Opinion
9:13-CV-01213 (TJM/TWD)
02-03-2017
RENDELL ROBINSON, Plaintiff, v. LORENZO A. BALLARD, et al., Defendants.
APPEARANCES: RENDELL ROBINSON 07-A-6175 Plaintiff pro se Five Points Correctional Facility Caller Box 119 Romulus, New York 14541 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: AIMEE M. PAQUETTE, ESQ Assistant Attorney General
APPEARANCES: RENDELL ROBINSON
07-A-6175
Plaintiff pro se
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: AIMEE M. PAQUETTE, ESQ
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiff Rendell Robinson has commenced this civil rights action under 42 U.S.C. § 1983, arising out of an alleged incident of excessive force that occurred while he was an inmate-patient in the Marcy Residential Mental Health Unit ("RMHU") at the Marcy Correctional Facility ("Marcy") on July 14, 2010. (Dkt. No. 1.) Claims remaining following initial review of Plaintiff's complaint are for excessive force and failure to intervene in violation of his rights under the Eighth Amendment. (Dkt. No. 7.)
Remaining Defendants are Marcy Corrections Officers Lorenzo A. Ballard ("Ballard"), Timothy Holmes ("Holmes"), Michael J. Wojtanowski ("Wojtanowski"), Eric Onyan ("Onyan"), and Arduino A. Cacciotti, Jr. ("Cacciotti"); Marcy Sergeant Stephen J. Strassberger ("Strassberger"); Marcy Superintendent Joseph Bellnier ("Bellnier"); Marcy Captain J.E. Harper ("Harper"); Marcy Lieutenant Timothy P. Corey, incorrectly sued as John Doe Cory ("Corey"); Marcy Deputy Superintendent of the Office of Mental Health Brian Hilton ("Hilton"); Office of Mental Health Chief Lisa Kalies ("Kalies"); and Marcy Deputy Superintendent Barry McArdle ("McArdle"). Id. The Defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 51.)
Defendants seek summary judgment on the following grounds: (1) Plaintiff's claims are barred by the statute of limitations; (2) Plaintiff has failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e; (3) Plaintiff has failed to establish the requisite personal involvement on his supervisory liability claims; and (4) the supervisory defendants are entitled to qualified immunity. (Dkt. No. 51-12 at 2.) Plaintiff has opposed Defendants' motion. (Dkt. Nos. 58 and 59.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
For reasons explained below, the Court recommends that Defendants' motion for summary judgment be granted in part and denied in part.
II. FACTUAL BACKGROUND
A. Plaintiff's Deposition Testimony Regarding the Alleged Assault by Corrections Officers on July 14, 2010
On July 14, 2010, Defendant Ballard escorted Plaintiff, who was in handcuffs and had a waist chain, to a classroom where a group called "Bad Boys," for inmates who had displayed lewd conduct towards the female staff, was meeting. (Dkt. No. 51-3 at 16, 23.) Plaintiff sat down at a desk and told Defendant Onyan, who was putting leg irons on him, that the leg irons were too tight, and he needed "big boys," which were larger leg irons. Id. at 17. Onyan asked Ballard if he could use big boys for Plaintiff, and Ballard said no. Id. Plaintiff was six feet tall and weighed two-hundred twenty-five to two-hundred fifty pounds at the time, and it was the first time he had not been allowed to use big boys. Id. at 27.
Plaintiff told Onyan he was not going to lock his legs in leg irons that were too tight for two hours. Id. Ballard and Wojtanowski came over to Plaintiff, and Ballard told him he was going back to his cell for refusing to be locked in. Id. Plaintiff asked to speak to Defendant Strassberger, who also refused Plaintiff's request for big boys and told Plaintiff he was going back to his cell. Id. at 18-19. Before the issue with the leg irons, Defendant Ballard had told Plaintiff to tuck his handkerchief into his pocket, and Plaintiff had not done so. Id. at 20. As he was leaving the classroom, Ballard pushed the handkerchief down, and, according to Plaintiff, as he stepped around Ballard to exit the classroom, Ballard pushed him into the Plexiglass window, and when Plaintiff turned around, tried to push him to the floor. Id. Plaintiff stood his ground, and Ballard was unable to slam Plaintiff down by himself. Id. at 20-21. Ballard, Wojtanowski, and Onyan together were able to push Plaintiff to the ground and then began hitting him with nightsticks for what Plaintiff described as a few minutes, with Plaintiff's head being pushed into the floor and his hands and legs twisted in pain. (Dkt. No. 51-3 at 21.)
When Strassberger said enough, the corrections officers brought Plaintiff to his feet and took him into the hall where they ran him into a sliding glass door, hitting his face. Id. at 21-22. During the assault on Plaintiff that occurred at the sliding glass door, he was slammed to the floor a second time. Id. at 42, 49-50, 54-55. While Plaintiff was on the ground, Holmes jumped on his back and punched him in the head. Id. at 65-66, 68. Wojtanowski hit him in the ribs with a baton. Id. at 66. Plaintiff grabbed the baton to stop Wojtanowski from hitting him. Id. at 67. Ballard told Wojtanowski to keep hitting Plaintiff, and Strassberger told Plaintiff to let go of the baton, which he did. Id. at 67-68. During the assault, Plaintiff was kicked by Cacciotti. Id. at 69-70. The assault lasted about two minutes. Id. at 50.
According to Plaintiff, Strassberger stood watching as the corrections officers beat him. Id. at 58. After the assault, Strassberger told the corrections officers to take Plaintiff to medical. Id. at 75. Holmes forced Plaintiff to walk towards medical, manhandling him and pushing him into the wall, with Plaintiff offering no resistance. Id. at 77-78. As Strassberger, Holmes, Cacciotti, Ballard, Wojtanowski, and Onyan walked down the hall with Plaintiff to the infirmary, Plaintiff yelled inside the classroom programs that the corrections officers were beating him. Id. at 79-80. Holmes told Plaintiff to shut up. Id. at 81. Plaintiff was very upset at being manhandled by Holmes and stopped walking. Id. When he stopped walking, the corrections officers slammed him back onto the floor. Id. Holmes punched Plaintiff in the face and mouth, causing his lip to burst open and bleed, and Cacciotti twisted Plaintiff's left leg in an attempt to break it, causing Plaintiff to scream out in pain. (Dkt. No. 51-3 at 81.) Plaintiff, who believes that Strassberger called for a stretcher because Plaintiff could not walk due to pain in his left knee, was taken the rest of the way to medical on the stretcher. Id. at 82, 87.
Plaintiff was under treatment for depression at the time and claims to have been diagnosed with Post Traumatic Stress Disorder ("PTSD") as a result of the assault and to have also sustained numerous physical injuries. Id. at 93-99.
B. Unusual Incident Report Regarding the July 14, 2010, Incident
The July 20, 2010, Unusual Incident Report prepared on the incident stated that Plaintiff continued to resist and failed to comply with orders as he was returned to his cell, and that he turned towards staff and kicked at them. (Dkt. No. 59-12 at 5.) Ballard, Onyan, and Wojtanowski took Plaintiff to the floor, and when Plaintiff kicked at Wojtanowski, Onyan delivered three jabs to Plaintiff's mid-section to gain compliance. Id. Strassberger ordered the corrections officers to take Plaintiff down when he began resisting again on the way back to his cell. Id. Wojtanowski delivered two jabs to Plaintiff's mid-section when he, Ballard, and Onyan had difficulty taking Plaintiff down. Id. When Plaintiff grabbed Onyan's baton, Holmes and Cacciotti responded with Cacciotti striking Plaintiff in the thigh several times with his right knee until Plaintiff let go of the baton. Id. While Plaintiff was being escorted to medical, he resisted again and was forced to the wall where he was held until he stopped struggling and was then taken to medical on a stretcher. Id.
C. Misbehavior Report of July 14, 2010
Strassberger issued Plaintiff a misbehavior report arising out of the July 14, 2010, incident, charging Plaintiff with 106.10 Refusing Direct Order, 100.11 Assault on Staff, 104.11 Violent Conduct, and 104.13 Creating a Disturbance. (Dkt. No. 59-12 at 2.) The misbehavior report stated that as Plaintiff was leaving the classroom to be returned to his cell for being uncooperative and refusing to comply with staff direction, he struck Ballard with his shoulder as he walked by him. Id. Plaintiff was then restrained by Defendants Ballard, Wojtanowski, and Onyan but was resistive and combative. Id. Plaintiff refused Strassberger's order to stop resisting. Id. Once control was gained, staff began to escort Plaintiff for a medical evaluation, and Plaintiff became combative and resistant two more times and refused orders to stop resisting. Id. Plaintiff was then taken to medical. Id.
Plaintiff, who in his deposition testimony denied striking Ballard with his shoulder (Dkt. No. 51-3 at 40-14), was found guilty on all charges on August 13, 2010. (Dkt. No. 59-12 at 3-4.) The Superintendent's hearing determination was reversed and expunged by the Acting Director of Special Housing/Inmate Discipline on November 12, 2010, for failure to maintain a complete electronic record. Id. at 11.
D. Plaintiff's July 17, 2010, Grievance
On July 17, 2010, Plaintiff submitted an eleven page grievance describing the manner in which he had been assaulted by Ballard, Cacciotti, Holmes, Onyan, and Wojtanowski on July 14, 2010, and Strassberger's failure to intervene despite watching the assault. (Dkt. Nos. 51-3 at 103; 51-4 at 1-11.) The grievance office gave the grievance the number MCY-14658. (Dkt. No. 51-3 at 106.)
Plaintiff also submitted a handwritten five page grievance against Defendant McArdle on or about July 27, 2010. (Dkt. No. 59-7 at 14-18.) McArdle had issued a security restraint order on July 14, 2010, placing Plaintiff in leg irons. Id. Since Plaintiff's due process claim against McArdle regarding the leg irons was dismissed without prejudice on initial review, (Dkt. No. 7 at 13), and Plaintiff did not amend, the question of exhaustion of the July 27, 2010, grievance is not at issue in this action. The same is true of Plaintiff's third grievance, number MCY-14797, which was submitted on or about October 13, 2010. (Dkt. Nos. 51-3 at 103; 59-2 at ¶¶ 46-47.) The grievance was against the same corrections officers who had initially assaulted Plaintiff and was submitted when they started threatening him prior to the submission of the grievance. Id. The grievance was denied by the Superintendent, and Plaintiff appealed. (Dkt. No. 59-13 at 2.) Plaintiff claims it is the only one of the three grievances to which he received a response. (Dkt. No, 59-12 at 105.) Because the third grievance did not involve claims pending in this action, exhaustion of that grievance is not at issue in this action.
After the grievance was submitted by Plaintiff, Captain Harper told him that the handwritten grievance was illegible and directed him to do an audio recording of the grievance, which Plaintiff did. (Dkt. Nos. 51-3 at 107; 59-2 at ¶ 38.) Lieutenant Corey, who had been directed by Harper to investigate the July 17, 2010, grievance, came to Plaintiff's cell and asked him if there was anything he wanted to add. Id. Corey informed Plaintiff that the Grievance Committee had listened to the audiotape, that a copy of the tape was being transcribed, and that Plaintiff would receive a copy, although he never did. (Dkt. Nos. 51-3 at 108; 59-12 at ¶ 43.) Corey told the Plaintiff he would be receiving a response on the grievance from him, and although he might not like the response, he could appeal. (Dkt. No. 59-2 at ¶ 43.) Plaintiff claims he never received a response to his July 17, 2010, grievance regarding the claimed assault. (Dkt. Nos. 51-3 at 105-06.)
In an August 24, 2010, response to a letter Plaintiff had sent to Bellnier regarding the assault and requesting a separation order and criminal protection against the corrections officers responsible, McArdle acknowledged that Plaintiff had filed a grievance regarding the incident. (Dkt. Nos. 59-2 at ¶¶ 39-40.) On October 7, 2010, Plaintiff received a message from Marcy Inmate Grievance Program Supervisor Thomas regarding Grievance No. MCY-14658. (Dkt. No. 59-8 at 5.) Thomas informed Plaintiff that the grievance was pending before the Superintendent. Id.
Plaintiff was transferred to Elmira Correctional Facility on or about October 20, 2010. (Dkt. No. 59-2 at ¶ 50.) Before he left, Thomas told Plaintiff the response to the grievance would be forwarded to him via legal mail. Id. On November 26, 2010, Plaintiff wrote to Thomas advising her that he had not received responses to any of the three grievances relating to the July 14, 2010, assault that he had filed at Marcy. (Dkt. Nos. 51-5 at 1-10; 59-2 at ¶ 51.) Plaintiff reminded Thomas that she had told him that the responses would be forwarded to him at his new facility. Id. at 2. Plaintiff again asked that responses to the grievances be forwarded to him. Id. at 3. In the letter, Plaintiff reviewed the administrative history regarding the handling of the July 17, 2010, grievance concerning the assault, indicating that Thomas had kept the grievance. Id at 6-10.
Having received no response to his letter to Thomas, on January 3, 2011, Plaintiff wrote to Karen Bellamy ("Bellamy"), Director of the Inmate Grievance Program for the Department of Corrections and Community Supervision ("DOCCS"). (Dkt. Nos. 51-6 at 1-15; 59-2 at ¶¶ 52-53.) The letter was captioned "Never Receiving the initial Response from 3 different grievance (sic) I Filed [?] From July 14, 2010 incident at Marcy Correctional Facility Residential Mental Health Unit Program." (Dkt. No. 51-6 at 1.) Plaintiff explained the factual background of the July 17, 2010, assault grievance, and the administrative history of the grievance, including his meeting with Corey and communications with Thomas regarding the outstanding response. Id. at 7-10. Plaintiff also told Bellamy that he had notified the Elmira Superintendent that he was waiting for the response and had asked him to call Thomas. Id. at 12. Plaintiff advised Bellamy that the Elmira Superintendent had instructed him to write to Thomas. Id. at 12-13. Plaintiff asked Bellamy to please help him receive his initial responses to his grievances. (Dkt. No. 51-6 at 14.)
After writing to Bellamy, Plaintiff received responses to two grievance he had filed at Marcy, but not the two he had written about the July 17, 2010, grievance on the assault, and the July 27, 2010, grievance regarding the restraints. (Dkt. No. 59-2 at ¶ 53.)
On January 27, 2011, Plaintiff again sent letters to Bellamy, Thomas, and Bellnier advising them that while he had received responses to two grievances, he was still awaiting responses to the two outstanding grievances regarding the assault and use of restraints. (Dkt. Nos. 51-7 at 1-11; 51-8 at 1-7; 59-2 at ¶ 54.) None of the three responded to his requests for a response. (Dkt. No. 59-2 at ¶ 55.)
According to DOCCS Assistant Director of the Inmate Grievance Program, Plaintiff failed to exhaust his administrative remedies because DOCCS records show that Plaintiff did not file appeals on Grievance No. MCY-14658, or the July 27, 2010, and October 13, 2010, grievances with the Central Office Review Committee ("CORC"). (Dkt. No. 51-10 at ¶ 12.)
Plaintiff has averred in his affidavit in response to Defendants' motion that he was not given DOCCS Inmate Grievance Program Directive 4040 when he was transferred from New York City custody to DOCCS custody in 2007. (Dkt. No. 59-2 at ¶ 18.) He was only given an inmate rule book which did not discuss or outline the inmate grievance program or rules. Id. Plaintiff was unfamiliar with Directive 4040 at the time Thomas told him he would receive a response to his July 17, 2010, grievance via legal mail. (Dkt. No. 59-2 at ¶ 50.)
DOCCS Directive 4040 includes the regulations regarding the New York Inmate Grievance Program set forth in N.Y. Comp. Codes R. & Regs. tit. 7, § 701.1, et seq.
Plaintiff indicates in his affidavit that much later after "this" incident, another inmate pointed him to the library to request review of Directive 4040. (Dkt. No. 59-2 at ¶ 50.) How much later is unclear from the affidavit.
Plaintiff claims that he knew through hearsay that an inmate had to file an inmate grievance complaint within twenty-one days of the incident being grieved. Id. at ¶ 19. Plaintiff contends he did not know about the appeal process for grievances as far as specific steps for filing an appeal. Id. Plaintiff also knew through hearsay that he had to exhaust administrative remedies by receiving a final decision regarding the complaint from CORC but was never told about the appeal process or reasons why he could file an appeal to CORC other than not liking the grievance decision. Id. at ¶¶ 20 and 44. Plaintiff claims that all of his correspondence to DOCCS officials regarding his July 17, 2010, grievance satisfied the requirement for an appeal to CORC. Id. at ¶ 56.
E. Supervisory Liability Claims Against Defendants Hilton, Bellnier, Harper McArdle, Corey, and Kalies
1. Hilton
Defendant Hilton, who has submitted no affidavit, declaration, or other admissible relevant evidence in support of his motion, is the Deputy Superintendent for the Office of Mental Health at Marcy. (Dkt. No. 1 at 9.) At his deposition, Plaintiff testified that before the July 14, 2010, incident in which he was assaulted, Hilton was made aware that D Wing correctional staff, Ballard, Wojtanowski, and Onyan were harassing, threatening, and physically assaulting Plaintiff and numerous other inmate-patients at the RMHU. (Dkt. No. 51-3 at 109-10.) According to Plaintiff, he spoke with Hilton about it himself before July 14, 2010, and Hilton ignored the complaints and allowed the corrections officers to continue to violate the inmate-patients' rights. Id. at 109-11.
In his affidavit in response to Defendants' motion for summary judgment, Plaintiff has averred that during the months of January 2010 throughout July 2010, he and other inmate-patients observed corrections officers Ballard, Wojtanowski, and Onyan threaten, harass, ostracize, belittle, put their hands on, and assault the inmate-patients in the RMHU. (Dkt. No. 59-2 at ¶ 6.) Plaintiff has stated that he complained face-to-face to Hilton about Ballard, Wojtanowski, and Onyan's behavior and asked that Ballard be removed from working in the RMHU because he was the leader who initiated most of the violent conduct. (Dkt. No. 59-2 at ¶ 10.) According to Plaintiff, Hilton ignored his and the other inmates' complaints and failed to address the officers' misconduct Id. at ¶ 12.
Plaintiff has also filed the affidavit of Jason N. Johnson ("Johnson") a Marcy RMHU inmate from 2010 through 2012, in response to Defendants' motion. (Dkt. No. 59-11.) According to Johnson, it was brought to Hilton's attention that the D Wing correction staff officers Ballard, Wojtanowski, and Onyan, were harassing and physically assaulting the inmate-patients. Id. at 2. Inmates complained to their therapist-clinicians and counselors and were told by them that they would bring the corrections officers' actions to the attention of the "treatment team," which met on a daily basis. Id. Hilton was one of the individuals in control of the treatment team meetings, and he failed to stop Ballard, Wojtanowski, and Onyan's behavior against the inmates and refused to split them up so that they could no longer team up and gang up and antagonize, harass, and "put their hands on the inmate patients in the RMHU." Id.
2. Bellnier
Defendant Bellnier, who like Hilton has submitted no affidavit, declaration, or other admissible relevant evidence in support of his motion, is the Marcy Superintendent. (Dkt. No. 51-2 at ¶ 1.) At his deposition, Plaintiff testified that before the July 14, 2010, incident in which he was assaulted, Plaintiff personally spoke to Bellnier about Ballard, Wojtanowski, and Onyan verbally harassing, threatening, and physically assaulting other inmate-patients in the RMHU. (Dkt. No. 51-3 at 109-10.) According to Plaintiff, during the conversation, which took place in April 2010, Bellnier tried to justify the corrections officers' actions saying things like "[the inmate] should have listened to what the officers said," and "if an inmate doesn't listen to what an officer says, then he's supposed to be written a a inmate misbehavior report." Id. at 111-12.
In his affidavit in response to Defendants' motion for summary judgment, Plaintiff has averred that he complained face-to-face to Bellnier about Ballard, Wojtanowski, and Onyan's behavior and asked that Ballard be removed from working in the RMHU because he was the leader who initiated most of the violent conduct. (Dkt. No. 59-2 at ¶ 10.) Plaintiff again stated that Bellnier tried to justify corrections officers Ballard, Wojtanowski, and Onyan's behavior. Id. at ¶ 11.
