Opinion
Civil Action No. 9:14-CV-00916 (MAD/DEP)
08-29-2016
JOHNATHAN JOHNSON, Plaintiff, v. BRIAN GAGNON, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro se 89-A-1042 Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General Main Place Tower Buffalo, NY 14202 OF COUNSEL: RYAN L. BELKA, ESQ. DAVID J. SLEIGHT, ESQ. Assistant Attorneys General
APPEARANCES: FOR PLAINTIFF: JOHNATHAN JOHNSON, Pro se
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Main Place Tower
Buffalo, NY 14202 OF COUNSEL: RYAN L. BELKA, ESQ.
DAVID J. SLEIGHT, ESQ.
Assistant Attorneys General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Johnathan Johnson, a New York State prison inmate who is ineligible for in forma pauperis ("IFP") status in this court pursuant to the three strikes provision of 28 U.S.C. § 1915(g), commenced this action in state court asserting civil rights claims under 42 U.S.C. § 1983 against various employees of the New York State Department of Corrections and Community Supervision ("DOCCS"). Generally speaking, plaintiff's complaint alleges that the defendants tampered with his medically prescribed food, unlawfully searched his cell, destroyed legal papers, confiscated his prescription medications, assaulted him, and retaliated against him for having filed grievances concerning the conditions of his confinement.
On May 7, 2012, Senior District Judge Norman A. Mordue found that plaintiff had accumulated three strikes for purposes of 28 U.S.C. § 1915(g) prior to filing his complaint in the matter. See Johnson v. Rock, No. 12-CV-0019, Dkt. No. 7 at 5-6 (N.D.N.Y. filed Jan. 5, 2012).
Following the close of discovery, defendants filed a motion for summary judgment seeking dismissal of plaintiff's remaining claims. For the reasons set forth below, I recommend the motion be granted in part and denied in part. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS at the Upstate Correctional Facility ("Upstate"), located in Malone, New York. Dkt. No. 4 at 2. In his complaint, plaintiff alleges that between January and April of 2013, while he was confined at Upstate, defendants Daniel Dumas, a corrections officer, and Brian Gagnon, a corrections sergeant, retaliated against him for the filing of grievances against them by interfering with his doctor-ordered meals and conducting cell searches. Id. at 3. According to plaintiff's complaint, the conduct continued with an incident on April 27, 2013, when defendant Dumas removed plaintiff's meat serving from his dinner, an act allegedly condoned by defendant Gagnon. Id. The interference with plaintiff's meals continued on the following day when defendant Dumas, defendant Beane, also a corrections officer, and another unidentified prison guard again removed meat from plaintiff's lunch and dinner trays. Id. at 3-4. On April 29, 2013, plaintiff filed a grievance, identified as UST-51878-13, complaining of the food tampering and other retaliatory conduct by defendants. Id. at 4.
On April 27, 2013, plaintiff's cell was searched by defendants Wendy Seymour and Francis Jarvis, both of whom are corrections officers. Dkt. No. 4 at 6. During the course of that search, the two officers confiscated plaintiff's prescription medication and disrupted his court documents by removing them from envelopes and tossing them "in water and all over the cell-floor." Id. While the search was being conducted, plaintiff was placed in restraints and allegedly assaulted by defendants Dumas, Gagnon, Richard Liebfred, another corrections officer, and John Tatro, a corrections lieutenant. Id. at 5. Following the incident, plaintiff was taken to Upstate's medical facility for evaluation, at which time it was determined that stitches were needed to close a wound to his face and that he had suffered a fractured jaw. Id. at 6.
Following the incidents in April 2013, prison guards continued to tamper with plaintiff's food. Dkt. No. 4 at 8. On May 2, 2013, defendants Dumas and Jarvis removed food from plaintiff's meal tray, and he was denied his lunch tray altogether by defendants Gagnon and Bishop. Id. at 8. Defendant Dumas again tampered with plaintiff's breakfast tray on May 8, 2013. Id. Defendant Gagnon was notified of this last incident but failed to take any action. Id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action in New York State Supreme Court, Franklin County, on October 18, 2013. Dkt. No. 1-1; Dkt. No. 4. Named as defendants in plaintiff's complaint are Corrections Sergeant Brian Gagnon; Corrections Officers Daniel Dumas, Brian Grant, Bryan Clark, Francis Jarvis, Wendy Seymour, Richard Liebfred, and Aaron Beane; Corrections Lieutenants John Tatro and Jerry Laramay; Corrections Captain Reginald Bishop; Deputy Superintendent Donald Uhler; Superintendent David Rock; and Joseph Bellnier, Gayle Haponik, Anthony Annucci, Maureen Boll, Carl Koenigsmann, and Jeff McKoy, all of whom are identified by plaintiff as "Deputy DOCCS Commissioners." Dkt. No. 4.
On July 24, 2013, defendants removed the action to this court, and shortly thereafter filed a partial motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 1, 2. Following my issuance of a report recommending that defendants' motion be granted, District Judge Mae A. D'Agostino adopted the recommendation and dismissed plaintiff's claims asserted against defendants Rock, Bishop, Uhler, Laramay, Bellnier, Haponik, Annucci, Boll, Koenigsmann, McKoy, Clark, and Grant. Dkt. Nos. 12, 14. Liberally construing plaintiff's complaint, the following causes of action remain for consideration by the court: (1) deliberate medical indifference against defendants Dumas, Gagnon, Beane, Seymour, and Jarvis; (2) retaliation against defendants Dumas and Gagnon; (3) excessive force and state-law assault and battery against defendants Dumas, Gagnon, Tatro, and Liebfred; (4) conspiracy to commit excessive force and assault and battery against defendants Dumas, Gagnon, Tatro, and Liebfred; (5) unlawful cell search asserted against defendants Seymour and Jarvis; and (6) access to courts claim asserted against defendants Seymour and Jarvis.
Following the close of discovery, the remaining seven defendants filed the currently pending motion for summary judgment seeking dismissal of the remaining claims. Dkt. No. 34. Generally, defendants argue that the record evidence does not give rise to a genuine dispute of material fact with respect to any of plaintiff's causes of action. See generally Dkt. No. 34-1. Plaintiff has since responded in opposition to the motion. Dkt. No. 37. Defendants' motion has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Deliberate Medical Indifference Claim Asserted Against Defendants Dumas, Gagnon, Beane, and Jarvis
Plaintiff's complaint alleges that defendants Dumas, Gagnon, Beane, and Jarvis tampered with plaintiff's medically prescribed food on April 27, 2013, April 28, 2013, May 2, 2013, and May 8, 2013, in violation of his Eighth Amendment rights. Dkt. No. 4 at 3-4, 8. Specifically, plaintiff contends that on April 27, 2013, defendant Dumas removed the meat serving from his dinner. Id. at 3. Plaintiff further alleges that defendant Gagnon condoned this conduct. Id. On April 28, 2013 defendants Dumas and Beane allegedly removed the meat serving from plaintiff's lunch and dinner trays. Id. at 4. Plaintiff contends that he filed a grievance, identified in the complaint as UST-51878-13, against unspecified "defendants" regarding the alleged food tampering. Id. On May 2, 2013, defendants Dumas and Jarvis allegedly "removed food items from plaintiff's doctors [sic] ordered dinner tray." Id. at 8. Plaintiff alleges that on the same date defendant Gagnon denied him his lunch altogether. Id. Finally, plaintiff alleges that defendant Dumas again tampered with his breakfast meal tray on May 8, 2013, and that this conduct was condoned by defendant Gagnon. Id. In plaintiff's memorandum of law, submitted in response to defendants' motion, plaintiff clarifies that the food tampering allegations contained in his complaint were intended to assert an Eighth Amendment medical indifference claim. See, e.g., Dkt. No. 37-1 at 1 ("This is a § 1983, action . . . seeking damages relief based on the . . . interferring [sic] with his doctor-ordered meals"), 2-3 ("Johnson . . . alleges, the defendants subjected him to cruelty [sic] and unusual-punishment, deliberately indifference to his medical needs, and interference with a doctor's order[.]"), 13 ("In this case Johnson, verified complaint and inmate grievances, and exhibits supports deliberately indifference to his medical-diet needs.").
It appears that plaintiff may be referring to grievance number UST-51817-13, which is included as an exhibit to his opposition to defendants' motion. DKt. No. 37-2 at 18.
The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society[,] or which involve the unnecessary and wanton infliction of pain[.]" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quotation marks and citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, . . . neither does it permit inhumane ones[.]" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation marks and citation omitted). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering which no one suggests would serve any penological purpose." Id. (quotation marks and citations omitted).
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry include "whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted). Determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, it is "the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.; see also Farmer, 511 U.S. at 837 ("[T]he 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."). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
In this case, there is no record evidence that would support a factfinder's conclusion that the alleged deprivation was sufficiently serious to establish an Eighth Amendment violation, or that the defendants acted with the requisite deliberate indifference. With respect to the objective element, plaintiff contends that the meat portions were removed from his dinner by defendant Dumas on April 27, 2013, and again on April 28, 2013, during lunch and dinner by defendants Dumas and Beane. Dkt. No. 4 at 3, 4. In addition, plaintiff vaguely contends that defendants Dumas and Jarvis "removed food items from plaintiff's doctors [sic] ordered dinner tray" on May 2, 2013. Id. at 8. Plaintiff also alleges that on the same date, defendant Gagnon denied him dinner altogether. Id. Six days later, according to the plaintiff, defendant Dumas "once again . . . tampered with plaintiff [sic] breakfast tray," and defendant Gagnon again condoned the conduct. Id.
The record reflects that plaintiff has several food allergies, for which he receives what is referred to as a "control A diet." Dkt. No. 37-2 at 3. Even assuming plaintiff's allegations are true, removing the meat portions of three meals and denying him one meal all over the course of twelve days is not sufficiently serious for a deliberate medical indifference claim. Indeed, it does not logically follow that removing a food item from a meal designed to avoid food allergies would create a serious risk to an inmate's health and safety. As for the allegation that defendant Gagnon denied plaintiff dinner on May 2, 2013, no reasonable factfinder would conclude that, even if true, the deprivation affected plaintiff's daily activities or caused him substantial or chronic pain. In addition, plaintiff's vague and nondescript accusations that defendant Dumas and Jarvis "removed food items" from his meal on May 2, 2013, and defendant Jarvis "tampered with plaintiff['s] breakfast" on May 8, 2013, similarly do not create a condition of urgency for purposes of a medical indifference claim.
In any event, there is undisputed record evidence that defendants Dumas, Gagnon, Jarvis, and Beane were not knowledgeable regarding plaintiff's medical needs or how (and if) plaintiff's meals related to his medical needs. See, e.g., Dkt. No. 34-4 at 2; Dkt. No. 34-5 at 2; Dkt. No. 34-6 at 2; Dkt. No. 34-7 at 2; Dkt. No. 34-8 at 2. Although plaintiff filed grievances complaining of food tampering by certain individuals, there is no indication that defendants Dumas, Gagnon, Jarvis, or Beane became aware through those grievances that plaintiff's meals were medically prescribed. See, e.g., Dkt. No. 37-2 at 2, 18-22; Dkt. No. 37-3 at 2, 52-6, 75-85. Accordingly, there is no evidence to show that, even assuming each of the defendants tampered with plaintiff's food as he alleges, they did so with deliberate indifference to plaintiff's health and safety. Because there is no record evidence from which a reasonable factfinder could conclude either that plaintiff suffered a sufficiently serious deprivation to his medical needs or that defendants Dumas, Gagnon, Jarvis, or Beane tampered with plaintiff's meals with the requisite deliberate indifference, I recommend that plaintiff's Eighth Amendment deliberate medical indifference claim against those individuals be dismissed.
C. Retaliation Asserted Against Defendants Dumas and Gagnon
Liberally construed, plaintiff's complaint asserts a First Amendment retaliation claim against defendants Dumas and Gagnon. Dkt. No. 4 at 3-4. Specifically, plaintiff contends that these individuals "continuously retaliated against plaintiff for the filing of inmate grievance complaints, by interferring [sic] with plaintiff's doctors [sic] order diet meals." Id. at 3. In addition, plaintiff contends that defendants Dumas and Gagnon "subjected plaintiff's [sic] to retaliatory cell searches." Id.
Prison officials unlawfully retaliate against an inmate when they take adverse action, motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment, giving rise to a cognizable cause of action under 42 U.S.C. § 1983. See Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). As the Second Circuit has repeatedly cautioned, however, because such claims are easily incanted and inmates often attribute adverse action to retaliatory animus, courts must approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
To succeed on a section 1983, claim alleging for retaliatory conduct, a plaintiff must establish that (1) he engaged in protected conduct; (2) the defendants took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this case, plaintiff argues that the alleged adverse action taken against him by defendants Dumas and Gagnon was in retaliation for his filing grievances against them. It is well settled that filing grievances through a prison grievance system is protected conduct. See, e.g., Gill v. Pidlypchak, 389 F.3d 379, 383 (2d Cir. 2004). Thus, there is no dispute that plaintiff has satisfied the first element of a retaliation claim. The discussion below considers the remaining two elements.
1. Food Tampering
The record evidence reflects that plaintiff filed numerous grievances in and after December 2012, while confined at Upstate. Dkt. No. 37-2 at 2, 18; Dkt. No. 37-3 at 52-55, 77-85. Of those grievances that are before the court, there is evidence to support a conclusion that defendants Dumas and Gagnon became aware of only one of them. Dkt. No. 37-3 at 76, 79. That grievance, identified as UST-51878-13, is dated May 2, 2013, and alleges that defendant Dumas removed items of food from plaintiff's dinner tray, and that defendant Gagnon condoned defendant Dumas' conduct. Id. at 79. According to the superintendent of the facility who reviewed plaintiff's grievance, the "staff members identified by" plaintiff in the grievance were all interviewed. Id. at 76. Assuming defendants Dumas and Gagnon did, in fact, learn of this grievance, the meal with which defendants tampered in retaliation for filing that grievance was plaintiff's breakfast on May 8, 2013. An isolated incident involving the tampering with one meal does not constitute adverse action. See Fann v. Arnold, No. 14-CV-6187, 2016 WL 2858927, at *1 (W.D.N.Y. May 16, 2016) ("[T]he alleged deprivation of one meal was insufficient to constitute adverse action to satisfy the second element of the [retaliation] claim.").
The record contains three additional grievances filed by plaintiff complaining that defendant Dumas and/or defendant Gagnon were involved in denying him portions or full meals on or about April 20, 2013, April 21, 2013, April 29, 2013, and May 8, 2013. Dkt. No. 37-3 at 2, 81, 84. There is no evidence in the record, however, that defendants Dumas or Gagnon became aware of these grievances. Accordingly, even assuming that they did deny plaintiff portions or full meals on those dates, there is no evidence from which a reasonable factfinder could conclude that there exists a causal connection between the grievances and defendants' subsequent conduct.
2. Cell Search
There is no evidence in the record that gives rise to a genuine dispute of material fact with respect to whether defendants Dumas and Gagnon undertook cell searches in retaliation for plaintiff filing grievances against them. Indeed, the only evidence in the record that supports plaintiff's allegation is in his complaint, where he contends that those "two defendants . . . subjected [him] to retaliatory cell searches." Dkt. No. 4 at 3. In his memorandum of law submitted in opposition to defendants' pending motion, plaintiff merely states that, "[i]n this case, Johnson brings the claim of unreasonable cell-searches[.]" Dkt. No. 37-1 at 14. In the absence of any additional evidence to support plaintiff's claim, including, for instance, a date on which the alleged searches occurred, no reasonable factfinder could conclude that plaintiff was retaliated against. Accordingly, I recommend that his retaliation claim asserted against defendants Dumas and Gagnon be dismissed.
In light of the absence of any evidence supporting plaintiff's retaliation claim regarding cell searches, it is unnecessary to address defendants' argument that "[i]t is well-settled that plaintiff cannot base a retaliation claim against defendants on a cell search." Dkt. No. 34-1 at 15 (quotation marks and alterations omitted). While district courts in this circuit have determined that inmates do not have a constitutional right to be free from cell searches, even those that are retaliatory in nature, see, e.g., Bumpus v. Canfield, 495 F. Supp. 2d 316, 327 (W.D.N.Y. 2007), those courts rely on the Supreme Court's decision in Hudson v. Palmer, 468 U.S. 517, 530 (1984). In Hudson, however, the Court merely held that inmates do not "have a reasonable expectation of privacy enabling [them] to invoke the protections of the Fourth Amendment" and left open the possibility that prisoners may invoke other constitutional protections "for calculated harassment unrelated to prison needs." Hudson, 468 U.S. at 530.
D. Excessive Force and Assault and Battery Claims Asserted Against Defendants Dumas, Liebfred, Gagnon, and Tatro
Plaintiff's complaint asserts an Eighth Amendment excessive force and New York State assault and battery claims against defendants Dumas, Liebfred, Gagnon, and Tatro based on the use-of-force incident on April 27, 2013. Dkt. No. 4 at 4-5.
Plaintiff specifically asserts New York State common law assault and battery claims in his complaint. See, e.g., Dkt. No. 4 at 4; see also Dkt. No. 37-1 at 1. "[E]xcept for § 1983's requirement that the tort be committed under color of state law, the essential elements of [excessive force and state law assault and battery claims are] substantially identical." Posr v. Doherty, 944 F.2d 91, 94-95 (2d Cir. 1991); accord, Humphrey v. Landers, 344 F. App'x 686, 688 (2d Cir. 2009). Accordingly, I have analyzed plaintiff's claims under the legal standard governing an excessive force claim.
A plaintiff's Eighth Amendment right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (quotation marks omitted); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). As was noted above in connection with plaintiff's deliberate medical indifference claim, "[a] claim of cruel and unusual punishment in violation of the Eighth Amendment has two components - one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson, 503 U.S. at 7-8; Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). To satisfy the subjective requirement in an excessive force case, the plaintiff must demonstrate that "the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Wright, 554 F.3d at 268 (quotation marks omitted). This inquiry 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." Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quotation marks omitted); accord, Blyden, 186 F.3d at 262. The Supreme Court has emphasized that the nature of the force applied is the "core judicial inquiry" in excessive force cases - not "whether a certain quantum of injury was sustained." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam). Accordingly, when considering the subjective element of the governing Eighth Amendment test, a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness. Wilkins, 559 U.S. at 37; Hudson, 503 U.S. at 9.
"The objective component [of the excessive force analysis] . . . focuses on the harm done, in light of 'contemporary standards of decency.'" Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8); see also Blyden, 186 F.3d at 263 (finding the objective component "context specific, turning upon 'contemporary standards of decency'"). In assessing this component, a court must ask whether the alleged wrongdoing is objectively harmful enough to establish a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 303 (1991); accord Hudson, 503 U.S. at 8; see also Wright, 554 F.3d at 268. "But when prison officials use force to cause harm maliciously and sadistically, 'contemporary standards of decency always are violated. This is true whether or not significant injury is evident.'" Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9) (alterations omitted)). The extent of an inmate's injury is but one of the factors to be considered in determining whether a prison official's use of force was "unnecessary and wanton" because "injury and force . . . are imperfectly correlated[.]" Wilkins, 559 U.S. at 38. In addition, courts consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Romano, 998 F.2d at 105. Additionally, courts must bear in mind that "[n]ot every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (quotation marks omitted); see also Griffin, 193 F.3d at 91. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (quotation marks omitted).
In this case, defendants concede, for purposes of their motion, that plaintiff suffered a significant injury. Dkt. No. 34-1 at 8. They contend, however, that no reasonable factfinder could conclude that the force used against plaintiff on April 27, 2013, was anything other than reasonable. See, e.g., id. Relying on the video recording of the incident, Dkt. No. 36, and declarations submitted by the individuals involved in the incident, Dkt. Nos. 34-5, 34-6, 34-8, defendants specifically claim that plaintiff had disobeyed a series of orders in the hour prior to the use of force, and, upon opening plaintiff's cell door, plaintiff pulled defendant Dumas into the cell and then assaulted defendants Dumas and Liebfred before they applied force to subdue him. Id. at 9-10. Plaintiff, on the other hand, has submitted evidence suggesting that defendants Dumas, Liebfred, Gagnon, and Tatro conspired to intentionally assault him during the cell search on April 27, 2013, and claims he did not pull defendant Dumas into the cell, and that defendant Dumas, instead, pushed him into the cell. Dkt. No. 4 at 5. According to plaintiff, after defendant Dumas pushed plaintiff, plaintiff pushed him back, which triggered defendant Liebfred to enter plaintiff's cell and defendants Dumas and Liebfred together "slammed [plaintiff's face] against the cell wall-metal plate and kick[ed] within his facial area while handcuffed from the back with a detention strap." Id. Although defendants Gagnon and Tatro were standing outside plaintiff's cell during this time, they did nothing to stop the alleged assault on plaintiff. Id.
The video recording was submitted to the court by traditional means and is therefore not accessible electronically.
Having reviewed the record in this case, including the video recording of the incident, I find that the evidence is equivocal and is susceptible to more than one reasonable interpretation regarding whether defendant Dumas was pulled into plaintiff's cell or instead he pushed plaintiff into his cell, and what precisely occurred inside plaintiff's cell after defendant Dumas and Liebfred entered. In the event plaintiff's version of the event is credited by a factfinder - specifically the part of his retelling that insists defendant Dumas was the aggressor - the factfinder could conclude that the use of force was unreasonable and not intended to restore order. Moreover, because the video recording does not show the use of force while defendants Dumas and Liebfred were inside plaintiff's cell, and plaintiff describes a brutal assault that included slamming his face into a metal plate, even assuming plaintiff was the initial aggressor, a reasonable factfinder could conclude that such use of force was unreasonable and maliciously and sadistically applied. On a motion for summary judgment, where the record evidence could reasonably permit a rational factfinder to find that corrections officers used force maliciously and sadistically, dismissal of an excessive force claim is inappropriate. See Wright, 554 F.3d at 269 (reversing summary dismissal the plaintiff's complaint, though suggesting that the evidence of an Eighth Amendment violation was "thin" as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the "medical records after the . . . incident with [that officer] indicated only a slight injury") (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)).
With respect to defendants Gagnon and Tatro, the video recording clearly depicts them standing in the doorway of plaintiff's open cell while defendants Dumas and Liebfred were inside during the physical altercation. Dkt. No. 36. Again, although it is not clear what actually occurred inside the cell, defendants Dumas and Liebfred were inside for approximately ninety seconds before they emerged with plaintiff in restraints. Prison officials have a duty to intervene and prevent a cruel and unusual punishment, prohibited by the Eighth Amendment, from occurring or continuing. Farmer, 511 U.S. at 836; Hayes v. N.Y. City Dep't of Corrs, 84 F.3d 614, 620 (2d Cir. 1996); see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) ("[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.") A plaintiff asserting a failure to protect claim must prove that the defendant actually knew of and disregarded an excessive risk of harm to his health and safety. Hayes, 84 F.3d at 620. This "reckless disregard" to a plaintiff's health and safety can be proven by evidence establishing "a pervasive risk of harm to inmates . . . and a failure by prison officials to reasonably respond to that risk." Knowles v. N.Y. City Dep't of Corrs., 904 F. Supp. 217, 222 (S.D.N.Y. 1995) (quotation marks omitted).
Resolving all ambiguities in the record in favor of plaintiff, I find that reasonable factfinders could conclude that defendants Dumas and Liebfred used force maliciously and sadistically against plaintiff, and that defendants Gagnon and Tatro failed to intervene to protect him. Indeed, resolving the discrepancies between the parties' version of the events at this juncture would require the court to render credibility determinations that are not appropriate on summary judgment. In sum, I recommend the court deny defendants' motion as it relates to plaintiff's excessive force and assault and battery claims asserted against defendants Dumas, Liebfred, Gagnon, and Tatro.
Plaintiff also asserts an accompanying conspiracy claim to his excessive force and assault and battery causes of action. See, e.g., Dkt. No. 4 at 4; Dkt. No. 37-1 at 8. Because defendants have not moved to dismiss this claim, I have not analyzed the merits of it in this report. In light of my recommended finding that genuine disputes of material fact that exist in the record precluding dismissal at this time, however, I recommend defendants be provided an opportunity to submit a second summary judgment motion with respect to this claim.
E. Unlawful Cell Search, Deliberate Medical Indifference, and Access to Court Claims Asserted Against Defendants Seymour and Jarvis
Plaintiff contends that defendants Seymour and Jarvis unlawfully searched his cell on April 27, 2013, confiscated a prescription medication, and tossed his legal papers "in water and all over the cell-floor." Dkt. No. 4 at 6.
To the extent plaintiff attempts to assert a Fourth Amendment claim based on the fact that defendants Seymour and Jarvis searched his cell for no reason, it is well established that prison inmates do not have an expectation of privacy in their cells. Hudson, 468 U.S. at 526; accord, Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016). In addition, in the event plaintiff intended to assert an Eighth Amendment claim, a single, unannounced cell search does not constitute cruel and unusual punishment. Compare Scher v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991) (finding that the plaintiff stated a plausible Eighth Amendment claim where the defendant subjected the plaintiff to "numerous cell searches" without any suspicion that the plaintiff possessed contraband"); see also Lashley v. Wakefield, 367 F. Supp. 2d 461, 470 (W.D.N.Y. 2005) (dismissing the plaintiff's Eighth Amendment claim arising from allegations that the defendants searched his cell at least eleven times during a seven-month period for the sole purpose of harassing him). Accordingly, I recommend that claim be dismissed as against defendants Seymour and Jarvis.
With respect to plaintiff's allegation that those defendants confiscated his prescription medication, I have liberally construed this allegation to assert an Eighth Amendment deliberate medical indifference claim. As was noted above in part III.B. of this report, a medical indifference cause of action requires a plaintiff to establish that he suffered a sufficiently serious deprivation to his medical needs, and that the defendants deprived him of adequate medical care with deliberate indifference. Wright, 554 F.2d at 268. In this case, there is no evidence that supports either element of the claim. The record is devoid of evidence regarding the type of medicine that was confiscated or for what medical condition plaintiff was being treated. In addition, plaintiff does not allege that he suffered any medical harm as a result of the confiscation. Finally, even assuming defendants Seymour and Jarvis did, in fact, confiscate plaintiff's prescription medication during their cell search, there is no evidence, including in plaintiff's complaint, that those individuals did so with deliberate indifference to any serious medical condition from which plaintiff may have suffered. Indeed, plaintiff's complaint merely alleges that defendants Seymour and Jarvis "searched the plaintiff's cell" and that they "intentionally" confiscated them during the search. Dkt. No. 4 at 6. Without any additional evidence, no reasonable factfinder could conclude that defendants Seymour and Jarvis were deliberately indifferent to plaintiff's serious medical needs. Accordingly, I recommend this claim be dismissed.
Finally, plaintiff alleges that defendants Seymour and Jarvis violated his First Amendment right to access the courts by tossing "thousands" of court documents "in water and all over the cell-floor." Dkt. No. 4 at 6. As a result, plaintiff contends that he was unable to "timely file appeals" in the New York State Appellate Division for the Second and Third Departments. Id. at 3. Because defendants did not seek dismissal of this claim in their motion for summary judgment, I decline to issue a recommendation regarding whether it should be dismissed. I do, however, recommend that defendants be provided an opportunity to file a second motion for summary judgment with respect to this claim.
IV. SUMMARY AND RECOMMENDATION
Many of the remaining claims asserted by plaintiff in his complaint are subject to dismissal at this time in light of the absence of any record evidence from which a reasonable factfinder could conclude in plaintiff's favor. With respect to plaintiff's excessive force and assault and battery claims, however, the parties' evidence reflects the existence of disputed material facts that cannot be resolved on summary judgment. Additionally, because defendants have not moved to dismiss either the conspiracy claim asserted against defendants Dumas, Liebfred, Gagnon, and Tatro or the access to court claim asserted against defendants Seymour and Jarvis, defendants should be permitted an opportunity to file a second motion for summary judgment addressing those causes of action. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment, Dkt. No. 34, be GRANTED in part and DENIED in part as follows:
(1) Plaintiff's deliberate medical indifference claim asserted against defendants Dumas, Gagnon, Beane, Seymour, and Jarvis should be dismissed;
(2) Plaintiff's retaliation claim asserted against defendants Dumas and Gagnon should be dismissed;
(3) Plaintiff's excessive force and assault and battery claims asserted against defendants Dumas, Liebfred, Gagnon, and Tatro should survive for trial; and
(4) Plaintiff's unlawful cell search claim asserted against defendants Seymour and Jarvis should be dismissed; and it is further
RECOMMENDED that plaintiff's (1) conspiracy to use excessive force and commit assault and battery claims asserted against defendants Dumas, Liebfred, Gagnon, and Tatro; and (2) access to court claim asserted against defendants Seymour and Jarvis survive defendants' instant motion but that they be provided an opportunity to submit a second motion for summary judgment with respect to those claims.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 29, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge