Opinion
9:12-cv-01642 (MAD/TWD)
03-06-2017
PETER YOUNG, Plaintiff, v. BRIAN FISCHER, et al., Defendants.
APPEARANCES: PETER YOUNG, Plaintiff, pro se 3225 Burnet Ave. Apt. #5 Syracuse, New York 13206 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants 615 Erie Blvd. West, Suite 102 Syracuse, New York 13204 OF COUNSEL: AIMEE M. PAQUETTE, ESQ. Assistant Attorney General
APPEARANCES: PETER YOUNG,
Plaintiff, pro se
3225 Burnet Ave. Apt. #5
Syracuse, New York 13206 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
615 Erie Blvd. West, Suite 102
Syracuse, New York 13204 OF COUNSEL: AIMEE M. PAQUETTE, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION
I. INTRODUCTION
This matter has been referred to the undersigned for a report and recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule ("L.R.") 72.3(c). Pro se Plaintiff Peter Young, a former inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this civil rights action pursuant to 42 U.S.C. § 1983 on September 13, 2012, asserting claims arising out of his confinement at Auburn Correctional Facility ("Auburn"). (Dkt. No. 1.) Upon initial review, the Court sua sponte dismissed all of Plaintiff's claims pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and Plaintiff was granted leave to file an amended complaint. (Dkt. No. 26.)
On March 27, 2013, Plaintiff timely filed an amended complaint. (Dkt. No. 30.) Following initial review of the amended complaint, the Court found the following claims survived review and required a response:
(1) First Amendment retaliation claims against Commissioner Brian Fischer ("Fischer"), Superintendent Harold D. Graham ("Graham"), Sergeant Brower ("Brower"), Sergeant Frank Chandler ("Chandler"), Corrections Officer ("C.O.") Paul J. Casler ("Casler"), C.O. Trevor Heath ("Heath"), and C.O. Edward Fagen ("Fagan");(Dkt. No. 44 at 29-30.)
(2) First Amendment legal mail interference claims against Fischer, Graham, Chandler, Casler, and Heath;
(3) First Amendment denial of access to the court claims against Graham, Chandler, Casler, and Heath;
(4) Eighth Amendment conditions of confinement claims against Fischer, Brower, and Chandler;
(5) Eighth Amendment excessive force claim against Fischer, Graham, and Lieutenant Joseph L. Vasile ("Vasile");
(6) Fourteenth Amendment forced medical care claim against Graham; and
(7) Fourteenth Amendment deprivation of personal property claim against Graham.
Although Plaintiff names C.O. Edward Fagen as a Defendant, his surname is correctly spelled "Fagan." (Dkt. No. 139.)
Page references to documents identified by docket number are to the page number assigned by the Court's CM/ECF electronic docketing system.
Defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Dkt. No. 139.) Defendants move for summary judgment on the grounds that Plaintiff's constitutional claims are meritless, and that Plaintiff has failed to establish the personal involvement of the Fischer, Graham, Chandler, and Vasile. (Dkt. No. 139-7.) Plaintiff has opposed the motion, and Defendants have filed a reply. (Dkt. Nos. 142 and 144.) For the reasons explained below, the Court recommends that Defendants' motion for summary judgment be granted in part and denied in part.
II. FACTUAL BACKGROUND
The relevant facts in this case were outlined in Judge D'Agostino's decision on initial review of the amended complaint, and will be recited herein for clarity and continuity, with additional details drawn from the transcript of Plaintiff's February 25, 2016, deposition. (Dkt. Nos. 44 and 139-3.)
Plaintiff claims Commissioner Fischer retaliated against him for filing a previous federal civil rights lawsuit naming Fischer as a defendant, for filing grievances, and for his religious beliefs. (Dkt. No. 30 at 7.) Regarding his religious beliefs, Plaintiff testified he is a "solider of God" and that he prays to the "creator of heaven and earth and all things beautiful." (Dkt. No. 139-3 at 54, 85.) Plaintiff explained it is against his "religious beliefs to have any medical treatment of any kind" and that his "mind, soul, and heart is God's temple." Id. at 55. Plaintiff prays three time a day, believes in the Old Testament, and does not eat pork. Id. at 86-87. Further, he does not celebrate "holidays or anything like that." Id. at 85.
Specifically, Plaintiff claims Fischer retaliated against him by, among other things, directing his agents to use excessive force and to employ chemical agents against him without justification, by subjecting him to inadequate conditions of confinement, by giving his staff permission to tamper with Plaintiff's legal mail, and by refusing to mail out Plaintiff's civil rights claims. Id. at 8.
Plaintiff alleges Superintendent Graham retaliated against him for filing a previous federal civil rights lawsuit naming Graham as a defendant, for filing grievances, and for his religious beliefs. (Dkt. No. 30 at 13.) Plaintiff alleges Graham retaliated against him by, among other things, ordering Plaintiff to be taken to the facility infirmary for medical treatment against his religious beliefs, by directing corrections officers to use excessive force and employ chemical agents against him without justification, and by tampering with his legal mail. Id. at 9-10. Plaintiff claims Graham instructed his subordinate officers to remove all of Plaintiff's legal documents, along with socks and underwear from his cell to be destroyed without due process. (Dkt. No. 139-3 at 55-56; Dkt. No. 30 at 10.)
Plaintiff alleges Graham interfered with his legal mail by "not mailing legal documents and other correspondence" to attorneys and to the court and by "reading attorney privileged mail." (Dkt. No. 30 at 11.) Plaintiff also alleges that, on one occasion, Graham kept legal transcripts mailed to Plaintiff in the facility's package room for over three months after receiving them and that, as a result, a case Plaintiff had pending in the Eastern District of New York was dismissed by the court for failure to file a memorandum of law. Id. at 12. Plaintiff alleges Graham refused to provide him with mailing supplies or access to the facility's law library. Id. at 13. Lastly, Plaintiff claims Graham ordered Lieutenant Vasile to take Plaintiff to the infirmary for medical treatment against his religious beliefs. Id. at 9.