In his affidavit, Johnson has averred that, as with Hilton, Bellnier was in control of the treatment team meetings where therapist-clinicians and counselors had said they would bring up the inmate-patients' complaints that Ballard, Wojtanowski, and Onyan were harassing and physically assaulting them. (Dkt. No. 59-11 at 2.)
3. Harper
Defendant Harper, who like Hilton and Bellnier has submitted no affidavit, declaration, or other admissible relevant evidence in support of his motion, is a Captain at Marcy. (Dkt. No. 51-2 at ¶ 1.) At his deposition, Plaintiff testified that he is suing Harper "for the exact same reasons as as stated [as to Hilton and Bellnier]." (Dkt. No. 51-3 at 114.) In his affidavit, Plaintiff has averred that he spoke face-to-face with Harper about Ballard, Wojtanowski, and Onyan's behavior and asked that Ballard be removed from working in the RMHU because he was the leader who initiated most of the violent conduct. (Dkt. No. 59-2 at ¶ 10.) According to Plaintiff, Harper, like Bellnier, tried to justify the corrections officers' actions by saying that the inmate had not followed the rules. Id. at ¶ 11. In his affidavit, Johnson has identified Harper as one of the "higher ups prison officials" in the RMHU who were made aware of Ballard, Wojtanowski, and Onyan's behavior through treatment team meetings. (Dkt. No. 59-11 at 2.)
4. McArdle
Defendant McArdle, who like Hilton, Bellnier, and Harper, has submitted no affidavit, declaration, or other admissible relevant evidence in support of his motion, is Deputy Superintendent at Marcy. (Dkt. No. 51-2 at ¶ 1.) At his deposition, Plaintiff testified that he is suing McArdle "just as explained with Defendant Hilton and Defendant Bellnier." (Dkt. No. 51-3 at 112.) In his affidavit, Johnson has identified Harper as one of the "higher ups prison officials" in the RMHU who were made aware of Ballard, Wojtanowski, and Onyan's behavior through treatment team meetings. (Dkt. No. 59-11 at 2.)
5. Corey
Defendant Corey, who like Hilton, Bellnier, Harper, and McArdle has submitted no affidavit, declaration, or other admissible relevant evidence in support of his motion, is a Lieutenant at Marcy. (Dkt. No. 51-2 at ¶ 1.) At his deposition, Plaintiff responded in the affirmative when asked if he was suing Corey for the "same reasons." (Dkt. No. 51-3 at 114.) In his affidavit, Johnson has identified Corey as one of the "higher ups prison officials" in the RMHU who were made aware of Ballard, Wojtanowski, and Onyan's behavior through treatment team meetings. (Dkt. No. 59-11 at 2.)
6. Kalies
Defendant Kalies, who submitted a declaration in support of her motion, is employed by the New York State Office of Mental Health ("OMH") as Forensic Unit Chief at the Marcy RMHU, a position she also held in July 2010. (Dkt. No. 51-9 at ¶¶ 1-2.) Kalies has never been employed by DOCCS. Id. at ¶ 4.
At his deposition, Plaintiff testified that he is suing Kalies because "she was the unit chief and she, as well, was made aware of the assaulting officers, Wojtanowski, Onyan, and Ballard's unlawful behavior." (Dkt. No. 51-3 at 113.) According to Plaintiff, he did not personally tell her about the corrections officers' behavior and testified he did not see her a lot. Id. However, she was a member of the treatment team, and the inmate-patients' clinicians, counselors, and therapists had told them that they would bring the behavior to the attention of the treatment team. Id. In his affidavit, Johnson has identified Kalies as one of the "higher ups prison officials" in the RMHU who were made aware of Ballard, Wojtanowski, and Onyan's behavior through treatment team meetings. (Dkt. No. 59-11 at 2.)
In her declaration, Kalies has explained that she is a clinical social worker for OMH, and that her duties do not include overseeing DOCCS employees and/or providing security to inmates in the custody of DOCCS. (Dkt. No. 51-9 at ¶ 12.) She has stated that her duties as Forensic Unit Chief include co-chairing treatment team meetings. Id. at ¶ 11. Kalies has also stated that she was unaware of the alleged assault on Plaintiff; has no recollection of Plaintiff ever reporting any assaults or potential assaults to her or anyone else; and has no knowledge of complaints made by Plaintiff about the possibility of being assaulted. Id. at ¶¶ 7-10. However, Kalies' declaration is silent as to what she may or may not have learned at team meetings regarding officers Wojtanowski, Onyan, and Ballard's allegedly unlawful behavior, or their alleged assaults on other inmate-patients, from the inmate-patients' clinicians, counselors, and therapists. Id. at ¶¶ 1-11.
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
The Court finds that Plaintiff's amended complaint was adequately verified under 28 U.S.C. § 1746 by the language "'[p]ursuant to 28 USC § 1746, I declare under penalty of perjury that the foregoing is true and correct." (Dkt. No. 1-2 at 63.)
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
A. Legal Standard for Exhaustion Under the PLRA
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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 Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1854-55 (2016). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA requires "proper exhaustion," which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). See also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates "using all steps that the [government] agency holds out, and doing so properly").
In New York state prisons, DOCCS has a well-established three-step Inmate Grievance Program ("IGP"). N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 7, § 701.5 (2013). Generally, the DOCCS IGP involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a) (2010). A representative of the facility's Inmate Grievance Resolution Committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance Id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Office Review Committee ("CORC") for a decision under the process applicable to the third step. Id. at § 701.5(c)(3)(i). Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at 701.5(d)(3)(ii).
Grievances claiming employee harassment "are of particular concern to the administration of [DOCCS] facilities," and subject to an expedited procedure whereby the grievance goes directly to the facility superintendent. Id. at § 701.8. The superintendent is required to initiate an in-house investigation by higher ranking supervisory personnel; request an investigation by the inspector general's office; or request an investigation by the New York State Police Bureau of Investigation if the superintendent determines that criminal activity may be involved. Id. at 701.8(d). A grievance referred to the superintendent and determined to be an allegation of harassment, may not be withdrawn and must be addressed by the superintendent. Id. at 701.8(d). The superintendent is required to render a decision on the grievance within twenty-five calendar days, and extensions may be granted only with the consent of the grievant. Id. at 701.8(f). If the superintendent fails to respond within the required twenty-five days, the grievant may appeal the grievance to CORC by "filing a notice of decision to appeal (form #2133) with the inmate grievance clerk." Id. at 701.8(g).
Section 701.8 has been found applicable to claims of excessive force. See, e.g., Torres v. Carry, 691 F. Supp. 2d 366 (S.D.N.Y. 2009).
