Opinion
No. 02 CV 6337 (NG) (LB).
March 30, 2005
OPINION AND ORDER
Plaintiff Clarence Brown, appearing pro se, brings this action to recover damages for injuries he sustained in an assault by fellow inmates while he was incarcerated at the Brooklyn House of Detention. Plaintiff makes two claims: First, defendants violated 42 U.S.C. § 1983 by depriving him of his Eighth Amendment right to protection from violence at the hands of other inmates. Second, defendants' conduct was negligent under principles of New York State tort law. By order dated July 22, 2003, the court dismissed plaintiff's claims against the City of New York, Mark McClean, and Joseph Pearson. Defendants Bessy Graham and Nicky DiBiase, both New York City corrections officers, now move for summary judgment, pursuant to Federal Rule of Civil Procedure 56, on the grounds that: (1) plaintiff cannot establish a cognizable violation of the Eighth Amendment; (2) defendants are entitled to qualified immunity; and (3) plaintiff's negligence claim should be dismissed as inconsistent with plaintiff's theory of Eighth Amendment liability. In the alternative, defendants argue that the court should decline to extend supplemental jurisdiction over plaintiff's negligence claim. For the reasons set forth below, defendants' motion is denied in its entirety.
FACTS
The following facts are established by the affidavits of plaintiff and the deposition testimony of plaintiff and non-party witness James Forbes. Since defendants rely on plaintiff's version of the facts for purposes of the motion, Defs.' Mem. at 2 n. 2, submitting no affidavits or deposition testimony of their own, the court treats these facts as provable.On the morning of May 6, 2002, plaintiff, then incarcerated at the Brooklyn House of Detention, was attacked violently by two fellow inmates. Each floor of the correctional facility is comprised of two tiers of cell blocks, each divided into four quadrants: A, B, C, and D. The tiers are connected by a staircase that consists of five to ten steps, a landing, then an additional five to ten steps. Plaintiff's cell was located on the upper tier of the fifth floor in quadrant B. There is a desk on the lower tier of that floor, which serves as a duty station for the corrections officers on duty. The desk houses several monitors that are connected to a closed-circuit television system, which allow the officers on duty to monitor areas of the cell blocks that are not visible from the desk. Iron bars separate the cell blocks from the area where the desk is located, and there is a gate at the bottom of the staircase. Two corrections officers per shift generally are assigned to each floor. At the time of the attack on plaintiff, Officers Graham and DiBiase were the corrections officers assigned to the fifth floor.
Just prior to the attack, plaintiff asked to speak to Officer Graham. At the time, he was standing on the staircase. Officer Graham walked toward him and stood at the bottom of the staircase, in front of the gate. Plaintiff began telling Officer Graham that he had missed his scheduled trip to the commissary on the previous Friday for medical reasons. David Ferguson, another inmate, interrupted the conversation. Ferguson was the ringleader of a "gang" on the fifth floor that routinely harassed other inmates over their use of the telephone. Ferguson and his cohorts were known to assault inmates who were unwilling to give up their telephone privileges so that the aggressors could use the phone for longer periods of time. Although plaintiff never reported this activity to the corrections officers, he was "pretty sure" that they were aware of it because the threats and violence occurred in the open. When Ferguson interrupted plaintiff's conversation with Officer Graham, he was on the first tier doing laundry in a sink near the staircase. He told plaintiff to "[s]hut the fuck up before I shut you up because she don't want to hear that shit." In response, Officer Graham gave plaintiff a look indicating indifference and walked away toward the desk, where Officer DiBiase was reading a newspaper.
Plaintiff then went up to his cell. Approximately thirty seconds to one minute later, Ferguson followed plaintiff to his cell, said something that plaintiff cannot recall, and punched him. A fight ensued and a second inmate joined Ferguson in beating plaintiff. The two men continued the brutal assault, choking and kicking plaintiff, until another inmate, James Forbes, intervened and broke up the fight.
According to Forbes, at the time the fight began, two corrections officers were sitting at the fifth floor desk. (Forbes could not identify the officers by name.) Forbes yelled down to the officers from the second tier that there was a fight, but got no response. Forbes then ran down to the gate, got the attention of the officers, and told them that there was a fight on the upper tier. The male officer responded by saying something like "okay" or "wait a minute." Forbes ran back to the fight, where he saw plaintiff getting kicked in the face and upper body. At that point, Forbes decided to intervene. Approximately four minutes had passed since Forbes got the attention of the officers from the gate. It took Forbes another fifteen minutes actually to break up the fight. Still no officer responded to the location of the fight. Only after Forbes went down to the gate for a second time and told the officers that plaintiff was "bleeding ferociously" and that there was "blood all over" did either officer leave the desk. At that time, Officer DiBiase went up to the second tier, found plaintiff lying on the floor covered in blood, and radioed for medical help.
Initially, plaintiff was taken to the clinic at the correctional facility. He was later transported to Long Island Medical Center. The injuries plaintiff sustained in the assault included a fractured jaw and deep cuts on his forehead and jaw, requiring approximately thirty-five stitches to close.
DISCUSSION
A. Standard of Review
Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The standard for granting summary judgment mirrors the standard for a directed verdict under Rule 50(a), which permits the court to grant a motion for judgment as a matter of law when "there is no legally sufficient evidentiary basis for a reasonable jury" to decide an essential issue in favor of the non-moving party. Fed.R.Civ.P. 50(a)(1); see id. at 323. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To prevail, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); id. at 587.
B. Merits of the Eighth Amendment Claim
Section 1983 provides a remedy for plaintiffs who are deprived of federally protected rights, such as rights guaranteed by the Constitution, under color of state law. See 42 U.S.C. § 1983. An omission can give rise to Section 1983 liability when a state official has a constitutionally mandated duty to act and the breach of such duty causes plaintiff's rights to be violated. Johnson v. Abate, 2000 WL 1919913 (E.D.N.Y. 2000).
The Eighth Amendment imposes a limited duty on prison officials to protect inmates from violence at the hands of other inmates. See Farmer v. Brennan, 511 U.S. 825, 833 (1994). When a prison official reacts with "deliberate indifference" to a "substantial risk of serious harm" to an inmate, that official violates the Eighth Amendment. Id. at 828. The standard for judging deliberate indifference is a subjective one: A prison official cannot be found liable under the Eighth Amendment "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must be both aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference." Id. at 837. Moreover, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. Id. at 844. Nevertheless, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite knowledge of a substantial risk of serious harm, provided that the official's actions or omissions were unreasonable under the circumstances. Id. at 842.
Here, defendants argue, without addressing the testimony concerning Ferguson's history of intimidation and violence toward other inmates, that no reasonable jury could conclude that Ferguson's statement to plaintiff to "[s]hut the fuck up before I shut you up" would have put defendants on actual notice that plaintiff was facing a substantial risk of serious harm from Ferguson. Even if defendants' argument is correct, it does not end the Eighth Amendment inquiry.
Defendants did gain actual knowledge of the risk to plaintiff, at the latest, when Forbes ran down to the gate and told them about the fight. But, according to the testimony of Forbes, the fight continued for at least another nineteen minutes while defendants sat at their desk and took no steps to protect plaintiff from further beating. During that time, defendants did not make any efforts to ascertain the seriousness of the fight, to call for backup, or to stop the fight. A reasonable jury could conclude, from those facts, that defendants' response was unreasonable and constituted deliberate indifference in violation of the Eighth Amendment.
C. Qualified Immunity
Under the doctrine of qualified immunity, public officials are entitled to immunity from civil liability if their actions were objectively reasonable as evaluated in the context of legal rules that were clearly established at the time. Bizzarro v. Miranda, 394 F.3d 82, 85-86 (2d Cir. 2005). Thus, unlike the standard for deliberate indifference, the standard for qualified immunity is an objective one, focusing on what a reasonable officer would have thought under the circumstances, not what the particular officers involved actually thought. On a motion for summary judgment on a Section 1983 claim, if the plaintiff's version of the facts reveals that the officials reasonably could have believed that they were not breaching any constitutional duty owed to plaintiff, the court must grant summary judgment to the officials on the basis of qualified immunity. See id. at 86. On the other hand, if the plaintiff's version of the facts, supported by evidence sufficient to satisfy Rule 56(e), demonstrates that the officials could not have believed reasonably that they acted in a manner consistent with their constitutional obligations toward the plaintiff, a motion for summary judgment on the basis of qualified immunity must be denied.
Here, defendants do not dispute that the deliberate indifference standard, as defined by Farmer, was clearly established at the time of the events in question. Instead, their argument focuses on the reasonableness of their actions in light of that standard. Assuming that defendants did not become aware of the risk of harm to plaintiff until Forbes came down to the gate and told them about the fight (which assumption gives defendants the benefit of the doubt), defendants are entitled to qualified immunity only if reasonable officers in their position would have believed that a complete failure to act for at least nineteen minutes, while inmates in their charge were fighting, was a reasonable response under the circumstances and did not constitute deliberate indifference. In the absence of any evidence from defendants to explain their failure to act, the court cannot find that defendants' conduct was objectively reasonably when evaluated in the context of the deliberate indifference standard. Accordingly, defendants are not entitled to summary judgment on the basis of qualified immunity.
D. Negligence Claim
Under New York law, the State owes a duty of care to safeguard inmates from reasonably foreseeable attacks. A prison official who breaches that duty may be held liable for negligence. See Sanchez v. State, 99 N.Y.2d 247, 252-53 (2002). As an initial matter, the court finds that exercise of its supplemental jurisdiction over plaintiff's negligence claim is appropriate. See 28 U.S.C. § 1367.
Defendants argue that plaintiff's negligence claim should be dismissed because it is inconsistent with plaintiff's Eighth Amendment claim, which requires plaintiff to demonstrate that defendants acted with deliberate indifference and not mere negligence. While it is true that the same factual predicate cannot support both a finding of liability based on reckless or intentional conduct and a finding of liability based on negligent conduct, plaintiff is free to plead alternate theories of liability, even if those theories are inconsistent. Such pleading is expressly authorized by the Federal Rules of Civil Procedure. Fed.R.Civ.P. 8(e)(2); Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 55 n. 3 (2d Cir. 2004). It will be up to the trier of fact to determine which, if either, theory is proven by plaintiff. Accordingly, defendants' motion for summary judgment is denied with respect to plaintiff's negligence claim.
CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is denied in its entirety. Pursuant to 28 U.S.C. § 1915(e)(1), the court now grants plaintiff's request for appointment of counsel, and directs the Clerk of Court to appoint counsel for plaintiff.