Plaintiff alleges Sergeant Brower retaliated against him for filing a previous federal civil rights lawsuit naming Brower as a defendant, for filing grievances, and for his religious beliefs. Id. at 14-15. Plaintiff alleges Brower retaliated against him by, among other things, having the water turned off in his cell for thirty days. Id. at 15. Plaintiff testified he was provided with a bucket of hot water twice a day for drinking, washing, and laundry to "belittle" Plaintiff because he refused to shave off his beard and attend a D.W.I. program, both of which were against his religious beliefs. (Dkt. No. 139-3 at 59-60.) Plaintiff further testified Brower refused to give Plaintiff his legal mail. Id. at 66-67. Plaintiff testified Brower was part of the cell extraction team, and that although he was not physically involved, Brower "ordered it." Id. at 68.
Plaintiff alleges Sergeant Chandler interfered with his legal mail and tampered with his food in order "to get [Plaintiff] . . . to shave [his] beard against [his] religious belief." (Dkt. No. 30 at 16-17.) Plaintiff claims Chandler interfered with his legal mail by refusing to send Plaintiff's outgoing mail and by refusing to give Plaintiff mail sent to him. Id. at 17-18. At his deposition, Plaintiff clarified that Chandler ordered officers to throw away his legal mail. (Dkt. No. 139-3 at 72-73.) As a result of Chandler's refusal to mail his legal documents, Plaintiff claims he "lost [an] appeal and lawsuit." (Dkt. No. 30 at 18.) Plaintiff alleges Chandler tampered with his food by allowing food service staff to place dirty gloves on his food tray and to provide him with inadequate food at meal times. Id. As a result, Plaintiff "lost weight and had no energy to do anything." Id.
Plaintiff alleges C.O. Casler retaliated against him for filing federal civil rights lawsuits, for filing grievances, and for his religious beliefs. Id. at 22. Specifically, Plaintiff claims Casler retaliated against him by, among other things, tampering with his legal mail, tampering with and withholding food, and by removing and destroying documents from his cell. Id. at 21-23. Plaintiff further claims Casler refused to send his legal mail to the court and to his attorney. Id. at 23. In one instance, Plaintiff alleges that Casler's refusal to mail a letter requesting an extension of time in a case pending in the Eastern District of New York resulted in the judge dismissing Plaintiff's case. Id. In addition, Plaintiff testified Casler was part of the extraction team on one occasion, and that he "ordered it." (Dkt. No. 139-3 at 70.)
Plaintiff claims C.O. Heath retaliated against him for filing federal civil rights lawsuits, for filing grievances, and for his religious beliefs. Id. at 24. Plaintiff alleges Heath retaliated against him by, among other things, interfering with his legal mail and tampering with his food. Id. at 25. Plaintiff claims Heath refused to give him incoming legal mail and to send outgoing mail to attorneys and to the court. Id. As a result of Heath's actions, Plaintiff alleges that the judge in one of his pending cases did not receive Plaintiff's motions and other correspondence. Id. Plaintiff also testified Heath was personally involved in one of the cell extractions, and that Heath twisted and lifted his arm while he was handcuffed, tearing his rotator cuff. (Dkt. No. 139-3 at 78-79.) Plaintiff testified he felt extreme pain but did not seek medical attention because of his religious beliefs. Id. at 79.
Plaintiff alleges C.O. Fagan retaliated against him for filing federal civil rights lawsuits, for filing grievances, and for his religious beliefs. (Dkt. No. 30 at 26-27.) Plaintiff claims Fagan retaliated against him by, among other things, tampering with his food, refusing to give him legal supplies, providing him with dirty linens and towels, refusing to give him hot water, and by making unwanted sexual advances. Id. at 26-28.
Plaintiff alleges Lieutenant Vasile forced him to go to the infirmary for medical treatment against his religious beliefs, used excessive force and chemical agents against him without justification, and removed legal documents and other property from his cell. Id. at 29-31. Plaintiff alleges Vasile used excessive force on multiple occasions to extract him from his cell in order to force Plaintiff to receive unwanted medical attention. Id. at 29. Plaintiff alleges that during the cell extractions, Vasile and officers wearing "full riot gear" assaulted him using night sticks and shields, and that Vasile sprayed a chemical agent into his eyes. Id. at 29-30. Plaintiff alleges the cell extractions and assaults occurred approximately four times in the year preceding the filing of the amended complaint. Id.
At his deposition, Plaintiff could not recall the dates of the cell extractions. (Dkt. No. 139-3 at 70.) In addition, Plaintiff explained members of the extraction team always wore "full riot gear" including face shields. Id. at 70. Plaintiff did however, testify that on one occasion, he recognized Heath and Casler as members of the extraction team after the removed their face shields. Id. As to Vasile's personal involvement in the cell extractions, Plaintiff testified that Vasile never physically "did the work" but ordered his "underlings" to do "the work." Id. at 69.
III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). Indeed, "[a]t the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted); see also Smith v. Woods, 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). Even where a complaint or affidavit contains specific assertions, the allegations "may still be deemed conclusory if [they are] (1) 'largely unsubstantiated by any other direct evidence' and (2) 'so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.'" Woods, 2006 WL 1133247, at *3 & n.11.
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
IV. PLAINTIFF'S FAILURE TO COMPLY WITH L.R. 7.1(a)(3)
While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). Plaintiff has failed to respond to Defendants' Statement of Material Facts as required under L.R.(a)(3). (Dkt. No. 142.) His response does not mirror Defendants' Statement of Material Facts (Dkt. No. 139-6), nor does it specifically admit or deny the statements therein and cite references to evidence in the record supporting or refuting Defendants' statements. (Dkt. No. 142.) Where a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Artuz, 76 F.3d at 486.
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
L.R. 7.1(a)(3) provides that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." But see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to the summary judgment motion. (Dkt. No. 139-1.)
However, the Second Circuit has ruled that "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," including local rules relating to requirements regarding the submission of and response to statements of material facts on summary judgment motions, and to "conduct an assiduous review of the record." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In addition, because Plaintiff's amended complaint is verified, the Court will treat it as an affidavit in opposition to Defendants' cross motion for summary judgment. See Colon, 58 F.3d at 872.