If a prisoner has failed to properly follow each of the applicable steps, including receipt of a decision from CORC, prior to commencing litigation, he has failed to exhaust his administrative remedies and is barred from commencing a federal lawsuit. Woodford, 548 U.S. at 93; Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001) (inmate commencing litigation before receiving a decision from CORC does not satisfy PLRA's requirement that administrative remedies be exhausted before filing suit), overruled on the other grounds, Nussle, 534 U.S. 516; Martin, II v. Niagara County Jail, No. 05-CV-868 (JTC), 2012 WL 3230435, at * 6 (W.D.N.Y. Aug. 6, 2012) (inmate who fails to exhaust his administrative remedies is barred from commencing a federal lawsuit).
Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
Defendants have asserted failure to exhaust administrative remedies as an affirmative defense in their answer to Plaintiff's complaint. (Dkt. No. 40 at ¶ 14.)
B. Plaintiff's Failure to Exhaust Grievance No. MCY-14658
The record evidence establishes that on or about July 17, 2010, Plaintiff submitted a grievance regarding the alleged July 14, 2010, assault by the Marcy RMHU corrections officers, and that the grievance was given the number MCY-14658. (Dkt. Nos. 51-3 at 103, 106; 51-4 at 1-11.) The evidence further shows that Plaintiff did not receive a timely response to the grievance that went directly to the Superintendent under § 701.8 (Dkt. No. 51-3 at 105-06), and that Plaintiff thereafter failed to exhaust under the New York IGP, by failing to appeal to CORC as required under § 701.8(g), and commencing this lawsuit before receiving a decision from CORC. See Woodford, 548 U.S. at 93; 7 NYCRR §§ 701.8(f), 701.8(g).
C. Ross v. Blake , ___ U.S. ___, 136 S.Ct. 1850 (2016)
A prisoner's failure to exhaust does not end a court's exhaustion review. For more than ten years, courts in this district were guided by the Second Circuit's decision in Hemphill v. New York. 380 F.3d 680, 686 (2d Cir. 2004). Under Hemphill, the Second Circuit established a three-part inquiry to determine whether, inter alia, a plaintiff's failure to exhaust available administrative remedies could nevertheless be justified by "special circumstances." Id.
However, last year, not long after Defendants filed their motion for summary judgment, the Supreme Court rejected the "special circumstances" exception applied by many circuits, and held that "[c]ourts may not engraft an unwritten 'special circumstance' onto the PLRA's exhaustion requirement." Ross, 136 S.Ct. 1850, 1862 (2016). In Ross, the question before the Court was whether there was a "special circumstances" exception under the PLRA where the inmate erroneously believed that he had satisfied the exhaustion requirement. Id. at 1855. In an opinion by Justice Elena Kagan, the Supreme Court held that there is no such exception:
the [PLRA] mandates that an inmate exhaust "such administrative remedies as are available" before bringing suit to challenge prison conditions. The court below adopted an unwritten "special circumstances" exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA.Id. at 1854-55. (internal citation omitted). See Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (Hemphill and Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) have been abrogated by Ross to the extent those decisions established the "special circumstances" exception from the exhaustion of administrative remedies requirement in the PLRA).
The Supreme Court rejection of the "special circumstances" exception in Ross did not signal an end a court's review of the exhaustion issue upon a finding that the plaintiff had failed to properly follow each of the applicable steps, including receipt of a decision from CORC, "because the PLRA contains its own, textual exception to mandatory exhaustion." Ross, 136 S.Ct. at 1858. Under the PLRA, "the exhaustion requirement hinges on the 'availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Id. Thus, courts are still tasked with determining whether or not a prisoner's administrative remedies are, in fact "available."
The Supreme Court found the ordinary meaning of the word "available" to be "'capable of use for the accomplishment of a purpose,' and that which 'is accessible or may be obtained.'" Id. (quoting Booth v. Churner, 532 U.S. 731, 737-38 (2001)). "Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Id. at 1859 (citation omitted).
To guide courts in the "availability" analysis, the Supreme Court in Ross identified "three kinds of circumstances" in which an administrative remedy, "although officially on the books," is not "available." Id. at 1853. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. at 1853-54. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. When one of the three circumstances is found, "an inmate's duty to exhaust 'available' remedies does not come into play. Id. at 1859.
In a footnote in Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that "the three circumstances discussed in Ross do not appear to be exhaustive, given the Court's focus on three kinds of circumstances that were 'relevant' to the facts of the case." Because the same three circumstances were relevant to the PLRA exhaustion issue in Williams, the Second Circuit did not "opine on what other circumstances might render an otherwise available administrative remedy actually incapable of use." Id.
D. Availability of the DOCCS IGP With Respect to Grievance No. MCY-14658
1. The Question of Whether Plaintiff was Thwarted from Taking Advantage of the Grievance Process through Machination, Misrepresentation, or Intimidation
The undisputed record evidence establishes Plaintiff's claim that he filed Grievance No. MCY 14658, dated July 17, 2010, complaining of the alleged use of excessive force by the Defendants corrections officers on July 14, 2010. (Dkt. Nos. 51-4 at 1-11; 59-8 at 2, 4-5.) The record further shows that Marcy Inmate Grievance Program Supervisor Thomas and Lieutenant Corey were aware that the grievance had been filed, told Plaintiff it was pending before Superintendent Bellnier, and led Plaintiff to believe he would receive a determination of the grievance from Bellnier. (Dkt. Nos. 51-3 at 108; 59-8 at 5; 59-12 at ¶ 42.)
Defendants' motion papers do not include affidavits or declarations from Defendants McArdle, Corey, Thomas, Bellnier, Bellamy, or anyone else who may have had personal involvement in the receipt and handling of Grievance No. MCY 14658 by DOCCS personnel, or Superintendent Bellnier's failure to respond to the grievance.
Defendants do not dispute that Plaintiff over a period of time conscientiously pursued a response to his grievance from the Superintendent by sending detailed letters to Thomas on November 26, 2010, and January 27, 2011 (Dkt. Nos. 51-5 at 1-10; 51-7 at 1-11); to Bellamy on January 3, 2011, and January 27, 2011. (Dkt. Nos. 51-6 at 1-15; 59-9 at 41-45); and to Bellnier on January 27, 2011, (Dkt. No. 51-8 at 1-7), inquiring as to the status of the grievance and requesting a response. Defendants do not dispute Plaintiff's claim that all of those letters, which were sent after Plaintiff had been transferred from Marcy to Elmira on October 20, 2010, went unanswered. (Dkt. No. 59-2 at ¶¶ 51-52-54, 57.) Nor do Defendants dispute that Plaintiff never received a response to Grievance No. MCY 14658, or an explanation as to why no response was forthcoming.
