Mason v. Rich et al

Filing 30

ORDER: Defendants' Motion 16 for Summary Judgment is GRANTED. Signed by Judge Janet Bond Arterton on 09/15/2011. (Budris, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Owen Mason,
Plaintiff,

Civil No. 3:10cv397 (JBA)

v.
Correctional Officer Rich, et al.,
Defendants.

September 15, 2011

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
In this civil rights action, Plaintiff Owen Mason (“Mason”) alleges that Defendants
Correctional Officer Rich and three John Does used excessive force against him on
December 17, 2009, and that Defendant K-9 Officer Trifone allowed his dog to bite Mason
repeatedly on February 5, 2010. Defendants move [Doc. # 16] for summary judgment. For
the reasons that follow, Defendants’ motion will be granted.
I.

Standard of Review
In a motion for summary judgment, the burden is on the moving party to establish

that there are no genuine issues of material fact in dispute and that it is therefore entitled to
judgment as a matter of law. See Rule 56(a), Fed. R. Civ. P.; Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986). The moving party may satisfy this burden “by showing—that is
pointing out to the district court—that there is an absence of evidence to support the
nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002)
(per curiam) (internal quotation marks and citations omitted). Once the moving party
meets this burden, the nonmoving party must “set forth specific facts showing that there is
a genuine issue for trial,” Anderson, 477 U.S. at 255, and present such evidence as would
allow a jury to find in his favor in order to defeat the motion for summary judgment.

Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). Merely restating the conclusory
allegations of a complaint may not be sufficient to successfully oppose a motion for
summary judgment. Zigmund v. Foster, 106 F. Supp. 2d 352, 356 (D. Conn. 2000) (citing
cases).
When reviewing the record, the court resolves all ambiguities and draws all
permissible factual inferences in favor of the party against whom summary judgment is
sought. Patterson v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2004). If there is any
evidence in the record on a material issue from which a reasonable inference could be drawn
in favor of the nonmoving party, summary judgment is inappropriate. Security Ins. Co. of
Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004). However,
“‘[t]he mere of 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].’” Dawson v. County of Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting
Anderson, 477 U.S. at 252)).

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II.

Facts1
Mason was confined at Northern Correctional Institution at the time of the incidents

underlying this action. On December 17, 2009, Mason fought another inmate in the
recreation yard. The inmates were “exchanging closed fist strikes.” (Defs.’ Loc. R. 56(a)1
Stmt. ¶ 2.) Defendant Rich responded to the altercation and assisted other staff in
restraining Mason and handcuffing him on the cement floor. The inmates struggled fiercely
with correctional staff. Defendant Rich did not punch Mason or pull his hair during the
struggle.
After the inmates were subdued, Defendant Rich escorted Mason to the medical unit.
Medical staff treated Mason for an abrasion to the right side of his forehead and a superficial
laceration on his finger. While being treated, Mason told one staff member that Defendant
Rich hit him on the side of his head causing him to hit his head on the cement. At this same

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The facts are taken from the defendants’ Local Rule 56(a)1 Statement and attached
exhibits. Local Rule 56(a)2 requires the party opposing summary judgment to submit a
Local Rule 56(a)2 Statement which contains separately numbered paragraphs corresponding
to the Local Rule 56(a)1 Statement and indicates whether the opposing party admits or
denies the facts set forth by the moving party. Each admission or denial must include a
citation to an affidavit or other admissible evidence. In addition, the opposing party must
submit a list of disputed factual issues. See D. Conn. L. Civ. R. 56(a)2 & 56(a)3.
With their motion for summary judgment, defendants filed a Notice to Pro Se
Litigant informing Mason of his obligation to respond to the motion for summary judgment
and of the contents of a proper response. Along with his memorandum in opposition to the
motion, Mason only filed an affidavit with exhibits [Doc. #25]. Accordingly, defendants’
facts that are supported by the record are deemed admitted. See D. Conn. L. Civ. R. 56(a)1
(“All material facts set forth in said statement will be deemed admitted unless controverted
by the statement required to be served by the opposing party in accordance with Rule
56(a)2.”). The Court has, however, considered Mason’s statements and exhibits in deciding
the motion for summary judgment.
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time, Defendant Rich reported that the inmates refused to stop fighting when ordered to do
so.
On February 5, 2010, Mason was involved in a fight with another inmate, again in
the recreation yard. Defendant Trifone observed Mason on top of the other inmate,
punching the other inmate in the head with his fist. When Defendant Trifone ordered the
inmates to stop fighting, Mason continued hitting the other inmate. Defendant Trifone then
ordered his dog to engage Mason. The dog bit Mason’s right knee and held on. As soon as
another correctional officer took control of Mason, Defendant Trifone ordered the dog to
release Mason. The dog complied immediately. Correctional dogs are trained to bite and
hold that position until the inmate has been subdued and restrained by correctional staff.
As a result of this incident, Mason suffered several punctures from the dog’s teeth. The area
was treated with a disinfectant and Mason was given pain medication.
III.

Discussion
Defendants move for summary judgment on the ground that the undisputed record

of the use of force on Plaintiff shows no cruel and unusual punishment in violation of the
Eighth Amendment.
The use of excessive force against an inmate may constitute cruel and unusual
punishment in violation of the Eighth Amendment, even if the inmate does not suffer a
serious injury. Wilkins v. Gaddy, ___ U.S. ___, 130 S. Ct. 1175, 1176 (2010) (citing Hudson
v. McMillan, 503 U.S. 1, 4 (1992)). The Court’s inquiry must focus not on whether the
inmate sustained a certain level of injury, but “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id.
at 1178 (internal quotation marks and citation omitted). Although the extent of the injury
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is not the focus of the inquiry, it can provide information regarding the amount of force
used. Unless the use of force is “repugnant to the conscience of mankind,” a de minimis use
of force will not be cognizable under the Eighth Amendment. Id.
An Eighth Amendment claim has two components, one objective, the other
subjective. The subjective component focuses on the defendant’s motive, whether he “had
the necessary level of culpability, shown by actions characterized by wantonness in light of
the particular circumstances surrounding the challenged conduct.” Wright v. Goord, 554
F.3d 255, 268 (2d Cir. 2009). The objective component focuses on the effect of the
challenged conduct, whether the harm done violated contemporary standards of decency.
Id. Whenever a defendant uses force maliciously and sadistically, however, he always
violates contemporary standards of decency regardless of the injury suffered. See id. at 269.
Factors relevant to whether the force used was necessary under the circumstances “or
instead evinced such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur” include the extent of the injury suffered,
“the need for application of force, the relationship between that need and the amount of
force used, the threat ‘reasonably perceived by the responsible officials,’ and ‘any efforts
made to temper the severity of a forceful response.’” Hudson, 503 U.S. at 7 (quoting Whitley
v. Albers, 475 U.S. 312, 321 (1986)).
In addition, prison officials “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). This deference applies both to actions taken in response
to prison unrest or confrontations with inmates and to preventative measures taken to
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reduce such incidents. See Whitley, 475 U.S. at 322. “Courts nevertheless must not shrink
from their obligation to enforce the constitution rights of all persons, including prisoners.”
Brown v. Plata, ___ U.S. ___, 131 S. Ct. 1910, 1928 (2011).
A.

December 17, 2009 Incident

Correctional staff are permitted to use force immediately “when an inmate’s behavior
constitutes an immediate threat to self, others, property, order or the safety and security of
the facility.” (Administrative Directive 6.5, ¶ 4(B), Ex. E to Mem. Supp. at 58.) The force
used must be “reasonably related to the degree and duration necessary to achieve its
authorized objective.” (Id. ¶ 4(D).)
Mason concedes in his complaint that he was fighting with another inmate when
defendant Rich and other correctional officers intervened. Mason alleges that they pulled
his hair so hard they removed hair from his skull, causing it to bleed, punched him and
rubbed his head against the ground.
Mason has provided no evidence to support his allegation that the defendants pulled
out his hair. There is no reference to punching injuries or pulled–out hair in the medical
report or incident reports. On the videotape of the medical exam, Mason only states that
defendant Rich hit him in the side of his head. Later on the tape, when correctional staff
were photographing his injuries, Mason told the correctional officer that he had reported all
of his injuries to the medical staff. To successfully oppose the motion for summary
judgment, Mason must provide some evidence to corroborate his claim of these injuries. He
has not done so. Mason’s conclusory restatement in his affidavit of the allegations in his
complaint does not suffice. See Zigmund, 106 F. Supp. 2d at 356.

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Mason stated on the videotape that Defendant Rich hit him in the side of the head.
At this same time, Defendant Rich stated that the inmates refused to comply with orders to
stop fighting. Assuming, for purposes of deciding this motion, that Defendant Rich did hit
Mason once, the Court concludes that the use of force was reasonable in light of the
continued fighting and danger to the other inmate. See Ramos v. Hicks, No. 87 CIV.
2272(LBS), 1988 WL 80176, at *2 (S.D.N.Y. July 25, 1988) (single punch not excessive force
where inmate ignored orders, became agitated and attempted to damage state property).
Defendants’ motion for summary judgment is therefore granted with regard to the claim of
excessive force on December 17, 2009.
B.

February 5, 2010 Incident

Mason again concedes that he was fighting with another inmate when defendant
Trifone responded with his dog on February 5, 2010. Although Mason alleges that the dog
bit him repeatedly, the medical reports submitted by the defendants indicate only one set of
bite marks and the videotape of the incident shows that the dog bit Mason only once.
Administrative Directive 6.5, authorizes the immediate use of force when
correctional staff see inmate behavior that constitutes an immediate threat to another
inmate. Use of a canine can be an acceptable use of force. (Administrative Directive 6.5, ¶
14.) Defendants have provided evidence that Defendant Trifone ordered his dog to use the
“bite and hold position,” as he was trained to do. Once Mason was secured, Defendant
Trifone ordered his dog to release Mason. (See Ex. E to Mem. Supp. ¶ 6; Ex. G ¶ 3.)
Mason has provided no evidence to support his claims that he was bitten repeatedly.
The bite was treated with disinfectant and motrin for pain. The treatment provided
indicates that the injury was de minimis. See Martin v. Mathena, Civil Action No. 7:08-cv7

573, 2009 WL 150864, at *1-2 (W.D. Va. Jan. 21, 2009) (excessive force claim by inmate
claiming that guard dog bit him three times dismissed for failure to state more than de
minimis injury); see also Chilton v. Clayborne, Civil No. 3:08cv615, 2009 WL 2634166, at *4
(E.D. Va. Aug. 25, 2009) (dog bite without allegations of pain, symptoms or complications
does not rise to level of excessive force); Mickle v. Ahmed, 444 F. Supp. 2d 601, 620 (D.S.C.
2006) (excessive force claim as a result of use of police dog in effecting arrest dismissed as
de minimis use of force because plaintiff suffered no complications from dog bite and needed
no medical attention after initial treatment in emergency room). Mason has not shown that
defendant Trifone used force constituting cruel and unusual punishment on February 5,
2010. Defendants’ motion for summary judgment is therefore granted as to this claim.
C.

John Doe Defendants

Mason named three John Doe defendants in his complaint and indicated that he
would be able to identify these defendants through the discovery process. Although the
Court directed Mason to file an amended complaint identifying these defendants, he has not
done so.
Discovery closed in December 2010 and the defendants state that Mason did not
submit any discovery requests seeking the identity of these three correctional officers.
Accordingly, Defendants’ motion for summary judgment is granted as to all claims against
the John Doe defendants. See Colon v. Ludemann, 283 F. Supp. 2d 747, 762 (D. Conn. 2003)
(holding that summary judgment is appropriate against unidentified defendants where
plaintiff failed to utilize discovery to ascertain their identities).

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IV.

Conclusion
Defendants’ motion for summary judgment [Doc. #16] is GRANTED. The Clerk is

directed to enter judgment in favor of the defendants and close this case.

IT IS SO ORDERED.

/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 15th day of September, 2011.

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