Plaintiff's opposition, however, is unsworn. (Dkt. No. 142.) Unsworn statements are generally inadmissible in opposition to a motion for summary judgment. See, e.g., Witzenburg v. Jurgens, No. CV-05-4827 (SJF)(AKT), 2009 WL 1033395, at *11 (E.D.N.Y. Apr. 14, 2009) (unsworn declarations are inadmissible for purposes of Rule 56 and cannot be considered by the court in deciding the motion for summary judgment). Even so, on summary judgment motions involving pro se plaintiffs, courts have been known to consider unsworn submissions in opposition. See, e.g., Hamm v. Hatcher, No. 05 Civ. 503(ER), 2013 WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (to afford pro se plaintiff special solicitude, the court considered unsworn statements in his opposition papers but only to the extent based on personal knowledge or supported by other admissible evidence in the record, on the assumption that if the allegations were sufficient to raise an issue of fact, plaintiff would be given the opportunity to submit an affidavit properly attesting to the allegations); Robles v. Khahaifa, No. 09CV718 (HBS), 2012 WL 2401574, at *7 (W.D.N.Y. June 25, 2012). In deference to Plaintiff's pro se status, the Court has opted to review the entire summary judgment record.
V. ANALYSIS
A. Official Capacity Claims for Money Damages
Plaintiff has sued all Defendants for money damages under § 1983 in both their individual and official capacities. (Dkt. No. 30 at 1-5.) The Eleventh Amendment protects states against suits brought in federal court. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state. Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006). The Eleventh Amendment also bars all money damages claims against state officials acting in their official capacities, including the DOCCS Defendants herein. Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (an inmate plaintiff's claims for damages against all individual DOCCS employees sued in their official capacities are considered claims against New York and are thus barred by the State's Eleventh Amendment immunity).
Therefore, although Defendants have not raised an Eleventh Amendment argument in moving for summary judgment, the Court recommends that all of Plaintiff's § 1983 claims for money damages against Defendants in their official capacities be sua sponte dismissed with prejudice on Eleventh Amendment grounds. See Woods, 466 F.3d at 238 (recognizing that courts may raise the issue of Eleventh Amendment immunity sua sponte).
B. Retaliation
Plaintiff claims that Fischer, Graham, Brower, Chandler, Casler, Heath, and Fagan retaliated against him for filing lawsuits and grievances, and for his religious beliefs. Defendants maintain that these retaliation claims are legally deficient, and that the record contains no evidence upon which a factfinder could conclude that unlawful retaliation occurred. (Dkt. No. 139-7 at 15-19.) The Court agrees with Defendants.
Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). Central to such claims is the notion that in a prison setting, correction officials may not take actions that would have a chilling effect upon an inmate's exercise of First Amendment rights. Id. at 381-83. The Second Circuit has cautioned, however, that, because of "the ease with which claims of retaliation may be fabricated," courts should "examine prisoners' claims of retaliation with skepticism and particular care." Colon, 58 F.3d at 872; accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
To establish a claim under § 1983 for unlawful retaliation, a plaintiff must prove that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, 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). In the prison context, "adverse action" is objectively defined as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381.
In a case such as this, analysis of retaliation claims typically turns upon whether there is evidence tending to link the protected activity in which the inmate plaintiff has engaged and the adverse action allegedly taken against him by the defendant. "When such claims, which are exceedingly case specific, are alleged in only conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, a defendant is entitled to the entry of summary judgment dismissing plaintiff's retaliation claims." Williams v. Silliman, No. 9:11-CV-1477 (TJM/DEP), 2014 WL 991876, at *8 (N.D.N.Y. Mar. 13, 2014) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Such is the case here.
Plaintiff alleges in a completely conclusory fashion that Defendants' actions were taken because he has filed grievances and lawsuits, and for his religious beliefs. (See generally Dkt. No. 30.) First, Plaintiff asserts Fischer retaliated against him by directing his agents to use excessive force and to employ chemical agents against him without justification, by subjecting him to inadequate conditions of confinement, and by giving his staff permission to tamper with Plaintiff's legal mail. Id. at 8. Second, Plaintiff claims Graham retaliated against him by ordering Plaintiff to be taken to the facility infirmary for medical treatment against his religious beliefs, by directing corrections officers to use excessive force and to employ chemical agents on him without justification, tampering with his legal mail, denying his access to the courts, and taking and destroying his personal property. Id. at 9-10. Third, Plaintiff alleges Brower retaliated against him by turning the water off in his cell for thirty days. Id. at 15. Fourth, Plaintiff claims Chandler retaliated against him by tampering with his legal mail, denying him access to the courts, and tampering with his food. Id. at 16-18. Fifth, Plaintiff claims Casler retaliated against him by tampering with his legal mail, denying him access to the courts, tampering with and withholding food, and removing and destroying documents from his cell. Id. at 21-23. Sixth, Plaintiff claims Heath retaliated against him by interfering with his legal mail and tampering with his food. Id. at 25. Seventh, Plaintiff claims Fagan retaliated against him by tampering with his food, refusing to give him legal supplies, providing him with dirty linens and towels, refusing to give him hot water, and by making unwanted sexual advances. Id. at 26-28.
Although his amended complaint alleged otherwise, Plaintiff testified that with the exception of Fischer, he has never filed a lawsuit against the Defendants in this action. (Dkt. No. 139-3 at 45-46.)
In addition, Plaintiff claims Defendants retaliated against him because he refused to shave off his beard and attend a D.W.I. program, both of which were against his religious beliefs. (Dkt. No. 139-3 at 59-60.) Without any further explanation, Plaintiff surmises that his refusal to attend the D.W.I. program cost the government thousands of dollars. (Dkt. No. 30 at 13.) Plaintiff claims Defendants retaliated against him by, among other things, removing legal documents from his cell and discarding his "original 1983 claim," which was never filed with the court. (Dkt. No. 30 at 10.)
Aside from those conclusory allegations, there is no record evidence to support Plaintiff's claims. Claims of retaliation must be "supported by specific and detailed factual allegations" and not "stated in wholly conclusory terms." Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000). Further, Plaintiff's assumptions that officers took action against him based on the facts that officers "stick together" and are a part of a "brotherhood" is insufficient as a matter of law to support a retaliation claim. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 368-69 (S.D.N.Y. 2011); see e.g., Dkt. No. 139-3 at 59.
Now that the matter has progressed to the summary judgment stage, it is no longer sufficient for Plaintiff to engage in mere conjecture; instead, in response to Defendants' motion, Plaintiff needed to come forward with evidence from which a reasonable factfinder could find the requisite nexus between his protected activity and the adverse actions taken against him. See Flaherty, 713 F.2d at 13 ("a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone").
Even assuming, without deciding, that Plaintiff engaged in protected conduct and Defendants took adverse action, Plaintiff has set forth no evidence to provide the necessary causal link between the two. An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, "a number of factors may be considered, including: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation." Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 873). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has been found insufficient to survive summary judgment. See Roseboro, 791 F. Supp. 2d at 370 (citations omitted).
Here, the record is devoid of evidence, admissible or otherwise, that supports Plaintiff's assertions. Because Plaintiff's claims of retaliation have been alleged in only conclusory form, and are not supported by evidence now in the record establishing a nexus between any protected activity and the adverse actions complained of, the Court recommends dismissing Plaintiff's First Amendment retaliation claims against Fischer, Graham, Brower, Chandler, Casler, Heath, and Fagan.
C. Supervisor Liability
The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Aschcroft v. Iqbal, 556 U.S. 662, 676 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6, (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
Here, the record evidence reveals that Plaintiff sued Fischer because "he was the top man, C.E.O. of Department of Corrections." (Dkt. No. 139-3 at 25.) Plaintiff testified that he wrote numerous letters to Fischer "stating what they were doing to me and the abuse and everything [he] was getting from them." Id. Plaintiff believes that Fischer delegated his letters to a deputy commissioner. Id. at 34, 37-38.
Indeed, Plaintiff testified he sent a letter to Fischer explaining that his legal mail was being tampered with, and yet, Fischer "didn't do nothing" and that "[b]y him not doing anything, [Fischer] condoned what the corrections officers were doing to [him]." Id. at 37. Plaintiff testified that "all [Fischer] had to do was pick up the phone and tell them to give [him the] legal mail." Id.
Similarly, as to the conditions of confinement claim, Plaintiff testified he sent a letter to Fischer inquiring as to why he was assigned to the "worst correctional facilities," including Attica, Auburn, Clinton, Southport, and an isolation cell at Upstate, when he had been a model prisoner at Gouverneur, Gowanda, and the Suffolk County "honor farm." Id. at 38. Plaintiff also sent correspondence to Fischer informing him that he was in solitary confinement without due process. Id. Indeed, Plaintiff testified Fischer "could have looked into it" and "could have corrected it" because he "runs the place" but instead Fischer "didn't do nothing." (Dkt. No. 139-3 at 39.) Inmates, however, do not have a right to be housed at a specific facility or in a specific type of housing. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (inmates have no right to be confined in a particular state or particular prison within a given state); Montayne v. Haymes, 427 U.S. 236, 243 (1976) (New York state prisoners have no right to incarceration at a particular prison facility); Klos v. Haskell, 835 F. Supp. 710, 723 (W.D.N.Y. 1993), aff'd, 48 F.3d 81 (2d Cir. 1995) (citing cases). Moreover, DOCCS has "broad leeway in deciding where to house the inmates under its protective care, be it state or county jail." McFadden v. Solfaro, Nos. 95 Civ. 1148, 95 Civ. 3790, 1998 WL 199923, at *10 (S.D.N.Y. Apr. 23, 1998).
Conclusory claims that a supervisor did not respond to letters or grievances, or that a supervisory official referred a letter to subordinates is insufficient to establish personal involvement. Indeed, it is well-settled "that receipt of letters or grievances, by itself, does not amount to personal involvement." Guillory v. Ellis, No. 11-CV-600 (MAD/ATB), 2012 WL 2754859, at *10 (N.D.N.Y. July 9, 2012) (citing Vega v. Artus, 610 F. Supp. 2d 185, 199 (N.D.N.Y. 2009)); Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) ("[I]f mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability."). Likewise, "allegations that an official ignored a prisoner's letter is not enough to establish personal involvement." Atkins v. County of Orange, 251 F. Supp. 2d 1225, 1233 (S.D.N.Y. 2003).
Regarding the excessive force claim, Plaintiff testified Fischer never personally used any force against him, nor was Fischer present during any of the cell extractions. (Dkt. No. 139 at 36-37.) Rather, Plaintiff alleges Fischer authorized Graham to use of excessive force and chemical agents during cell extractions at Auburn. Id. However, a claim that a supervisor violated the Eighth Amendment by authorizing the use of force or chemical agents during a cell extraction, without more, does not amount to personal involvement. See, e.g., Scarbrough v. Thompson, No. 10-CV-901 (TJM/CFH), 2012 WL 7761439, at *10 (N.D.N.Y. Dec. 12, 2012) (granting summary judgment to prison official where inmate failed to alleged the supervisor was present for the extraction and directly failed to intervene to protect inmate from excessive force).
In sum, because the record discloses no bases to find personal involvement, or indeed any awareness, on the part of Fischer, the Court recommends dismissing all supervisory claims against Fischer for lack of personal involvement. (See Dkt. No. 139-7 at 20-21.)
D. Interference with Legal Mail and Access to the Courts
It is well-settled that inmates have a constitutional right to "meaningful" access to the courts. Bounds v. Smith, 430 U.S. 817, 823 (1977). Derivative of that right, prisoners also have a right to send and receive legal mail. Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). This right is implicated when prison officials "actively interfer[e] with inmates' attempts to prepare legal documents, or file them[.]" Lewis v. Casey, 518 U.S. 343, 351, 353 (1977) (citations omitted). "Mere 'delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation.'" Davis, 320 F.3d at 352 (citing Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995)). In addition, "to establish a constitutional violation based on a denial of access to the courts, a plaintiff must show that the defendant's conduct was deliberate and malicious, and that the defendant's actions resulted in actual injury to the plaintiff." Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008). In order to show actual injury, the defendants' conduct must have "hindered [plaintiff's] efforts to pursue a legal claim." Lewis, 518 U.S. at 351 (1996). Thus, an inmate must show more than a refusal to provide legal materials. Id. To demonstrate "actual injury" the inmate must demonstrate "that a nonfrivolous legal claim had been frustrated or was being impeded" due to the action or inaction of prison officials. Id. at 353.