Based upon the foregoing, and considering in particular Defendants' total silence with regard to Plaintiff's multiple inquiries as to the status of his grievance, both at the time the letters were sent and in their motion papers, the Court finds that there are, at the very least, questions of fact regarding whether Plaintiff was "thwart[ed] . . . from taking advantage of the grievance process through machination, misrepresentation, or intimidation." Ross, 136 S.Ct. at 1860.
2. The Opacity of 7 NYCRR § 701.8(g)
Under the DOCCS IGP, in order to exhaust his administrative remedies in this case, where Plaintiff received no response to his grievance from Superintendent Bellnier despite his dogged pursuit, Plaintiff was required under 7 NYCRR § 701.8(g) to "appeal his/her grievance to CORC." Section 701.8(g) explains that this was to be accomplished by "filing a Notice of Decision to Appeal (Form #2133) with the inmate grievance clerk." Form 2133 is the form used for the Superintendent's decision on a grievance. See Davis v. State of New York, 311 F. App'x 397, 399 n.2 (2d Cir. 2009) (explaining that Form 2133 is the form which has the Superintendent's grievance decision printed on the top half of a single sheet and on the bottom half contains the form an inmate is required to file to appeal the Superintendent's decision to CORC). As noted in Davis, Form 2133 explains "[i]f you wish to refer the above decision of the Superintendent please sign below and return this copy to your Inmate Grievance Clerk." Id. See also Kotler v. Fischer, No. 9:09-cv-01443 (MAD/ATB), 2012 WL 929823, at * 1 (N.D.N.Y. March 19, 2012) ("Form 2133 is typically used to set forth the ruling of a facility Superintendent on a grievance, and has a block for the Superintendent's signature and a space at the bottom for the inmate to indicate his intention to appeal the Superintendent's decision to [CORC].")
In Kotler, 2012 WL 929823, the plaintiff inmate was charged with a disciplinary infraction because he had attempted to obtain a copy of a Form 2133 relating to a past grievance which he had redacted to create a blank version of the form, after he had been unsuccessful in his attempt to obtain a blank Form 2133 from the library so that he could appeal a prior grievance for which he had not yet received a Superintendent's ruling. Id. at * 2. At the plaintiff's disciplinary hearing, the facility grievance supervisor testified that inmates were not authorized to possess Form 2133 in blank format. Id. at * 3.
Section 701.8(g) contains no instruction as to how an inmate who has received no response from the Superintendent is to obtain Form 2133, nor does the section give direction as to whether an inmate who has been transferred since filing his grievance, is required to submit the completed form to the grievance clerk in his former or present correctional facility. In paragraph 10 of their Statement Pursuant to Rule 7.1(a)(3), Defendants state that "Plaintiff was fully aware of how to file an appeal to the Central Office Review Committee ("CORC"), which is evidenced by the fact that he filed four appeals before July 14, 2010, and twenty-five appeals after July 14, 2010. (Dkt. No. 51-28 at ¶ 10.) Defendants cite to the declaration of Jeffrey Hale ("Hale"), Assistant Director of the DOCCS IGP as support for the statement. (Dkt. No. 51-10.) However, as Plaintiff explained in his response to the statement, the earlier appeals referenced by Hale had all been from written decisions to the grievances on which there were instructions on appealing to the Superintendent and/or CORC. (Dkt. No. 59-1 at ¶ 10.) Plaintiff never received a written response to Grievance No. MCY-14658 instructing him on how to appeal to CORC. Id.
7 NYCRR § 701.6(h)(1) provides that a response to a grievance filed by an inmate who is subsequently transferred is to be mailed to the inmate's new facility. Section 701.6(h)(2) (2) provides that an inmate transferred to another facility may continue an appeal from a grievance and must mail the signed appeal form to the IGP supervisory at the facility where the grievance was originally filed within seven days after receipt, presumably of the grievance response referenced in § 701.6(h)(1).
In Williams, 829 F.3d at 120-21, the inmate plaintiff was transferred to a new facility after an unsuccessful attempt to file a grievance. The inmate never received a response to the unfiled grievance and never appealed as authorized under 7 NYCRR § 701.6(g)(2), which provides that absent an extension of the time limitations imposed for a grievance hearing, answering a grievance, or deciding an appeal, matters not decided within the IGP time limitations may be appealed to the next step. Id. at 121. The district court dismissed the action for failure to exhaust, and the Second Circuit reversed and remanded on the grounds that exhaustion was unavailable because "the regulations plainly do not describe a mechanism for appealing a grievance that was never filed," and "the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it." Id. at 126.
This case is distinguishable from Williams in that Plaintiff's grievance was filed, and the relevant provision regarding the appeal of a grievance to which no response has been received is § 701.8(g), rather than §§ 701.6(g)(2) and (h)(2), in this case. However, as in Williams, Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed to receive a response after the transfer. In addition, § 701.8(g) presumes that an inmate has access to Form 2133 so that he can complete it in compliance with the section, and that he knows to which grievance clerk the appeal should be sent.
The Court finds that the Second Circuit's conclusion in Williams that "[t]he regulations plainly do not provide guidance on how a transferred inmate can appeal his grievance with the original facility without having a response," is also applicable to appeals to be taken under § 701.8(g), and that § 701.8(g) is also so opaque and confusing that it is "practically speaking, incapable of use." Id. at 126 (quoting Ross, 136 S.Ct. at 1859). See Sawyer v. Prack, No. 9:14-CV-1198 (DNH/DEP), 2016 WL 5440596, at * 8 n.13 (N.D.N.Y. July 29, 2016) (noting that the Williams court "rejected defendants' argument that the plaintiff in that case 'still could have attempted to appeal the grievance in accordance with sections 701.6(g)(2) and 701.8(g)' even if the grievance was never filed in the first place and despite the fact that he had been transferred to a new facility prior to receiving a response, and concluded that 'even if Williams technically could have appealed his grievance, . . . the regulatory scheme providing for that appeal is 'so opaque' and 'so confusing that . . . no reasonable person can use [it].'" [Williams, 829 F.3d at 126] (quoting Ross,136 S.Ct. at 1859)).
In Williams, the Second Circuit recommended that "DOCCS revise its grievance procedures to instruct inmates . . . how to appeal a grievance, to which the inmate never received a response, after being transferred." 829 F.3d at 126-27.
Based upon the foregoing, the Court concludes that the IGP was unavailable to Plaintiff with respect to Grievance No. MCY-14658, and recommends that Defendants' motion for summary judgment be denied to the extent it seeks judgment on failure to exhaust grounds.
V. STATUTE OF LIMITATIONS
Defendants also seek summary judgment on the grounds that Plaintiff's claims are barred by the three year statute of limitations for civil rights claims under § 1983. (Dkt. No. 51-12 at 11.) Plaintiff's excessive force and failure to intervene claims arise out of an alleged assault on July 14, 2010. (Dkt. No. 7 at 3.) Plaintiff submitted his complaint in this lawsuit on September 30, 2013, more than three years after his claims arose. (Dkt. No. 1.)
The Second Circuit has adopted a rule that "equitable tolling is applicable to the time period during which a prisoner-plaintiff is exhausting his administrative remedies pursuant to the PLRA." Gonzalez v. Hasty, 651 F.3d 318, 323 (2d Cir. 2011). The Court agreed with the Seventh Circuit that "[t]he 'catch-22' . . . is self-evident: the prisoner who files suit . . . prior to exhausting administrative remedies risks dismissal based upon § 1997e; whereas the prisoner who waits to exhaust his administrative remedies risks dismissal based upon untimeliness." Id. (quoting Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001)). The Court also shared the concern of the Seventh Circuit that "any other interpretation of the PLRA could 'permit [prison officials] to exploit the exhaustion requirement through indefinite delay in responding to grievances." Id. (quoting Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)).
Under the tolling rule articulated by the Second Circuit in Gonzalez, 651 F.3d at 324, the three-year statute of limitations applicable to § 1983 actions "is tolled only during the exhaustion period and not during the period in between the accrual of those claims and when [the inmate] began the administrative process." The Court in Gonzalez refused to find that there is a maximum time period beyond which equitable tolling will not save a claim as long as the inmate is "actively exhausting his administrative remedies." (emphasis in original). Id. at 322 n.2, 324. Plaintiff's claims arising out of the alleged assault accrued on July 14, 2010, when the assault occurred, and the tolling began three days later when Plaintiff submitted his July 17, 2010, grievance. (Dkt. Nos. 51-3 at 20-21; 51-4 at 1-11.)
Plaintiff made it clear in his letters to the various DOCCS officials that he was actively pursuing his administrative remedies at the very least during the period of time through the end of January 2011, while he was writing to DOCCS officials seeking a response.
The Superintendent had still not responded to Plaintiff's July 17, 2010, grievance at the time the lawsuit was commenced, and to the Court's knowledge has still not done so. As the Second Circuit noted in Gonzalez, 651 F.3d at 323, one of the reasons for the equitable tolling rule is to protect inmates against the exploitation of the exhaustion requirement through indefinite delay in responding to grievances resulting in an inmate's lawsuit being subject to dismissal either for failure to exhaust or as time-barred.
The Court finds that the statute of limitations on Plaintiff's § 1983 claims was equitably tolled at the very least from July 17, 2010, through the end of January 2011, when Plaintiff stopped writing to DOCCS officials requesting a response to his grievance, and arguably through the time Plaintiff commenced this suit. Either way, the Court finds that the suit was commenced within the three year statute for a § 1983 action and recommends that Defendants' motion for summary judgment be denied to the extent it seeks judgment on statute of limitations grounds.
VI. SUPERVISORY LIABILITY
Plaintiff has asserted supervisory liability claims against Defendants Hilton, Bellnier, McArdle, Harper, Corey, and Kalies, claiming that prior to the time Plaintiff was allegedly assaulted on July 14, 2010, they had all been made aware that D Wing correctional staff Ballard, Wojtanowski, and Onyan were harassing, threatening, and physically assaulting Plaintiff and numerous other inmate-patients at RMHU and took no action to stop it. (Dkt. Nos. 51-3 at 109-10, 112-114.) Defendants seek summary judgment on the supervisory liability claims on the grounds that there is no evidence that they were personally involved in the alleged assault on Plaintiff and failure to protect, and that Plaintiff has asserted nothing more than "'conclusory allegations with no facts demonstrating notice' of the officers threatening, assaulting, or harassing inmates." (Dkt. No. 51-12 at 17.) Kalies has submitted a declaration in support of the summary judgment motion while the other five supervisory officials have remained mute as to their knowledge or lack thereof regarding Ballard, Wojtanowski, and Onyan's alleged physical assault of Plaintiff and other inmate-patients prior to July 14, 2010. (Dkt. Nos. 51-9.)
See Guillory v. Cuomo, No. 14-CV-0971 (MAD/RFT), 2014 WL 11173632 at * 4 (N.D.N.Y. Dec. 2, 2014) (dismissing plaintiff's supervisory liability claims without prejudice on initial review pursuant to 28 U.S.C. §§ 1915(e) and 1915A).
The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934) Therefore, "a plaintiff must . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(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." Colon, 58 F.3d at 873.
The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
A. Kalies
According to Kalies, Forensic Unit Chief in the RMHU, she was employed by the OMH, not DOCCS; she was not responsible for overseeing DOCCS employees or providing security to inmates; she did co-chair treatment team meetings; she was unaware of the assault on Plaintiff; had no recollection of Plaintiff or anyone else reporting assaults or potential assaults to her; and had no knowledge of complaints made about Plaintiff being assaulted. (Dkt. No. 59-9 at ¶¶ 7-12.)
Although Plaintiff testified at his deposition that Kalies was aware of Ballard, Wojtanowski, and Onyan's assaultive behavior, Plaintiff conceded that he never personally told her about it, and his supervisory liability claim against Kalies is based on the conclusory claim that inmate-patients had been told by the clinicians, counselors, and therapists that they would bring Ballard, Wojtanowski, and Onyan's assaultive behavior to the attention of the treatment team. (Dkt. No. 51-3 at 113.) There is no evidence that the clinicians, counselors, followed through on speaking with the treatment team regarding the assaultive behavior.
The Court finds, based upon the foregoing, that the evidence establishes that Kalies had no supervisory authority over the Defendant DOCCS corrections officers and, therefore, cannot be found to have had the personal involvement necessary for a supervisory liability claim against her under § 1983. McKinnon, 568 F.2d at 934. Given Kalies lack of supervisory authority, the Court concludes that there is no evidence on which a jury could reasonably find for the Plaintiff on his supervisory liability claim against Kalies and recommends that summary judgment be granted in her favor. Jeffreys, 426 F.3d at 554.
B. McArdle and Corey
The only record evidence supporting Plaintiff's supervisory liability claim against McArdle is: (1) deposition testimony that he is suing McArdle "just as explained with Defendant Hilton and Defendant Bellnier"; and (2) Johnson's affidavit in which he in conclusory fashion identifies McArdle as one of the "higher ups prison officials" who was made aware of the corrections officers' misconduct through treatment team meetings. (Dkt. Nos. 51-3 at 112; 59-11 at 2.) The only evidence in the record supporting Plaintiff's supervisory liability claim against Corey is: (1) Plaintiff's response in the affirmative when asked if he was suing Corey for the "same reasons"; and (2) Johnson's conclusory statement that Corey was also one of the "higher ups prison officials" who was made aware of the corrections officers' misconduct through treatment team meetings. (Dkt. Nos. 51-3 at 114; 59-11 at 2.)
