Summary
holding that plaintiff's "bruises to his head, back, and wrists" did not constitute a serious medical need
Summary of this case from Elufe v. AylwardOpinion
00 Civ. 8588 (JSR)(FM)
August 28, 2002
REPORT AND RECOMMENDATION TO THE HONORABLE JED S. RAKOFF
I. Introduction
Plaintiff Damar Rodriguez ("Damar"), who is presently incarcerated at the Wyoming Correctional Facility, instituted this pro se action, pursuant to 42 U.S.C. § 1983, by submitting his complaint to the Pro Se Office of this Court on or about September 22, 2000. (Docket No. 2). In his complaint, Damar claims that the Defendants strip-searched him in violation of his Fourth Amendment rights, used excessive force against him, and were deliberately indifferent to his medical needs while he was detained at the Bronx House of Detention for Men. (Id. at 3-5). He seeks monetary damages in the amount of $5 million from five named defendants and three "John Doe" defendants (collectively, the "Defendants") for these alleged wrongs. (Id. at 5).
Because both the Plaintiff and one of the Defendants have the same surname, this Report and Recommendation refers to the plaintiff as "Damar" to avoid any confusion.
The Defendants have now moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. (Docket No. 28). Damar has cross-moved for the same relief. (Docket No. 30). For the reasons set forth below, the Defendants' motion should be granted in part and denied in part and Damar's cross-motion should be denied.
II. Background
A. Relevant Facts
The factual recitation set forth below is based upon Damar's complaint, the parties' submissions in connection with their motions, including the transcript of Damar's deposition, and matters of public record. Unless otherwise noted, the facts have been set forth in the light most favorable to Damar.
Damar's deposition ("Dep.") is attached to the Declaration of Genevieve Nelson, dated Feb. 12, 2002 ("Nelson Decl."), as Ex. C.
Damar has been incarcerated since November 15, 1999, when he was arrested for violating his parole on a 1995 robbery conviction by unlawfully possessing a weapon. (See Dep. at 8; http://nysdocslookup.docs.state.ny.us/GCA00P00/WIQ1/WINQ000 (last visited Aug. 8, 2002)). On April 26, 2000, he was lodged at the Bronx House of Detention for Men. (See Dep. at 29-30). At approximately 7:30 a.m. that day, correction officers at the facility conducted a routine institutional search of Damar's housing area, including both his cell and those of his neighbors. See Compl. at 3; Dep. at 31-33). Damar was awakened in his cell by Officer Virgilio Correa, who directed that Damar remove all of his clothing, including his "religious hat". (Id.; Dep. at 32-34). Damar complied while Officer Correa remained outside the cell and examined Damar visually. (Dep. at 34-36). Officer Correa may also have searched Damar's hair. (Id. at 34-35).
Damar is a Muslim and was wearing a "kufi," (Dep. at 24-25, 33), headgear commonly associated with members of that faith.
After completing his examination of Damar's person, Officer Correa directed Damar to get dressed and step out of the cell so that he could search the interior. (Id. at 36-37). While Officer Correa was conducting that search, Captain Amado Pla approached Damar outside the cell and directed him to remove his hat. (Id. at 43; Compl. at 3-4). According to his deposition, Damar told Captain Pla that he was wearing a religious hat and had already been searched by Officer Correa. (Compl. at 4; Dep. at 43, 45). Rather than rescinding his command, however, Captain Pla responded by ordering two or three officers to remove Damar from the housing area. (Compl. at 4; Dep. at 45).
Captain Pla tells a markedly different version of these events in his official report. For example, there is nothing in his report which would indicate any awareness on his part that Damar's kufi had previously been removed. Quite to the contrary, his report states that Damar was "disrupting the search by refusing to take off his hat to be [s]earched" and, for this reason, "was ordered cuffed and removed [from] the area." (Nelson Decl. Ex. D at 324). According to a Department of Correction investigator, this version of the incident is corroborated by a videotape, on which Damar is heard stating to Captain Pla, "If you want me to take it off, then you take it off." (Id. at 342). Similarly, a Notice of Infraction given to Damar after the incident, which is appended to the investigator's report, states that Damar yelled: "You come here and take my [kufi] off mother fucker, I'll fuck you up mother fucker." (Id. at 355). Damar denies making any of these statements. (Dep. at 72).
Damar testified that he was handcuffed in the vicinity of his cell and dragged down the hall to an elevator, where he was repeatedly kneed "very hard" in the back and his head was deliberately hit against the elevator wall. (Compl. at 4; Dep. at 45, 53-55, 57-59). Damar testified that Captain Pla and Officer Joseph Rodriguez were both in the elevator with him, along with two or three other officers. (Dep. at 56, 57). He was not asked, and his papers fail to disclose, which of these officers allegedly attacked him in the elevator.
After Damar was removed from the elevator, he was taken to the prison intake area "search room," where, he alleges, Captain Pla hit his head against the wall and other officers repeatedly punched and/or kneed him in the back. (Id. at 60-64; Compl. at 4). Damar then was instructed to remove his clothes for a second strip search, during the course of which he was beaten again. (Dep. at 63). Although he did not know the name of every employee in the search room, Damar testified that Officer Rodriguez was there. (Id. at 61).
Damar contends that he sustained bruises on his head, back, and wrists as a result of the illegal actions of the correction officers at the Manhattan House of Detention. (Id. at 82). Despite those injuries, however, Damar allegedly was put into a cell in the intake area for approximately two to three hours before he was returned to his housing area. (Id. at 68-69). Damar testified that while he was in the intake area cell he asked Officer Rodriguez if he could see a doctor, but Officer Rodriguez responded that he had "nothing to do with that." (Id. at 69).
When Damar was returned to the housing area, he asked an unidentified captain there if he could see a doctor because he "was feeling bad and [his] back and head [were] hurting and [his] wrists were sore." (See Id. at 72-73). Damar testified that he had a "little" red lump on the right side of his head and a "blue and purple mark" resulting from having been handcuffed. (Id. at 82-83). Some time after 3:00 p.m., he was examined by a prison nurse who gave him two Tylenol and placed him on "sick call" for the following day. (Id. at 73-74).
Within forty-eight hours of the incident Damar also was taken to a prison clinic where he was examined by a doctor. (Id. at 81). He contends that this occurred only because he had complained to the Legal Aid Society. (Id. at 83). At the clinic, the doctor noted that Damar had suffered no loss of consciousness, was alert, and had no acute injuries. (Nelson Decl. Ex. E at 336). Although Damar complained of pain in his right scalp, the doctor also noted that he observed no abrasion or bruise there. (Id.). The doctor prescribed Motrin for Damar's pain. (Id.; Dep. at 83). For some time thereafter, Damar continued to take Tylenol for recurring migraine headaches. (Dep. at 83-84). Damar also was prescribed Naprosyn for a preexisting back problem which he contends was exacerbated by the assault. (Id. at 83, 85).
Although Damar contends that the prison doctor did not see him until forty-eight hours after the incident, the doctor's report indicates that the examination took place on April 27, 2000, at 7:30 p.m., approximately thirty-six hours after the incident. (Nelson Decl. Ex. E at 336).
B. Exhaustion of Administrative Remedies
Damar alleges that he filed a written grievance shortly after this incident which was later referred to Warden Mercado. (Compl. at 2). He also annexed to the complaint a May 3, 2002, Department of Correction memorandum which indicates that Damar's grievance is "non-grievable." (Id. at 9). In their papers, the Defendants do not dispute that Damar has exhausted his available administrative remedies.
The Defendants' motion papers mistakenly refer to an "Amended Complaint" filed by Damar on June 19, 2001. (See Nelson Decl. ¶ 3). In fact, only an amended summons was issued that day. (See id. Ex. B; Docket No. 18).
Damar's complaint alleges that the Defendants violated his rights under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. (Compl. at 5). Specifically, Damar contends that certain of the Defendants violated the Eighth Amendment by using excessive force against him in the elevator and later in the intake area. (Id. at 3-4). He also contends that the Defendants provided him with inadequate medical care, in violation of the Eighth Amendment, because he was not examined by a prison doctor until forty-eight hours after the incident. (Id. at 4). Finally, Damar's complaint, broadly construed, alleges that the second strip search was conducted in violation of the Fourth Amendment proscription against unreasonable searches and seizures.
There does not appear to be any factual basis for Damar's claim that the Defendants' also violated his rights under the Fourteenth Amendment.
D. Motion
On or about February 12, 2002, the Defendants filed their motion for judgment on the pleadings, or, in the alternative, for summary judgment. The Defendants contend that the undisputed facts show that no excessive force was used against Damar and that he was given adequate medical care. (Def.'s Mem. at 6-12). Defendants Kerik, Mercado, and Correa also argue that they cannot be held liable under Section 1983 because they were not personally involved in the conduct upon which Damar's claims are based. (Id. at 12-16). Additionally, Defendants Pla, Correa, and J. Rodriguez contend that they are entitled to qualified immunity. (Id. at 16-20).
On March 12, 2002, Damar responded to the Defendants' motion with a sworn statement pursuant to which he has cross moved for judgment on the pleadings or summary judgment. Damar's papers reiterate his prior claims regarding the use of excessive force and inadequate medical attention. (Pl.'s Mem. at 1-2). Damar also argues that the Defendants abused their authority and, consequently, are not entitled to assert a qualified immunity defense. (Id. at 2).
III. Discussion
A. Standard of Review
"Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters. Inc., 842 F.2d 639, 642 (2d Cir. 1988) (emphasis added). Here, the face of the pleadings is plainly inadequate to resolve the legal issues raised by the parties' cross-motions. In their notice of motion, however, the Defendants also sought summary judgment and, in accordance with Local Civil Rule 56.2, provided the required notice of the procedures that a pro se litigant must follow to oppose such a motion. See Docket No. 28). Moreover, Damar responded to the Defendants' motion by filing his own cross-motion for summary judgment.
In these circumstances, it is clear that both sides were on notice that the Court might treat their motions as summary judgment motions and consider matters outside the pleadings. See In Re Risk Mgmt. Alternatives. Inc., ___ F. Supp.2d ___, No. 01 Civ. 4441, 2002 WL 1363286, at *3-*4 (S.D.N.Y. June 14, 2002)(McMahon, J.) (court may convert motion for judgment on the pleadings to motion for summary judgment if it is necessary to refer to matters outside the pleadings); Gill v. Jones, No. 95 Civ. 9031, 2001 WL 1346012, at *3 (S.D.N.Y. Nov. 1, 2001)(Duffy, J.)(same). Accordingly, I have treated the parties' motions as cross-motions for summary judgment.
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2253, 91 L.Ed.2d 265 (1986). If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial, "' and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 569 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)).
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55. Accord Anderson, 477 U.S. at 247-49, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted" Id 477 U.S. at 249-50, 106 S.Ct. at 2511. Accord Cities Serv. Co., 391 U.S. at 290, 88 S.Ct. at 1593; Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).
Although the same summary judgment rules apply to a party proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded. See Morris v. Citibank, N.A., No. 97 Civ. 2127, 1998 WL 386175, at *2 (S.D.N.Y. July 8, 1998)(Koeltl, J.). See also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pleadings should be read liberally and interpreted to "raise the strongest arguments they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). By the same token, however, "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, No. 95 Civ. 9941, 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997)(Sotomayor, J.) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). Accord Jorgensen v. Careers BMG Music Publ'g, No. 01 Civ. 0357, 2002 WL 1492123, at *3 (S.D.N.Y. July 11, 2002)(Preska, J.).
B. Section 1983
Section 1983 provides a procedure for persons alleging a constitutional deprivation to bring a claim, but itself creates no substantive rights. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Accordingly, to state a claim under Section 1983, a plaintiff must allege that a defendant acting under color of state law has deprived him of a right, privilege, or immunity guaranteed by the United States Constitution. 42 U.S.C. § 1983; Barnes v. City of New York, No. 96 CV 2702, 1998 WL 19485, at *4 (E.D.N.Y. Jan. 20, 1998)(Johnson, J.). Here, there does not seem to be any dispute that each of the Defendants was an employee of the New York City Department of Correction acting under color of state law. The remaining question is whether Damar can establish a violation of any of his constitutional rights.
C. Fourth Amendment Claim
In his complaint, Damar alleges that the Defendants violated his Fourth Amendment rights in several respects. The Fourth Amendment generally protects against unreasonable searches and seizures, prohibiting unjustifiable government intrusion into areas in which a person has a legitimate expectation of privacy. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)(Harlan, J. concurring); Gudema v. Nassau County, 163 F.3d 717, 722 (2d Cir. 1998). However, the protection that the Fourth Amendment affords a sentenced prisoner, such as Damar, is limited. For example, the Supreme Court has held that random "shakedown" searches of prison cells do not violate the Fourth Amendment because a prisoner has no legitimate expectation of privacy in his prison cell. Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). Citing Palmer, the Second Circuit also recently has upheld the warrantless search of a convict's cell for evidence of a prior crime. Willis v. Artuz, ___ F.3d ___, No. 00-176, 2002 WL 1968013 (2d Cir. Aug. 26, 2002). Indeed, even regulations authorizing random visual body cavity searches of prisoners have been held to serve legitimate penological interests and, therefore, not to violate the Fourth Amendment. See Covino v. Patrissi, 967 F.2d 73, 79-80 (2d Cir. 1992). See also Bell v. Wolfish, 441 U.S. 520, 558, 99 S.Ct. 1861, 1864, 60 L.Ed.2d 447 (1979) (rejecting Fourth Amendment challenge to visual body cavity searches of inmates and pretrial detainees after contact visits with outsiders).
The first search conducted on April 26th occurred in Damar's housing block. As part of that procedure, Damar was asked by Officer Correa to remove his clothing so that Correa could perform a visual inspection for contraband. (Dep. at 32-34). This inspection was apparently conducted largely while Correa remained outside the cell. (Id. at 34-36). After it was complete, Damar dressed himself and, at Correa's direction, waited outside his cell so that Correa could search it. (Id. at 36-37). There is no basis to conclude, nor does Damar allege, that this type of routine search violated Damar's Fourth Amendment rights in any manner.
There is some suggestion that Officer Correa may also have searched Damar's hair while they both were inside the cell. (See Dep. at 34-35).
After the initial activity in his housing block, Damar was subjected to a second strip search in the intake area of the jail. Unlike random visual body cavity searches, non-random searches — even in prisons — are not presumed to be reasonable. Rather, a court considering the constitutionality of such a search must engage in a balancing test, weighing "the need for the particular search against the invasion of personal rights that the search entails." Wolfish, 441 U.S. at 559, 99 S.Ct. at 1884. In the prison context, given the great concern for the security of the facility, the inmates, and prison personnel, courts accord great deference to prison officials' decisions to conduct a search. Blocky. Rutherford, 468 U.S. 576, 591, 104 S.Ct. 3227, 3235, 82 L.Ed.2d 438 (1984)("We reaffirm that "proper deference to the informed discretion of prison authorities demands that they, and not the courts, make the difficult judgments which reconcile conflicting claims affecting the security of the institution, the welfare of the prison staff, and the property rights of the detainees."') (quoting Wolfish, 441 U.S. at 557 n. 38, 99 S.Ct. at 1885 n. 38).
In this case, there is a sharp dispute as to whether the decision to remove Damar to the intake area for a second search was justified. Damar contends that he advised Captain Pla that he had removed his kufi moments earlier and had been subjected to a thorough search of his person. Captain Pla, on the other hand, gives no indication in his report that he was aware of such a prior search, noting only that Damar had refused his request to remove his kufi so that his head could be searched. If Captain Pla did not know of a prior search of Damar's head, his request for removal of the kufi was reasonable under the circumstances and cannot give rise to a Fourth Amendment violation. On the other hand, if Captain Pla knew that the search had taken place, his insistence on a second search would be more troublesome. On the present state of the record, it is impossible to determine what actually transpired and, hence, not possible to grant summary judgment to either side with respect to the legality of the search that Captain Pla sought to conduct outside Damar's cell.
For the same reason, it is impossible to determine at this juncture whether the decision to remove Damar from his housing block to the intake area was reasonable. If it was, ordering a second search of Damar's person may have been reasonable. If, on the other hand, the strip search in the intake area was intended simply as a form of retribution or humiliation, Damar may have a viable Fourth Amendment claim.
In sum, to the extent that Damar challenges the initial search of his cell, the Defendants are entitled to summary judgment. With respect to both the alleged second request that Damar remove his kufi and the strip search of Damar in the intake area, neither side is entitled to summary judgment because there is a dispute as to the material facts.
D. Eighth Amendment Claims
The Eighth Amendment protects prison inmates from the infliction of cruel and unusual punishments that "involve the unnecessary and wanton infliction of pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). Accordingly, the Eighth Amendment is applicable both to medical care provided by prison officials to inmates see Hathaway, 37 F.3d at 66 (citing Estelle, 429 U.S. at 103, 97 S.Ct. 285 at 290), and the use of excessive force by prison guards see Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1991).
1. Medical Care
To prevail on an Eighth Amendment claim alleging a failure to provide sufficient medical attention, an inmate must show that his treatment (or lack thereof) was so defective as to constitute cruel and unusual punishment. This threshold is not met simply by showing that one or more defendants were negligent in diagnosing or treating a medical condition. Estelle, 429 U.S. at 103, 105-06, 97 S.Ct. at 291-92. Rather, the inmate must establish "deliberate indifference to [his] serious medical needs" Id 429 U.S. at 104, 97 S.Ct. at 291 (emphasis added).
The deliberate indifference standard incorporates both an objective and subjective test. First, an inmate must show that the alleged deprivation was, in objective terms, "sufficiently serious." Hathaway, 37 F.3d at 66 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991)). Second, the inmate must establish that the defendant acted with a "sufficiently culpable state of mind." Hathaway, 37 F.3d at 66.
a. Serious Injury
The Second Circuit, in Chance v. Armstrong, 143 F.3d 698 (2d Cir. 1998), enumerated several factors that courts may consider to determine whether a prisoner's medical condition is sufficiently serious to give rise to a potential Eighth Amendment violation: "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Id. at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other grounds ky WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). "It is well established that more than minor discomfort or injury is required in order for a plaintiff to demonstrate a serious medical need." Evering v. Rielly, No. 98 Civ. 6718, 2001 WL 1150318, at *9 (S.D.N.Y. Sept. 28, 2001)(Batts, J.). The standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66 (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990)(Pratt, J., dissenting)).
Judged by this standard, Damar has not demonstrated that any of the injuries he allegedly received during the April 26th incident were "sufficiently serious." Despite the suggestion that he was kneed in the back and had his head struck against the wall, Damar claims to have sustained only bruises to his head, back, and wrists. (Dep. at 82). Moreover, the doctor who examined Damar the day after the incident observed no bruises on Damar's body, and noted that Damar had not loss consciousness and was alert and responsive during the examination. (Nelson Decl. Ex. E at 336). In addition, Damar has not adduced any evidence to suggest that any of his injuries after the April 26th incident were so urgent or life-threatening that they required immediate care. Courts in this circuit often have found no serious medical need in cases in which the injury complained of was similar to — or even more serious than — the injuries alleged by Damar. See, e.g., Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 311 (S.D.N.Y. 2001)(McMahon, J.) (bleeding finger not a severe injury); Henderson v. Doe, No. 98 Civ. 5011, 1999 WL 378333, at *2 (S.D.N.Y. June 10, 1999)(Pauley, J.) (broken finger not a severe injury) (quoting Rivera v. Johnson, No. 95 Civ. 0845, 1996 WL 549336, at *2 (W.D.N.Y. Sept. 20, 1996)(Elfvin, J.)); Veloz v. New York, 35 F. Supp.2d 305, 312 (S.D.N.Y. 1999)(Sweet, J.) (pain from foot fracture, bone cyst, and degenerative arthritis not sufficiently serious). But see Linden v. Westchester County, No. 93 Civ. 8373, 1995 WL 686742, at *3 (S.D.N.Y. Nov. 20, 1995)(Mukasey, J.) (prisoner who was beaten and sustained "cuts, bruises, and pain" alleged a serious medical need).
Damar complains that he suffers from back pain and migraines as a result of the incident. (Compl. at 4; Dep. at 19-21, 84-85). However, he has not produced any evidence demonstrating that these problems are causally related to the alleged assault or that they significantly interfere with his everyday life. In fact, he admits that he has always had a "weak back" and that he suffered from back pain prior to the April 26th incident. (Dep. at 85).
b. Deliberate Indifference
Even if Damar had demonstrated injuries severe enough to rise to the level of a serious medical need, he still has not shown that any of the medical professionals at the Bronx House of Detention were deliberately indifferent to that need.
To satisfy the subjective element of the deliberate indifference standard, an inmate must demonstrate that the prison official's conduct was more than negligent, but he need not show that it was "undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66. Rather, it must be established that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994)). Stated somewhat differently, "the plaintiff must demonstrate that the defendant actually wish[ed] him harm or at least [was] totally unconcerned with his welfare." LaBounty v. Gomez, No. 94 Civ. 3360, 1997 WL 104959, at *5 (S.D.N.Y. Mar. 10, 1997)(Cote, J.) (quoting Hathaway, 37 F.3d at 69) (internal quotations and citations omitted); Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992)(same).
A delay in treatment does not automatically indicate a violation of a prisoner's Eighth Amendment rights, "unless the delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment." Amaker v. Coombe, No. 96 Civ. 1622, 2002 WL 523388, at *8 (S.D.N.Y. Mar. 29, 2002)(Koeltl, J.). Accord Espinal v. Coughlin, No. 98 Civ. 2579, 2002 WL 10450, at*3 (S.D.N.Y. Jan. 3, 2002)(Patterson, J.) (quoting Demata v. N.Y.S. Corr. Dep "t of Health Servs., 198 F.3d 233, 1999 WL 753142, at *2 (2d Cir. Sept. 17, 1999)). Indeed, given the triage system utilized by most emergency medical treatment facilities, anyone seeking care for a non-life-threatening injury generally experiences some delay in receiving treatment. See Sonds, 151 F. Supp.2d at 312 ("patients are frequently faced with delays in receiving medical care, particularly when, [as in this case], their medical condition is not grave") (quoting Davidson v. Harris, 960 F. Supp. 644, 648 (W.D.N.Y. 1997)) (internal quotations omitted).
Damar has not alleged that his injuries were "life-threatening" or "fast-degenerating," or that he was experiencing extreme pain that more rapid treatment would have alleviated. Also, by his own admission, Damar was seen within eight or nine hours of the incident by a nurse who prescribed him Tylenol. (Dep. at 73-74). The nurse also put Damar on sick call for the following day, when he was seen by a physician who prescribed additional medication. In these circumstances, any delay in treatment that Damar may have experienced upon his return to the housing area was, at most, mere negligence, which is not sufficient to state an Eighth Amendment claim. See Estelle, 429 U.S. at 105-06, 97 S.Ct. at 291-92; Linden, 1995 WL 686742, at *3 (prisoner who was denied a visit to infirmary for eight hours did not state an Eighth Amendment claim).
In sum, to the extent that Damar contends that the treatment actually provided by the prison medical facility was inadequate, his complaint amounts to nothing more than a challenge to the judgment of the medical professionals concerned, which is not enough to implicate the Eighth Amendment's proscription against cruel and unusual punishment. See Estelle, 429 U.S. at 106-07, 97 S.Ct. at 292 ("a complaint that a physician has been negligent in . . . treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment"); Arroyo v. Schaeffer, 542 F.2d 47, 49-50 (2d Cir. 1977)("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Espinal v. Goord, No. 00 Civ. 2242, 2001 WL 476070, at *9 (S.D.N.Y. May 7, 2001)(Peck, Mag. J.) (citing Estelle, 429 U.S. at 106, 97 S.Ct. at 292); Troy v. Kuhlmann, No. 96 Civ. 7190, 1999 WL 825622, at *6 (S.D.N.Y. Oct. 15, 1999)(Jones, J.)("prisoner's disagreement with . . . forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim").
Damar's papers can also be read to allege that Officer Rodriguez displayed a lack of concern for Damar's welfare when Damar asked Officer Rodriguez to secure medical attention for him while he was in the intake area. Inasmuch as Officer Rodriguez allegedly was present when Damar was assaulted in the elevator and intake area, a reasonable finder of fact could conclude that Officer Rodriguez was "totally unconcerned with [Damar's] welfare," LaBounty, 1997 WL 104959, at *5 (citing Hathaway, 37 F.3d at 69), and therefore exhibited a state of mind which might potentially expose him to liability for deliberate indifference to Damar's medical needs. Nonetheless, because Damar's alleged injuries were not sufficiently serious to meet the objective component of such a claim, Officer Rodriguez is entitled to summary judgment to the extent that Damar seeks to recover damages under the Eighth Amendment for alleged indifference to his medical needs. As set forth below, however, Officer Rodriguez fares less well insofar as Damar alleges that Officer Rodriguez also violated the Eighth Amendment through the use of excessive force after Damar was removed from the housing area.
2. Excessive Force
To establish an excessive force claim under the Eighth Amendment, a prisoner again must satisfy both an objective and a subjective component. McMillian, 503 U.S. at 8-9, 112 S.Ct. at 999-1000; Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). The objective component typically requires a prisoner to demonstrate that he endured an injury "sufficiently serious to warrant Eighth Amendment protection." Evering, 2001 WL 1150318, at *6 (citing Wilson, 501 U.S. at 298, 111 S.Ct. at 2324). However, a prisoner who has not sustained a significant injury may nevertheless prevail on an excessive force claim if he is able to show that "prison officials maliciously and sadistically use[d] force to cause harm." McMillian, 503 U.S. at 9, 112 S.Ct. at 1000.
To satisfy the subjective component of an excessive force claim, a prisoner must show that the defendants "had a 'wanton' state of mind when they were engaging in the alleged misconduct." Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994). This must be judged in light of the circumstances facing the prison officials at the time of the incident. See McMillian, 503 U.S. at 6, 112 S.Ct. at 998 ("the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm") (quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986) (internal quotations omitted)); Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (quoting McMillian, 503 U.S. at 7, 112 S.Ct. at 999); Byas v. New York, No. 99 Civ. 1673, 2001 WL 1579552, at *4 (S.D.N.Y. Dec. 11, 2001)(Buchwald, J.)("Because on summary judgment we are required to take all facts in plaintiff's supporting documentation to be true, we must deny defendants' summary judgment on [the] excessive force count.").
As noted previously, Damar has not adduced any evidence demonstrating that his alleged injuries were serious. Nevertheless, issues of fact clearly remain as to the degree of force that was used against him in the elevator and intake area and whether that use of force was justified. Damar alleges that he was removed from his housing area without justification, (Dep. at 72), and thereafter was assaulted in the elevator and in the intake area while handcuffed. (Compl. at 3-4; Dep. at 53-55, 57-59, 60-63, 82). The Defendants dispute these allegations, contending that Damar disobeyed a proper order to remove his hat and that they did not use any unnecessary force. (See Nelson Decl. Ex. D at 324-35, 342, 355). Because this disagreement cannot be resolved prior to trial, neither the Defendants nor Damar are entitled to summary judgment with respect to the Eighth Amendment excessive use of force claim.
E. Personal Involvement
Defendants Kerik, Mercado, and Correa contend that they are entitled to summary judgment because they were not personally involved in any alleged unlawful conduct. (Def.'s Mem. at 12).
"In this Circuit . . . personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Accord Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). The doctrine of respondeat superior does not suffice to establish liability. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-94, 98 S.Ct. 2018, 203 6-37, 56 L.Ed.2d 611 (1978); Blyden, 186 F.3d at 264; Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973). Rather, to recover damages from a supervisor based upon an alleged constitutional violation, a plaintiff must show that the supervisor (1) directly participated in the violation, (2) learned of it through a report or appeal but failed to take action, (3) created or maintained the policy or custom which gave rise to it, or (4) was grossly negligent in the supervision of subordinates who caused the violation to occur. See Newburgh Enlarged Sch. Dist., 239 F.3d at 254.
In this case, Damar has not shown — nor, obviously, is there any reason to believe — that Defendants Kerik and Mercado personally participated in Damar's removal from the housing area, or that they were present in the elevator or intake area during the alleged incident. Damar also has adduced no evidence to suggest that these Defendants were in any way personally involved in providing medical treatment to him. Finally, he has not shown that they promulgated any unlawful policy or were grossly negligent in the supervision of the officers who engaged in the alleged unlawful activity.
Damar does contend that on the day after the alleged incident he spoke to Mercado who promised to conduct an investigation. If so, Mercado plainly was aware of Damar's allegations. See Compl. Ex. 3 (letter dated May 11, 2000, from Damar to Department of Correction Appeals Attorney, ) at 3-4; Pl.'s Mem. at 1). Although Damar contends that Mercado thereafter failed to take any action, the Defendants have prooduced records which establish that the Investigation Division of the Department of Correction did conduct an extensive review of the incident. (See, e.g., generally Nelson Decl. Ex. D). In light of that investigation, Damar plainly cannot demonstrate that Mercado failed to take appropriate action upon the discovery of the incident. Cf. Sealev v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (warden who referred letter to subordinate not personally involved); Woods v. Goord, No. 01 Civ. 3255, 2002 WL 731691, at *7 (S.D.N.Y. Apr. 23, 2002)(Scheindlin, J.) (warden who referred inmate's complaint of medical mistreatment to lower-level supervisors not personally involved); Woods v. Goord, No. 97 Civ. 5143, 1998 WL 740782, at *6 (S.D.N.Y. Oct. 23, 1998)(Sweet, J.) (receipt of letter or complaint from inmate does not render a defendant personally liable).
In sum, because Damar has failed to show any personal involvement on the part of Defendants Kerik and Merc ado which could give rise to liability under Section 1983, they are entitled to summary judgment dismissing the complaint as against them.
Damar has also failed to show any personal involvement on the part of Defendant Correa in any unlawful activity. Although Correa was involved in the initial shakedown search, Damar has not suggested that any aspect of this routine procedure violated the Fourth Amendment. Moreover, Damar has admitted that he is uncertain whether Correa was involved in his removal from the housing area, accompanied Damar in the elevator, or was present when Damar was allegedly beaten and strip-searched again in the intake area. (Dep. at 56, 61). Damar also has failed to provide any independent evidence to suggest that Correa was involved at any of these stages. In the absence of any proof that Correa engaged in any constitutionally-prohibited conduct, the complaint must also be dismissed as against him.
F. Oualified Immunity
Defendants Pla, Correa, and Rodriguez claim that they are entitled to qualified immunity as to Damar's excessive force and medical treatment claims. (Def.'s Mem. at 16). "Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Caldarola v. Calabrese, ___ F.3d ___ No 01-9053, 2002 WL 1759778, at *3 (2d Cir. July 31, 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001)) (internal quotations omitted). The doctrine of qualified immunity "shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were 'clearly established' at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002). Accord African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)).
In evaluating a motion for summary judgment based on qualified immunity, a court must engage in a two-part analysis. As a threshold matter, the court must determine whether the facts taken in the light most favorable to the plaintiff indicate that the defendants' conduct violated a constitutional right. Saucier, 533 U.S. at 201, 121 S.Ct. at 2156. If the court determines that a violation occurred, it must consider whether the right in question was clearly established at the time of the violation. This requires that "[t]he contours of the right . . . be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id., 533 U.S. at 202, 121 S.Ct. at 2156.
As Justice Ginsberg noted in her Saucier concurrence, when a defendant seeks qualified immunity in response to an excessive force claim, the determination of both the substantive claim and the qualified immunity issue requires consideration of whether, in light of the particular circumstances, "a reasonable officer, identically situated, [would] have believed the force employed was lawful." Id., 533 U.S. at 210, 121 S.Ct. at 2161 (Ginsberg, J., concurring). Although summary judgment as to this issue need not always be denied when the facts giving rise to an excessive force claim are disputed, id., 533 U.S. at 202, 121 S.Ct. at 2156, as Justice Ginsberg cautioned, if the claim "turns on which of two conflicting stories best captures what happened," the defendant is not entitled to summary judgment on qualified immunity grounds. Id., 533 U.S. at 216, 121 S.Ct. at 2164 (Ginsberg, J., concurring).
Turning first to Officer Correa, Damar could only be certain that Officer Correa was present during a routine inspection of Damar's person and cell. Moreover, there is no independent evidence which would suggest that Officer Correa was involved in any of the later misconduct alleged by Damar. Consequently, because there has been no showing that Officer Correa committed any constitutional violation, he is plainly entitled to qualified immunity.
Officer Rodriguez and Captain Pla are both alleged to have engaged in an unreasonable second search of Damar and to have used excessive force against him. With respect to these claims, the Defendants and Damar tell wholly contradictory stories. For example, although Damar alleges that he was beaten without provocation in the elevator, the Defendants deny that any unnecessary force was used. A similar dispute exists with regard to the Defendants' actions in the intake area. Accordingly, because there are factual issues which must be resolved in order to determine whether similarly situated officials would have understood that their actions violated Damar's constitutional rights, neither Captain Pla nor Officer Rodriguez is entitled to summary judgment on qualified immunity grounds.
G. Failure to Serve "John Doe" Defendants
Damar's complaint was received by the Pro Se Office on September 22, 1990. Thereafter, it was filed with the Clerk of the Court on November 9, 2000. Pursuant to Fed R. Civ. P. 4(m), service of the summons and complaint on the Defendants had to be completed within 120 days after the complaint was filed. Since considerably more than 120 days have passed without any attempt to serve additional defendants, the complaint should also be dismissed as against the "John Doe" defendants, none of whom has been identified.
IV. Conclusion
For the reasons set forth above, the Defendants' motion for summary judgment should be granted except insofar as Damar claims that Defendants Rodriguez, and Pla violated his Fourth Amendment rights and used excessive force against him in violation of the Eighth Amendment. Additionally, Damar's cross-motion for summary judgment should be denied in its entirety.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Jed S. Rakoff and to the chambers of the undersigned, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Rakoff. The failure to file timely objections will result in a waiver of those objections for pruposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).