Opinion
98 Civ. 4658 (GEL)
July 5, 2001
Rodalte Rodriguez. pro se for Plaintiff Rodalte Rodriguez
Hillary A Tennant. Esq, Assistant Attorney General, New York, N.Y. (Eliot Spitzer, Attorney General of the State of New York, of Counsel)for Defendants Peter Ghoslaw and Lt. Danny Connelly.
OPINION AND ORDER
Plaintiff Rodalte Rodriguez is an inmate in the custody of the New York State Department of Correctional Services. He brings this action against two corrections officers under 42 U.S.C. § 1983 for cruel and unusual punishment and deprivation of due process in violation the Eighth and Fourteenth Amendments to the United States Constitution. The Complaint alleges that while Rodriguez was housed at Green Haven Correctional Facility, Corrections Officer Peter Ghoslaw deliberately failed to protect him from assault by another inmate, and after the fight began failed to break up the fight, thereby permitting injury to him requiring twenty-two stitches and resulting in permanent facial disfigurement. Rodriguez further alleges that Ghoslaw falsified a disciplinary report, naming him as the possessor of the homemade weapon wielded by his attacker-which resulted in an improper finding of guilt for assault and possession of a weapon. The Complaint also alleges that Lt. Danny Connelly deprived Rodriguez of procedural due process rights by denying him the right to call witnesses of his choice at his disciplinary hearing. This action is presently before the Court on defendants' motion for summary judgment. Because Ghoslaw is entitled to qualified immunity, and no due process violation is established, the motion is granted in its entirety, and judgment will be entered for the defendants.
References to the "Complaint" are to the Second Amended Complaint filed on December 15, 1998, which substituted Lt. Danny Connelly and Corrections Officer Peter Ghoslaw as defendants in place of Christopher Artuz, the Superintendent of the Green Haven Correctional facility, and Glenn Goord, the Commissioner of the New York State Department of Correctional Services, but is otherwise identical to the original Complaint. (See Tennant Decl. Ex. B.) The Second Amended Complaint differs from the First Amended Complaint, which was apparently never filed, only in that the caption of the First Amended Complaint fails to name the substituted parties (See Tennant Decl. Ex. A.)
Facts
For purposes of this motion, most of the facts are undisputed.
Both parties have relied primarily on the deposition testimony of Rodriguez and his only witness, an inmate at Green Haven at the time of the incident, Dondi Gwyn. The only other evidence of the incident consists of contemporaneous reports of the incident by prison officers, including the misbehavior report written by Ghoslaw. (See Tennant Decl. Ex. E.) Where there are discrepancies between the accounts, these have been noted.
On May 5, 1997, while leaving his cell to go the mess hall, Rodriguez was attacked from behind by an unknown assailant and dragged to the cell of another inmate, Ruben Ortega. (See Rodriguez Dep. at 23, 28-29. 40; Gwyn Dep. at 37.) The unidentified inmate restrained Rodriguez while Ortega slashed Rodriguez's face, and then left the area. (See Rodriguez Dep. at 28-29, 37-38.) Rodriguez and Ortega continued to fight in Ortega's cell until Ghoslaw intervened (See id. at 23. 40-41, Gwyn Dep at 38.) As a result of the fight, Rodriguez suffered a cut to his face that required 22 stitches. resulting in permanent disfigurement. (See Tennant Decl. Ex. E. Rodriguez Aff. ¶ 2) Rodriguez has testified that prior to this incident, he did not believe that he faced any danger from Ortega. nor did he ever alert authorities to any need for protection (See Rodriguez Dep. at 24-25). Prison officials kept an "enemies list" for all prisoners, and a copy of Rodriguez's list dated shortly after the incident indicates that there were no prisoners on Rodriguez's list. (See Tennant Decl. Ex. G.)
The testimony of Rodriguez and Gwyn is inconsistent with the contemporaneous report of Corrections Officer R. Meyer, who observed Rodriguez leave Ortega's cell with his face bleeding and then return with a weapon. (See Tennant Decl. Ex. E.)
Both Gwyn and Rodriguez testified that when the fight broke out, Ghoslaw was at the far end of the hallway near the officer's "bubble," the protected cage from which corrections officers survey the cell block (See Rodriguez Dep. at 52-53, Gwyn Dep. at 34-36.) Rodriguez's cell was closer to the bubble than Ortega's cell. in which the fight occurred, and thus Rodriguez by his own account was dragged in the opposite direction from the bubble. (See Rodriguez Dep. at 28-30.) At the time of the incident, Ghoslaw reported that he did not actually see the fight break out, but was informed of it by another corrections officer, Meyer. (See Tennant Decl. Ex. E.) After backup was called. Ghoslaw proceeded to the scene of the fight. (See Gwyn Dep. at 35, 38.)
Neither Rodriguez's nor Gwyn's deposition testimony provides any reason to believe that Ghoslaw could have seen the tight break out. Indeed, Rodriguez's testimony that he could not see the officer's bubble from his cell suggests otherwise. (See Rodriguez Dep. at 30.)
Ghoslaw was the first officer to arrive on the scene. There is some uncertainty about exactly what was occurring when he arrived, though much of the uncertainty derives from of contradictions between the deposition testimony provided by Rodriguez and Gwyn, and later affidavits submitted by them in opposition to the instant motion Gwyn testified at his deposition that he and Ghoslaw walked to Ortega's cell together after learning of the disturbance, and that when they arrived, Rodriguez was already bleeding from the face, and was vigorously struggling with Ortega. (See Gwyn Dep. at 35, 38.) Rodriguez similarly testified that Ghoslaw appeared only after he had been cut. (See Rodriguez Dep. at 41, 43.) However, the subsequent affidavits of these witnesses, while consistent with their deposition testimony in most respects, directly contradicts their earlier testimony by claiming that Ortega slashed Rodriguez after Ghoslaw arrived, and that the officer did nothing to stop it. (See Rodriguez Aff. ¶¶ 4, 7, 8; Gwyn Aff ¶ 11.)
The contemporaneous reports of the guards are consistent with this account. Meyer apparently reported that he saw Rodriguez walk to his cell bleeding from the face, then return to Ortega's cell with a weapon. Ghoslaw similarly reported that Rodriguez had already been cut when he arrived. (See Tennant Decl. Ex. E.) In other respects, however, the official version is at odds with the testimony of Rodriguez and Gwyn. While Rodriguez testified that Ortega was in possession of the homemade knife when Ghoslaw arrived (see Rodriguez Dep. at 32-33), Ghoslaw reported that when he arrived at Ortega's cell, Rodriguez was stabbing at Ortega's stomach with a knife and Ortega swinging his right hand at Rodriguez's face. (See Tennant Decl. Ex. E.) According to Ghoslaw, Rodriguez then dropped his weapon to the floor and the inmates continued to struggle until Ghoslaw intervened. (See id.)
When Ghoslaw arrived at Ortega's cell, inmates were gathered around the cell and he attempted to clear the area. (See Gwyn Dep. at 40.) However, it is undisputed that he did not immediately attempt to separate Ortega and Rodriguez. The record contains no testimony from Ghoslaw regarding why he did not intervene. Gwyn testified that upon arriving, Ghoslaw told the fighting inmates "you've got a couple more minutes." (See Gwyn Dep. at 38-39.)
Nothing in the record either corroborates or contradicts Gwyn's testimony. Ghoslaw was not deposed. At his deposition, Rodriguez testified to no such statement, Although Rodriguez now provides affidavit testimony that Ghoslaw made that statement (See Rodriguez Aff. ¶ 7), the non-hearsay basis of the statement is unclear; Rodriguez apparently does not understand English. (See Pl. Supp. Mem. at 9; Tennant Decl. Ex. F.)
Once additional officers arrived. Ghoslaw physically separated the inmates, frisked Rodriguez and brought him to the infirmary for medical treatment. (See Rodriguez Dep. at 45, 49, 53, Gwyn Dep. at 39-40.) Medical reports in evidence indicate that Rodriguez suffered a single laceration on the side of his face. (See Tennant Decl. Ex. E.) The contraband report documented that a homemade knife was found on the scene. (See id.) Ghoslaw wrote misbehavior reports against both Rodriguez and Ortega; Rodriguez was charged with fighting, assault on an inmate and possessing a weapon. and Ortega with assault on an inmate and fighting.
After receiving the necessary medical treatment, Rodriguez was placed in isolation in the Special Housing Unit ("SHU") that same day pending a disciplinary hearing. Five days later, on May 13, 1997, a hearing was held on the charges against Rodriguez, at which defendant Connelly presided Rodriguez pled guilty only as to the charge of fighting, and testified on his own behalf (See Tennant Decl. Ex F.) The record indicates that both in writing (prior to the hearing) and orally (at the hearing) Rodriguez asked to have Ortega testify. (See id.) However, Rodriguez was apparently unable to procure Ortega's voluntary testimony, and Connelly made no further effort to determine whether Ortega would testify. Connelly found Rodriguez guilty on all three charges, and sentenced him to one year in the SHU. (See id.) Following sentencing, he was sent to the SHU, and after about a month was remanded to keeplock because of good behavior. (See Rodriguez Dep. at 64.)
Inmates in the New York State correctional system are subject to two types of solitary confinement. If the inmate is placed in "keeplock" status, his privileges are suspended and he is kept isolated in his own cell for the specified period of time. (See Rodriguez Dep. at 15.) However, if an inmate is sent to the SHU (sometimes called the "box"), his privileges are suspended and he is segregated from the general population in a separate facility for the duration of his solitary confinement. (See id.)
An understanding of precisely what happened at the hearing is hampered by the fact that Rodriguez does not speak English. and therefore required an interpreter. Furthermore, the tape of the hearing was evidently partially inaudible, and the transcript thus does not contain a verbatim account of all that occurred. Concerning Ortega, the transcript documents the following exchange between Connelly and Rodriguez:
Lt. Connelly: Does [Rodriguez] have any witnesses?
Inm. Rodriguez: Speaking . . .
Cslr. Hodaling: Okay, he's got only one inmate who saw him (Then speak to inmate in Spanish)
Inm. Rodriguez: Replies
Cslr. Hodaling: **** ***** Ortega and he was um***
Lt. Connelly: And he's saying that Ortega did not want to testify, Correct?
Cslr. Hodaling: ***
(Tennant Decl. Ex. F.)
Rodriguez appealed Connelly's decision to the Commissioner, who affirmed the decision on July 18, 1997. (See Tennant Decl. Ex. F.) On application for reconsideration, however, the sentence was modified on the ground that there was "[n]o indication that [the] hearing officer made [an] inquiry into [the] requested witness' refusal to testify." (id.) Accordingly, the charges for assault and possession of a weapon were dropped and Rodriguez's sentence reduced to five months in the SHU, for the charge of fighting to which Rodriguez had pleaded guilty. (See id.) In total, Rodriguez served approximately a month in the SHU, and the remaining four months in keeplock. (See Rodriguez Dep. at 64)
Discussion
Summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on tile, 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 judgment as a matter of law" Fed.R.Civ.P. 56(b). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome if the substantive law renders them soAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52(1986). The moving party bears the burden of demonstrating that no genuine issue exists as to any material fact. Celotex Corp v. Catrett, 477 U.S. 317. 323-25(1986).
Rodriguez has brought this action under 42 U.S.C. § 1983, claiming that he was subjected to cruel and unusual punishment and deprived of liberty without due process of law, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. He bases these claims on Ghoslaw's failure to prevent his injury at the hands of Ortega, and Connelly's failure to inquire further about Ortega's possible testimony at the hearing, leading to a purportedly mistaken finding of guilt on two counts of misbehavior.
I. Eighth Amendment
In order to prevail on a claim of violation of the Eighth Amendment, plaintiff must establish several elements. First, he must prove that a defendant's conduct actually violated the Amendment. Second, he must demonstrate that that conduct caused him some compensable injury. Third, he must overcome any defense of qualified immunity raised by the defendant. If, on the basis of the undisputed facts, defendant is entitled to judgment as a matter of law on any of these issues, the motion must be granted.
A. Violation of the Eighth Amendment
A claim for the infliction of cruel and unusual punishment in violation of the Eighth Amendment must meet both subjective and objective requirements. First, the deprivation alleged must objectively be "sufficiently serious" to constitute a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 298(1991). Under certain circumstances, the failure of prison officials to protect prisoners from violence committed by other inmates violates the Eighth Amendment. See Farmer v. Brennan, 511 U.S. 825, 828(1994); see also Matthews v. Armitage, 36 F. Supp.2d 121, 124 (N.D.N.Y. 1999). While not "every injury suffered by one prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety," Farmer, 511 U.S. at 834, "being violently assaulted in prison is simply not `part of the penalty that criminal offenders pay for their offenses.'" Id. at 833 (quoting Rhodes v. Chapman, 452 U.S. 337, 347(1981)). A claim based upon a failure to prevent harm requires a showing that the inmate was subjected to conditions posing a substantial risk of serious injury. See Helling v. McKinney, 509 U.S. 25, 35(1993).
Second, "[t]o violate the Cruel and Unusual Punishments Clause, a prison official must have a `sufficiently culpable state of mind.'"Farmer, 511 U.S. at 834. The Eighth Amendment extends to prison officials "wide-ranging deference" as to "prison security measure[s] taken in response to an actual confrontation with riotous inmates," and the Supreme Court has therefore cautioned judges and juries not to "substitute their judgment for that of officials who have made a considered choice." Whitley v. Albers, 475 U.S. 312, 322(1986). Accordingly, the Eighth Amendment bars "only the unnecessary and wanton infliction of pain." Wilson, 501 U.S. at 297. In a failure to protect claim, the required state of mind is one of "deliberate indifference" to the inmate's safety See Farmer, 511 U.S. at 834, see also Matthews, 36 F. Supp.2d at 125. A prison official is only liable for failing to protect an inmate if he "knows of and disregards an excessive risk to inmate health or safety, the official must both be aware of facts from which an inference can be drawn that a substantial risk of serious harm exists, and he must also draw the inference" Farmer, 511 U.S. at 837.
The basis of Rodriguez's Eighth Amendment claim is that Ghoslaw "intentionally acquiesc[ed]" in an assault committed against him by another inmate, Ruben Ortega, by failing to intervene in a timely manner, thereby "resulting, inter alia, in [his] getting cut with a razor-like object across [his] face requiring emergency medical treatment consequently causing [him] to sustain twenty-two (22) stitches." (Complaint ¶¶ 11, 12.) Rodriguez's opposition to summary judgment is more specific, stating that Ghoslaw "deliberately delayed going to the scene" of the altercation, failed to "issue an order for the assault to stop" and to "timely request" backup, did "nothing to stop" the altercation until after Rodriguez had received the knife wound to his face, and deliberately "encouraged" the fight by stating "you've go[t] two more minutes." (Pl. 56.1 Statement ¶¶ 5-10.)
Rodriguez does not argue that Ghoslaw, or for that matter any other prison official, could have prevented the attack from taking place. Prison officials apparently kept a so-called "enemies list" for each prisoner that identified those inmates that posed the greatest safety risk to that particular inmate, but Ortega was not on Rodriguez's list before the attack. (See Tennant Decl. Ex. G.) Rodriguez himself has testified that Ortega's attack was completely unexpected, and that he had had no prior dealings or altercations with Ortega; indeed, he has even surmised that he may have been mistaken for another inmate. (See Rodriguez Dep. at 40.) On this record, no reasonable juror could conclude that Ghoslaw knowingly, or recklessly, exposed Rodriguez to a substantial risk of injury at the hands of Ortega by initially failing to prevent the attack.
Rodriguez argues that Ghoslaw is nevertheless liable because he saw the altercation going on, and deliberately failed to intervene. There is no evidence that Ghoslaw failed to act promptly upon becoming aware that a fight had broken out. Neither Rodriguez nor Gwyn provide any testimony from which it could be inferred that Ghoslaw saw the fight before being advised of it by Meyer, or that upon being informed, he delayed unreasonably before calling for backup and proceeding to the scene of the fight.
Thus, any liability must be predicated on Ghoslaw's actions after arriving at the cell where the fight was taking place. Both Gwyn and Rodriguez assert that Ghoslaw did not promptly proceed to break up the fight. The mere fact that Ghoslaw failed to intervene immediately upon arriving at the scene of the fight does not by itself amount to "deliberate indifference." To so hold would amount to precisely the type of impermissible judicial second-guessing of prison officials that the Supreme Court has cautioned against:
[I]n making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials must undoubtedly take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used.Whitley, 475 U.S. at 320. A good faith judgment that immediate intervention risked danger of further violence to the officer or to the inmates on the scene, and that it was safer for all to wait for backup before taking action, would not violate the Eighth Amendment, since it would not represent "deliberate indifference" to a substantial and unjustifiable risk of injury to inmates. Deliberately allowing inmates to engage in violence to settle their own scores, in contrast, would surely violate fundamental standards of human dignity embodied in the Eighth Amendment.
The evidence indicates that Ghoslaw, upon arriving at the scene, observed two inmates lighting, the presence of a knife, and a crowd of inmates gathered to watch the fight. (See Tennant Decl. Ex. E., Gwyn Dep. at 40.) Because the record contains conflicting evidence as to whether Rodriguez or Ortega, or neither one, was holding the weapon (see Tennant Decl. Ex. E), a reasonable factfinder at a minimum could find that the situation presented a serious risk of injury to the fighting inmates, and also a danger to the officer, who was surrounded by inmates one or more of whom either had or had access to a knife. As the only officer on the scene, Ghoslaw had a duty to take reasonable steps to control the situation. It was reasonable, however, for Ghoslaw to refrain from intervening without backup under these circumstances. Considering the competing considerations of his own and other inmates' safety, maintaining the security of the facility, and the risk of injury posed to Rodriguez. he "had ample reason to believe that [immediately intervening] presented unacceptable risks." 475 U.S. at 323.
Any dispute over whether Rodriguez or Ortega was acting in self-defense is immaterial for purposes of this motion. It is undisputed that the two inmates were fighting when Ghoslaw arrived on the scene.
Given the objective reasonableness of Ghoslaw's conduct within these circumstances, no reasonable jury could inter from his behavior alone that his conduct was motivated by a callous indifference to any harm that might come to Rodriguez, absent any affirmative evidence suggesting such a culpable state of mind. However, Rodriguez has presented evidence that, if believed, would permit a reasonable factfinder to conclude that despite the appearance of reasonableness, Ghoslaw's conduct was in fact motivated by a disregard for and indifference to Rodriguez's safety. Specifically. Rodriguez points to Gwyn's testimony that, when he arrived on the scene, Ghoslaw told the fighting inmates "you've got a couple more minutes." (Gwyn Dep. at 38-39; see also Gwyn Aff ¶ 9.) The statement, assuming it was made, does not compel an inference of nefarious motive. It might have been intended to inform the inmates that backup was on its way and that the inmates should cease fighting or force would be used against them. However, it could be construed by a reasonable fact finder as an acquiescence in — indeed, as an official permission to continue, if only for a few more minutes — the attack on Rodriguez, and thus as an expression of deliberate indifference to his safety. If Ghoslaw's decision was not made in good faith, but out of conscious disregard of Rodriguez's plight, his action would arguably violate the Constitution.
Resolving this ambiguity is plainly a jury's role, and thus Ghoslaw is not entitled to judgment as a matter of law that no violation of the Eighth Amendment occurred. However, Ghoslaw has raised two additional arguments against his liability for Rodriguez' injuries.
B. Proximate Cause
"Civil actions brought under § 1983 are analogous to state law common law tort actions, serving primarily the tort objective of compensation," and thus "employ the principle of proximate causation."Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999). In other words, the causal connection between the defendant's conduct and the plaintiff's injury must be "sufficiently direct." Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998). Ghoslaw argues that he cannot be held liable for the injuries sustained by Rodriguez because he did not arrive on the scene until after Ortega had cut Rodriguez across the face, and thus any dereliction on his part after he arrived could not have been the proximate cause of plaintiff's injury.
Rodriguez and Gwyn have testified to the following sequence of events. Ghoslaw was stationed by the officer's bubble at the end of cell block (see Rodriguez Dep. at 52-53; Gwyn Dep. 34-36) when Rodriguez was attacked from behind by an unidentified inmate in front of his cell and dragged to Ortega's cell (see Rodriguez Dep. at 23, 28-29, 40; Gwyn Dep. at 37), in the opposite direction from the bubble (see Rodriguez Dep. at 28-30). Once in front of Ortega's cell, the unidentified inmate held Rodriguez's arms while Ortega slashed him across the face, and then let go (See Rodriguez Dep at 28, 38, 40-1.) Rodriguez then grabbed Ortega, and the two began to struggle with each other (See id.) Shortly thereafter, Ghoslaw became aware of the fight, and proceeded with Gwyn to Ortega's cell, where he found Rodriguez bleeding and the inmates struggling. (See Gwyn Dep. at 35, 38.) The testimony of plaintiff's witnesses is thus unambiguous that the incident began with a sudden and unprovoked slashing of Rodriguez, that Rodriguez and Ortega only began grappling with one another after Rodriguez had been slashed across the face, and that Ghoslaw arrived only after the latter struggle had begun.
While contradicting some of the specifics of this testimony, the guards' reports at the time are completely consistent with the sequence of events (slashing, struggle, arrival of Ghoslaw) presented by Rodriguez and Gwyn. (See Tennant Decl. Ex. E.)
Rodriguez decidedly failed, at his deposition, to testify that he observed Ghoslaw actually present when he received his injury. Rodriguez testified that he observed Ghoslaw only after he had been cut, but that he "imagine[s]" Ghoslaw watched him get cut. This subjective belief alone would be an insufficient to defeat summary judgment, even more so when it is directly contradicted by other evidence. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) ("the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise"). The available testimony clearly establishes that Ghoslaw arrived only after Rodriguez had been cut and was bleeding, Ortega's unidentified accomplice had departed the scene, and the two inmates were struggling with each other. (See Rodriguez Dep. at 32, 39, 42; Gwyn Dep. at 35, 38; Tennant Decl. Ex. E.) According to the testimony of plaintiff's witnesses, Ghoslaw could not have been present when Ortega inflicted the wound upon Rodriguez. Thus, no reasonable jury could conclude on this record that Ghoslaw's purported inaction, even if deliberate and unjustified, was the proximate cause of Rodriguez's injuries.
The following exchanges are recorded in Rodriguez's deposition transcript:
Q: Was [Ghoslaw] present when Mr. Ortega cut your face?
A Well. I know that he was there when I — after they had cut me. According to me, he was there when they were cutting me.
(Rodriguez Dep. at 41.)
Q: But do you know for a fact that Mr. Ghoslaw was there when Mr. Ortega cut your face?
A: Well, that's what I imagine.
Q: But you don't know for sure?
A: That he was there, no, but that he saw that they cut me, yes, because he was the one that came to separate us during the fight.
(Id. at 43.)
Nor could a reasonable fact finder infer from Rodriguez's testimony that Ghoslaw was present when he was slashed. The fact that "he was the one that came to separate us during the fight" (Rodriguez Dep. at 43) does not, on this record, support a reasonable conclusion that Ghoslaw was there at the earlier moment, before the struggle between Ortega and Rodriguez began, when Rodriguez was still being held by Ortega's unidentified accomplice.
Rodriquez cannot create a factual dispute by offering affidavits in opposition to summary judgment that directly contradict this earlier testimony. Affidavits by Rodriguez and Gwyn, prepared in response to defendant's motion spelling out the consequences of their earlier testimony, now proclaim that Ghoslaw was present when Ortega slashed Rodriguez across the face (See Rodriguez Aff. ¶¶ 4, 7, 8; Gwyn Aff. ¶ 11.) These dubious self-serving reversals cannot defeat summary judgment, however. "It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987); see also Hayes v. Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996) ("a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony"); Perma Research Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact").
In his supplementary memorandum of law, Rodriguez argues that this rule should not apply to him because he has little education and does not speak English. (Pl. Supp. Mem. at 9-10.) But the deposition (unlike his English affidavit) was conducted through a qualified interpreter, and Rodriguez reviewed the transcript, apparently with sufficient translation assistance to make a correction (irrelevant to the issue before the Court) in the text. (Tennant Decl. Ex. C.) There is thus no reason not to hold him to the well-established rule disregarding convenient changes of position in belated affidavits.
Ghoslaw cannot, as a matter of law, be held liable for injuries that were inflicted before he arrived on the scene. Since there is no evidence that Rodriguez suffered any actual harm in the short period of time between Ghoslaw's arrival and his intervention, that might appear to end the matter. But the fact that Rodriguez's physical injuries are not attributable to Ghoslaw does not entitle Ghoslaw to summary judgment. A jury that found that Ghoslaw did deliberately authorize or goad inmates to continue a violent and dangerous brawl could still find that the Constitution was violated, and return a verdict of at least nominal damages for Rodriguez. See Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994) (citation omitted) ("In an action brought pursuant Section 1983, `even when a litigant fails to prove actual compensable injury, he is entitled to an award of nominal damages upon proof of a violation of a substantive constitutional right.'"). That Ghoslaw is not responsible for the only serious physical injury suffered by Rodriguez does not mean that he is not liable for an injury to Rodriguez's rights Accordingly, plaintiff's cause of action survives this argument as well.
The requirement that a deprivation must be "sufficiently serious" to violate the Eighth Amendment, Wilson v. Seiter, 501 U.S. at 298, is not inconsistent with this conclusion. Guards' encouraging violent methods of dispute resolution among inmates, in deliberate indifference to the safety of the prisoners, would be a grievously serious matter, both because it is completely inconsistent with decent standards of punishment and because it creates a substantial risk of serious physical injury. If a given plaintiff, subjected to such a serious situation, fortunately escapes serious damage, that fact goes to damages, and not to whether the guards' misconduct is "sufficiently serious" to violate the Constitution.
C. Qualified Immunity
Finally, Ghoslaw argues that even if a reasonable jury could find that Ghoslaw was deliberately indifferent to the risk of injury to Rodriguez, and that his inaction caused some compensable injury, he is protected from liability by qualified immunity, because his conduct was objectively reasonable under the circumstances. The thrust of Ghoslaw's argument is that even if a jury were to find that he failed to intervene, at risk the substantial risk of injury to Rodriguez, because of his own subjective malice or indifference toward Rodriguez's safety, he nevertheless should be entitled to qualified immunity if his failure to act was objectively reasonable, in the sense that a reasonable prison guard. who had no such improper motive, could reasonably have chosen the same course of action.
In Harlow v. Fitzgerald, 457 U.S. 800, 818(1982), the Supreme Court overruled prior precedent which had held that qualified immunity had both objective and subjective requirements. Prior to Harlow, the Supreme Court had held that qualified immunity could be defeated if an official "knew or reasonably should have known that the action he took within the sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action to cause a deprivation of constitutional rights or other injury. . . ." Wood v. Strickland, 420 U.S. 308, 322(1978). However, the Supreme Court concluded in Harlow that this two-pronged test was incompatible with the purpose behind qualified immunity, that "insubstantial claims should not proceed to trial," since inquiry into an official's motive for certain conduct was a factual issue that required resolution by a jury 457 U.S. at 816. Thus, in order to "permit the resolution of insubstantial claims on summary judgment," the subjective prong was dropped. Under Harlow, public officials are protected from liability under § 1983 by qualified immunity where "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818. Additionally, under governing Second Circuit precedent,
Even when a plaintiff's federal rights are so clearly defined that a reasonable public official would know that his actions might violate those rights, qualified or good faith immunity might still be available as a bar to a plaintiffs suit if it was objectively reasonable for the public official to believe that his acts did not violate those rights.Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991); see also Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) ("defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights").
It might be argued that the "conduct" charged here is deliberate refusal to protect an inmate based on indifference to the inmate's safety, and that no reasonable prison guard could believe that such deliberate indifference was consistent with the Constitution. But that argument misperceives the inquiry. Qualified immunity exists not only to protect government officials, who must make numerous decisions in the public interest, from liability on baseless claims, but also to prevent such officials from being unduly inhibited, in acting in the public interest, by the fear of future lawsuits. See Harlow, 457 U.S. at 816. A conscientious and diligent public officer should not have to fear that his objectively reasonable decisions will subject him to burdensome litigation, and the risk of actual liability, based on the attribution of subjective bad motives inferred from the testimony of hostile parties. Accordingly, the proper inquiry is whether it was objectively reasonable, under the circumstances facing Ghoslaw, for a corrections officer to decide to refrain from immediate action to separate the fighting inmates. If it was, an officer who chose that course of action should be protected from suit by qualified immunity, even if the particular officer might be found by a jury, if the case were tried, to have acted from unconstitutional motives.
As discussed above, Ghoslaw's conduct was entirely reasonable. A single officer, faced with an unruly crowd of inmates surrounding two fighting prisoners, one or both of whom might have had access to a knife, and aware that backup officers were on the way, would act entirely reasonably if he decided to secure the area by dispersing the assembled prisoners, warning the fighters that they would be dealt with in a matter of minutes, and waiting for the arrival of additional force before attempting the dangerous task of physically separating the grappling prisoners. The choice was a reasonable one, certainly, it would not have been "clear to a reasonable officer that [waiting for backup before attempting to separate struggling inmates] was unlawful in the situation he confronted"Saucier v. Katz, 121 S.Ct. 2151, 2156(2001).
The only factual issue for a jury to resolve in assessing whether the action violated the constitution would be not the reasonableness of Ghoslaw's actions, but whether the apparent reasonableness of Ghoslaw's conduct masked a nefarious motive for inaction. While the defendant's motive is crucial to finding a violation of the Eighth Amendment, it is irrelevant to the issue of qualified immunity. The availability of qualified immunity turns upon the objective reasonableness of Ghoslaw's decision to wait for backup, an issue which may be resolved as a matter of law on summary judgment. See Harlow, 457 U.S. at 818 ("Reliance on the objective reasonableness of an officials conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment."). Because the objective reasonableness of Ghoslaw's conduct is indisputable on the present record, he is entitled to qualified immunity whatever his actual motive for refraining from immediately interposing himself between Rodriguez and Ortega. Thus, summary judgment in defendant Ghoslaw's favor is warranted.
II. Due Process Claims
Rodriguez has also alleged that defendant Connelly, as the hearing officer at his disciplinary hearing, violated his due process rights by failing to make adequate inquiry into Ortega's availability to testify at the hearing. The Fourteenth Amendment prohibits the deprivation of "life, liberty, or property without due process of law." "[T]he interest of prisoners in disciplinary procedures is included in that `liberty' protected by the Fourteenth Amendment." Wolff v. McDonnell, 418 U.S. 539, 556-57(1974). Denial of the right to call a witness in a disciplinary hearing is a violation of due process. See Patterson v. Coughlin, 761 F.2d 886, 893 (2d Cir. 1985).
Although he does not explicitly state it as a separate cause of action, Rodriguez also appears to allege that Ghoslaw deprived him of due process by writing a false misbehavior report that identified him, rather than Ortega, as the aggressor in possession of a weapon. (Complaint ¶ 13.) Since Rodriguez appears pro se, we address this allegation out of a reluctance to penalize him for failure to comply with the technicalities of pleading. On the merits, however, Rodriguez has no viable due process claim against Ghoslaw for false accusations contained within a misbehavior report. The Second Circuit has held that any harm that results from a false misbehavior report results from sanctions imposed after an opportunity for a hearing, not from the filing of the report itself Thus, so long as the disciplinary hearing occasioned by such a report satisfies constitutional due process requirements, there is no constitutional violation. See Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997). Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). This rule does not apply where the false accusation implicates a substantive constitutional right, as for example where an inmate is falsely accused in retaliation for exercising a constitutional right. See Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). In the present case, Rodriguez has alleged no facts that could bring him within this exception. Thus, the misbehavior report cannot form the basis for a distinct due process claim. Rodriguez can only succeed on his due process claim if he shows that his hearing was constitutionally deficient, which, as the following discussion indicates, he has failed to do.
Procedures established by the New York Department of Correctional Services governing disciplinary hearings comport with due process procedural rights to which prison inmates are entitled. See Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994). These regulations provide, inter alia, that either prior to or during a hearing, the "inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals." N.Y. Comp. Codes R. Regs. tit. 7 § 253.5(1991). "If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial." Id. § 253.5(a). The testimony may also be tape recorded and provided to the inmate at the hearing. See id. § 253.5(b). However, "if a prison official, presiding over a prison disciplinary hearing, reasonably' concludes that it would be futile to call a witness to testify, his refusal will not constitute a violation of the prisoner's constitutional rights." Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993).
"[O]nce prison officials deprive an inmate of his constitutional procedural rights at a disciplinary hearing and the prisoner commences to serve a punitive sentence imposed at the conclusion of the hearing, the prison official responsible for the due process deprivation must respond in damages" Walker, 23 F.3d at 658-59. After commencement of a disciplinary sentence. "[a]dministrative appeal. whether successful or not, cannot cut off the cause of action." Id. at 657. But this rule does not apply "when the reversal occurs before the inmate begins to serve his [disciplinary sentence] or when the plaintiff would have been confined pending appeal regardless of whether the punishment had begun" Pacheco v. Vanwyk, 94 civ. 0456, 1997 U.S. Dist Lexis 16163, at *18 (N.D.N.Y. April 2, 1997). aff'd, No. 97-2767, 1998 U.S. App. Lexis 25955 (2d Cir. October 9, 1998).
Rodriguez charges that both before and during the hearing, he requested that Ortega's testimony be secured in order to challenge the reliability of the misbehavior report filed by Ghoslaw. but that Connelly neither interviewed Ortega, nor made any "meaningful effort to obtain the requested testimony." (Complaint ¶ 13.) Rodriguez contends that this failure amounted to a denial of his right to call witnesses on his behalf, resulting in a wrongful finding of guilt for assault and possession of a weapon., and a sentence of twelve months of confinement in the SHU. Connelly in turn disputes that he denied Rodriguez the right to call Ortega as a witness, claiming that Ortega refused to testify, but argues that even if this amounts to a denial of due process, Rodriguez served no additional time as a result of this violation and thus has no cognizable Fourteenth Amendment claim.
The transcript from the May 13, 1997, disciplinary hearing supports Connelly's argument that he did not deny Rodriguez's right to call Ortega as a witness. Although the record is not crystal clear on this matter, it appears that Connelly asked Rodriguez to call witnesses of his choosing, but Rodriguez apparently indicated he could not procure Ortega's testimony. (See supra, note 8; Tennant Decl. Ex. F.) Although Connelly failed to secure Ortega's written refusal to testify as required by official prison procedures, it is hardly clear that this violation of the state disciplinary procedures amounts to a deprivation of constitutional due process, especially where there is no indication that Ortega would have testified at all, let alone provided testimony favorable to Rodriguez. As the Second Circuit held on similar facts:
Because only these [two] men were involved in the episode, any testimony exonerating [Rodriguez] would almost certainly incriminate [Ortega]. It is therefore highly unlikely that [he] would provide any help to [Rodriguez]. [Connelly] had no power to confer immunity on a witness or to force [him] to testify. The only reason to call them would be to allow [Rodriguez] to cross-examine [him]. However, an inmate has no constitutional right of confrontation. [Wolff, 418 U.S. 567-68.] It clearly would have been futile for [Connelly] to call [Ortega].Casey, 992 F.2d at 22.
At any rate, even if Connelly's failure to pursue Ortega's testimony provided less process than was due, Rodriguez suffered no deprivation of liberty as a result. At his hearing, Rodriguez pled guilty to fighting, and contested only the charges of assault and possession of a weapon. (Tennant Decl. Ex. F.) Ortega's testimony thus could only have helped Rodriguez on the latter two charges. But Rodriguez's discipline on the assault and weapons charges was reversed on administrative appeal on September 10, 1997, and his sentence reduced to five months in the SHU on the remaining, uncontested charge of fighting, precisely because of the violation of state procedural rules relating to Ortega's testimony. (See id.) All told, Rodriguez served the required five months and no more. He thus served no time in solitary confinement for the assault or weapon's possession charges. Having suffered no additional punishment for the charges affected by the alleged deprivation of his due process rights, Rodriguez has no cognizable due process claim against Connelly, and this cause of action must be dismissed. See Pacheco, 1998 U.S. App. Lexis 25955. at *7. The prison disciplinary process corrected itself, in time to prevent any harm to Rodriguez from the alleged error.
In his supplemental memorandum, Rodriguez argues that absent what he claims were false accusations by Ghoslaw that he possessed a weapon, the charge of fighting would only have led to a "Tier II" hearing with a maximum term of thirty days. (Pl. Supp. Mem. at 7.) But a charge of fighting can lead to a more serious "Tier III" hearing. Rule 104.11, 7 NYCRR § 270.2. At any rate, Rodriguez pled guilty to the charge of fighting, and does not dispute that the five months of SHU he received was a legal sentence on his plea.
Conclusion
For the foregoing reasons, the motion for summary judgment is granted, and judgment will be entered for the defendants.
SO ORDERED