Opinion
Docket No. 96-CV-0514E(Sc)
OPINION FILED: June 20, 2000
Eric J. Ward, Esq. and J. Nelson Thomas, Esq., c/o Nixon Peabody LLP, Rochester, NY, ATTORNEYS FOR THE PLAINTIFF.
Michael J. Russo, Esq., Asst. Attorney General for NYS, Buffalo, NY, ATTORNEYS FOR THE DEFENDANT.
MEMORANDUM and ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and alleges that defendants Braun and Irvin violated his civil rights by assaulting him and allowing him to be assaulted, respectively, while he was a prisoner at Wende Correctional Facility in Alden, N.Y. Presently before this Court is defendants motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). Jurisdiction being proper under 28 U.S.C. § 1331 and this Court having carefully considered the parties' submissions, the motion will be granted in part and denied in part.
Plaintiff erroneously characterizes the constitutional underpinnings of his claims as the First, Eighth and Fourteenth Amendments. Only the Eighth (cruel and unusual punishment) and Fourteenth (equal protection under the laws) Amendments are implicated.
As a threshold matter, it should be noted that plaintiff's opposition papers style this action as one comprising four distinct claims — excessive force, deliberate indifference, retaliation and "being labeled a snitch." In turn, plaintiff argues that defendants have moved for summary judgment on just the deliberate indifference and excessive force claims. Defendants counter that there are two and only two causes of action set forth in the Amended Complaint — to wit, the excessive force claim against Braun and the deliberate indifference claim against Irvin. "Retaliation" and "being labeled a snitch," according to defendants, are simply components of the deliberate indifference and excessive force claims. The undersigned finds that defendants' motion encompasses the entirety of plaintiff's causes of action and that, in any event, the effect of the instant Order is to preserve for trial only the question whether Braun used excessive force against plaintiff.
it seems clear from plaintiff's deposition testimony that he conceives of the suit as turning on Braun's alleged excessive force and Irvin's alleged deliberate indifference. See February 4, 1998 Deposition of Gary Reeb, attached as Exh. C to April 15, 1999 Affidavit of Carmen L. Snell, Esq., at 12, 15.
The relevant undisputed facts are these. Plaintiff was incarcerated at Wende during the spring of 1997, at which time Irvin was the superintendent of the facility and Braun was a corrections officer. Because he had complained of being harassed by fellow inmates, plaintiff was housed in a section of Wende known as 99 Company. However, while 99 Company is "a secure unit for inmates having problems in general population or other problems" (Amended Complaint at 3), it is not as safe as "Protective Custody" in terms of protecting those housed there from abuse at the hands of fellow inmates. Accordingly, because plaintiff knew that he was regarded as a "snitch" by his peers — at least in part because Braun allegedly called him "snitch" and "rat" in front of other inmates —, plaintiff made repeated requests to Irvin and his underlings to be placed in Protective Custody. For a variety of reasons, each such was denied. Plaintiff was transferred from Wende to Clinton Correctional Facility June 9, 1997.
According to the Amended Complaint, plaintiff "was involved in a confrontation with several inmates in A Block and as a result was moved because I gave inmates' names who were harrasing [ sic] and assaulting me. I was then moved to C Block where eventually word caught up to other inmates that I `snitched' on inmates in A Block." From C Block, plaintiff was moved to 99 Company.
"They would call me a snitch in front of other fellow inmates, or who are you ratting on today, Reeb? That's what Braun said one day in front of a whole line of inmates. After that they all questioned me, why did that officer say that to you[?]" Reeb Dep. at 36.
Two incidents form the basis of plaintiff's lawsuit. On January 28, 1997 plaintiff was taken to Wende's Mental Hygiene Unit ("MHU") to be treated for what he described as insomnia. As apparently is standard operating procedure, plaintiff was placed in a holding cell while he was waiting to see an MHU professional. Soon thereafter, inmate Torres entered the MHU. Although he had been moved from 99 Company by the time of the incident, Torres had been housed in 99 Company with plaintiff and the two were "enemies," according to plaintiff, because "[h]e would throw stuff at my cell, and I would tell on him. He was considered — he considered me a snitch, too." February 4, 1998 Deposition of Gary Reeb, attached as Exh C to April 15, 1999 Affidavit of Carmen L. Snell, Esq., at 81. In the MHU, plaintiff apparently noticed Torres before Torres saw him. By plaintiff's account, "I tried to call the [corrections officer Hall] to let her know this was my enemy." Hall, however, could not hear what plaintiff was saying. Plaintiff acknowledges as much.
The August 6, 1996 Complaint contained no allegation of physical injury associated with defendant Irvin's denial of plaintiff's Protective Custody requests; plaintiff's alleged injuries at that time were mental and/or emotional. However, subsequent letters to the Court related the incidents that have come to form the basis of the suit. Given plaintiff's then- pro se status and the fact that 42 U.S.C. § 1997e(e) prohibits prisoner suits based solely on mental and/or emotional injury, the Court, by Order dated April 10, 1997, granted plaintiff leave to amend his Complaint to include the two incidents which allegedly resulted in physical injury.
"The holding tank they put us in is a quiet tank, you can't hear nobody screaming or nothing. So knocking on the window telling her you want her, they have to open the door to hear us. And when she opened the door, she admitted he just started fighting with me. It ain't her fault, I can't blame her for that." Reeb Dep. at 83.
According to Hall, she ordered the two to stop fighting but they ignored her. Subsequently, corrections officer Sindoni assisted Hall in pulling them apart. After the fight, a medical official at the prison's medical facility noted that plaintiff suffered from a "small amount of swelling behind right ear" but was "alert and oriented." See July 9, 1999 Aff. of J. Nelson Thomas, Esq., Exh V. Plaintiff received Tylenol for his discomfort.
It is undisputed that Torres initiated the attack. From such fact, plaintiff argues in his opposition memorandum that Irvin's deliberate indifference to threats to his safety enabled the realization of his "oft-expressed fear" of attacks by fellow inmates. See Pltf Mem. at 7. Defendants' version of the January 28 incident does not differ appreciably from plaintiff's but defendants argue that the altercation was not a function of any deliberate indifference to a serious risk of harm or even, given that it happened at the MHU under the watch of officer Hall, of the harm feared by plaintiff. It was instead an unremarkable, nonactionable fight between inmates. Moreover, they assert, whatever injury plaintiff may have sustained is, at worst, de minimis for purposes of Eighth Amendment analysis.
The second incident involved no fellow inmate attack and no alleged deliberate indifference to the possibility thereof. At approximately 11:30 a.m. on February 24, 1997, defendant Braun and corrections officer Litz began their walk down the 99 Company corridor to perform a prisoner count. As the officers approached, plaintiff was standing at his cell door talking to a prisoner in the cell across the corridor. His hands were resting on the chest-level "feed-up slot," the plexiglass door of which was open. According to plaintiff, Braun passed by the front of his cell and, without warning, "slammed" the plexiglass door on plaintiff's left hand. Plaintiff does not know whether Braun saw hand in the slot prior to shutting the door. Immediately thereafter, plaintiff claims to have yelled "Hey, I want to see the sergeant." Reeb Dep. at 60. When Litz backtracked to the cell, plaintiff asked to see a doctor. Litz allegedly responded that plaintiff would have to wait until his previously scheduled doctor visit at 1:00 p.m. that day.
It is through such slot that prisoners receive their meals.
There is no claimed deliberate indifference associated with this delay.
At approximately 1:00 p.m. plaintiff was seen by a prison medic who took two photographs of and splinted the prisoner's hand, directed that he be given two aspirins and scheduled him for an x-ray. In his notes, the medic documented a "slight deformity in left hand at fourth digit first joint." Nelson Aff., Exh V. The notes also contain some indecipherable and heretofore unexplained observations regarding plaintiff's left hand. Among defendants arguments is that plaintiff is estopped from seeking recompense for his injury because he refused to be x-rayed. Plaintiff responds that he never refused the x-ray; in fact, he contends that he repeatedly requested such but was denied until October 1997, some eight months after the incident. In any event, the x-ray report from October 1997 reads as follows:
"[m]ultiple views of the left hand wre [ sic] obtained. No fracture is seen at this time. There is no dislocation. The fourth metacarpal is short. There is deformity distally. This may relate to prior trauma. No joint space narrowing is seen." Nelson Aff., Exh Y.
At his February 4, 1998 deposition, plaintiff claimed to have residual pain from the feed-up hatch incident, including a "shooting pain" down his left arm. See Reeb Dep. at 69.
Braun's position is that "[t]hese allegations are utterly untrue. I never slammed inmate Reeb's hand in the feed-up hatch * * *. It should be noted, that inmate Reeb was known to engage in self-mutilation during the time that he was housed at Wende." April 12, 1999 Affirmation of Keith Braun, ¶ 4. Apparently as an alternate theory Braun offers the written statement of a 99 Company inmate who claims to have seen a second inmate slam plaintiff's feed-up hatch on plaintiff's left hand. See Snell Aff., Exh B at 15A. Unfortunately for defendants, the proffered statement goes on to reveal that its author knew of "2 Reebs on 99 Co. I'm confused. I also heard about the other one getting his hand caught in his cell door hatch." Ibid.
By their motion for summary judgment, defendants argue that (i) plaintiff has failed to demonstrate deliberate indifference on Irvin's part, (ii) plaintiff's hand injury is de minimis, (iii) plaintiff has failed to allege a physical injury flowing from Irvin's alleged deliberate indifference, (iv) plaintiff's punitive damages claim should be dismissed because plaintiff has failed to allege sufficiently "wanton" behavior and (v) both defendants are entitled to qualified immunity. Plaintiff counters that (i) there are genuine issues of material fact as to whether Irvin demonstrated deliberate indifference to plaintiff's safety and, in turn, as to whether he acted reasonably in light of any threats thereto, (ii) plaintiff's injuries were not de minimis, (iii) Irvin's indifference led directly to Torres' assault, (iv) punitive damages are appropriate because plaintiff clearly has alleged "wanton" misconduct and (v) defendants are not entitled to qualified immunity inasmuch as they violated plaintiff's "clearly established" constitutional right to be free from excessive force by guards and attacks by fellow inmates.
A motion for summary judgment shall be granted if it is shown that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCvP 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A material dispute is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Summary judgment is appropriate if the opposing party "fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex, at 322. It is not incumbent upon the moving party to negate the non-moving party's position; he simply must note the lack of evidence supporting such party's claim. In reviewing a summary judgment motion, "a district court must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Const. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).
Other aspects of this decision concerned only the lower court's denial to the municipality of legal fees. See Eastway Const. Corp. v. City of New York, 821 F.2d 121 (2d Cir. 1987), cert. denied, 484 U.S. 918 (1987).
A section 1983 claim requires the plaintiff to demonstrate that he was deprived, by a person or persons acting under state authority, of a right, privilege or immunity protected under the Constitution or a federal statute. See Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). The constitutional bases for a deliberate indifference claim are the Eighth and Fourteenth Amendments — see ibid. — whereas an excessive force claim is rooted in the Eighth Amendment alone. See Branham v. Meachum, 77 F.3d 626, 631 (2d Cir. 1996).
To prevail on a claim that a defendant failed adequately to protect an inmate from a violent attack by a fellow inmate, a plaintiff must show that the defendant acted with deliberate indifference to the plaintiff's safety. See Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991). It is the finding of this Court that, even assuming Irvin acted with deliberate indifference to the threats plaintiff repeatedly had articulated, plaintiff has alleged no injury traceable to such neglect. Plaintiff's opposition memorandum seeks to cast the assault by Torres as the inevitable product of Irvin's deliberate indifference to the dangers facing him, but plaintiff's own words bear out the conclusion that the assault by Torres was a random occurrence at a time and place unrelated to any scheme of protective confinement. In other words, irrespective of the level of protection afforded by plaintiff's regular confinement, the attack by Torres took place in the Mental Hygiene Unit — to which plaintiff had requested a visit because of his alleged insomnia — under the supervision of a corrections officer who plaintiff himself absolved of responsibility. See Reeb Dep. at 83 ("It ain't her fault, I can't blame her for that."). On that same page of deposition testimony, plaintiff makes clear that he did not regard the Torres incident as a component of his lawsuit. See ibid. Similarly, it seems obvious from a close reading of the deposition transcript that plaintiff deemed the Torres altercation to be something other than retribution for his having been a "snitch." While snitches were often "stabbed, beat up, robbed," plaintiff admits that he never suffered such reprisals — "[n]o, I've only been threatened." Reeb Dep. at 37, 50.
In his opposition memorandum, plaintiff relies heavily on Farmer v. Brennan, 511 U.S. 825 (1994), for a variety of propositions related to his deliberate indifference claim. Such reliance is misplaced. For example, Farmer holds that a prison official may not escape liability simply because the plaintiff failed to foresee and articulate exactly which of his fellow inmates would attack him. See id. at 843. Farmer does not, however, hold that the prison official is liable if plaintiff's injury flowed from an entirely different risk. In this case, plaintiff wrote repeatedly to prison officials that he wanted to be placed in Protective Custody because he feared an assault from various fellow inmates in his cell or in the common areas such as the cafeteria. However, the Torres incident transpired in no such common area. Rather, Torres attacked plaintiff in the MHU in the immediate presence of a corrections officer. It simply cannot be said, then, that plaintiff would not have experienced such an assault had he been placed in Protective Custody. In any event, plaintiff has not said such.
This is especially so in light of the fact that, by plaintiff's own account, the insomnia which prompted the trip to the MHU resulted from concerns about his daughters welfare and not from anxiety about attacks from fellow inmates. See Reeb. Dep. at 80.
Farmer also indicated that, where a plaintiff requests injunctive relief — such as being placed in Protective Custody —, he need not wait until he is in fact assaulted before any such relief is afforded. Id. at 845. Thus, insofar as the instant plaintiff sought injunctive relief, a physical injury — or any injury at all — was not a vital component of his claim. However, plaintiff was placed in Protective Custody one month after his transfer to Clinton Correctional Facility. See July 16, 1997 Letter from Reeb to Rodney C. Early, Clerk of Court. Thus, the only relief theoretically available to plaintiff at this time is damages and, as a predicate to such, there must have been an injury alleged. F or these reasons, the deliberate indifference claim, as well as its "snitch" and "retaliation" sub-parts, is dismissed. Further, inasmuch as Irvin was implicated only in the deliberate indifference claim, he will be dismissed from the case.
The Braun incident presents a different set of concerns. As a threshold matter, plaintiff may not graft the "deliberate indifference to serious risk of harm" argument onto the alleged Braun assault because it was not out of any such indifference that the alleged assault resulted. The "protection" plaintiff sought — and which was denied — was from fellow inmates, not from guards. Thus, Braun's alleged assault must be examined in its own light.
When faced with a claim of excessive force by a prison official, the "core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992). If the latter, "contemporary standards of decency always are violated" irrespective of whether significant injury is present. "Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury." Id. at 9; see also Corselli v. Coughlin, 842 F.2d 23, 26 (2d Cir. 1988) (if force used was "unreasonable or excessive," it matters not that injuries were not "permanent or severe"). At the same time, "not every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson, at 9.
Picking up on this last strain and seemingly ignoring the prior, defendants argue that, regardless of Braun's intent, because plaintiff's hand injury is de minimis, there has been no constitutional violation. Such analysis, however, reflects an incomplete understanding of Hudson. Assuming for the moment that plaintiff suffered no serious injury, Hudson makes perfectly clear that the absence of serious injury, while relevant to an Eighth Amendment inquiry, does not end it. See id. at 7. Rather, courts assessing whether a particular use of force was wanton and unnecessary — i.e., excessive — must also evaluate "the need for application of force, the relationship between the need and the amount of force used, the threat "reasonably perceived by the responsible officials' and `any efforts made to temper the severity of a forceful response.'" Ibid. (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)); see also Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994). In this case, there are genuine issues of material fact as to whether Braun closed the feed-up hatch on plaintiff's hand and whether such was necessary under the circumstances, not to mention as to whether plaintiff suffered a cognizable injury therefrom. Because there is evidence to the effect that plaintiff was merely standing in his cell when Braun injured him and that plaintiff has suffered a permanent deformity as a result thereof, the excessive force claim against defendant Braun will not be dismissed.
The defendants' assertion in their Reply Declaration (at ¶ 19) that "Plaintiff cannot succeed in defeating a summary judgment motion by simply ignoring the Defendants' assertions which, when taken as true, explain an alternative and independent basis for injuries complained of by the Plaintiff" evidences a misunderstanding of the parties respective burdens at the summary judgment stage. It is plaintiff's assertions that are afforded the benefit of the doubt. Moreover, the defendants' alternate theory of another inmate slamming plaintiff's hand in the hatch is dubiously supported ( see Snell Aff., Exh B at 15A) whereas their assertion of self-mutilation is entirely unsubstantiated.
Finally, as to the plaintiff's request for punitive damages, such will not be dismissed at this time for the simple reason that the behavior alleged in the excessive force claim clearly is "wanton." Similarly, inasmuch as the availability of qualified immunity turns on whether Braun violated "clearly established statutory or constitutional rights of which a reasonable person would have known" — Reid v. Coughlin, No. 86 CIV. 1351 (LAP), 1994 WL 23152, at *4 fn. 1 (S.D.N.Y Jan. 26, 1994) — and there remain genuine issues as to the reasonableness of Braun's use of force, if any, summary judgment on qualified immunity is inappropriate.
Because plaintiff has failed to make out a deliberate indifference claim against defendant Irvin but has succeeded in setting forth sufficient evidence to create a genuine issue of material fact as to the excessive force claim against defendant Braun, it is hereby ORDERED that defendants' motion for summary judgment is granted as to the deliberate indifference claim against defendant Irvin, that Irvin is dismissed from this action and that the defendants motion is denied in all other respects.