, and neither defendant Blaise nor defendant Clancy knew of any prior history of violence between plaintiff and inmate Somma. Dkt. No. 122-7 at 2-3; Dkt. No. 122-8 at 2-3. Thus, it strains credulity to believe that, under those circumstances, plaintiff was at risk of becoming involved in a physical altercation with inmate Somma during the tray pick-up. Plaintiff argues that the front of the cells in the OBSV2 unit are enclosed only by cell bars, which "do not prevent the occupying detainee from reaching out of the cell and physically interacting with someone whom stands/walks in front of the cell[.]" Dkt. No. 152 at 5 (quotation marks omitted). Based on the totality of the record evidence, however, no reasonable factfinder could conclude that defendants should have been aware that plaintiff was at risk of becoming involved in a violent altercation with inmate Somma through the cell-bar barrier during the brief moment that plaintiff passed inmate Somma's cell.
Moreover, focusing on the specific incident at issue, I note that courts have routinely concluded that inmates' health and safety is not placed at substantial risk by the potential of another inmate spitting on them. See Jones v. Salley, No. 12-CV-0510, 2013 WL 5567321, at *3 (M.D. Fla. Oct. 9, 2013) ("To the extent these correctional officers did not protect Plaintiff from other inmates spitting on him, this allegation, without more, cannot reasonably be perceived as presenting a substantial risk of serious harm."); Kocher v. Luzerne Cnty. Corr. Facility, No. 11-CV-1000, 2011 WL 2470382, at *3 (M.D. Pa. June 20, 2011) (dismissing the plaintiff's failure to protect claim because his "allegation that he was spit on, without more, cannot reasonably be perceived as presenting a substantial risk of harm"); Kron v. Tanner, No. 10-CV-0518, 2010 WL 3199854, at *8 n.31 (E.D. La. May 19, 2010) ("[T]he failure to protect plaintiff from [another inmate spitting on him] did not expose him to a substantial risk of serious harm."); York v. Jackson, No. 08-CV-0547, 2008 WL 2641268, at *3 (E.D. Va. July 2, 2008) (dismissing the plaintiff's failure to protect claim finding that being spat on by another inmate "does not amount to cruel and unusual punishment); see also Farmer, 511 U.S. at 834 ("It is not. . . every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety."); DeMallory v. Cullin, 855 F.2d 442, 444 (7th Cir. 1988) (affirming the district court's conclusion that "a correctional officer spitting upon a prisoner does not rise to the level of a constitutional violation" (quotation marks omitted)); accord, Carson v. Birkett, No. 05-CV-72679, 2005 WL 1981294, at *1 (E.D. Mich. Aug. 16, 2005). Accordingly, even assuming that defendants Blaise and Clancy were aware that inmate Somma had verbally harassed plaintiff the night before the incident and defendants Blaise and Clancy knew that both inmates had been placed in the OBSV2 unit as a result of violent encounters with other inmates, no reasonable factfinder could conclude that they should have been aware that plaintiff was at risk of serious harm when defendant Blaise asked him to collect the food trays while inmate Somma remained locked in his cell, when they knew of no history of violence between plaintiff and inmate Somma. For that reason, I recommend that defendants' motion be granted and plaintiff's failure to protect claims asserted against defendants Blaise and Clancy be dismissed.
IV. SUMMARY AND RECOMMENDATION
In their motion, defendants Blaise and Clancy seek dismissal of plaintiff's claims against them based both on plaintiff's alleged failure to exhaust available administrative remedies before filing suit and on the merits. Turning first to defendants' procedural argument, I conclude that the record is equivocal with respect to critical facts surrounding this issue, and that the question of whether the grievance process in place at the CCJ was available to plaintiff cannot be determined without the resolution of certain factual disputes. Addressing defendants' arguments regarding the merits, I conclude that no reasonable factfinder could conclude that plaintiff experienced a substantial risk of serious harm and, therefore, his failure to protect claims fail on the merits. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment motion (Dkt. No. 122) be GRANTED, and that plaintiff's remaining claims in this action against defendants Blaise and Clancy be DISMISSED.
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).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: February 28, 2017
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge