Opinion
03 Civ. 6456 (KMW).
March 5, 2007
OPINION AND ORDER
Pro se plaintiff Ernest Wilkerson brings this prisoner civil rights action alleging a violation of the Eighth Amendment to the Constitution. Specifically, Wilkerson claims he was twice subject to cruel and unusual punishment during his ongoing confinement at the Federal Correctional Institution in Otisville, New York ("FCI Otisville"): (1) on August 21, 2002, when correctional officers placed in Wilkerson's cell an inmate who had clearly stated his intention to fight any new cellmate, and a fight immediately ensued; and (2) on September 3, 2002, when officers placed Wilkerson in a recreation cage with that inmate. Wilkerson and Defendants have each moved for summary judgment.
The Complaint also alleged violations of the First Amendment, the Fifth Amendment's equal protection guarantee, and the Federal Tort Claims Act, but those claims were dismissed by order dated August 23, 2004.
By report and recommendation dated August 10, 2006 (the "Report"), Magistrate Judge Theodore H. Katz recommended that this Court (1) grant summary judgment in full to Defendants John Banks, Richard Klingman, Richard Martinez, Fredrick Menifee, and Tomas Nunez; (2) deny summary judgment to Defendants Thomas Clark, Kenneth Johnson, and Arnold Kostomaj with respect to the August 21 incident, but grant them summary judgment with respect to the September 3 incident; and (3) deny summary judgment to Wilkerson. Defendants object to the Report to the extent it recommends complete summary judgment be denied to Clark, Johnson, and Kostomaj.
For the following reasons, the Court accepts the Report's recommendations in part and rejects them in part, and grants summary judgment to all Defendants on all issues.
BACKGROUND
The following is a summary of facts; a fuller account of the facts is provided in the Report, familiarity with which is assumed.
In August 2002, Defendant Menifee, the warden of FCI Otisville, determined that prison overcrowding required that inmate Benjamin Sallee, who had long insisted on living by himself for religious reasons, share a cell with another inmate. (Menifee Decl. ¶¶ 5, 7.) Menifee selected Wilkerson to share a cell with Sallee, because Menifee believed it unlikely that Sallee would start an altercation with the larger and younger Wilkerson. (Id. ¶ 8.)
On August 21, 2002, Defendant Johnson informed Wilkerson that another inmate would be placed with him in his cell. (Wilkerson Dep. 21.) A "raging" Sallee was then brought into the housing area. (Id. 22.) Officers escorted Wilkerson to the shower; as he passed Sallee, Sallee said, "We're going to fight when we get back in there." (Id.) When Wilkerson was brought back, Sallee was inside Wilkerson's cell, and several Defendants were waiting in the vicinity. (Id. 23.) Wilkerson stated his intention to defend himself, and Johnson replied, "You got to do what you got to do." (Id.)
Through a slot in the locked door, the officers removed Wilkerson's handcuffs and then Sallee's. (Clark Decl. ¶ 5; Wilkerson Dep. 23.) Wilkerson alleges that as they removed Sallee's handcuffs, Defendant Kostomaj said, "I got my money on the big nigger," and Defendant Clark replied, "I got my money on the little monkey." (Wilkerson Dep. 60-61.) Clark and Kosomaj deny having made these statements or having used any racially derogatory terms. (Clark Decl. ¶ 11; Kosomaj Decl. ¶ 15.) Once Sallee's handcuffs were removed, an altercation began. The parties disagree about what happened next: Wilkerson states that Sallee "lunged" at him and tried twice to grab him (Wilkerson Dep. 64, 69); Sallee remembers throwing two punches at Wilkerson, which Wilkerson caught (Sallee Dep. 33-34); the officers do not recall any punches, but state that Wilkerson easily fended off Sallee (Clark Decl. ¶ 7; Johnson Decl. ¶ 13; Kostomaj Decl. ¶¶ 9, 11). Wilkerson alleges that his lower back struck the frame of the bed (Wilkerson Dep. 71), though the officers did not see either inmate hit the bed or the wall "with any significant force" (Clark Decl. ¶ 10.) Sallee punched or lunged no more than twice before the officers grabbed the two men and separated them. (Sallee Dep. 33-34; Wilkerson Dep. 69-70.)
After removing Sallee from the cell, Johnson returned and asked Wilkerson whether he wished to be visited by a physician's assistant; Wilkerson responded in the negative. (Johnson Decl. ¶ 15; Wilkerson Dep. 78-79.) That evening, Wilkerson complained of "throbbing" lower back pain. (Wilkerson Dep. 80-81.)
On September 3, 2002, Defendants Clark, Martinez, and Nunez placed Sallee and Wilkerson together in a recreation cage. (Id. 108.) Wilkerson stood in the corner of the cage, "terrified," for about forty minutes. (Id.) Sallee did not assault Wilkerson in the cage. (Id. 116.)
STANDARD OF REVIEW
To prevail on a motion for summary judgment, the moving party must "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). An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006), in whose favor all factual inferences must be drawn, Phaneuf v. Fraikin, 448 F.3d 591, 595 (2d Cir. 2006).
Wilkerson has filed this action pro se. The pleadings of a pro se plaintiff should be construed liberally and interpreted as raising the strongest possible arguments. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
DISCUSSION I. Recommendations Without Objection
Magistrate Judge Katz's Report stated that, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b), in conjunction with Rules 6(a) and 6(e), of the Federal Rules of Civil Procedure, the parties had ten days from service of the Report to serve and file any objections. The Report also informed the parties that they could request an extension of time to file objections. The Report explicitly cautioned that failure to file timely objections would preclude appellate review. Neither party objected to Magistrate Judge Katz's recommendations that this Court (1) grant summary judgment to Defendants Clark, Johnson, and Kostomaj as to the September 3 incident; (2) grant summary judgment in full to the remaining Defendants; and (3) deny summary judgment to Wilkerson.
By order dated August 14, 2006, this Court granted both sides an extension of more than two weeks.
The Second Circuit has held that failure to object timely to a magistrate's report waives further judicial review of the magistrate's decision. Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). The Supreme Court has upheld this practice when the parties receive clear notice of the consequences of their failure to object. Id. (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). The Court has reviewed the portions of the Report to which neither party objected and finds them to be well-reasoned and free of any clear error on the face of the record. See Fed.R.Civ.P. 72(b) advisory committee's note. The Court therefore accepts and adopts these portions of the Report.
II. Motion for Summary Judgment by Defendants Clark, Johnson, and Kostomaj
Magistrate Judge Katz recommended that this Court deny summary judgment to Defendants Clark, Johnson, and Kostomaj as to the claims arising from the August 21 incident, because, in Magistrate Judge Katz's view, factual issues exist about whether Wilkerson was subject to a substantial risk of serious harm and whether Clark, Johnson, and Kostomaj were aware of that risk. Defendants have objected to this portion of the Report. Where a party objects to part of a magistrate judge's report and recommendation, the district court must review that part of the report de novo. 28 U.S.C. § 636(b)(1).
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The scope of the Amendment is not limited to formal punishment meted out by the court, but extends to the conditions of an inmate's confinement in prison, including "the protection he is afforded against other inmates." Wilson v. Seiter, 501 U.S. 294, 303 (1991).
In order to establish that a prison official's actions violated the Eighth Amendment, an inmate must satisfy two requirements. First, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the official must have exhibited "deliberate indifference to inmate health or safety."Id. (internal quotation marks omitted). Substantial risk of serious harm is defined objectively, whereas deliberate indifference is defined subjectively: "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. at 837. However, "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.
Here, Wilkerson cannot satisfy the second, subjective requirement of this test, because Defendants Clark, Johnson, and Kostomaj responded to any risk in a reasonable way. Accordingly, Clark, Johnson, and Kostomaj are entitled to summary judgment.
The Court therefore need not examine whether Wilkerson has satisfied the objective prong of the Farmer test, nor Defendants' argument that they enjoyed qualified immunity for their actions.
There is no genuine issue of material fact about Defendants' response to the risk of an altercation. Wilkerson is younger and physically larger than Sallee (Wilkerson Dep. 31-32), and Warden Menifee stated that he selected Wilkerson to share a cell with Sallee on that basis (Menifee Decl. ¶ 8). All parties agree that after placing Wilkerson into the cell with Sallee, officers Clark, Johnson, and Kostomaj stood directly outside the cell. (Clark Decl. ¶ 8; Johnson Decl. ¶ 12; Kostomaj Decl. ¶ 12; Sallee Dep. 52; Wilkerson Dep. 58-59.) The parties also agree that when Sallee began to assault Wilkerson, the officers responded promptly, entering the cell and separating the two men. The three officers state that they entered the cell "immediately." (Clark Decl. ¶ 9; Johnson Decl. ¶ 14; Kostomaj Decl. ¶ 13.) Sallee and Wilkerson corroborate this description, stating that Sallee had time for no more than two punches or lunges, without any pause between them, before the officers grabbed both men. (Sallee Dep. 33-34; Wilkerson Dep. 69-70.) Finally, after the incident Defendants offered Wilkerson the chance to be visited by a member of the prison medical staff, which he declined. (Johnson Decl. ¶ 15; Wilkerson Dep. 79.) Wilkerson does not suggest any additional precautions that the officers might have taken to ensure his safety when placing the two men together in the cell.
Given this agreement that the officers responded promptly, the exact length of time that Wilkerson and Sallee spent in the cell together is not material.
Moreover, Defendants have submitted an affidavit from Menifee that states that, in his judgment as warden,
it would be contrary to the penological and disciplinary interests of the prison to allow Sallee to become accustomed to having a single cell. To do so would make it more difficult to place Sallee in a shared cell when that became necessary; would amount to providing him special treatment, which would be unfair to other inmates (most of whom would like a single cell) and cause resentment; and would allow Sallee to dictate the terms of his incarceration to the prison staff.
(Menifee Decl. ¶ 5.) Wilkerson has agreed with these statements. (See Pl.'s Statement of Undisputed Facts and Disputed Facts ¶ 4; Defs.' Statement of Undisputed Facts ¶ 4.)
The Supreme Court has cautioned that "[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). In light of this directive, the Second Circuit has stated that courts should ask not merely whether a challenged action "was imposed with `deliberate indifference' to [a plaintiff's] health and safety . . . [but] whether [it] was reasonably calculated to restore prison discipline and security and, in that purposive context, whether the officials were deliberately indifferent to [plaintiff's] health and safety." Trammell v. Keane, 338 F.3d 155, 163 (2d Cir. 2003).
By contrast, prison discipline and security were not implicated in either of the two cases cited by the Report in its discussion of the reasonableness of Defendants' response. See Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 621 (2d Cir. 1996); Knowles v. N.Y.C. Dep't of Corr., 904 F. Supp. 217, 222 (S.D.N.Y. 1995). Moreover, the facts of those two cases were far more egregious, and the prison officials' response far more tepid, than those here. In Hayes, the plaintiff was slashed or stabbed on three separate occasions after pleading with prison officials to transfer him to a more secure facility. Hayes, 84 F.3d at 617-18. In Knowles, the plaintiff was slashed in a prison recreation yard; although the officers on duty allegedly knew he was a likely target in an ongoing prison race war, they failed to follow standard strip-search procedures or stand guard near him in the yard. Knowles, 904 F. Supp. at 218-19.
The question whether Clark, Johnson, and Kostomaj responded reasonably must be viewed in the context of prison discipline and security. Considered in this context, their response was reasonable. Warden Menifee determined that legitimate "penological and disciplinary interests" required Sallee to share a cell with another inmate, and Menifee placed Sallee in Wilkerson's cell because he thought that Sallee would not assault Wilkerson, who was bigger and younger than Sallee. The manner in which Clark, Johnson, and Kostomaj implemented Menifee's decision — waiting together outside the cell, separating the combatants quickly when a fight broke out, and offering Wilkerson medical attention afterwards — was calculated to minimize any risk to Wilkerson's health and safety. Cf. id. at 164 (noting medical care was provided to plaintiff, indicating "that the defendants were mindful of, not indifferent to, his health"). Accordingly, Defendants did not exhibit deliberate indifference as a matter of law, and are entitled to summary judgment in their favor.
CONCLUSION
For the reasons stated above, Defendants' motion for summary judgment is GRANTED, and Wilkerson's motion for summary judgment is DENIED. The Clerk of Court is directed to close this case. Any pending motions are moot.
SO ORDERED.