Brandon v. Schroyer et al
DECISION AND ORDER: For the reasons discussed above, the Court accepts and adopts Magistrate Judge Peebles's February 28, 2017 Report and Recommendation, Dkt. No. 159 . Accordingly, defendants Eric Blaise and Margaret Clancy's second mot ion for summary judgment (Dkt. No. 122 ) is GRANTED, and plaintiff's remaining failure to protect claim asserted against these defendants is DISMISSED. The Clerk is directed to close this case. Signed by Senior Judge Thomas J. McAvoy on 3/23/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CHAMMA K. BRANDON,
ERIC BLAISE and MARGARET CLANCY,
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred to the Hon.
David E. Peebles, Chief United States Magistrate Judge, for a Report and Recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
In his February 28, 2017 Report and Recommendation, Dkt. No. 159, Magistrate
Judge Peebles recommends that defendants Eric Blaise and Margaret Clancy’s second
motion for summary judgment (Dkt. No. 122) be granted, and that plaintiff’s remaining
failure to protect claim asserted against these defendants be dismissed. Plaintiff filed
objections to the recommendation. Dkt. No. 161.
STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged, the
district court makes a “de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” See 28 U.S.C. §
636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (The
Court must make a de novo determination to the extent that a party makes specific
objections to a magistrate’s findings.). “[E]ven a pro se party's objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a second bite at the apple by simply
relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2 (S.D.N.Y.,
Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v. 7-Eleven, Inc.,
662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b).
The Court has considered plaintiff’s objections and completed a de novo review of
the those portions of Magistrate Judge Peebles’s Report and Recommendation to which
specific objections are made.
As explained by Magistrate Judge Peebles, plaintiff’s claim arises from a situation
that occurred at the Clinton County Jail (“CCJ”) on November 18, 2012. In this regard,
Magistrate Judge Peebles stated what he found to be the relevant material facts as follows:
While at the CCJ, plaintiff was housed in cell OBSV2-2 from November 10, 2012,
until November 19, 2012. Dkt. No. 122-3 at 3; Dkt. No. 122-9 at 2. T hat placement
resulted from plaintiff's involvement in a fight with another inmate. Dkt. No. 122-9 at
2; see also Dkt. No. 122-2 at 1-12. The OBSV2 unit at the CCJ consists of three
cells separated by concrete walls to prevent physical interaction between inmates
housed in the units. Dkt. No. 122-9 at 2-3; see also Dkt. No. 122-5 at 2-3.
Fellow inmate Terrance Somma, who plaintiff refers to in his amended
complaint as "Tiny" and who he characterizes as "hostile and mentally
deranged," Dkt. No. 17 at 31, was transferred into cell OBSV2-1, which is next
to the cell in which plaintiff was housed, on November 17, 2012, also due to
his involvement in a fight with a fellow inmate. Dkt. No. 122-9 at 2; see also
Dkt. No. 122-4 at 2-8. The decision to transfer inmate Somma into the cell
adjacent to plaintiff's was made by defendant Clancy, a corrections sergeant,
in her discretion. Dkt. No. 122-9 at 3; see also Dkt. No. 122-8 at 2.
On November 18, 2012, defendant Blaise, a corrections officer, instructed
plaintiff to exit his cell and collect all of the food trays from the unit, and
promised that, in return, plaintiff would be allowed to remain out of his cell for
an extra fifteen minutes. Dkt. No. 17 at 31. Plaintiff responded by informing
defendant Blaise that he had been verbally assaulted by inmate Somma the
night before and stating that he "would rather not pick up [his] tray." Id.
Plaintiff alleges that defendant Blaise then said to him, "[D]on't worry about
him, he's a punk. Besides, from what I heard, I'm sure if I let him out, you'd
kick his ass." Id.
As plaintiff was in the course of picking up trays, defendant Blaise witnessed
inmate Somma spitting on plaintiff. Dkt. No. 17 at 31; Dkt. 122-7 at 2. At no
point during the encounter did inmate Somma physically touch plaintiff. Dkt.
No. 122-7 at 3. Following the incident, defendant Clancy spoke with inmate
Somma concerning the matter and warned him that further disruptive behavior
would result in discipline. Dkt. No. 122-8 at 3.
Rep. Rec. pp. 2-4.
After recommending denial of defendants’ motion on the grounds of failure to
exhaust administrative remedies1 and failure to allege that plaintiff suffered a serious injury
from the altercation, 2 Magistrate Judge Peebles concluded that “[b]ased on the totality of
the record evidence, . . . no reasonable factfinder could conclude that defendants should
have been aware that plaintiff was at risk of becoming involved in a violent altercation with
inmate Somma through the cell-bar barrier during the brief moment that plaintiff passed
inmate Somma's cell.” Rep. Rec. pp. 12-13.
Magistrate Judge Peebles also noted that
“courts have routinely concluded that inmates' health and safety is not placed at substantial
risk by the potential of another inmate spitting on them.” Id. pp. 14 -15 (collecting cases).
Ultimately, Magistrate Judge Peebles concluded that “even assuming that defendants
Blaise and Clancy were aware that inmate Somma had verbally harassed plaintiff the night
before the incident and defendants Blaise and Clancy knew that both inmates had been
placed in the OBSV2 unit as a result of violent encounters with other inmates, no
reasonable factfinder could conclude that they should have been aware that plaintiff was at
risk of serious harm when defendant Blaise asked him to collect the food trays while inmate
Somma remained locked in his cell, when they knew of no history of violence between
plaintiff and inmate Somma.” Id. p. 15.
Plaintiff argues that Magistrate Judge Peebles erred because he failed to include the
following facts in his analysis which, plaintiff contends, when viewed in the light most
Because defendants failed to provide any evidence establishing the procedures available to CCJ
inmates in order to lodge complaints regarding prison conditions, and because plaintiff provided a sworn
statement that he filed a grievance concerning the failure of defendant Blaise and Clancy to protect him from
an altercation with inmate Somma, Magistrate Judge Peebles found a question of fact existed preventing
summary judgment on this ground.
In this regard, Magistrate Judge Peebles noted that suffering a "serious injury is unequivocally not a
necessary element of an Eighth Amendment claim." Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015).
Rep. Rec. p. 12.
favorable to plaintiff and in the context of the facts articulated by Magistrate Judge Peebles,
raise a question of material fact as to whether defendants’ failure to protect plaintiff was
done with a sufficiently culpable state of mind. These facts are: (1) Prior to November 18,
2012, Clancy purportedly told plaintiff that if he continued to file grievances about the
contents of his meals, she would “lock his ass up.” Plaintiff argues that this statement
displays “a clear animus towards Plaintiff for exercising his protected right to grieve.” Pl.
Mem. L., p. 10; (2) Clancy purportedly stated as she escorted Somma into the OBSV2 unit:
“Let’s see if he tries that shit on Brandon.” Plaintiff argues that this statement incited
Somma to attack plaintiff. Id.; (3) After plaintiff asked Blaise for a grievance to report that
Somma spat on him, Blaise purportedly stated: “Give me a break Brandon, you know you
had that coming.” Id. Plaintiff argues that this fact, combined with the other facts, leads to
an inference that “the defendants potentially plotted and planned plaintiff’s attack.” Id. p 11;
and, (4) Michael Smith, the CCJ Jail Administrator, stated in an affidavit that “[t]he cells
located in OBSV2 are the most segregated and impose the most restrictions upon inmates
incarcerated at the CCJ. Inmates are placed in these cells for either administrative or
disciplinary reasons. Thus inmates who pose the greatest security and safety risks are
placed in housing units such as OBSV2.” From this, plaintiff argues that the evidence
supports the conclusion that Somma “posed the greatest security and health risk in Clinton
County Jail with a reputation for violently attacking other detainees.” Id. 10-11. The Court
does not find these facts, either in isolation or in the context of all the facts alleged in this
case, alter Magistrate Judge Peebles’s analysis or his ultimate recommendation.
The Eighth Amendment imposes a duty on prison officials to "take reasonable
measures to guarantee the safety of the inmates" in their custody. Farmer v. Brennan, 511
U.S. 825, 832 (1994)(citing Hudson v. Palmer, 468 U.S. 517, 526–27, 104 S.Ct. 3194, 82
L.Ed.2d 393 (1984)). That duty extends an obligation upon prison officials to protect
inmates from harm inflicted by fellow inmates. Ayers v. Coughlin, 780 F.2d
205, 209 (2d Cir. 1985). Thus, "[a]llowing an attack on an inmate to proceed without
intervening is a constitutional violation in certain circumstances." Rosen v. City of New York,
667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009)(internal quotation marks and citation omitted).
An inmate asserting a failure to protect claim under the Eighth Amendment must
establish both that the deprivation alleged is sufficiently serious—imposing a substantial risk
of serious harm, Farmer, 511 U.S. at 834, and that the def endant acted with a "sufficiently
culpable state of mind" that amounts to “‘deliberate indifference' to the inmate's health and
safety." Hope v. Pelzer, 536 U.S. 730, 738 (2002); W ilson v. Seiter, 501 U.S. 294, 298
(1991). Thus, prison officials are liable for failure to protect inmates only when they “know
of and disregard an excessive risk to inmate health and safety; 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." Farmer, 511 U.S. at 837. A prison
“official's failure to alleviate a significant risk that he should have perceived but did not, while
no cause for commendation, cannot ... be condemned as the infliction of punishment." Id.,
at 838. This is because "Eighth Amendment liability requires more than ordinary lack of
due care for the prisoner's interests or safety." Id., at 835 (internal quotes omitted). It is
important to note that for purposes of analyzing Eighth Amendment claims, “the Supreme
Court has drawn a 'distinction between mere negligence and wanton conduct...."' Graham v.
Poole, 476 F. Supp.2d 257, 260 (W .D.N.Y. 2007) (citing Whitley v. Albers, 475 U.S. 312,
Here, inmate Somma’s act of spitting on plaintiff did not expose plaintiff to a
substantial risk of serious harm to health and safety. See Rep. Rec. pp. 14-15 (and cases
cited thereat). Because Somma was behind bars and had no possibility of physically
reaching plaintiff to impose blows, plaintiff’s claim fails to establish that defendants Clancy
and Blaise were deliberately indifferent to an excessive risk to plaintiff’s health and safety.
Moreover, even assuming that the act of one inmate spitting on another inmate
creates a risk of serious harm to health and safety, the Court agrees with Magistrate Judge
Peebles’s conclusion that the facts are insufficient for a reasonable factfinder to conclude
that either defendant Clancy or defendant Blaise knew of, yet disregarded, the risk that
Somma would spit on plaintiff. As Magistrate Judge Peebles concluded, the facts merely
indicated that Somma had verbally harassed plaintiff the night before the incident, and that
plaintiff and Somma had both been placed in the OBSV2 unit as a result of violent
encounters with other inmates. There is nothing from these facts that would lead to the
reasonable inference that defendants Clancy and Blaise knew or should of known that
Somma would spit on plaintiff as he was momentarily in front of Somma’s cell to pick up a
Contrary to Plaintiff’s argument, the fact that Somma had been placed in the OBSV2
unit does not mean that Somma posed any greater health risk than any other inmate placed
in the OBSV2 unit, or that Somma had a known reputation for violently attacking other
detainees. The fact that Somma was placed in the OBSV2 unit creates no reasonable
inference that the defendants knew, or had reason to know, that Soma would spit on
Plaintiff. The fact that defendant Clancy told Plaintiff that she would “lock his ass up” if he
continued to file grievances about the contents of his meals provides no probative evidence
creating an inference that either defendant knew or had reason to know that Somma would
spit on plaintiff. The grievances about the meals and the incident in question are distinct.
Similarly, the fact that Clancy commented as she escorted Somma into the unit “Let’s see if
he tries that shit on Brandon” clearly refers to Somma’s physical confrontation with another
inmate that landed him in the OBSV2 unit, and creates no reasonable inf erence that the
defendants knew, or had reason to know, that Soma would spit on plaintiff. Likewise, the
post-incident statement by defendant Blaise to plaintiff “you know you had that coming”
creates no reasonable inference that defendants knew, or had reason to know, that Soma
would spit on plaintiff. Plaintiff’s contention that defendants “plotted and planned plaintiffs
attack” is based upon pure speculation, which is insufficient to create a material question of
fact necessary to defeat summary judgment.
Without some indication that Somma had threatened to harm plaintiff (as opposed to
harassing him), or that Somma had a history of spitting on other inmates as they passed
before his cell, plaintiff’s claim is devolved into one requiring prison officers to protect
inmates from every eventuality that might occur in the jailhouse, no matter how unexpected,
spontaneous, or random. A claim of this nature clearly ignores the Supreme Court’s
teaching that requires a plaintiff to establish that prison officers acted with deliberate
indifference to an inmate's health and safety, meaning that prison officers knew of yet
disregarded an excessive risk to the inmates health and safety. See Farmer, 511 U.S. at
837; Hope, 536 U.S. at 738; W ilson, 501 U.S. at 298. As stated above, "Eighth Amendment
liability requires more than ordinary lack of due care for the prisoner's interests or safety."
Farmer, 511 U.S. at 835 (internal quotes omitted)). Plaintiff’s claim provides facts
establishing nothing more than that defendants Clancy and Blaise failed to provide ordinary
due care for plaintiff’s interest in not being spit upon while picking up trays in the OBSV2
For the reasons discussed above, the Court accepts and adopts Magistrate Judge
Peebles’s February 28, 2017 Report and Recommendation, Dkt. No. 159. Accordingly,
defendants Eric Blaise and Margaret Clancy’s second motion for summary judgment (Dkt.
No. 122) is GRANTED, and plaintiff’s remaining failure to protect claim asserted against
these defendants is DISMISSED. The Clerk is directed to close this case.
IT IS SO ORDERED.
Dated: March 23, 2017
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