Opinion
00 CIV. 6044 (DLC)
March 17, 2003
Alfonso Rizzuto, Pro Se, Alden, NY, For Plaintiff.
Michael A. Cardozo, Corporation Counsel of the City of New York, Jessica Mila Schutzman, Assistant Corporation Counsel, New York, NY, For Defendants.
OPINION AND ORDER
Inmate Alfonso Rizzuto ("Rizzuto") seeks damages for an assault that occurred on May 3, 1998, while he was temporarily housed at the Anna M. Kross Center at Rikers Island and for an alleged failure to provide him with adequate medical care following the assault. He has named the City of New York ("City") and Corrections Officer Wayne Huyghue ("Huyghue") as defendants. The defendants have moved for partial summary. For the following reasons, the motion is granted in part.
While the complaint identifies Officer Huyghue as John Huyghue, the documents submitted with this motion indicate that the Officer's given name is Wayne.
BACKGROUND Procedural History
The plaintiff was originally represented by counsel in this lawsuit. The Complaint was filed on August 15, 2000. Following a conference on January 17, 2001, discovery was scheduled to conclude on May 25, 2001, and a pretrial order was to be filed by June 22, 2001. The plaintiff filed an Amended Complaint on February 16, 2001. After the close of discovery, plaintiff's counsel moved to be relieved as counsel. At a telephone conference with the plaintiff, his attorney, and defense counsel on July 18, the plaintiff consented to the application of his attorney, but requested that discovery continue and that the defendants provide additional documents in response to discovery demands he had made. Through an Order of July 19, plaintiff's counsel was permitted to withdraw, and discovery was extended to October 26. Through an Order of October 16, 2001, discovery was extended to January 25, 2002.
Beginning in February of 2002, the defendants were granted a series of extensions in order to schedule medical examinations of the plaintiff to respond to his allegations regarding the extent and nature of his injuries. According to the defendants, the plaintiff's transfers by the Department of Corrections interfered with the scheduling of the examinations and the medical examinations never occurred. In an endorsement of October 15, 2002, the Court granted the defendants' request to conduct expert discovery prior to trial on any issues that survive summary judgment motion practice.
During 2002, the plaintiff also indicated a desire to amend his complaint to add Corrections Officer Antonio Vescio ("Vescio") and certain inmates as defendants, and made requests for additional discovery. An April 15, 2002 Order advised the plaintiff that his request to add defendants would be addressed when the summary judgment motion was decided, as would his request for additional discovery.
The defendants have moved for summary judgment on the ground that the plaintiff has not exhausted his administrative remedies. They also contend that they are entitled to summary judgment on his claims of deliberate indifference to his serious medical needs, his claim that there was a failure to intervene to prevent an assault upon him, his claim pursuant to Title 42, United States Code, Section 1985, and his Monell claims. Finally, they assert that defendant Huyghue is entitled to qualified immunity.
In support of their motion, the defendants offer prior statements of the plaintiff regarding the incident, records from Rikers Island, including logbook entries, and extracts from the plaintiff's medical records. In response to the motion, the plaintiff has offered his own detailed affidavit and various exhibits. The following reflects the undisputed facts or the facts as alleged by the plaintiff.
Evidentiary Record on Summary Judgment
On May 3, 1998, the plaintiff was housed in the Anna M. Kross Center, D4 Top Dormitory area ("4 Top"), having been transferred from a state corrections facility to permit him to attend a Family Court matter. He became concerned regarding his safety in the unit and alerted various corrections officers.
The Assault
Upon returning to 4 Top after a visit with his girlfriend, he learned that some of his possessions were missing. Some inmates approached him with weapons and told him to go to the bathroom. Fearing an immediate attack, the plaintiff left the dormitory through the door near the booth or "bubble" from which corrections officers can observe the unit. The door was open because Huyghue was just entering the dormitory. Despite being told by the plaintiff about the danger he was under, Huyghue ordered the plaintiff to return to the dormitory. According to the plaintiff, when he refused to return to the dormitory, Huyghue hit him, knocking him to the ground. Huyghue and officer Vescio then dragged the plaintiff back into the dormitory area. Huyghue then urged the inmates to attack the plaintiff, which they did by hitting and kicking him as he lay on the ground.
After awhile, the officers intervened, stopped the attack, and removed the plaintiff from the dormitory.
Medical Clinic
Captain Gordek escorted the plaintiff to the medical clinic about ten minutes after the assault. At the medical clinic, the plaintiff was seen by two of the medical personnel, treated with an ice pack and pain killers, and given a tetanus shot. X-rays of the plaintiff's head were taken and were negative.
An Injury to Inmate Report filled out at 6:30 p.m. on May 3 recites the plaintiff's report that he was attacked by numerous inmates at 4 Top. It reports that the side of his face was swelling, his upper lip was swelling, and that he had a headache and jaw pain. He was experiencing back pain, swelling and tenderness at various locations on his body and head but had no active bleeding. There were minor abrasions above an eyebrow and on his neck. It concluded, "[h]ighly recommended that pt. not [be] returned to housing area/building."
A separate medical entry for 6:30 p.m. includes another report from the plaintiff about the incident. According to that report, he was being bothered by fellow inmates, feared for his safety and approached a corrections officer. The officer punched the plaintiff in the mouth and dragged him into the housing area where inmates punched and kicked him while he was on the floor.
The plaintiff reported jaw pain, a headache and back pain. Among other things, the report noted a small cut on the internal surface of the upper lip. It added that the plaintiff was threatening a lawsuit and recommended that his housing assignment be changed.
The plaintiff contends that he still experiences jaw and back problems as a result of this assault. He is also having nightmares. He asserts that x-rays should have been taken of his back. He also claims that he was denied sick calls from May 3 until May 14, although he also acknowledges that he refused to report for medical care on May 7, because he was afraid that it was a "trick setup".
May 3 Written Statement
A May 3 handwritten statement by the plaintiff described the robbery and assault by the inmates, but does not mention wrongdoing by any corrections officer. Before writing this statement, the plaintiff alleges that Captain Gordek threatened him with retaliation if he made any complaint about the corrections officers.
Complaint to Department of Investigations
On May 6, the plaintiff sent a handwritten complaint to the New York City Department of Investigations and the Warden of "C-95" at Rikers Island. The complaint reported the assault and requests separation from certain inmates. The complaint included a description of the following events.
On May 3, during a visit with his girlfriend, the plaintiff 6 told a corrections officer that white inmates were being beaten and robbed in 4 Top and requested that the guards look out for them. He repeated this message to the corrections officers at the front gate to the housing unit.
When he returned to 4 Top, he learned that all of his goods purchased at the commissary were missing. Three black inmates said they had taken the articles, pulled out box cutters, and told the plaintiff to go to the bathroom. The plaintiff walked out of the first gate, which was open, and told the officer in the bubble that he had been robbed, that inmates were trying to cut him, and asked permission to stay out of the unit. A black corrections officer told the plaintiff that he had to go back into the dormitory. The plaintiff asked the officer to call the Captain or "pull the pin", but the officer refused. The officer then pulled the plaintiff's hair, hit his head on the wall, punched him in the mouth, knocked him to the floor, and dragged him back into the dormitory with the help of a white officer. The two officers then told the inmates to "jump" the plaintiff.
The inmates in the dormitory hit the plaintiff, who fell to the floor and covered his head with his arms. The plaintiff yelled as loud as he could. The officers then intervened and said the plaintiff could now be moved off 4 Top. He was told to put his hands on the wall. When a Captain came, the plaintiff told the Captain what had happened. The Captain refused to believe the plaintiff.
At the clinic, x-rays were taken and he was given ice packs and pain pills. They also took pictures of the plaintiff's face, hands, and arm. He had an injury to his jaw, and his back, neck, head and face hurt.
An inmate and corrections officer brought what was left of the plaintiff's property to him; much was missing. The two individuals escorted the plaintiff to "11 Upper". There, the inmate who was escorting the plaintiff told inmates in 11 Upper to "get" the plaintiff. The plaintiff told corrections officers to call a Captain; he refused to enter 11 Upper.
The plaintiff was taken to holding pens to write out a statement about what happened. A Captain told the plaintiff that if he said that if he had run past the 4 Top's first gate without permission, the plaintiff would get "tickets" and be sent to the "box bing", and if he said that the corrections officers assaulted him, he would be sent back to 4 Top. Because of this threat, the plaintiff wrote a statement that said that the corrections officers had nothing to do with the assault. The Captain told the plaintiff that he would make a computer entry to send the plaintiff to another jail in the Rikers Island complex.
As of May 6, the transfer had not been made and the plaintiff believed that his life remained in danger. He was due to go to court on May 11, and feared being placed in pens with 4 Top inmates. His letter also requested separation during his visiting hours. He threatened to file a Section 1983 claim unless he was moved to another Rikers Island building. He also asked that the inmates from 4 Top be placed on his "enemies" list.
Grievance Procedure
The New York City Department of Corrections has a grievance procedure. It requires any complaint to be filed within three days of an incident. The plaintiff remained at Rikers for eleven days after the incident, but never filed a grievance. The regulations define as "non-grievable" any issue that is a matter under investigation by the Inspector General, and complaints pertaining to assaults or verbal harassment.
The Complaint
Rizzuto's complaint, as amended, brings claims for assault, deliberate indifference to serious medical needs, and violation of his rights under the Fourth, Sixth, Eighth, Eleventh and Fourteenth Amendments to the U.S. Constitution, pursuant to Section 1983, against Officer Huyghue, "Several Unknown Corrections Officers," and the City of New York. Against Officer Huyghue and "Several Unknown Corrections Officers" only, he brings claims of conspiracy, verbal abuse, and failure to intervene. Against the City only, he asserts a failure to train and supervise the defendant officer.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties taken together "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." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). Thus, in determining whether to grant summary judgment, this Court must (1) determine whether a genuine factual dispute exists based on evidence in the record; and (2) determine, based on the substantive law at issue, whether the fact in dispute is material.
1. Deliberate Indifference to Serious Medical Needs
In order to establish an Eighth Amendment claim arising out of inadequate medical care, "a prisoner must prove deliberate indifference to his serious medical needs." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted). The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (1994 ed., Supp. V) (" PLRA"), however, requires a prisoner to exhaust administrative remedies before bringing any "action . . . with respect to prison conditions." Porter v. Nussle, 534 U.S. 516, 524 (2002) (citation omitted). Further, "[a]ll `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective." Id. (citations omitted). The exhaustion requirement applies to suits that involve general prison conditions and to claims arising from particular episodes. Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002).
The defendants have moved to dismiss the plaintiff's claim that they were deliberately indifferent to his serious medical needs. Among other grounds, they assert that the plaintiff failed to grieve this claim, that his medical needs were not serious, that he has offered no evidence that defendant Huyghue was deliberately indifferent to his medical needs, and that Huyghue is in any event entitled to qualified immunity on this claim.
The plaintiff has offered sufficient evidence to raise a question of fact as to whether he had serious medical needs following the assault on May 3. It is undisputed, however, that the plaintiff was taken promptly to the clinic for treatment following the assault and that he never filed any grievance complaining about the quality or absence of medical care for his condition. Neither his May 3 written statement nor his May 6 complaint to the Department of Investigations assert that there were deficiencies in the medical care he received at the clinic or that there was a delay in providing him with that medical care.
The New York City Department of Corrections grievance procedures do not have any exception for complaints regarding medical care. Plaintiff claims that his failure to grieve can be explained by the fact that he was never "provided with a Rule Book stating that I had to file a grievance within three days . . . ." Plaintiff's own exhibits, though, contain a signed form indicating his receipt of the "Inmate Rule Book" on April 28, 1998, five days before the assault. As plaintiff has not explained why this form cannot be relied upon, and has put forward no other meritorious explanation for his failure to grieve, his claim regarding deliberate indifference to serious medical needs must be dismissed.
2. Verbal Abuse
Defendants move to dismiss Rizzuto's claim for verbal abuse. This claim is plead briefly in the complaint, which states, "On May 3rd, 1998, CORRECTION OFFICER "JOHN" HUYGHUE, SHIELED NO. 14718 and "SEVERAL UNKNOWN CORRECTION OFFICERS" verbally abused Plaintiff ALFONSO RIZUTTO [sic] without any provocation." Verbal harassment and name calling without appreciable injury fail to allege a constitutional violation. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam). See also Mercer v. Green Haven Correc. Facility, 1998 WL 85734, at *4, No. 94 Civ. 6238, (S.D.N.Y. Feb. 27, 1998) (DLC). Rizzuto does not appear to oppose the motion. This motion is granted.
3. Monell claim
Rizzuto has brought a Monell claim against the City. The City has moved to dismiss each of the claims against it even though it concedes that the claim against Huyghue for use of excessive force must be tried. The motion for summary judgment on the Monell claims based on the use of excessive force and failure to intervene is premature. It is dismissed without prejudice to its renewal following trial. The Monell claims based on the alleged deliberate indifference to medical needs and verbal abuse are dismissed.
In order to succeed on a Monell claim, a plaintiff must prove that the conduct of an individual government employee violated the plaintiff's constitutional rights. See Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir. 2001) (citing City of Los Angeles v. Heller, 475 U.S. 796 (1986)). As plaintiff cannot bring the claim for deliberate indifference to medical needs against any individual defendant as a result of his failure to grieve, the Monell claim with respect to this claims must be dismissed. Any other result would permit an end-run around the PLRA's exhaustion requirement. As the claim for verbal abuse has been dismissed, any Monell claim with respect to that claim must also be dismissed.
4. Failure to intervene
The defendants move to dismiss the claim against Huyghue that he failed to intervene to prevent the assault. It is well established that the Eighth Amendment imposes on prison officials the duty to protect inmates from violence at the hands of other inmates. See, e.g., Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
The plaintiff has provided sufficient evidence that Huyghue violated his obligation to intervene and protect the plaintiff. There are significant issues of material fact surrounding Huyghue's role in the assault by the inmates that preclude summary judgment and prevent a finding of qualified immunity. The contemporaneous documentation from the Department of Corrections which defendants say contradict plaintiff's version of events do not eliminate issues for trial, but instead create them.
5. Section 1985
Defendants move for summary judgment on Rizzuto's conspiracy claim under 42 U.S.C. § 1985 ("Section 1985"). In order to recover under Section 1985, a plaintiff must establish:
(1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States.
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999). "[T]he conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Id. (citation omitted).
The motion addressed to Section 1985 is denied. The plaintiff has presented sufficient evidence to create an issue of fact that Huyghue's alleged misconduct was motivated by the plaintiff's race and involved a conspiracy with at least one fellow officer. Rizzuto may also be able to show at trial that Huyghue can be held liable for conspiring with plaintiffs' fellow inmates. It is well-settled that liability may lie under Section 1985 for private conspiracies. N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989).
The motion for qualified immunity on this claim must also be denied. The law underlying this claim was clearly established as of the date of the incident and the plaintiff has raised sufficient factual questions regarding the reasonableness of Huyghue's conduct.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted as to the claims regarding deliberate indifference to serious medical needs and verbal abuse, as well as any Monell claims based on those claims. It is denied as to the claims regarding failure to intervene, Section 1985 and the remainder of the Monell claims. Scheduling orders issued with this Opinion will address outstanding issues regarding amendment of the pleadings and discovery.
SO ORDERED: