Opinion
Civil Action No. 9:13-CV-0727 (FJS/DEP)
02-10-2015
KENDALE JUDGE, Plaintiff, v. C.O. GIBSON, Defendant.
APPEARANCES: FOR PLAINTIFF: KENDALE JUDGE, Pro Se 12-A-4883 Bare Hill Correctional Facility 181 Brand Rd. Caller Box 20 Malone, NY 12953-0020 FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: KENDALE JUDGE, Pro Se
12-A-4883
Bare Hill Correctional Facility
181 Brand Rd.
Caller Box 20
Malone, NY 12953-0020
FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Kendale Judge, a New York State prison inmate, commenced this action pursuant to 42 U.S.C. § 1983 alleging that defendant William Gibson, a corrections officer, and other corrections personnel, including the Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"), violated his civil rights. Plaintiff's claims are based upon an incident in which defendant Gibson is alleged to have verbally and physically assaulted the plaintiff.
Currently pending before the court is a motion by defendant Gibson, the sole remaining defendant in the action following the earlier dismissal of the other four named defendants, seeking the entry of summary judgment dismissing the balance of plaintiff's claims based on plaintiff's failure to exhaust available administrative remedies before filing suit and on the merits. For the reasons set forth below, I recommend that defendant's motion be granted. 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 in the custody of the DOCCS. See generally, Dkt. No. 1. Plaintiff is confined in the Bare Hill Correctional Facility ("Bare Hill"), located in Malone, New York, where he was incarcerated at the times relevant to his claims in this action. Id.
On March 19, 2013, Judge was removed from a class at Bare Hill for being argumentative with the teacher. Dkt. No. 1 at 4. The teacher escorted the plaintiff to the officers' desk in the lobby of Bare Hill's school building and described plaintiff's behavior to defendant Gibson, who, at the time, served as the main school officer. Dkt. No. 22-3 at 2. As a result of the incident, plaintiff was issued a misbehavior report by the teacher. Dkt. No. 22-3 at 5.
At this point, the parties' versions of the relevant events diverge. Plaintiff alleges that defendant Gibson and two other corrections officers escorted Judge to an empty room where he was positioned with his hands against the wall and feet spread apart. Dkt. No. 1 at 5. Defendant Gibson then grabbed him by the neck, at which point Judge fell to his hands and knees on a bench. Id. Defendant Gibson began making insulting verbal comments toward plaintiff and slapped him three times on the back of the head. Id.
Defendant's version of the relevant events significantly differs from plaintiff's account. According to the defendant, after plaintiff was removed from class, Gibson directed plaintiff to wait in the lobby of the school building until the area supervisor was notified of the situation, at which time the supervisor released Judge without incident back into his housing unit pending a disciplinary hearing. Dkt. No. 22-3 at 2. Defendant Gibson denies having physically assaulted or verbally harassed the plaintiff on March 19, 2013, or at any other time, and denies ever "physically touch[ing] plaintiff at all in any way whatsoever" on that date. Id. In light of plaintiff's complaint that he was assaulted by a corrections officer, Judge was examined by medical staff at Bare Hill on March 27, 2013, at which time no bruises or injuries were observed. Dkt. No. 22-3 at 5.
II. PROCEDURAL HISTORY
Plaintiff's complaint, which is dated May 11, 2013, was filed in the Eastern District of New York on May 17, 2013. Dkt. No. 1. The complaint named five defendants, including Corrections Officer Gibson; DOCCS Commissioner Brian Fischer; Bare Hill Superintendent Bruce S. Yelich; Mrs. Larue, a teacher at Bare Hill; and the State of New York. Id. at 3. Plaintiff's complaint was accompanied by an application for leave to proceed in forma pauperis ("IFP"). Dkt. No. 3. The matter was subsequently transferred to this district on June 21, 2013, pursuant to 28 U.S.C. §§ 112(a), 1406(a). Dkt. No. 5.
Upon receipt of the matter in this district, plaintiff's complaint and accompanying IFP application were reviewed by Senior District Judge Frederick J. Scullin, Jr., who granted plaintiff's request to proceed IFP and dismissed all of the claims set forth in plaintiff's complaint with the exception of the excessive force claim asserted against defendant Gibson. See generally Dkt. No. 13.
On March 13, 2014, following the close of discovery, defendant Gibson moved for the entry of summary judgment dismissing plaintiff's claims against him. Dkt. No. 22. In his motion, defendant contends that (1) plaintiff's complaint is procedurally deficient based upon his failure to exhaust available administrative remedies before commencing suit, and (2) no reasonable factfinder could conclude plaintiff's Eighth Amendment rights were violated by his actions, even as alleged by the plaintiff in his complaint. Dkt. No. 22-6 at 4-10. On April 13, 2014, plaintiff filed a document which the court has liberally construed as his response in opposition to defendant's motion. Dkt. No. 24. In his submission, plaintiff includes (1) a document purporting to be an affidavit from a fellow inmate regarding the alleged assault by defendant Gibson, and (2) a letter recounting the incident, which plaintiff alleges he sent "to Albany." Dkt. No. 24. Significantly, plaintiff's opposition does not include a statement in response to defendant's local rule 7.1(a)(3) statement of undisputed material facts.
Plaintiff was informed by the court that the deadline for responding to the motion for summary judgment was April 11, 2013. Dkt. No. 23 at 1. Plaintiff's response, however, is dated by him as April 13, 2013, rendering it two days late. Dkt. No. 24. Mindful of my duty to extend special solicitude to pro se litigants, however, I have considered the untimely response in reviewing the motion.
Defendant's motion, which is now ripe for determination, 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. Plaintiff's Failure to Submit a Responsive Rule 7.1(a)(3) Statement
As was noted above, although plaintiff submitted a brief response to defendant's summary judgment motion, it did not address defendant's statement of undisputed material issues of fact submitted pursuant to rule 7.1(a)(3) of the local rules of practice for this court. See generally Dkt. No. 24. Before turning to the merits of defendant's motion, a threshold issue to be addressed is the legal significance of this failure.
This court's local rules provide that any motion for summary judgment must be accompanied by a statement of material facts as to which, the moving party submits, there exists no genuine dispute. N.D.N.Y. L.R. 7.1(a)(3). The rule further requires that each fact listed set forth a specific citation to the record where the fact is established. Id.
In this instance, defendant's motion was accompanied by a proper rule 7.1(a)(3) statement, including corresponding record citations. Dkt. No. 22-1. The motion also included a notice to plaintiff of the consequences of failing to properly respond to the summary judgment motion, which stated that, "[i]f [plaintiff] do[es] not submit a proper response to the defendants' statement of material facts, the Court may deem [him] to have admitted the defendants' factual statements." Dkt. No. 22 at 3 (emphasis in original).
Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Under this rule, plaintiff's failure to respond to the defendant's rule 7.1(a)(3) statement is the functional equivalent of his admission of the material facts contained with the statement for purposes of the instant motion. See Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn J.) (listing cases); see also Monahan v. N.Y. City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rule 7.1(a)(3); Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *2 (N.D.N.Y. Oct. 25, 2011) (McAvoy, J.) ("[T]he responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly." (listing cases)).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
B. Summary Judgment Standard
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 facts 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 New York, 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, and 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 nonmoving 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").
C. Exhaustion of Administrative Remedies
In his motion, defendant Gibson argues that plaintiff's complaint is subject to dismissal based upon his failure to exhaust available administrative remedies before commencing suit. Dkt. No. 22-6 at 4-6. The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
The DOCCS makes available to inmates a grievance procedure entitled the Inmate Grievance Program ("IGP"). The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's Inmate Grievance Resolution Committee ("IGRC") has up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
As can be seen, at each step of the IGP process, a decision must be rendered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).
The record is equivocal as to whether plaintiff filed a formal grievance concerning the events relevant to this action. In his complaint, Judge alleges that he did file a grievance and appealed it to the facility superintendent, Albany, and the DOCCS Inspector General. Dkt. No. 1 at 2. In his deposition, however, plaintiff testified that he did not file a grievance out of fear of retaliation by corrections officers. Dkt. No. 22-2 at 18. In response to defendant's motion, plaintiff attached a "grievance" he "sent to Albany," which shows two stamps, one indicating receipt by the DOCCS Office of Counsel for the Board of Parole on March 22, 2013, and a second showing receipt by the DOCCS on March 26, 2013. Dkt. No. 24 at 3-4. The latter also states "RECEIVED INMATE GRIEVANCE." Id. at 3.
Regardless of whether plaintiff filed a formal grievance through the IGP concerning the alleged assault by defendant Gibson, it is uncontested that any such grievance was not pursued to completion through appeal to the CORC. Defendant's rule 7.1(a)(3) statement, to which plaintiff has not responded, includes the following assertion:
Plaintiff did not appeal to CORC regarding any grievance filed under NYCRR §§ 701.5 or 701.8 alleging he was subjected to excessive force by Officer Gibson at Bare Hill Correctional Facility on March 19, 2013. See, Hale Decl. ¶¶ 11-12.Dkt. No. 22-1 at 4. To satisfy the PLRA's exhaustion requirement, plaintiff must have completed all steps of the IGP, including seeking review by the CORC. Ruggerio, 467 F.3d at 176. In light of plaintiff's failure to respond to this statement, and the fact that it is supported by the record, it therefore stands uncontested, for purposes of the instant motion, that plaintiff did not fully exhaust the available administrative remedies concerning the events giving rise to this action.
Plaintiff's apparent failure to exhaust available remedies is not necessarily fatal to his claims. In a series of decisions rendered since enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted when an inmate has failed to file and pursue to completion a proper grievance concerning the issues raised in the action. See, e.g., Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); see also Macias, 495 F.3d at 41. Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendant has forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through his own actions preventing the exhaustion of plaintiff's remedies, he should be estopped from asserting failure to exhaust as a defense. Id. In the event the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements. Id.
Liberally construing plaintiff's allegations, deposition testimony, and his response in opposition to the pending motion, it appears he contends that he should be excused from his failure to exhaust administrative remedies because he feared retaliation by corrections officers. Dkt. No. 22-2 at 18; Dkt. No. 24 at 1. In addition, in his response to defendant's motion, Judge states "I am still in fear of my safety and life at this time[.]" Plaintiff's purported fear of retaliation lacks plausibility in light of the letter sent by him to the DOCCS on the same day of the alleged assault. Dkt. No. 24 at 3-4. In addition, plaintiff commenced this action less than two months following the incident. Dkt. No. 1. These circumstances bely plaintiff's conclusory and unsupported claim that he feared retribution. Similarly, plaintiff's vague and unsupported allegation, in his response to the defendant's motion, that he is "still in fear for [his] safety" is not sufficient to satisfy any of the exceptions to the exhaustion rule. See Singh v. Lynch, 460 F. App'x 45, 47-48 (2d Cir. 2012) ("The test for determining the availability of grievance procedures to a prisoner is objective . . . . Singh's subjective fear of retaliatory physical harm derives from two facts: the unreported June 6, 2005 assault and other inmates' warnings that Lynch was out to get him. The former fact cannot, by itself, support an objective finding that grievance procedures were unavailable . . . . As for the alleged inmate warnings, in the absence of any particulars indicating that Lynch was looking to do more than harass Singh . . ., this fact cannot support a finding that grievance procedures for an assault claim were effectively unavailable."); Harrison v. Stallone, No. 06-CV-0902, 2007 WL 2789473, at *6 (N.D.N.Y. Sept. 24, 2007) (Kahn, J., adopting report and recommendation by DiBianco, M.J.) (concluding that the plaintiff was not excused from exhausting available administrative remedies even where the plaintiff alleged in his complaint that he did not file a grievance because he was "'afraid of retaliation'" and he stated in opposition to the defendants' motion for summary judgment that "he had a 'legitimate fear' of retaliation because of his substantive claim is one for retaliation"). To hold otherwise would permit an exception that would be easily and often incanted by inmates, and would potentially undermine the PLRA's exhaustion rule. Harrison, 2007 WL 2789473, at *6.
Based upon the foregoing, I recommend a finding that plaintiff's claims in this action are subject to dismissal on the procedural ground that he failed to exhaust available administrative remedies before commencing suit.
D. Merits of Plaintiff's Excessive Force Claim
Addressing the merits of plaintiff's claims, defendant Gibson argues that his allegations are not sufficient to support a cognizable constitutional claim. Dkt. No. 22-6 at 7-10. Plaintiff's excessive force claim is grounded in the Eighth Amendment, which prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or 'involve[s] the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (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) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
A plaintiff's constitutional 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). "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.
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).
"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.
Finally, 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 prisoner's 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)).
In this instance, even assuming the truth of plaintiff's allegations regarding the extent of force used against him by defendant Gibson on March 19, 2013, no reasonable factfinder could conclude that his Eighth Amendment rights were abridged by the defendant. Plaintiff contends that, after defendant Gibson instructed him to place his hands against the wall with his feet apart, defendant Gibson kicked his feet further apart and then grabbed his neck, at which point plaintiff fell to his hands and knees onto a bench where defendant Gibson slapped Judge three times on the back of the head. Dkt. No. 1 at 5. In light of his claim of having been subjected to excessive force, plaintiff was examined by medical personnel at the facility, who observed no visible bruises or injuries. Dkt. No. 22-3 at 5. Significantly, in the medical report, the examiner stated, "[I]nmate denies injuries or medical concerns at this time." Id.
Plaintiff also claims that, during the course of the incident, he was subjected to verbal abuse by the defendant. Dkt. No. 1 at 4-5. It is well-established, however, that claims of verbal abuse or harassment, standing alone, are not cognizable under 42 U.S.C. § 1983. See, e.g., Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) (McAvoy, J.) ("Although indefensible and unprofessional, verbal threats or abuse are not sufficient to state a constitutional violation cognizable under [section] 1983." (citing cases)).
As was previously noted, the lack of a serious injury alone does not necessarily negate a finding of excessive force. Wright, 554 F.3d at 268-69.
The Supreme Court has explained that a de minimis use of force constitutes a violation of the Eighth Amendment only if it is "repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10. The Second Circuit, moreover, has agreed "with other circuits that some degree of injury is ordinarily required" for a plaintiff to succeed on his Eighth Amendment claim. U.S. v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999). Plaintiff alleges only that he was grabbed by the back of the neck and "slap[ped]" on the head three times by defendant Gibson. Dkt. No. 1 at 5. In addition, defendants have submitted uncontroverted evidence that, as a result of the alleged use of force by defendant Gibson, plaintiff suffered no injury and reported no medical concerns to Bare Hill medical staff. Dkt. No. 22-3 at 5. While the court does not necessarily condone the conduct alleged in plaintiff's complaint, if it in fact occurred as stated, no reasonable factfinder could conclude that the use of force, even as claimed by the plaintiff, was anything more than de minimis or was of the type that shocks the conscience. See Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (concluding that the plaintiff's allegations "of a small number of incidents in which he was allegedly verbally harassed, touched, and pressed against without his consent" were not "severe enough to be objectively, sufficiently serious" (quotation marks omitted)); McEachin v. Bek, No. 06-CV-6453, 2012 WL 1113584, at *7 (W.D.N.Y. Apr. 2, 2012) (granting summary judgment in the defendant's favor where the court assumed, for purposes of the motion, that the defendant struck the plaintiff in the head three times with his closed fist); Romaine v. Rawson, 140 F. Supp. 2d 204, 212 (N.D.N.Y. 2001) (Kahn, J.) ("Regardless[] of whether the strikes were open-fisted or closed-fisted, given the lack of any visible injury to Plaintiff, the Court concludes that Defendant's application of force against Plaintiff was de minimis."); Santiago v. C.O. Campisi Shield No. 4592, 91 F. Supp. 2d 665, 674 (S.D.N.Y. 2000) (dismissing the plaintiff's excessive force claim where the most severe use of force was "an open-handed slap"). Accordingly, I further recommend plaintiff's excessive force claim asserted against defendant Gibson be dismissed on the merits.
IV. SUMMARY AND RECOMMENDATION
As an initial procedural matter, plaintiff's failure to file a grievance concerning the matters now complained of, and to pursue it to completion, serves to preclude his maintenance of this action. Moreover, even assuming plaintiff could establish that he did satisfy his obligation to exhaust available administrative remedies, defendant Gibson's alleged use of force against plaintiff is not legally sufficient to support the only remaining claim in this action. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 22) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety.
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).
It is hereby 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.
/s/ _________
David E. Peebles
U.S. Magistrate Judge
Dated: February 10, 2015
Syracuse, New York