Perez v. NYC Department of Corrections et al
ORDER granting 55 Motion for Summary Judgment: For the reasons stated in the attached Memorandum and Order, defendants' motion for summary judgment (Doc. No. 55) is GRANTED. The Clerk of Court is directed to enter judgment accordingly, mail to plaintiff pro se a copy of this Memorandum and Order and the accompanying judgment, and close this case. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. Ordered by Judge Roslynn R. Mauskopf on 6/25/2013. (Mauskopf, Roslynn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against -
MEMORANDUM & ORDER
10-CV-2697 (RRM) (RML)
NEW YORK CITY DEPARTMENT OF
CORRECTIONS, et al.,
ROSLYNN R. MAUSKOPF, United States District Judge.
Plaintiff commenced this action on June 9, 2010, proceeding pro se and in forma
pauperis, alleging civil rights violations based on injuries he sustained in an altercation with
another inmate at Rikers Island. (Doc. No. 1.) On June 25, 2010, the case was referred to
Magistrate Judge Robert M. Levy for pretrial supervision. (Doc. No. 4.) Plaintiff requested
leave to file an amended complaint on January 25, 2012, seeking to add as defendants the City of
New York and sixteen employees of the municipal Department of Correction. (Doc. No. 29.)
Judge Levy granted plaintiff’s motion as to Correction Officer Thomas Howell (“C.O. Howell”),
but reserved decision as to the remaining defendants. (Order dated Feb. 7, 2012.)
On March 29, 2012, Judge Levy issued a report and recommendation (“R&R”)
recommending that this Court deny the balance of plaintiff’s motion. (Doc. No. 34.) On August
27, 2012, the Court adopted Judge Levy’s R&R in its entirety and denied as futile plaintiff’s
motion for leave to amend his complaint to plead a claim against the City of New York.1 On
January 17, 2013, the Court denied plaintiff’s motion to reconsider the addition of a claim
Out of an abundance of caution and construing plaintiff’s pro se pleadings liberally, the Court interpreted new
allegations raised in plaintiff’s objections to the R&R as a motion for leave to amend the complaint. (See Order
dated August 27, 2012, at 3.)
against the City of New York and, to the extent that plaintiff alleged additional new facts, once
again denied leave to amend. (Doc. No. 52.)
Currently before the Court is defendants’ fully briefed motion for summary judgment
pursuant to Fed. R. Civ. P. 56, which includes an opposition filed by plaintiff containing
plaintiff’s affidavit, memorandum of law, and 122 pages of exhibits. (Doc. Nos. 54-60.) For the
reasons that follow, this motion is GRANTED.
STANDARD OF REVIEW
As always, the Court reads the pleadings of a pro se litigant as giving rise to the strongest
arguments they suggest. Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009); Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). Summary judgment is appropriate when the pleadings,
depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine
issues of material fact in dispute and that one party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, the evidence of the non-movant “is to be believed” and the court
must draw all “justifiable” or reasonable inferences in favor of the non-moving party. Id. at 255
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Brosseau v. Haugen, 543
U.S. 194, 195 n.2 (2004). Nevertheless, once the moving party has shown that there is no
genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, “the
nonmoving party must come forward with specific facts showing there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quotation marks omitted) (emphasis in original). The non-moving party “may not rely on
conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998). In other words, the non-movant must offer “concrete evidence from which a
reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the
nonmoving party bears the burden of proof at trial, summary judgment is warranted if the
nonmovant fails to make a showing sufficient to establish the existence of an element essential to
[its] case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322)
(internal quotation marks omitted).
Plaintiff alleged in his complaint that defendants either facilitated an assault against him
by an inmate named Jirovec, or failed to protect him against the assault. Construed to raise the
strongest arguments they suggest, plaintiff’s pleadings allege violations of the Eight Amendment
and state a cause of action under 42 U.S.C. § 1983.2 (See Pl.’s Mem. in Opp. (Doc. No. 54) at
23-28.) The Supreme Court has consistently recognized that implicit in the Eight Amendment
are the requirements that prison officials “take reasonable measures to guarantee the safety of 
inmates,” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984), and protect inmates from violence at
the hands of other prisoners. See Farmer v. Brennan, 511 U.S. 825, 833 (1994); Hendricks v.
Coughlin, 942 F.2d 109, 113 (2d Cir. 1991). Further, it is well settled that “gratuitously allowing
the beating . . . of one prisoner by another serves no ‘legitimate penological objective.’” Farmer,
511 U.S. at 833 (quoting Hudson, 468 U.S. at 548).
Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .” 42 U.S.C. § 1983. However, “[s]ection 1983 is only a grant of
a right of action; the substantive right giving rise to the action must come from another source.” Singer v. Fulton
Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (citing Adickes, 398 U.S. at 150). The substantive right here is found
in the Eighth Amendment’s prohibition of “cruel and unusual punishments,” which is applicable to the states
through the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. VIII; see also Rhodes v.
Chapman, 452 U.S. 337, 344-45 (1981).
In order to state a cognizable failure to protect claim, plaintiff must prove that (1) “he
[wa]s incarcerated under conditions posing a substantial risk of serious harm” and (2) the
relevant prison officials acted with “deliberate indifference” to his safety. Warren v. Goord, 476
F.Supp.2d 407, 410 (S.D.N.Y. 2007) (quoting Farmer, 511 U.S. at 834); Hayes v. New York City
Dep’t of Corrections, 84 F.3d 614, 620 (2d Cir. 1996). Deliberate indifference requires a
showing that the officials or officers were “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exist[ed]” and in fact “dr[e]w the inference.”
Farmer, 511 U.S. at 837. In other words, a plaintiff must be able to show that defendants knew
plaintiff “face[d] a substantial risk of serious harm and . . . disregard[ed] that risk by failing to
take reasonable measures to abate the harm.” Hayes, 84 F.3d at 620.
Viewing the facts in the light most favorable to plaintiff, and drawing all reasonable
inferences in his favor,3 plaintiff has offered no evidence from which a reasonable jury could
find or infer intentional wrongdoing, recklessness or deliberate indifference, or conditions posing
a substantial risk of serious harm. Rather, plaintiff offers only “bald assertion[s]” of deliberate
indifference to his safety and a substantial risk of harm, which are “completely unsupported by
evidence.” Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). At most, plaintiff’s evidence
establishes that he was involved in an altercation with another inmate after being placed in
protective custody and while escorted by C.O. Howell. Invoking Ayers v. Coughlin, 780 F.2d
205 (2d Cir. 1985), plaintiff then urges that whether defendants “acted intentionally or with
reckless disregard” with respect to his “right to be free from [a] risk of harm from fellow
Although plaintiff cites Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007), for the proposition that he need only make out a “plausible” claim, this is incorrect. (See Pl.’s Mem. in Opp.
(Doc. No. 54) at 16-17.) The twin teachings of Iqbal and Twombly establish the standard that obtains on a motion to
dismiss, not a motion for summary judgment. While pro se litigants are afforded special solicitude, “proceeding pro
se does not otherwise relieve a defendant from the usual requirements to survive a motion for summary judgment.”
Bussa v. Alitalia Linee Aeree Italiane, S.p.A., No. 02-CIV-10296 (LAP), 2004 WL 1637014, at *4 (S.D.N.Y. July
prisoners presents [a] triable issue of fact concerning [the] Eighth Amendment.” (Pl.’s Mem. in
Opp. (Doc. No. 54) at 26.) But that analysis presumes actual evidence of some misconduct and –
as Ayers itself recognized – “[a]n isolated omission to act by a state prison guard does not
support a claim under section 1983 absent circumstances indicating an evil intent, or
recklessness, or at least deliberate indifference to the consequences of his conduct for those
under his control and dependent upon him.” 780 F.2d at 209 (quoting Williams v. Vincent, 508
F.2d 541, 546 (2d Cir. 1974)).
Plaintiff has offered no evidence suggesting that the conditions of the protective housing
unit to which he was assigned posed a substantial risk of serious harm.4 Nor has plaintiff offered
any evidence that could plausibly link his assault with the intentions or conduct of defendants.
Tellingly, even plaintiff acknowledges that his evidence only serves to “illustrate [defendants’]
potential involvement in [his] being assaulted by another inmate.” (Pl.’s Mem. in Opp. (Doc.
No. 54) at 19 (emphasis added).) This is insufficient to permit the imposition of liability.
Indeed, plaintiff’s entire case rests on speculation and conjecture. Plaintiff’s claim is
based on his perception that C.O. Howell engaged in some sort of non-verbal communication
with Captain Collazzo and Officer Murano as they passed each other in the hallway of the jail. 5
(See Defs.’ Aff. in Supp., Ex. I (Doc. No. 58-9) at 67; see generally id., Ex. H (Doc. No. 58-8),
pt. IV). Even assuming such a non-verbal exchange occurred, plaintiff admittedly does not know
While plaintiff appears to suggest that a substantial risk of harm is shown merely by the fact that he was placed in
protective custody (Pl.’s Mem. in Opp. (Doc. No. 54) at 26), this alone cannot support a reasonable inference that
plaintiff’s rights were violated. Assignment to protective custody demonstrates only an awareness of a risk to
plaintiff’s safety that requires additional safeguards; it does not show that the safeguards actually employed posed a
substantial risk of harm.
The extent of plaintiff’s evidence on this point is that “defendant Howell, having accepted custody of [plaintiff],
looked past [plaintiff’s] shoulder and nodded in the affirmative to an unspoken communication between [Howell]
and defendants [Collazzo] and [Murano].” (Pl.’s Aff. in Opp. (Doc. No. 54-1) ¶ 14; Defs.’ Aff. in Supp., Ex. I (Doc.
No. 58-9) at 67.) “[I]n order to avoid summary judgment, [plaintiff] ‘must do more than simply show that there is
some metaphysical doubt as to the material facts.’” Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991) (quoting
Matsushita, 475 U.S. at 586).
its significance, if any. (See Defs.’ Aff. in Supp., Ex. I at 68-69.) Indeed, plaintiff admitted at
his deposition that he does not know who may have played a role in his attack and that it is
possible that an inmate attacked him without any officers being involved at all. (Id. at 107-08.)
Plaintiff further testified at his deposition that he is suing Captain Collazzo and Officer Murano
because it is his belief that they were involved. (Id. at 112-14.) In short, plaintiff cannot point to
anyone apart from the other inmate (Jirovec) as being involved in the incident. (Id. at 111-12.)
Plaintiff’s unsupported beliefs cannot support his claim against the defendant officers.
Moreover, plaintiff’s self-supported claims are wholly belied by the record evidence.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380 (2007). Here, the record evidence plainly establishes that four disinterested inmates,
including inmate Jirovec, who got into the altercation with plaintiff, all provide consistent
accounts of what transpired that expressly contradict plaintiff’s self-serving, speculative account.
For example, inmate Jirovec stated that plaintiff entered the housing area and they fought over
gang affiliation. (See Defs.’ Aff. in Supp., Ex. M (Doc. No. 58-13).) Inmate Blackwell
described what he saw as plaintiff exchanging words with inmate Jirovec, then taking a swing at
inmate Jirovec, resulting in a fight. (See id., Ex. O (Doc. No. 58-15).) Inmate Santiago stated
that plaintiff said something to inmate Jirovec and tried to hit him, then inmate Jirovec in turn hit
plaintiff and the officer stopped the fight. (See id., Ex. P (Doc. No. 58-16).) Inmate Page also
described the incident, recounting that plaintiff entered the area and took a swing at inmate
Jirovec. (See id., Ex. Q (Doc. No. 58-17).) No reasonable jury could find for plaintiff in the face
of this record evidence, particularly when plaintiff himself admits that his resulting injuries could
have been at the hands of an inmate without any officer involvement. (See id., Ex. I at 107-08.)
At the summary judgment stage, plaintiff “may not rely simply on conclusory statements
or on contentions that the affidavits supporting the motion are not credible.”6 Ying Jing Gan v.
City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 100-01 (2d Cir. 1997). Moreover, “[a] defendant moving for summary
judgment must prevail if the plaintiff fails to come forward with enough evidence to create a
genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo,
100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48). Because plaintiff has
offered no evidence from which a reasonable jury could infer intentional wrongdoing or
deliberate indifference by defendants, or conditions posing a substantial risk of harm, there is no
genuine dispute of material fact and defendants are entitled to judgment as a matter of law.
The Court also notes that plaintiff’s assertions regarding the time of the incident and the availability of security
footage are also insufficient to defeat summary judgment. (See Pl.’s Aff. in Opp. (Doc. No. 54-1) ¶¶ 37-44.) “[T]he
mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Podell v.
Citicorp Diners Club, Inc., 112 F.3d 98, 100-01 (2d Cir. 1997) (quoting Anderson, 477 U.S. at 247-48) (emphasis in
original). Neither contention creates a material factual dispute or establishes an element of plaintiff’s claim.
For the reasons stated herein, defendants’ motion for summary judgment (Doc. No. 55) is
GRANTED. The Clerk of Court is directed to enter judgment accordingly, mail to plaintiff pro
se a copy of this Memorandum and Order and the accompanying judgment, and close this case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken
in good faith and therefore in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Roslynn R. Mauskopf
Dated: Brooklyn, New York
June 24, 2013
ROSLYNN R. MAUSKOPF
United States District Judge
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