As set forth above, Plaintiff claims Fischer authorized Graham to tamper with Plaintiff's legal mail. (Dkt. No. 30 at 8.) In turn, Plaintiff alleges Graham interfered with his legal mail by "not mailing legal documents and other correspondence" to attorneys and the court and by also "reading attorney privileged mail." Id. at 12. Plaintiff also claims Graham delayed Plaintiff's receipt of legal documents, including keeping legal transcripts mailed to Plaintiff in the facility's package room for more than three months before turning the documents over to Plaintiff. Id. Plaintiff also claims Graham refused to provide Plaintiff with mailing supplies or access to the facility's law library. (Dkt. No. 30 at 13.)
Further, Plaintiff claims Graham instructed subordinate officers to remove all of Plaintiff's legal documents from his cell. Id. at 10. Plaintiff claims Chandler, Casler, and Heath interfered with Plaintiff's legal mail by refusing to send outgoing mail and refusing to give him incoming legal mail. Id. at 17-18, 23, 25. In addition, Plaintiff alleges Chandler ordered subordinate officers to throw away Plaintiff's legal mail. (Dkt. No. 139-3 at 72-73.)
As a result of the alleged legal mail tampering and denial of legal supplies, Plaintiff claims that he suffered injury and prejudice in other legal actions. (Dkt. No. 30 at 12-13, 16-18.) Specifically, Plaintiff claims his petition for a writ of habeas corpus filed in the Eastern District of New York was dismissed for failing to timely file a memorandum of law. Id. at 12. He claims that he lost an appeal and lawsuit, including the assistance of an attorney, because he could not receive nor send legal correspondence. Id. at 12-13. He also claims motions and demands were not filed in two civil actions pending in the Western District of New York. Id. at 16-17.
Defendants argue Plaintiff's legal mail and access to court claims against Fischer, Graham, Chandler, Heath, and Casler fail as a matter of law because Plaintiff has not established that he suffered actual injury. (Dkt. No. 139-7 at 23.) The Court agrees with Defendants.
A thorough review of the amended complaint, along with the publicly available documents filed on Pacer, establishes Plaintiff has filed three other federal lawsuits, all of which were dismissed on the merits. On December 14, 2009, Plaintiff filed a § 1983 action in the Western District of New York. See Young v. Kadien, No. 6:09-cv-6639 (FPG), Dkt. No. 1. On September 30, 2011, the court appointed Karen Bailey Turner ("Bailey Turner") as pro bono counsel to Plaintiff. Id., Dkt. No. 105. The case went to trial on August 26, 2013, which was, as Defendants correctly pointed out, approximately five months after Plaintiff filed the amended complaint in this action. Id., Dkt. Nos. 135; Dkt. No. 139-7 at 13. On August 27, 2013, at the close of Plaintiff's proof, defense counsel made a Rule 50 motion, which was granted in part. Young v. Kadien, No. 6:09-cv-6639, Dkt. No. 136. After additional testimony was heard, defense counsel made a second Rule 50 motion, which was granted. Id., Dkt. No. 137. Judgment was entered September 10, 2013. Id., Dkt. No. 138.
Plaintiff testified he has never filed an action in state court. (Dkt. No. 139-3 at 24.)
On January 6, 2011, Plaintiff commenced a second § 1983 action in the Western District of New York. Young v. Canfield, No. 6:11-cv-06007 (FPG/JWF), Dkt. No. 1. Less than ten days after the amended complaint was filed, Bailey Turner volunteered to represent Plaintiff as pro bono counsel. See Young v. Canfield, No. 11-CV-6007-FPG, 2014 WL 3385186, at *1 (W.D.N.Y. July 9, 2014). In that case, Plaintiff alleged he was given medical care in violation of his religious beliefs and subjected to excessive force. Id. On November 11, 2013, the defendants moved to dismiss the compliant pursuant to Rule 12(b)(6). Young v. Canfield, No. 11-CV-6007, Dkt. No. 27. Plaintiff opposed the defendants' motion. Id., Dkt. No. 30. Oral argument was held on June 25, 2014. Id., Dkt. No. 31. By Decision and Order dated July 9, 2014, the court granted the defendants' motion to dismiss on the merits. Id., Dkt. No. 32.
On January 3, 2011, Plaintiff filed his petition for writ of habeas corpus in the Eastern Dist. Young v. People of State of New York, No. 2:11-cv-00110 (JFB), Dkt. No. 1. The court received Plaintiff's letter requests dated August 24, 2011, January 5, 2012, and April 25, 2012. Id., Dkt. Nos. 10, 12, 16. By Memorandum and Order dated December 20, 2012, the Court denied the petition in its entirety on the merits, and judgment was entered. Id., Dkt. Nos. 17-18.
In light of the foregoing, there is no evidence that Plaintiff's lawsuits were dismissed for the reasons he claims. See Singleton v. Williams, No. 12 Civ. 02021(LGS), 2014 WL 2095024, at *5 (S.D.N.Y. May 20, 2014) (finding no constitutional violation where the evidence established that the plaintiff's criminal case was not impacted as a result of the defendants "messing with his mail").
Further, Graham has submitted a reply declaration in further support of Defendants' motion, stating:
I never entered Plaintiff's cell; I never destroyed any of Plaintiff's legal mail; I never ordered anyone to enter Plaintiff's cell to destroy property, including legal mail; I never ordered anyone to destroy Plaintiff's property, including legal mail; I never read and/or was aware of the alleged draft of the original complaint in this matter; I never destroyed and/or ordered the alleged draft of the original complaint in this matter; and I never authored a letter to Plaintiff advising him that I destroyed his property of legal mail.(Dkt. No. 144-1 at ¶ 6.)
Based on the foregoing, there is no evidence that Plaintiff suffered an actual injury as result of the alleged mail tampering and deprivation of legal supplies, if indeed it did occur. Accordingly, the Court recommends granting summary judgment to Fischer, Graham, Chandler, Heath, and Casler on Plaintiff' First Amendment interference with legal mail claims and access to court the courts claims.
E. Forced Medical Care
The Fourteenth Amendment protects the right of a competent person to refuse unwanted medical treatment. See, e.g., Cruzan v. Director, Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (recognizing "the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment")); Alston v. Bendheim, 672 F. Supp. 2d 378, 384 (S.D.N.Y. 2009) (holding "inmates have a constitutionally protected liberty interest in refusing the medical treatment they are offered by correction officials.").
The Second Circuit has held, moreover, that "[i]t is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body and to control the course of his medical treatment." Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir. 1996) (quoting Rivers v. Katz, 504 N.Y.S.2d 74, 78 (1986)); see also Project Release v. Prevost, 722 F.2d 960, 978-80 (2d Cir. 1983). Such a right may be set aside only in narrow circumstances, including those where the patient "presents a danger to himself or other members of society or engages in dangerous or potentially destructive conduct within the institution." Kulak, 88 F.3d at 74.
Although a prisoner has a right to refuse medical treatment, liability for a constitutional violation is nonetheless absent unless the prisoner's individual liberty interest outweighs the relevant countervailing state interests. See Pabon v. Wright, 459 F.3d 241, 252 (2d Cir. 2006) (citing Turner, 482 U.S. at 89); see also Grand Jury Subpoena John Doe v. United States, 150 F.3d 170, 172 (2d Cir. 1998) (holding that the "preservation of life, prevention of suicide, and enforcement of prison security, order, and discipline" were significant governmental interests outweighing the prisoner's liberty interest).
In this case, Plaintiff alleged Graham ordered that Plaintiff be taken to the infirmary for medical treatment "against [his] religious belief." (See Dkt. No. 44 at 14-15.) At his deposition, Plaintiff clarified, that although he was taken to the infirmary, "where they tried to give [him] medical treatment," Plaintiff successfully refused the medical treatment, having only been forced to have his vital signs monitored. (Dkt. No. 139-3 at 53-54.) Further, Plaintiff has not alleged that any of the Defendants actually provided him with medical treatment, or that Graham violated his limited right to refuse medical treatment. Specifically, as to whether Graham was personally involved, Plaintiff testified, "[o]h, well, he was there one time, so I guess so." Id. at 54.
Based on the forgoing, the summary judgment record is devoid of evidence that Graham violated Plaintiff's Fourteenth Amendment right to refuse medical treatment. Accordingly, the Court recommends granting summary judgment to Graham on this claim.
F. Conditions of Confinement
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). The constitutional prohibition against cruel and unusual punishment includes the right to be free from conditions of confinement that impose an excessive risk to an inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To establish an Eighth Amendment conditions of confinement claim, a plaintiff must establish that (1) he was incarcerated under conditions which posed a substantial risk of serious harm, and (2) prison officials acted with deliberate indifference to his health or safety. See Farmer, 511 U.S. at 834.
"The deliberate indifference standard embodies both an objective and a subjective prong." Hathaway, 37 F.3d at 66. Under the objective standard, a plaintiff must allege a deprivation "sufficiently serious" to constitute a constitutional violation. Id. (quoting Wilson v. Seiter, 501 U.S. at 298). "Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient to sustain a 'conditions-of-confinement' claim." Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (citing Hudson v. McMillan, 503 U.S. 1, 9 (1992) ("only those deprivations denying the minimal civilized measures of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation) (internal quotations and citations omitted)). A denial of basic human needs includes food, clothing, shelter, medical care, reasonable safety, or exposure to conditions that pose an unreasonable risk of serious damage to prisoner's future health. See Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002).
The subjective element of the Eighth Amendment analysis focuses on whether the defendant official acted with "a sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (citing Wilson v. Seiter, 501 U.S. at 300). "Deliberate indifference" requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer, 511 U.S. at 835. In order for a prison official to act with deliberate indifference, he must know of and disregard an excessive risk to an inmate's health or safety. Hathaway, 37 F.3d at 66. 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.
1. Deprivation of Water
Plaintiff claims Brower turned off the water in his cell for thirty (30) days, limiting Plaintiff to two buckets of hot water a day for drinking, bathing, and laundry. (Dkt. No. 30 at 15.) Defendants respond that prisoners are not entitled to complete and unfettered access to water or showers, and that the turning off of in-cell water, when the inmate had access to other sources of water, does not constitute a denial of the "minimal civilized measure of life's necessities." (Dkt. No. 139-7 at 25.) Defendants argue this claim must be dismissed as a matter of law because Plaintiff admitted he was provided with two buckets of water per day during the period of alleged in-cell water deprivation. Id.
"Nowhere has it been held that prisoners are entitled to complete and unfettered access to water or showers." Beckford v. Portuondo, 151 F. Supp. 2d 204, 211 (N.D.N.Y. 2001) (collecting cases). Instead, an Eighth Amendment violation is considered objectively serious when prison officials subject inmates to conditions that violate basic standards of "human decency." Id. (citations omitted). "Where a prisoner alleges that he or she was denied drinking water in his or her cell, the resolution of the claim hinges on whether the prisoner received fluids at other times or suffered any adverse effects." DeBlasio v. Rock, No. 9:09-CV-1077 (TJM/GHL), 2011 WL 4478515, at *17 (N.D.N.Y. Sept. 26, 2011); see, e.g., Johnson v. Comm'r of Corr. Servs., 669 F. Supp. 1071, 1074 (S.D.N.Y. 1988) (prisoner confined for one week in a cell with an inoperable sink did not suffer a constitutional violation because he was provided drinks with meals); Atkins v. Cnty. of Orange, 372 F. Supp. 2d 377, 406 (S.D.N.Y. 2005) (inmate raised triable issue of fact that the defendants subjected her to unconstitutional conditions of confinement by depriving her of water in her cell for almost one month despite fact that they provided her with fluids at meals where medical records showed inmate suffered adverse effects from water deprivation).
Here, Plaintiff has alleged that because the water in his cell was turned off, he was forced:
to drink water ment for washing that came around two times a day morning and lunch in 50 gallon barel which was treated with some chemicals. The barel was dirty and not ment for drinking water. I was told by Officer Bell not to drink that water. It was poured into a 1 gallon bucket in my cell and I had no choice but to drink that water or the toilet water in my cell.(Dkt. No. 30 at 15 (errors in original).) Similarly, Plaintiff testified that "the only water I had - made me drink out of a bucket of hot water that they brought around twice a day, made my do my laundry, my underwear, my socks in - in what I call a bird bath." (Dkt. No. 139-3 at 58-59.) Plaintiff claims that he was forced to "drink hot water unfit for human" consumption, causing him to suffer from stomach problems for weeks. (Dkt. No. 142 at ¶ 23.) Plaintiff has alleged "the seriousness of not having water took a toll on my health and well-being." (Dkt. No. 30 at 15.) Plaintiff further claims the officers only provided him with water when they "felt like it." (Dkt. No. 142 at ¶ 23.) In support of their motion, Defendants have submitted a reply declaration from Graham, stating that "[i]nmates in the Special Housing Unit in Auburn are sometimes subjected to water deprivation orders, during which time they still received drinks with all of their meals." (Dkt. No. 144-1 at ¶ 12.)
On a summary judgment motion, a court may not "weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). "The weighing of the evidence and the determination as to which version of the events to accept are matters for the jury." Id. at 856; see also Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996) (on a summary judgment motion "the court should not weigh evidence or assess the credibility of witnesses . . . . These determinations are within the sole province of the jury.").
Because weighing the conflicting evidence in the summary judgment record and assessing the credibility of the parties is within the sole province of the jury, the Court recommends denying Defendants' motion for summary judgment on this claim.
2. Food Tampering
Defendants have identified Plaintiff's Eighth Amendment conditions of confinement claim against Chandler for food tampering as included in their motion for summary judgment. (Dkt. No. 139.) As Defendants correctly note, the conditions of confinement claim against Chandler survived initial review because Plaintiff alleged that Chandler allowed food service staff to place dirty gloves on his food tray and to provide him with inadequate food at meal times and, as a result, Plaintiff claimed that he "lost weight had no energy to do anything." (Dkt. No. 44 at 16-17.) During his deposition, Plaintiff testified as follows:
Q: The only claim that you have left of food tampering is against Sergeant Chandler. So what I want to know is did Sergeant Chandler tamper with your food?(Dkt. No. 139-3 at 74-75 (omissions and errors in original).)
A: Him, personally? No. He ordered it.
Q: Okay. And how do you know he ordered it?
A: Because he's the Sergeant and told me he did it.
Q: Did he specifically say to you I ordered the other officers to tamper with your food?
A: Yeah, he did --in -- in so many words, he did. Yes.
Q: So how -- how -- how did he do that in so many words?
A: I don't remember. I don't remember the exact conversation. No.
Q: Okay. Do you know when it was that you had that conversation with him?
A: I don't remember dates, no.
Q: Did you ever have notes -- as you said, a diary that would have told you?
A: That's what everything was taken from me.
Q: So you did have that written down at some point?
A: Yes, sir.
Despite seeking dismissal of the amended complaint in its entirety and addressing Plaintiff's conditions of confinement claims against Chandler in the Statement of Material Facts, Defendants do not address the merits of this claim in their memorandum of law. (Dkt. Nos. 139-6 at ¶¶ 35-36 and 139-7 at 25.) As such, the Court does not consider this claim to be a part of Defendants' motion for summary judgment.
In fact, Defendants mistakenly claim, that "Plaintiff's only surviving conditions of confinement claims is that his in-cell water was turned off for thirty days." (Dkt. No. 139-7 at 25.)
Even if Defendants had addressed the merits, the Court would have been constrained to deny summary judgment based on the current record. Although Plaintiff's evidentiary support of this claim is weak at best, Chandler has submitted no affidavit or declaration disputing Plaintiff's sworn allegations.
G. Excessive Force
"The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . . including the unnecessary and wanton infliction of pain." Giffen v. Crispen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and internal quotation marks omitted). An Eighth Amendment excessive force claim has two elements - "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 v. McMillian, 503 U.S. 1, 7-8 (1992)).
"The subjective component of the claim requires a showing 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." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright, 554 F.3d at 268)) (internal quotation marks omitted). The test for wantonness on an excessive force claim "is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id. (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, "a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.") (citation and internal quotation marks omitted)).
The objective component requires a showing that the "conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citation omitted).
In addition, a corrections officer who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate in the use of force. See, e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. May 24, 2010); Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. Mar. 15, 2010). Indeed, an official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated by other officers in his or her presence. Cicio v. Graham, 2010 WL 980272, at *13. In order to establish liability under this theory, a plaintiff must prove that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Tafari, 714 F. Supp. 2d at 342; Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008).
Here, Plaintiff contends he was subjected to excessive force and chemical agents during several cell extractions. Specifically, Plaintiff contends Graham ordered Vasile "to force" Plaintiff out of his cell "by any means," including using chemical agents. (Dkt. No. 30 at 9.) In turn, Plaintiff alleges Vasile ordered the extraction team to force Plaintiff out of his cell, and "do bodily harm," including spraying a chemical agent into Plaintiff's eyes. Id. at 29.
Defendants argue Plaintiff's failure to present any evidence whatsoever establishing when the alleged excessive force was used is fatal his claims. (Dkt. No. 139-7 at 26.) Specifically, Defendants contend the excessive force claims must be dismissed as a matter of law because Plaintiff does not know the names of any of the officers who used excessive force against him during the extractions, Plaintiff admitted that Commissioner Fischer, Superintendent Graham, and Lieutenant Vasile never used force against him, and Plaintiff could not recall the date of any alleged excessive force. Id.
Plaintiff has, however, alleged in his verified amended complaint that on March 28, 2012, after 4:00 p.m., Vasile and four John Doe officers forced Plaintiff out of the isolation ward and subjected Plaintiff to excessive force, by picking Plaintiff up by his handcuffs and throwing him head first into a van, causing injury to Plaintiff's head, neck, and back. (Dkt. No. 30 at 30.) After this incident, Plaintiff claims that he could not walk. Id. Plaintiff also alleged that on January 4, 2013, Vasile ordered the extraction team to use excessive force. Id. On that date, an officer charged Plaintiff's cell using a shield to "push" Plaintiff to the bed, where they proceeded to choke, punch, and knee Plaintiff in the back and ribs, causing bruising, a knot on his head, and pain in his back for months. Id. Plaintiff alleges as a result of the assault, his ribs were black and blue, he had a knot on his head, and pain in his back for months. Id.
Although Plaintiff testified Vasile and Graham never personally used physical force against him during any of the cell extraction, Plaintiff also testified Vasile was present at most of the cell extractions and that Vasile ordered his "underlings" to "physically do it." (Dkt. No. 139-3 at 50-51, 68-70.) Specifically, Plaintiff claims that on one occasion, while standing "no more than 2 feet away watching," Vasile gave the order to "break him up." (Dkt. No. 142 at ¶ 20.) As to Graham's personal involvement, Plaintiff testified he believed that Graham was present during one of the cell extractions. (Dkt. No. 139-3 at 52.) Moreover, during his deposition Plaintiff identified Heath and Casler as two members of the extraction team, and claims that Heath twisted and lifted Plaintiff's arm while he handcuffed in the back, causing his rotator cuff to tear. Id. at 78-79. Plaintiff also testified that Brower was part of the extraction team, by "ordering it." Id. at 68.
Without question, the evidentiary support for Plaintiff's excessive force claim is thin. The record is devoid of medical records, photographs, or grievances concerning the alleged use of excessive force during the cell extractions. Also absent from the record, however, is an affidavit or declaration from any Defendant denying or disputing Plaintiff's account of the use of excessive force during the cell extractions, or any evidence proffering that any force used was necessary to restore discipline and subdue Plaintiff.
Where "a prisoner's allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically," summary judgment is improper "even where the plaintiff's evidence of injury [is] slight and the proof of excessive force [is] weak." Wright, 554 F.3d at 269. On the record now before the Court, Plaintiff has testified under oath that Heath and Casler were members of the extraction team, and that on various occasions, Graham, Vasile, and Brower ordered the cell extractions. Further, unlike Plaintiff's claim against Fischer, Plaintiff has demonstrated that genuine issues of material fact exists as to whether Graham, Vasile, and Brower were present when they ordered a cell extraction, and therefore failed to intervene in violation of the Eighth Amendment. Cf. Scarbrough, 2012 WL 7761439, at *10 (summary judgment granted to supervisory official where inmate failed to allege the supervisor was present for the extraction and directly failed to intervene to protect inmate from the excessive force).
Given the foregoing, the Court finds Defendants have failed to demonstrate no issue of material fact exists on Plaintiff's Eighth Amendment claims. Therefore, the Court recommends that Plaintiff's Eighth Amendment excessive force and failure to intervene claims against Graham, Vasile, Brower, Heath, and Casler survive summary judgment.
H. Deprivation of Personal Property
In cases where an inmate alleges a deprivation of property by prison staff, the Supreme Court has held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available." Hudson, 468 U.S. at 533 (holding only post-deprivation remedy is required following intentional destruction of an inmate's personal property by a prison guard, because the state was not "in a position to provide for predeprivation process"); DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003). The Second Circuit has held that "confiscation . . . [does] not constitute a Fourteenth Amendment violation for loss of property because of the availability of post-deprivation remedies in the New York Court of Claims." Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996).
However, as the Court explained on initial review, an exception to this principle exists in cases where the deprivation in question "was caused by high-ranking officials who have final authority over the decision-making progress." (Dkt. No. 44 at 11.) Accordingly, only Plaintiff's claim against Graham for deprivation of personal property survived initial review. Id. at 14-15, 33.
At his deposition, Plaintiff testified Graham does not personally take his property. (Dkt. No. 139-3 at 56.) Rather, Plaintiff claims in conclusory fashion that Graham orders subordinate officers to "take all my personal property, legal work, and carbon copies[.]" (Dkt. No. 142 at ¶ 12.) However, as set forth above, Graham has submitted a reply declaration stating that:
I never entered Plaintiff's cell; I never destroyed any of Plaintiff's legal mail; I never ordered anyone to enter Plaintiff's cell to destroy property, including legal mail; I never ordered anyone to destroy Plaintiff's property, including legal mail; I never read and/or was aware of the alleged draft of the original complaint in this matter; I never destroyed and/or ordered the alleged draft of the original complaint in this matter; and I never authored a letter to Plaintiff advising him that I destroyed his property of legal mail.(Dkt. No. 144-1 at ¶ 6.)
In light of the above, Plaintiff has not raised a triable issue of material fact as to Graham's personal involvement in the alleged deprivation of property claim. Indeed, "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer, 156 F.3d at 400; see also Smith v. Rosati, No. 9:10-CV-1502 (DNH/DEP), 2013 WL 1500422, at *12 (N.D.N.Y. Feb. 20, 2013) ("Mere conclusory allegations that are unsupported by any record evidence are insufficient to give rise to a genuine dispute of material fact."). Evidence must be based on personal knowledge. See Patterson v. Cnty. of Oneida, 375 F.3d at 219. Therefore, the Court recommends granting summary judgment to Graham on this claim.
VI. CONCLUSION
Based on the findings above, it is recommended that Defendants' motion for summary judgment be granted as to all claims, with the exception of the Eighth Amendment conditions of confinement claims against Chandler and Brower, and the Eighth Amendment excessive force and failure to intervene claims against Graham, Vasile, Brower, Heath, and Casler. Thus, it is also recommended that Fischer and Fagan be dismissed from this action.
WHEREFORE, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 139) be GRANTED in part and DENIED in part; and it is further
RECOMMENDED that Plaintiff's claims against Defendants in their official capacities be sua sponte dismissed; and it is further
RECOMMENDED that Defendants' motion for summary judgment be GRANTED as to Plaintiff's (1) First Amendment retaliation claims against Fischer, Graham, Brower, Chandler, Casler, Heath, and Fagan; (2) First Amendment legal mail and access to courts claims against Fischer, Graham, Chandler, Heath, and Casler; (3) Eighth Amendment conditions of confinement and excessive force claims against Fischer; and (4) Fourteenth Amendment forced medical care and deprivation of personal property claims against Graham; and it is further
RECOMMENDED that Defendants' motion for summary judgment be DENIED as to Plaintiff's (1) Eighth Amendment conditions of confinement against Brower and Chandler; and (2) Eighth Amendment excessive force and failure to intervene claims against Graham, Vasile, Brower, Heath, and Casler; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: March 6, 2017
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge