Opinion
00-CV-6352 CJS
April 10, 2003
Jose Reyes, Brooklyn, New York, pro se, for plaintiff
Kelly McCarthy, Esq., Rochester, New York, for defendants
DECISION AND ORDER
INTRODUCTION
This is an action in which the pro se plaintiff, a former prison inmate, is suing various employees of the New York State Department of Correctional Services ("DOCS"), pursuant to 42 U.S.C. § 1983. The complaint also asserts state-law causes of action for assault, battery, and negligence. Now before the Court is plaintiff's motion for summary judgment [#40]. For the reasons that follow, the application is granted in part and denied in part.
BACKGROUND
On July 28, 1998, at Southport Correctional Facility, plaintiff was forcibly removed from his cell by corrections officers, after he allegedly refused to uncover his cell door. Once plaintiff was removed, defendant Corrections Officer Dana Gridley ("Gridley") handcuffed plaintiff. Plaintiff contends that Gridley intentionally applied the handcuffs too tightly, causing plaintiff extreme pain. Plaintiff alleges that Gridley then repeatedly punched and threatened to kill him, and lifted him from the floor by his handcuffs, again causing extreme pain. According to plaintiff, Gridley's misuse of the handcuffs caused him to suffer nerve damage in his wrists. Plaintiff also contends that Gridley's alleged improper use of handcuffs caused him to develop a ganglion cyst, which he had surgically removed from his wrist in January 2001. The Complaint asserts a cause of action pursuant to 42 U.S.C. § 1983, as well as state-law claims for assault and battery, against Gridley.After plaintiff was forcibly removed from his cell on July 28, 1998, corrections officers had him examined by defendant Nurse Steven Miller ("Miller"), who made notes in plaintiff's ambulatory health record regarding his various injuries. Plaintiff alleges, however, that Miller ignored and failed to record the fact that plaintiff's hands were extremely swollen and bleeding. The Complaint asserts 8th Amendment deliberate indifference and state-law negligence claims against Miller.
Neither defendant Michael McGinnis ("McGinnis"), Superintendent of Southport, nor defendant Richard Morse ("Morse"), Deputy Superintendent for Security at Southport, were present when plaintiff was extracted from his cell or when he was examined by Miller. Nonetheless, plaintiff contends that both are liable for the alleged constitutional violations by Gridley. Plaintiff contends that both McGinnis and Morse were aware, prior to the July 28th incident, that Gridley had injured other inmates by applying their handcuffs too tightly, but had failed to take action against him. The Complaint asserts Section 1983 supervisory liability claims against McGinnis and Morse in connection with the alleged assault by Gridley, as well as claims for assault and battery.
The Complaint does not assert supervisory liability claims against McGinnis or Morse in connection with Miller's alleged failure to provide medical care.
The parties have now completed pre-trial discovery, and defendants are moving for summary judgment on three separate grounds. Defendants first allege that the entire action must be dismissed, because plaintiff failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a). McGinnis and Morse also contend that they are entitled to judgment, because they were not personally involved in the alleged constitutional violations. Finally, defendants contend that plaintiff's claims seeking damages for the ganglion cyst on his wrist must be dismissed, since there is no proof that Gridley's alleged misuse of handcuffs caused the ganglion cyst. Plaintiff has filed a response, disputing all of defendants' contentions. The Court has thoroughly considered the parties' submissions and the entire record in this action.
ANALYSIS
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190(1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. Civ. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, when alleging a violation of a civil rights statute, even a pro se litigant must make "specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
To pursue an action under 42 U.S.C. § 1983, a plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). To be liable for money damages under 42 U.S.C. § 1983, a defendant must have been personally involved in the alleged constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Personal involvement by a supervisory official may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Id.(citations omitted). A plaintiff may not rely upon the doctrine of respondeat superiorio to establish supervisory liability under 42 U.S.C. § 1983. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95 (1978).
Applying these legal principles to the facts of this case, the Court first finds that judgment must be granted as to Superintendent McGinnis and Deputy Superintendent Morse. In support of the motion to dismiss the supervisory liability claims, defendants' counsel has submitted sworn interrogatory responses from McGinnis and Morse, in which they deny any knowledge of Gridley having committed assaults on inmates. McCarthy Aff. [#47], Ex. B. Defendants have also submitted a portion of the transcript of plaintiff's April 1, 2001 deposition, in which he testified that he did not have any direct personal knowledge that either McGinnis or Morse knew, prior to August 28, 1998, that Gridley had mistreated other inmates. Id., Ex. B. Plaintiff testified that he assumed that McGinnis and Morse must have become aware of assaults by Gridley through reading incident reports and letters from inmates, although he admitted that he did not have any evidence of that. Id., pp. 61-62.
In opposition to defendants' motion, plaintiff has not supplied any evidence that either McGinnis or Morse were deliberately indifferent to a danger of assault by Officer Gridley. Rather, plaintiff now lists a number of inmates who were allegedly assaulted by corrections officers over a period of years. However, with the exception of an alleged assault of an inmate named R. Stokes, none of those alleged incidents involved Gridley. As to Stokes, plaintiff has provided an affidavit from him, in which Stokes claims that, prior to the alleged incident involving plaintiff, Gridley applied handcuffs to him "sadistically," but Stokes does not allege that he ever made McGinnis or Morse aware of the incident. Complaint, Ex. 7; Plaintiff's Aff. in Support of Attempted to Exhaust [sic] Administrative Remedies, Attached Aff. of Roger Stokes. Plaintiff also makes an unsubstantiated, hearsay accusation that Gridley kicked out the teeth of an inmate named Miguel Hacha on March 10, 1995. Plaintiff's Aff. in Support of Supervisor Liability Against Defendants McGinnis and Morse, ¶¶ 20, 24. There is no indication, though, in the record that plaintiff either actually witnessed, or that he has any personal knowledge regarding the alleged incident. Plaintiff's claim that Hacha filed an inmate grievance concerning the matter is similarly unsupported hearsay. The Court, therefore, finds that plaintiff has not come forward with evidentiary proof in admissible form sufficient to create a triable issue of fact as to supervisory liability under Section 1983, and accordingly, grants summary judgment as to defendants McGinnis and Morse.
Plaintiff offers no explanation of how he has now come to have this information, which he claimed he did not have at the time of his deposition.
In his affidavit attached to the complaint, Stokes stated only that he was injured by Officer Gridley's misuse of handcuffs, but did not indicate that he filed a grievance or took any other action. In his affidavit submitted in opposition to the summary judgment motion, Stokes claims that he filed grievances regarding the incident on three separate occasions, but "never receive[d] any response from the inmate grievance complaint office." Plaintiffs Aff. in Support of Attempted to Exhaust Administrative Remedies, Attached Aff. of Roger Stokes. Stokes does not allege that he ever made McGinnis or Morse aware of the alleged incident.
Defendants further contend that plaintiff's remaining claims must be dismissed pursuant to 42 U.S.C. § 1997e(a), because he did not exhaust his administrative remedies before commencing this action. 42 U.S.C. § 1997e(a) 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." It is well settled that,
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination. Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to § 1983 in federal court.Reyes v. Punzal, 206 F. Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). Where a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit, the district court should dismiss the action without prejudice. Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir. 2001), overruled in part on other grounds, Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002).
Here, it is undisputed that plaintiff did not actually exhaust his administrative remedies before commencing this action. However, he contends that he made a good faith effort to exhaust, but was prevented from doing so by unknown prison staff. Specifically, he states that on August 3, 1998, he filed two grievances, one concerning the purported assault by Gridley, and one concerning the alleged denial of medical treatment by Miller, by handing them to the individual collecting outgoing mail in Attica's Segregated Housing Unit ("SHU"). Plaintiff's Aff. in Support of Attempt to Exhaust, ¶¶ 8, 17-19. He maintains that, when he did not receive a response to those complaints, he filed another grievance in the same manner on August 14, 1998, complaining that his grievances were not being processed. Having received no response to any of the three grievances, he claims that on September 13, 1998, he wrote to Superintendent McGinnis, complaining about the alleged assault and failure to provide medical care, as well the failure to process his grievances. Plaintiff contends that when McGinnis did not respond, on October 27, 1998, he filed an appeal with the Central Office Review Committee ("CORC"). CORC has no record of ever having received such an appeal. Bellamy Aff. [#46]. Nonetheless, plaintiff maintains that he did mail the appeal, by placing it in the custody of Attica staff, just as he had earlier mailed the grievances and the appeal letter to McGinnis.
As discussed above, the incidents complained of occurred at Southport Correctional Facility. The day following the alleged incidents, plaintiff was moved to Attica Correctional Facility and placed in Attica's SHU. Plaintiff contends that he attempted to mail his various grievances and letters from Attica to Southport.
Defendants contend that there is no record of any of the three grievances having been received. In support of the motion for summary judgments, defendants have submitted an affidavit from William Ciancio, the Inmate Grievance Supervisor at Southport. In it, Ciancio states that he "caused a print-out to be made of all grievances filed by inmate Jose Reyes (93-R-3077) while he was incarcerated at Southport." Ciancio Aff. [#45], ¶ 2 (emphasis added). However, Reyes was incarcerated at Attica, not Southport, when he allegedly filed the grievances.
There is a "general principle that an inmate's technical failure to exhaust administrative remedies before commencing a § 1983 action may be excused where officials prevented him from utilizing a grievance procedure." Arnold v. Goetz, — F. Supp.2d —, No. 01 Civ. 8993 (WK), 2003 WL 256777 at *6 (S.D.N.Y. Feb. 4, 2003) (citations omitted). As the Court noted in Arnold v. Goetz, "prison officials cannot have it both ways-they cannot obstruct an inmate's pursuit of administrative exhaustion on the one hand and then claim the inmate did not properly exhaust these remedies on the other." Id. Based upon plaintiff's affidavit, the Court finds that there is a triable issue of fact as to whether or not prison staff prevented him from exhausting his administrative remedies.
Defendants, however, contend that they are nonetheless entitled to summary judgment on the exhaustion issue, since plaintiffs attempts to exhaust were untimely. In that regard, defendants refer to to 7 N.Y.C.R.R. §§ 701.7 701.8, which establish certain deadlines in the inmate grievance process. For example, § 701.7(a)(3) (4) provide that the Inmate Grievance Resolution Committee "shall have up to seven working days to review a grievance and resolve it informally," and that if there is no informal resolution, a hearing "must take place within seven working days after receipt of the grievance." Moreover, § 701.7(b)(1) provides that an inmate may file an appeal "[w]ithin four working days receipt of the committee's written response to the grievance," and that, "[i]f no appeal is filed upon denial by the IGRC, it will be presumed that the grievant or direct party accepts the committee's recommendation." Section 701.7(b) also specifies deadlines for the superintendent to respond to grievances. Section 701.7(c)(1), meanwhile, states that "[w]ithin four working days after receipt of the superintendent's written response, an inmate . . . may appeal the superintendent's action to the CORC by filing an appeal with the IGP clerk." Defendants contend that, if an inmate does not receive a response, either from the IGRC or the Superintendent, within the time specified for the IGRC or the superintendent to take action, he must file an appeal to the next level of review, or else be time barred from exhausting administrative remedies.
Defendants allege that plaintiff was 19 days late in filing his appeal to the superintendent, and 36 days late in filing his appeal to CORC.
Defendants do not cite any New York regulation to support this theory, and, on the contrary, § 701.7 expressly provides that the deadlines for inmates to file appeals are triggered by the inmate's receipt of a written response from either the IGRC or the superintendent. Section 701.8 states that "matters not decided within the time limits may be appealed to the next step," but is not mandatory, (emphasis added). Defendants have not cited any case authority from this circuit to support their theory, and the two cases from other circuits which they have cited, Marsh v. Jones, 53 F.3d 707 (5th Cir. 1995) and Wright v. Morris, 111 F.3d 414 (6th Cir. 1997), are factually inapposite. Under the facts of the instant case, viewed in the light most favorable to plaintiff, the Court declines to find that plaintiff's appeals are time barred. Consequently, defendants' motion for summary judgment pursuant to 42 U.S.C. § 1997e(a) is denied.
The Court also denies defendants' application for summary judgment as to plaintiff's claims involving the ganglion cyst on his right forearm. A plaintiff suing under Section 1983 must demonstrate that the defendant's actions were the proximate cause of the alleged injury. Taylor v. Brentwood Union Free School Dist., 143 F.3d 679 (2d Cir. 1998), cert. denied, 525 U.S. 1139 (1999). It is a "well established principle that questions of causation are generally questions of fact to be submitted to the jury." Petrozza v. Inc. Village of Freeport, 602 F. Supp. 137, 144 (E.D.N.Y. 1984) ( citing PROSSER, LAW OF TORTS § 45 (4th ed. 1971)). Here, plaintiff claims to have suffered trauma to his wrists as a result of Gridley's use of handcuffs, and he subsequently developed a cyst at the site of the trauma. The Court finds that it is an issue of fact for trial as to whether or not the ganglion cyst was caused by the alleged assault.
In footnote 5 of their reply brief, defendants state that they wish to amend their motion for summary judgment, to include plaintiff's claim that he suffered neuropathy as a result of Gridley's application of handcuffs. That application is denied, since plaintiff did not have notice or an opportunity to be heard on that issue.
Finally, in its initial Decision and Order [#4] in this action, entered on October 23, 2000, the Court granted plaintiff's application to proceed in forma pauperis, and reviewed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). At that time, the Court understood that plaintiff was only asserting claims pursuant to 42 U.S.C. § 1983. See, Decision and Order [#4], p. 4 ("Plaintiff brings this action pursuant to 42 U.S.C. § 1983."). In connection with its review of the record in this action, the Court has reviewed the complaint, and notes that the complaint also purports to assert pendent state tort claims for assault, battery, and negligence. See, e.g., Complaint, p. 1. Any state tort causes of action should have been dismissed in the Court's initial Decision and Order, pursuant to New York Corrections Law § 24, which bars civil actions against officers and employees of the Department of Correctional Services, in the individual capacities, "for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee." In Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996), the Second Circuit Court of Appeals held that Corrections Law § 24, "by its plain terms, precludes the assertion of [state law] claims against corrections officers in any court, including the federal courts." Accordingly, the Court now dismisses plaintiff's state tort causes of action against all of the defendants in their individual capacities.
The Court's initial Decision and Order dismissed all claims against the defendants in their official capacities, pursuant to the Eleventh Amendment. Decision and Order [#4], p. 4.
CONCLUSION
With regard to plaintiff's causes of action pursuant to 42 U.S.C. § 1983, defendants' motion for summary judgment is granted as to McGinnis and Morse, and is denied as to Gridley and Miller. Plaintiff's state tort causes of action are dismissed as against all defendants. The case will proceed to trial only on the Section 1983 claims against Gridley and Miller. By separate order, the Court will schedule a pre-trial conference.So ordered.