There is no evidence in the record that Plaintiff spoke with McArdle and Corey regarding the corrections officers' assaultive behavior prior to the time he was assaulted. Moreover, there is no evidence in the record establishing that the clinicians, counselors, and therapists who allegedly had agreed to bring up the inmate-patients' complaints regarding the assaultive behavior of the corrections officers at treatment team members followed through, or that McArdle or Corey were present at any meeting at which the matter was raised. See Grullon v. City of New Haven, 720 F.3d 133, 140-41 (2d Cir. 2013) (evidence of actual receipt of notice of wrongdoing by a supervisory official is necessary to defeat summary judgment on a supervisory liability claim). Therefore, the Court concludes that there is no evidence on which a jury could reasonably find for the Plaintiff on his supervisory liability claims against McArdle and Corey and recommends summary judgment in their favor.
C. Hilton, Bellnier, and Harper
At his deposition, Plaintiff testified that spoke with Hilton, Bellnier, and Harper prior to the July 14, 2010, alleged assault and complained to them that D Wing correctional staff Ballard, Wojtanowski, and Onyan were, among other things, physically assaulting Plaintiff and other inmate-patients in the RMHU. (Dkt. No. 51-3 at 109-114.) According to Plaintiff, Hilton ignored his complaints, and Bellnier and Harper tried to justify the corrections officers' action. Id. Despite Plaintiff's deposition testimony, neither Hilton, Bellnier, nor Harper submitted declarations refuting or otherwise addressing Plaintiff's testimony in their summary judgment motion.
In his affidavit in response to Defendants' motion, Plaintiff elaborated on his communications with Hilton, Bellnier, and Harper regarding the corrections officers' assaultive behavior. (Dkt. No. 59-2.) According to Plaintiff, he had complained to Hilton face-to-face, asking that Ballard be moved as he initiated most of the violent conduct, and Hilton had ignored the complaints. Id. at ¶ 10. Plaintiff averred that in April 2010, he had complained face-to-face to Bellnier and had also asked Bellnier to move Ballard from the RMHU. Id. at ¶¶ 10-11. Plaintiff also described in his affidavit complaining to Harper face-to-face, making the same request regarding Ballard, and having Harper respond by attempting to justify the corrections officers' actions. Id. at ¶ 11. Despite the averments in Plaintiff's affidavit, neither Hilton, Bellnier, nor Harper submitted a declaration in reply.
The Court finds that Plaintiff's unchallenged deposition testimony and averments in his affidavit are sufficient to raise a material issue of fact with regard to whether Hilton, Bellnier, and Harper, after being informed of Ballard, Wojtanowski, and Onyan's physical assaults on inmate-patients, including Plaintiff, failed to take action to prevent the use of excessive force by the correction officer Defendants against Plaintiff in violation of his rights under the Eighth Amendment. See Colon, 58 F.3d at 873. Therefore, the Court recommends that Defendants Hilton, Bellnier, and Harper be denied summary judgment on the supervisory liability claims asserted against them.
VII. QUALIFIED IMMUNITY
Defendants Hilton, Bellnier, Harper, McArdle, Corey, and Kalies have also moved for summary judgment on Plaintiff's supervisory liability claims based upon the defense of qualified immunity. (Dkt. No. 51-12 at 18-19.) Inasmuch as the Court is recommending that summary judgment be granted to McArdle, Corey, and Kalies based upon the lack of evidence showing personal involvement, the question of qualified immunity is addressed only with respect to Hilton, Bellnier, and Harper.
Qualified immunity shields governmental officials performing discretionary functions from liability for damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); see also Pearson v. Callahan, 555 U.S. 223, 232 2009) (In determining whether a state official is entitled to qualified immunity, courts consider whether the facts alleged "make out a violation of a constitutional right," and whether "the right at issue was clearly established at the time of defendant's alleged misconduct.") "A right is clearly established when 'the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (quoting Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011) (alterations omitted).
There can be no doubt that inmates have long had a clearly established Eighth Amendment right to remain incarcerated in reasonably safe conditions, which includes being protected from the use of excessive force. See Randle v. Alexander, 960 F.Supp. 2d 457, 479 (S.D.N.Y. 2013) ("There can be no doubt that inmates have long had a clearly established right to remain incarcerated in reasonably safe conditions."); Rodriguez v. McGinnis, 1 F. Supp. 2d 244, 249 (S.D.N.Y. 1998) (discussing a clearly established right to be free from excessive force). It is also established that "a failure-to-protect claim can be premised upon a supervisory official's failure to prevent violence perpetrated by other officers." Stephens v. Venettozzi, No. 13-cv-5779 (RA) (DF), 2016 WL 929268, at *12 (S.D.N.Y. Feb. 24, 2016) (citing Carter v. Kiernam, No. 98cv2664 (JGK), 2000 WL 760303, at *6 (S.D.N.Y. June 12, 2000)).
Defendants base their qualified immunity defense on their assertion that Plaintiff's claim that they had notice that Ballard, Wojtanowski, and Onyan were physically assaulting inmate-patients in the RMHU prior to the July 14, 2010, alleged assault on Plaintiff was purely conclusory. (Dkt. No. 51-12 at 16-19.) The Court has recommended, based upon Plaintiff's deposition testimony and affidavit, that Defendants Hilton, Bellnier, and Harper's request for summary judgment on the grounds of lack of personal involvement be denied on the grounds that there are material issues of fact in dispute. With regard to their claim of entitlement to qualified immunity, the Court finds that assuming arguendo that Hilton, Bellnier, and Harper were informed that Ballard, Wojtanowski, and Onyan were using excessive force on inmate-patients prior to the time of the alleged assault on Plaintiff as he claims, and that they disregarded Plaintiff's complaints as he also claims, it would not have been objectively reasonable for them to believe that their actions were lawful at the time. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citation omitted). Therefore, the Court recommends that Hilton, Bellnier, and Harper's motion for summary judgment be denied without prejudice to the extent judgment is sought on the grounds of qualified immunity.
WHEREFORE, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 51) be GRANTED IN PART AND DENIED IN PART; and it is further
RECOMMENDED that Defendants' motion for summary judgment be DENIED to the extent it seeks judgment for failure to exhaust with respect to Grievance No. MCY-14658 complaining of the alleged July 14, 2010, assault; and it is further
RECOMMENDED that Defendants' motion for summary judgment be DENIED to the extent it seeks judgment on statute of limitations grounds; and it is further
RECOMMENDED that Defendants McArdle, Corey, and Kalies be GRANTED summary judgment on lack of supervisory liability grounds; and it is further
RECOMMENDED that Defendants Hilton, Bellnier, and Harper's motion for summary judgment DENIED to the extent it seeks judgment on lack of supervisory liability grounds; and it is further
RECOMMENDED that Defendants Hilton, Bellnier, and Harper's motion for summary judgment be DENIED WITHOUT PREJUDICE to the extent it seeks judgment on qualified immunity grounds; and it is hereby
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: February 3, 2017
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-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. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge