Ferrer v. Racette et al
Filing
137
DECISION AND ORDER denying # 126 Motion for Summary Judgment filed by Defs. Beecher, Burch & McClenning; granting in part and denying in part # 127 Motion for Summary Judgment filed by Defs. Goodman, Kelly, Waite and Jenkins as set forth below; an d denying # 128 Motion for Partial Summary Judgment filed by Defs. Beecher, Burch and McClenning. Surviving these motions for summary judgment are the following claims: (a) Plfs First Cause of Action for excessive use of force as against Defs. Fra zier, Beecher, Burch, Morin, and McClenning; (b) Plf's First Cause of Action for failure to intervene during the excessive use of force as against Def. Livermore; (c) Plfs Second Cause of Action for retaliation as against Defs. Frazier, Beecher, Burch, Morin, McClenning, and Livermore; and (d) Defs. Beecher, Burch, and McClennings counter-claims for assault and battery. Counsel are direct to appear on January 16, 2018 at 1:30 pm in Syracuse, NY, in chambers for a pretrial conference, at wh ich time counsel are directed to appear with settlement authority, and in the event that the case does not settle, trial will be scheduled at that time to begin on February 26, 2018 with pretrial submissions being due on February 5, 2018. Plaintiff is further directed to forward a written settlement demand to Defendants no later than January 2, 2018, and the parties are directed to engage in meaningful settlement negotiations before the conference. In the event that counsel feel settlement is unlikely, counsel may file a letter request at least one week before the scheduled conference advising that settlement is not feasible, and the Court will cancel the conference and issue a trial order scheduling trial for February 26, 2018. Signed by Chief Judge Glenn T. Suddaby on 12/15/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
RODNEY FERRER,
Plaintiff,
v.
9:14-CV-1370
(GTS/DJS)
STEVEN RACETTE, Former Superintendent,1
CHARLES KELLY, Deputy Superintendent of
Security, CRAIG GOODMAN, Captain, ANDREW
FRAZIER, Sergeant, SERGEANT LIVERMORE,
Sergeant, BRIAN SCHLOGL, Corrections Officer,
GREGORY BEECHER, Corrections Officer, ERIC
MORIN, Corrections Officer, JEREMY BURCH,
Corrections Officer, DANIEL MCCLENNING,
Corrections Officer, N. WAITE, Corrections
Officer, JOSHUA JENKINS, Corrections Officer,
Defendants.
___________________________________________
APPEARANCES:
OF COUNSEL:
LAW OFFICE OF JESSICA M. GORMAN
Counsel for Plaintiff
P.O. Box 706
Albany, NY 12201
JESSICA M. GORMAN, ESQ.
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Counsel for Defendants Kelly, Goodman
Waite, and Jenkins
The Capitol
Albany, NY 12224-0341
LOUIS JIM, ESQ.
Assistant Attorney General
LIPPES MATHIAS WEXLER FRIEDMAN LLP
Counsel for Defendants Beecher, Burch,
and McClenning
54 State Street, Suite 1001
Albany, NY 12207
JEFFERY P. MANS, ESQ.
1
The Court notes that it granted a stipulated motion to dismiss Steven Racette as a
Defendant in this action on June 21, 2017. (Dkt. No. 125.)
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this prisoner civil rights action filed by Rodney Ferrer
("Plaintiff") against the eleven above-captioned employees of Great Meadow Correctional
Facility (“GMCF”) in Comstock, New York (“Defendants”), are the following three motions: (1)
Plaintiff’s motion for partial summary judgment against Defendants Beecher, Burch, and
McClenning; (2) Defendants Goodman, Kelly, Waite, and Jenkins’ motion for summary
judgment; and (3) Defendants Beecher, Burch, and McClenning’s motion for partial summary
judgment. (Dkt. Nos. 126, 127, 128.) The Court notes that Plaintiff’s claims against
Defendant’s Livermore, Frazier, and Morin are not at issue in the three above-referenced
motions. In addition, default judgment on liability was entered against Defendant Schlogl on
November 28, 2016. (Dkt. Nos. 105, 106.) For the reasons set forth below, Plaintiff’s motion
for partial summary judgment is denied; Defendants Goodman, Kelly, Waite, and Jenkins’
motion for summary judgment is granted in part and denied in part; and Defendants Beecher,
Burch, and McClenning’s motion for partial summary judgment is denied.
I.
RELEVANT BACKGROUND
A.
Plaintiff's Complaint
Generally, Plaintiff's Complaint asserts three causes of action. First, Plaintiff alleges that
Defendants Frazier, Schlogl, Beecher, Morin, Burch, McClenning, Waite, Jenkins, and
Livermore violated his constitutional rights under the Eighth and Fourteenth Amendment to be
free from excessive force and cruel and unusual punishment. (Dkt. No. 1, at ¶¶ 83-88 [Compl.].)
More specifically, Plaintiff alleges that Defendants Frazier, Scholgl, Beecher, Morin, Burch,
2
McClenning, Waite, and Jenkins assaulted him, and that Defendant Livermore both failed to
intervene and affirmatively participated in the assault. (Id.) Second, Plaintiff alleges that
Defendants Frazier, Schlogl, Beecher, Morin, Burch, McClenning, Waite, Jenkins, and
Livermore violated his constitutional rights under the First Amendment to be free from
retaliation for practicing his religion and speaking about unconstitutional acts committed against
him. (Id. at ¶¶ 89-93.) Third, Plaintiff alleges that Defendants Goodman, Kelly, and Racette
violated his right under the Eighth Amendment to be free from cruel and unusual punishment by
(a) failing to implement or enforce appropriate policies to stop and prevent such violations, (b)
failing to adequately supervise or train subordinates, and (c) failing to take any actions to remedy
reported violations. (Id. at ¶¶ 94-105.)
B.
Undisputed Material Facts on Plaintiff’s Motion for Summary Judgment
The following facts were asserted and supported with accurate record citations by
Plaintiff in his Statement of Material Facts and expressly admitted by Defendants in their
response thereto or denied without appropriate record citations. (Compare Dkt. No. 126, Attach.
9 [Pl.’s Rule 7.1 Statement] with Dkt. No. 131, Attach. 1 [Defs.’ Rule 7.1 Resp.].)
1.
Plaintiff commenced this action under 42 U.S.C. § 1983 in the Northern District
of New York on November 12, 2014.
2.
Defendants Burch, Beecher, and McClenning answered on September 2, 2015.
3.
In their Answer, Defendants Burch, Beecher, and McClenning asserted
counterclaims against Plaintiff for State law assault and battery.
4.
These counterclaims are alleged to have arisen from events occurring in the draft
process area of GMCF on November 15, 2011.
3
5.
The counterclaims are not alleged to have arisen from events occurring on any
date other than November 15, 2011.
6.
Defendant Beecher claims that he has not seen Plaintiff since November 15, 2011.
7.
Defendant Burch claims that the only time he interacted with Plaintiff was on
November 15, 2011.
8.
Defendant McClenning claims that the only time he saw or interacted with
Plaintiff was on November 15, 2011.
9.
Defendants’ counterclaims were brought on September 2, 2015, which is more
than one year after November 15, 2011.
10.
Plaintiff answered these counterclaims on September 24, 2015, and asserted an
affirmative defense that one or more of the counterclaims were barred by the
statute of limitations.
C.
Undisputed Material Facts on Defendants Goodman, Kelly, Waite, and
Jenkins’ Motion for Summary Judgment
Unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendants in their Statement of Material Facts and expressly admitted by
Plaintiff in his response thereto or denied without appropriate record citations. (Compare Dkt.
No. 127, Attach. 1 [Defs.’ Rule 7.1 Statement] with Dkt. No. 132, Attach. 10 [Pl.’s Rule 7.1
Resp.].)
1.
Plaintiff commenced this action on November 12, 2014. With regard to
Defendants Goodman, Kelly, Waite, and Jenkins, the Complaint alleges as
follows:
4
(a)
In June 2011, Plaintiff complained in writing to Defendant Kelly, who was
the Deputy Superintendent for Security at GMCF, that corrections
officers, including Defendant Waite, had been harassing him, threatening
to dispose of his mail, and telling other inmates that he was a “rat.”
(b)
Plaintiff believed that the officers were acting in retaliation for his earlier
complaints.
(c)
This complaint to Defendant Kelly was ineffective.
(d)
In August 2011, staff refused to provide Plaintiff several religious meals,
continued harassing him for his religious beliefs, and destroyed his copy
of the Quran.
(e)
Around the same time, Defendant Waite assaulted him in an elevator by
punching him.
(f)
In a written complaint submitted to GMCF Superintendent Racette in
September 2011, Plaintiff claimed that corrections officers, including
Defendant Jenkins, had threatened him, made anti-Islamic remarks,
refused to provide him with his religious meals, threatened to take his
mail, and assaulted him.
(g)
This complaint was also ineffective.
(h)
In September 2011, Defendant Jenkins again assaulted Plaintiff, shoving
his face into the corner of an elevator, shoving his hands into Plaintiff’s
pants and grabbing his testicles, calling him a “piece of shit Muslim,” and
telling him to “go ahead and do something” so he could rip his “dick off.”
5
(i)
Defendant Jenkins then put his finger in Plaintiff’s anus, and told Plaintiff
that “he better not leave his cell” or Defendant Jenkins or one of the “blue
shirts” would “get” Plaintiff.
(j)
Plaintiff complained in writing to Defendant Kelly about this alleged
incident and sent copies of the complaint to Racette and Defendant
Goodman.
(k)
Shortly thereafter, Defendant Jenkins allegedly confronted Plaintiff and
told him in a threatening manner that it was “not over.”
(l)
Later in September 2011, Plaintiff complained in writing to Defendant
Kelly about Defendant Jenkins’ latest threat and sent copies of the
complaint to Racette and Defendant Goodman.
(m)
Defendant Goodman responded to Plaintiff’s letter in October 2011,
stating that the complaint had been investigated and determined to be
without merit, and that Plaintiff was interviewed by a supervisor and
refused medical attention after the alleged assault.
(n)
In a letter to Racette, which was also sent to Defendants Kelly and
Goodman, Plaintiff responded that he had neither been interviewed about
the alleged assault nor called for a medical examination, and he requested
that Defendant Jenkins and his associates leave him alone.
2.
Plaintiff testified at his deposition that the alleged incident relating to Defendant
Waite occurred on August 23, 2011.
6
3.
Plaintiff wrote a letter to Racette dated September 2, 2011, in which Plaintiff,
inter alia, claims that Defendant Waite had assaulted him on August 23, 2011.
4.
Plaintiff admitted at his deposition that the alleged incidents concerning
Defendant Waite described in the September 2nd letter is the same incident
described in the Complaint.
5.
Defendant Kelly testified at his deposition that he appears to have assigned
Defendant Goodman to investigate the conduct alleged in Plaintiff’s September
2nd letter.
6.
Defendant Kelly also testified that the individual to which he assigned an
investigation “may send it down another level lower” for investigation.
7.
Indeed, Defendant Kelly testified that Defendant Goodman had the authority to
delegate investigations to Defendant Goodman’s subordinates, including
Sergeants Scarlott and Williams, even though Defendant Kelly had initially
assigned the investigations to Defendant Goodman.
8.
Defendant Goodman testified at his deposition that, in response to receiving this
letter, he would have assigned a lieutenant to investigate it.
9.
Defendant Goodman wrote a memo to Plaintiff, dated October 14, 2011, with the
subject line “your letter of complaint 9/2/11.”
10.
Plaintiff admitted at his deposition that he received this memo.
11.
Defendant Goodman’s October 14th memo states, in pertinent part, “Your
complaint was investigated by a Security Supervisor,” and concludes, “I find your
complaint to be without merit.”
7
12.
Plaintiff further testified at his deposition that the alleged incident relating to
Defendant Jenkins occurred on September 12, 2011.
13.
Plaintiff wrote a letter to Defendant Kelly dated September 14, 2011, in which
Plaintiff, inter alia, claims that Defendant Jenkins had assaulted Plaintiff on
September 12, 2011.
14.
Plaintiff admitted at his deposition that this alleged incident concerning
Defendant Jenkins described in the September 14th letter is the same incident
described in the Complaint.
15.
The record shows that Defendant Kelly assigned Defendant Goodman to
investigate the conduct alleged in Plaintiff’s September 14th letter.
16.
Defendant Goodman then assigned this investigation to Sergeant T. Williams.
17.
Defendant Goodman wrote a memo to Plaintiff, dated October 5, 2011, with the
subject line “Your letter of complaint 9/14/11.”
18.
Defendant Goodman’s October 5th memo states, in pertinent part, “Your letter of
complaint written to DSS Kelly was received and investigated by a security
supervisor. . . . Because of your lack of cooperation during this investigation, your
refusal to be medically examined, and the evidence obtained. The complaint is
without merit and therefore denied.”
19.
In his Complaint, Plaintiff does not allege that Defendants Goodman, Kelly,
Waite, and Jenkins were personally involved in the November 15, 2011, incident.2
2
Plaintiff objects to the extent that this statement suggests any legal (rather than
factual) conclusions. This statement is therefore admitted only to the extent it is a factual
assertion.
8
20.
Plaintiff cannot recall filing any grievances relating to the alleged August 2011
incident concerning Defendant Waite.
21.
In addition, Plaintiff admitted at his deposition that he did not file a grievance
relating to the alleged September 2011 incident concerning Defendant Jenkins.
22.
The issues raised by Plaintiff against Defendants Goodman, Kelly, Waite, and
Jenkins are proper subjects for a grievance under New York Department of
Corrections and Community Supervision (“DOCCS”) grievance procedures as
outlined at 7 N.Y.C.R.R. § 701.1 et seq.3
23.
Central Office Review Committee (“CORC”) staff searched CORC’s records for
determinations upon grievance appeals brought by Plaintiff.4
24.
DOCCS records reflect that Plaintiff was incarcerated at GMCF during the time
period pertaining to this action.
25.
During that time, GMCF had a fully functioning inmate grievance process
available.5
3
See, supra, note 2 of this Decision and Order.
4
Plaintiff admits that the cited Declaration supports this statement but objects
because he does not have personal knowledge of CORC staff’s actions and because the
statements were made in a declaration rather than a deposition or other proceeding where
Plaintiff would have been able to question the declarant. (Dkt. No. 132, Attach. 10, at ¶ 23 [Pl.’s
Rule 7.1 Statement].) However, because Plaintiff does not cite any evidence contradicting the
statement, this fact is deemed admitted. Archie Comic Publ’ns, Inc. v. DeCarlo, 258 F. Supp. 2d
315, 319 (S.D.N.Y. 2003) (holding that “the facts set forth in [plaintiff’s] statement are deemed
established” where defendant denied assertions in plaintiffs Rule 56.1 statement but declined to
provide record citations in support).
5
See, supra, note 4 of this Decision and Order.
9
26.
Inmates at GMCF have had full access to CORC by which to appeal from facilitylevel grievance determinations.6
27.
Based on an examination of DOCCS records, Plaintiff has filed a number of
grievance appeals with CORC; however, none of these appeals concern matters
stemming from alleged incidents of harassment, assault, threats, retaliation, and
religious discrimination during the period from June 2011 through October 2011.7
28.
Grievance No. GM-51889-11 (Case Code: “Staff Conduct”/Title: “Assaulted by
Escort Officers”) was filed on May 3, 2011, before the alleged events of June
2011 through October 2011.8
29.
Grievance No. FPT-25472-11 (Case Code: “Staff Conduct”/Title: “Assaulted at
Great Meadow”) was filed on November 22, 2011, after Plaintiff had been
transferred to Five Points Correctional Facility.
6
Id.
7
Plaintiff denies this statement, but fails to cite evidence supporting his denial.
The evidence cited by Plaintiff supports the fact that Plaintiff filed an appeal with CORC
regarding the grievance of November 22, 2011, but does not contradict Defendant’s statement
that Plaintiff had not filed appeals regarding the alleged incidents occurring between June 2011
and October 2011. This fact is therefore deemed admitted. Archie Comic Publ’ns, Inc., 258 F.
Supp. 2d at 319.
8
Plaintiff denies this statement, arguing that the exhibit supporting this statement
in Ms. Seguin’s Declaration extends back to June 1, 2011. (Dkt. No. 132, Attach. 10, at ¶ 28
[Pl.’s Rule 7.1 Resp.].) However, Exhibit A to Ms. Seguin’s Declaration does in fact contain the
entry mentioned and cited by Defendants regarding a grievance filed on May 3, 2011. (Dkt. No.
127, Attach. 7, at 2 [Seguin Decl.].) Plaintiff’s denial is therefore unsupported and this statement
is deemed admitted. See Holtz v. Rockafeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001) (noting
that “where the cited materials do not support the factual statement in the Statements, the Court
is free to disregard the assertions”).
10
30.
This grievance concerned an incident that occurred at GMCF on November 15,
2011, and did not allege that Defendants Kelly, Goodman, Waite, or Jenkins were
in any way involved.9
C.
Undisputed Material Facts on Defendants Beecher, Burch, and
McClenning’s Motion for Summary Judgment
Unless otherwise noted, the following facts were asserted and supported with accurate
record citations by Defendants in their Statement of Material Facts and expressly admitted by
Plaintiff in his response thereto or denied without appropriate record citations. (Compare Dkt.
No. 128, Attach. 1 [Defs.’ Rule 7.1 Statement] with Dkt. No. 132, Attach. 11 [Pl.’s Rule 7.1
Resp.].)
1.
Plaintiff is an inmate in the custody of DOCCS, serving an indeterminate sentence
of 18 to 21 years based upon his convictions for First Degree robbery, Second
Degree assault, and two counts of Third Degree criminal possession of a weapon.
2.
Plaintiff was incarcerated at GMCF and housed in the Behavioral Health Unit
(“BHU”) from approximately April 2011 until the date of the alleged excessive
force and retaliation claims on November 15, 2011.
3.
At his deposition, Plaintiff testified that, before November 15, 2011, he had no
problems with Defendants Beecher, Burch, or McClenning.
4.
At his deposition, Plaintiff testified that, before November 15, 2011, he was
familiar with Defendant Beecher only to the extent that he had seen him around
the BHU on occasion as a relief officer.
9
See, supra, note 2 of this Decision and Order.
11
5.
Before November 15, 2011, Defendant Beecher was not familiar with Plaintiff,
and had never interacted with him.
6.
At his deposition, Plaintiff testified that, before November 15, 2011, he was
familiar with Defendant McClenning only to the extent that Plaintiff knew that
Defendant McClenning was the regular officer who worked in the draft area at
GMCF.
7.
At his deposition, Plaintiff testified that, before November 15, 2011, he was not
familiar with Defendant Burch.
8.
At their depositions, Defendant Burch and Defendant McClenning testified that
they did not know Plaintiff was Muslim.
9.
At his deposition, Plaintiff testified that, before November 15, 2011, he had never
filed a complaint or grievance against Defendants Beecher, Burch, or
McClenning.
10.
Plaintiff’s grievance dated November 20, 2011, regarding the underlying
November 15, 2011, incident at GMCF did not name Defendants Beecher, Burch,
or McClenning, and did not include any claim of retaliation.10
11.
Although Plaintiff alleges various acts of retaliation at GMCF before November
15, 2011, based on his religion and the writing of complaints and grievances,
Plaintiff fails to identify a single act of retaliation that involved Defendants
Beecher, Burch, or McClenning.
10
See, supra, note 2 of this Decision and Order.
12
12.
At his deposition, Plaintiff testified that he did not know whether anyone
informed Defendant Burch or Defendant McClenning, or that either of them were
aware, that Plaintiff had filed any complaints or grievances against anyone at
GMCF.
13.
Plaintiff’s sole allegations of retaliation against Defendants Beecher, Burch, and
McClenning occurred on November 15, 2011, after he was brought to the GMCF
draft area for a transfer from GMCF to another correctional facility.
14.
Specifically, Plaintiff alleges that, after he was escorted from the BHU to the draft
area by Defendant Morin, he was placed into a draft cell with Inmate Burkett,
who had also been housed in the BHU.
15.
Although Plaintiff alleges that Defendant Morin called Plaintiff a “rat” and told
Inmate Burkett that “this was his chance to beat [Plaintiff] and that corrections
officers would not see anything,” and that, as Inmate Burkett threatened to attack
Plaintiff for being a “rat” and they argued in the cell, Plaintiff also alleges that a
corrections officer, “believed to be” Defendant McClenning, entered the cell and
grabbed Inmate Burkett by the collar, and that Defendant Burch entered the cell
and physically removed Plaintiff and placed him in a separate draft cell.11
11
Plaintiff admits this fact but asserts that Defendant Burch “grabbed [him], threw
him across the bullpen, [] kicked him” and “dragged him to another bullpen.” (Dkt. No. 132,
Attach. 11, at ¶ 18 [Pl.’s Rule 7.1 Resp.].) However, to the extent that Plaintiff desired to set
forth additional material facts that he contends are in dispute, he was required by Local Rule
7.1(a)(3) to do so in separately numbered paragraphs. See Johnson v. City of Troy, 14-CV-0817,
2016 WL 5107124, at *8 n.12 (N.D.N.Y. Sept. 20, 2016) (Suddaby, C.J.).
13
16.
After Defendant Burch separated Plaintiff from Inmate Burkett and left Plaintiff’s
draft cell, Plaintiff alleges that Defendant Burch threatened Plaintiff to “keep
running his mouth,” called him an “Al Qaeda motherfucker,” and told him that he
better “forget what happened.”12
17.
Plaintiff alleges that Defendant Beecher assaulted him after he arrived in the draft
cell area, called Plaintiff out of his draft cell, remarked that “he remembered
[him] from the BHU,” and “commented that [Plaintiff] liked to write up officers
and that he wrote up Defendant Jenkins.”
18.
Plaintiff alleges that, thereafter various Defendants and unidentified officers
assaulted him, and that, during the assault (other than unidentified officers and
other non-moving Defendants), only Defendant Burch “yelled that he hated
Muslims and would kill [Plaintiff] and spit on him.”
19.
Plaintiff alleges that “upon information and belief,” the assault of November 15,
2011, “was orchestrated as a final act of retaliation for his religion and for his
grievances and complaints.”
D.
Parties’ Briefing on the Pending Motions
1.
Plaintiff’s Motion for Partial Summary Judgment
a.
Plaintiff’s Memorandum of Law
Generally, in his memorandum of law, Plaintiff argues that the counterclaims for assault
and battery by Defendants Beecher, Burch, and McClenning should be dismissed because they
are barred by the governing statute of limitations. (Dkt. No. 126, Attach. 8, at 5-8 [Pl.’s Mem. of
12
See, supra, note 11 of this Decision and Order.
14
Law].)13 More specifically, Plaintiff argues that, because these counterclaims were brought
under state law, the applicable statute of limitations is New York’s one-year statute of
limitations. (Id. at 6.) Accordingly, Plaintiff argues that Defendants were required to assert their
claims for assault and battery no later than November 15, 2012 (one year after the incident at
issue), but did not do so until September 2, 2015. (Id.) Plaintiff also argues that there is no basis
for tolling the statute of limitations on these claims. (Id. at 6-7.)
b.
Defendants’ Opposition Memorandum of Law
Generally, in their opposition memorandum of law, Defendants concede that New York’s
one-year statute of limitations applies to their counterclaims, but argue that these counterclaims
are not time-barred based on federal and state civil procedure rules. (Dkt. No. 131, at 4-6 [Defs.’
Opp’n Mem. of Law].) More specifically, Defendants argue that their counterclaims were
compulsory because they arose out of the same transaction as did Plaintiff’s claims, and that the
New York Civil Practice Law and Rules (“N.Y.C.P.L.R.”) state that such related counterclaims
would not be barred even if they would have been barred at the time the Complaint was filed.
(Id. at 4-5.)
2.
Defendants Goodman, Kelly, Waite, and Jenkins’ Motion for
Summary Judgment
a.
Defendants’ Memorandum of Law
Generally, in their memorandum of law, Defendants Goodman, Kelly, Waite, and
Jenkins make five arguments. (Dkt. No. 127, Attach. 22, at 8-17 [Defs.’ Mem. of Law].) First,
Defendants argue that Plaintiff failed to exhaust his available administrative remedies before
13
Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the respective documents.
15
commencing the present action as required by the Prison Litigation Reform Act of 1995
(“PLRA”). (Id. at 8-11.) More specifically, Defendants argue that Plaintiff did not file any
grievances related to the alleged violations of his rights during the period between June 2011 and
October 2011, and that Plaintiff does not allege that any of these Defendants were involved in
the incidents for which he did file grievances. (Id. at 10-11.) Defendants argue that Plaintiff’s
letters reporting the alleged conduct to Superintendent Racette and others do not satisfy the
exhaustion requirement because there is no evidence that he appealed the responses related to
any of these letters to CORC as required by DOCCS policies. (Id. at 11.)
Second, these Defendants argue that Plaintiff’s claims against Defendants Waite and
Jenkins are barred by the governing statute of limitations. (Id. at 12-13.) More specifically,
Defendants argue that because the conduct Plaintiff reported occurred on August 23, 2011 (as to
Defendant Waite), and on September 12, 2011 (as to Defendant Jenkins), Plaintiff was required
to file claims against them by August 23, 2014, and September 12, 2014, respectively, based on
the applicable three-year statute of limitations. (Id. at 12.) Defendants additionally argue that
any instances of verbal threats or harassment after those dates would not serve to make
Plaintiff’s claims against these Defendants timely, and, even if they did, Plaintiff does not allege
that any such incidents occurred after September 2011. (Id. at 12-13.)
Third, these Defendants argue that Plaintiff has not alleged or shown that Defendants
Goodman and Kelly were personally involved in any of the alleged constitutional violations
because they merely assigned their subordinates to investigate Plaintiff’s allegations and relied
on the conclusions of those subordinates. (Id. at 14-15.)
16
Fourth, these Defendants argue that, to the extent Plaintiff asserts claims for damages
against these Defendants in their official capacities, those claims would be barred by the
Eleventh Amendment. (Id. at 15-16.)
Fifth, and finally, these Defendants argue that they are entitled to qualified immunity as a
matter of law because their actions did not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. (Id. at 16-17.)
b.
Plaintiff’s Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Plaintiff makes five arguments. (Dkt.
No. 132, Attach. 9, at 8-20 [Pl.’s Opp’n Mem. of Law].) First, Plaintiff argues that the evidence
shows that he properly exhausted his administrative remedies against Defendants Goodman,
Kelly, and Jenkins under the PLRA. (Id. at 8-10.) Specifically, Plaintiff argues that (a) he
timely filed a grievance related to the incident of November 15, 2011, (b) he was notified by
Defendant Goodman on December 6, 2011, that the investigation into his grievance could not be
completed until a pending investigation by the Inspector General was finished, (c) a subsequent
response from the superintendent on December 12, 2011, reiterated the conclusion of Defendant
Goodman’s letter, (d) he appealed that response to CORC on December 16, 2011, and (e) CORC
responded on April 25, 2012, upholding the decision to wait until the conclusion of the Inspector
General’s investigation. (Id. at 9.)
Second, Plaintiff concedes that his claims against Defendant Waite are barred by the
statute of limitations, but argues that his claims against Defendant Jenkins are not barred. (Id. at
10-11.) Specifically, Plaintiff argues that, although Defendant Jenkins did not directly
participate in the incident on November 15, 2011, that attack was a continuation of the violations
17
he had been perpetrating against Plaintiff in the previous months based on the statements he
alleges that Defendant Beecher made during the incident on November 15, 2011. (Id.) Plaintiff
argues that, because the incident on November 15, 2011, was in part based on retaliation for his
filing of grievances against Defendant Jenkins, Defendant Jenkins’ actions were “a continuing
wrong” that did not accrue until that date. (Id. at 11.)
Third, Plaintiff argues that Defendants Goodman and Kelly were personally involved in
the incident of November 15, 2011, based on (a) their failure to remedy violations once they
learned of them, (b) their failure to act on information that violations were occurring, (c) their
failure to stop or change policies under which violations occurred, and (d) their gross negligence
in training or supervising their subordinates who committed the violations. (Id. at 11-18.)
Fourth, Plaintiff argues that, because he did not assert any claims against these
Defendants in their official capacity, Defendant’s Eleventh Amendment argument is not
applicable. (Id. at 18.)
Fifth, and finally, Plaintiff argues that these Defendants are not entitled to qualified
immunity because the nature of the alleged violations of his rights was clearly established to be
unconstitutional at the time that they were committed. (Id. at 19-20.) Plaintiff argues that the
failure to meaningful supervise subordinate officers was also clearly established to be
unconstitutional at the time of the alleged violations. (Id.)
c.
Defendants’ Reply Memorandum of Law
Generally, in their reply memorandum of law, Defendants make three arguments. (Dkt.
No. 136, at 3-7 [Defs.’ Reply Mem. of Law].) First, Defendants argue that, even if Plaintiff can
show that he exhausted his administrative remedies related to the incident on November 15,
18
2011, there is no evidence that he exhausted any of his claims related to incidents occurring
before that date against these Defendants (who were not involved in the incident of November
15, 2011). (Id. at 3-5.) Defendants also argue that the Inspector General’s report does not
support Plaintiff’s claims against these Defendants because that report concerned only the
incident of November 15, 2011. (Id. at 4-5.)
Second, Defendants argue that the continuing-violation doctrine does not apply to
Plaintiff’s claims against Defendant Jenkins because Defendant Jenkins’ conduct and the
incident of November 15, 2011, were separate occurrences. (Id. at 5-6.) Defendant also argues
that, to the extent claims against Defendants Goodman and Kelly are based on time-barred
incidents involving Defendants Waite and Jenkins, those claims are also time-barred. (Id. at 6.)
Third, Defendants argue that the authorities that Plaintiff relies on to argue that
Defendants Goodman and Kelly were personally involved in the alleged incidents are inapposite.
(Id. at 6-7.) Specifically, Defendants argue that, unlike the defendants in the cases cited by
Plaintiff, Defendants Goodman and Kelly did not directly participate in unconstitutional conduct
nor were they on notice of actual unconstitutional conduct. (Id.) Defendants also argue that
Plaintiff’s reliance on cases discussing municipality liability is erroneous because there is a
difference between supervisory liability and municipal liability for the purposes of failing to
train or supervise. (Id. at 7.)
3.
Defendants Beecher, Burch, and McClenning’s Motion for Partial
Summary Judgment
a.
Defendants’ Memorandum of Law
Generally, in their memorandum of law, Defendants Beecher, Burch, and McClenning
argue that Plaintiff has failed to establish a First Amendment retaliation claim against them.
19
(Dkt. No. 128, Attach. 11, at 9-11 [Defs.’ Mem. of Law].) Specifically, Defendants argue that
they were not involved with Plaintiff or the subject of any grievances filed by him before
November 15, 2011, and that there is no evidence that Defendants knew on November 15, 2011,
that Plaintiff is a Muslim or that he had filed grievances against other corrections officers. (Id. at
10.) Defendants argue that, at the time of the incident. Plaintiff was engaged in a fight with
Inmate Burkett and was creating a disturbance, actions that provided a legitimate reason for
Defendants’ actions in physically separating Plaintiff from Inmate Burkett and moving him to a
different cell. (Id.) Defendants also argue that Plaintiff failed to state a conspiracy claim and
provided no evidence that these Defendants conspired against him or otherwise agreed to
retaliate against Plaintiff for his religion or previous grievances. (Id. at 10-11.)
b.
Plaintiff’s Opposition Memorandum of Law
Generally, in his opposition memorandum of law, Plaintiff argues that he sufficiently
established a retaliation claim against these Defendants. (Dkt. No. 132, Attach. 9, at 20-22 [Pl.’s
Opp’n Mem. of Law].) Specifically, Plaintiff argues that the Defendants’ actions during the
incident of November 15, 2011, were in retaliation for Plaintiff having previously filed
grievances against corrections officers and for his religion. (Id. at 21.) Plaintiff also argues that
Defendants’ motion should be denied because there is a genuine dispute of material fact as to
what statements Defendants made about their motive for the use of force and this evidence is key
to determining retaliatory intent. (Id. at 22.)
c.
Defendants’ Reply Memorandum of Law
Generally, in their reply memorandum of law, Defendants argue that Plaintiff has failed
to make any showing that Defendants had prior knowledge about Plaintiff’s grievances or his
20
religion, or that their actions on November 15, 2011, were anything other than an effort to
control Plaintiff’s behavior in the draft area. (Dkt. No. 135, at 4-5 [Defs.’ Reply Mem. of Law].)
II.
GOVERNING LEGAL STANDARDS
A.
Legal Standard Governing a Motion for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record]
evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).14 As for the materiality requirement, a dispute of
fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, "[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).
14
As a result, "[c]onclusory 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) [citation omitted]. As the Supreme Court has explained, "[The non-movant] must do more
than simply show that there is some metaphysical doubt as to the material facts." Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
21
B.
Legal Standard Governing Exhaustion Under the PLRA
The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prisoners who bring
suit in federal court must first exhaust their available administrative remedies: “No action shall
be brought with respect to prison conditions under §1983 . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e. The PLRA was enacted “to reduce the quantity and improve the
quality of prisoner suits” by “afford[ing] corrections officials time and opportunity to address
complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S.
516, 524-25 (2002). In this regard, exhaustion serves two major purposes. First, it protects
“administrative agency authority” by giving the agency “an opportunity to correct its own
mistakes with respect to the programs it administers before it is haled into federal court, and it
discourages disregard of the agency's procedures.” Woodford v. Ngo, 548 U.S. 81, 89 (2006).
Second, exhaustion promotes efficiency because (a) “[c]laims generally can be resolved much
more quickly and economically in proceedings before an agency than in litigation in federal
court,” and (b) “even where a controversy survives administrative review, exhaustion of the
administrative procedure may produce a useful record for subsequent judicial consideration.”
Woodford, 548 U.S. at 89. “[T]he PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong.” Porter, 534 U.S. at 532.
In accordance with the PLRA, the New York State Department of Correctional Services
(“DOCS”) has made available a well-established inmate grievance program. 7 N.Y.C.R.R. §
701.7. Generally, the DOCS Inmate Grievance Program ("IGP") involves the following three-
22
step procedure for the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7.15 First, an
inmate must file a complaint with the facility’s IGP clerk within a certain number of days of the
alleged occurrence.16 If a grievance complaint form is not readily available, a complaint may be
submitted on plain paper. A representative of the facility’s inmate grievance resolution
committee (“IGRC”) has a certain number of days from receipt of the grievance to informally
resolve the issue. If there is no such informal resolution, then the full IGRC conducts a hearing
within a certain number of days of receipt of the grievance, and issues a written decision within a
certain number of days of the conclusion of the hearing. Second, a grievant may appeal the
IGRC decision to the facility’s superintendent within a certain number of days of receipt of the
IGRC’s written decision. The superintendent is to issue a written decision within a certain
number of days of receipt of the grievant’s appeal. Third, a grievant may appeal to the central
office review committee (“CORC”) within a certain number of days of receipt of the
superintendent’s written decision. CORC is to render a written decision within a certain number
of days of receipt of the appeal.
Moreover, there is an expedited process for the review of complaints of inmate
harassment or other misconduct by corrections officers or prison employees. 7 N.Y.C.R.R. §
701.8. In the event the inmate seeks expedited review, he or she may report the misconduct to
the employee's supervisor. The inmate then files a grievance under the normal procedures
15
See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1
(N.D.N.Y. March 31, 2010) [citation omitted].
16
The Court uses the term “a certain number of days” rather than a particular time
period because (1) since the three-step process was instituted, the time periods imposed by the
process have changed, and (2) the time periods governing any particular grievance depend on the
regulations and directives pending during the time in question.
23
outlined above, but all grievances alleging employee misconduct are given a grievance number,
and sent immediately to the superintendent for review. Under the regulations, the superintendent
or his designee shall determine immediately whether the allegations, if true, would state a “bona
fide” case of harassment, and if so, shall initiate an investigation of the complaint, either
“in-house,” by the Inspector General's Office, or by the New York State Police Bureau of
Criminal Investigations. An appeal of the adverse decision of the superintendent may be taken
to the CORC as in the regular grievance procedure. A similar “special” procedure is provided
for claims of discrimination against an inmate. 7 N.Y.C.R.R. § 701.9.
Generally, if a prisoner has failed to properly follow each of the required three steps of
the above-described grievance procedure prior to commencing litigation, he has failed to exhaust
his administrative remedies, and his claims are subject to dismissal. Woodford, 548 U.S. at 93;
Porter, 534 U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006).
However, a plaintiff's failure to exhaust does not end the inquiry. This is because certain
exceptions exist to the exhaustion requirement. In Ross v. Blake, 136 S. Ct. 1850, 1862 (2016),
the Supreme Court rejected the “special circumstances” exception applied by many circuits,
holding that “[c]ourts may not engraft an unwritten ‘special circumstance’ onto the PLRA’s
exhaustion requirement.” Ross, 136 S. Ct. at 1862; see Williams v. Corr. Officer Priatno, 829
F.3d 118, 123 (2d Cir. 2016) (“[T]o the extent that our special circumstances exception
established in Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004), and Hemphill, 380 F.3d at
689-91, permits plaintiffs to file a lawsuit in federal court without first exhausting administrative
remedies that were, in fact, available to them, those aspects of Giano and Hemphill are abrogated
by Ross.”) (emphasis in original).
24
Thus, “post-Ross, the lone surviving exception to the PLRA’s exhaustion requirement is
that embedded in its text: that an inmate need only exhaust those administrative remedies that are
‘available’ to him.” Mena v. City of New York, 13-CV-2430, 2016 WL 3948100, at *4
(S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct. at 1862). To guide courts in this analysis, the
Supreme Court has identified three kinds of circumstances in which an administrative remedy,
“although officially on the books,” is not “available.” Ross, 136 S. Ct. at 1859.
First, “an administrative procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple dead end–with officers unable or
consistently unwilling to provide any relief to aggrieved inmates.” Id. Second, “an
administrative scheme might be so opaque that it becomes, practically speaking, incapable of
use.” Id. Third, an administrative remedy is not “available” when “prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. at 1860.
III.
ANALYSIS
A.
Whether the State Law Counterclaims by Defendants Beecher, Burch, and
McClenning Are Barred By the Statute of Limitations
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ opposition memorandum of law. (Dkt. No. 131, at 4-5 [Defs.’
Opp’n Mem. of Law].) To those reasons, the Court adds the following analysis.
In response to Plaintiff’s argument that Defendants’ counterclaims are time-barred,
Defendants argue that N.Y.C.P.L.R. § 203(d) permits them to bring those counterclaims, which
they assert are compulsory. (Dkt. No. 131, at 4-5 [Defs.’ Opp’n Mem. of Law].) Rule 13(a) of
the Federal Rules of Civil Procedure defines a compulsory counterclaim as any counterclaim that
“arises out of the transaction or occurrence that is the subject matter of the opposing party’s
25
claim and does not require the presence of third parties of whom the court cannot acquire
jurisdiction,” and indicates that the answering party must state any compulsory counterclaim it
has against the opposing party in its pleading. Fed. R. Civ. P. 13(a). Rule 13(a) does not state
whether those compulsory counterclaims must be timely at the time they are asserted. Id.
However, N.Y.C.P.L.R. § 203(d) states that, if a counterclaim “arose from the same transactions,
occurrences, or series of transactions or occurrences upon which a claim asserted in the
complaint depends, it is not barred to the extent of the demand in the complaint notwithstanding
that it was barred at the time the claims asserted in the complaint were interposed.”
N.Y.C.P.L.R. § 203(d). The language of Section 203(d) therefore indicates that a defendant
would not be barred from asserting compulsory counterclaims in an action even if those
counterclaims would otherwise be time-barred if brought in a separate action. See Curry v.
Huntington Copper, LLC, 12-CV-1673, 2014 WL 4828106, at *2 (N.D.N.Y. Sept. 29, 2014)
(Hurd, J.) (noting that N.Y.C.P.L.R. § 203[d] “allows a defendant ‘to assert an otherwise
untimely claim which arose out of the same transactions alleged in the complaint’”) (quoting
Carlson v. Zimmerman, 882 N.Y.S.2d 139, 141 [N.Y. App. Div. 2009]).
Defendants’ counterclaims are clearly compulsory according to Fed. R. Civ. P. 13(a) and
N.Y.C.P.L.R. § 203(d), because they allege an assault and battery that occurred during the same
physical altercation that is the basis for Plaintiff’s claims against Defendants Beecher, Burch,
and McClenning. (Dkt. No. 1, at 8-14 [Compl.]; Dkt. No. 34, at 6-8 [Answer].) Because, as
Plaintiff acknowledges, these counterclaims are based in state law, and because they “arose from
the same transactions, occurrences, or series of transactions or occurrences” as Plaintiff’s claims,
N.Y.C.P.L.R. § 203(d) indicates that Defendants are not barred from asserting these claims in
26
this action despite the fact that they would otherwise be untimely. See Global Crossing
Bandwidth, Inc. v. Locus Telecomm., Inc., 632 F. Supp. 2d 224, 247-48 (W.D.N.Y. 2009) (citing
cases where federal courts applied Section 203[d] to state law claims, and finding that plaintiff
was permitted to assert time-barred claims to offset defendant’s counterclaims where the claims
arose from the same transactions as the counterclaims); Am. Stock Exch., LLC v. Mopex, Inc.,
230 F. Supp. 2d 333, 335 (S.D.N.Y. 2002) (noting that defendant could have asserted relevant
claims pursuant to Section 203[d] at the time it filed its original answer and counterclaims even
if those claims were otherwise time-barred, but could not do so in an amended answer).
Plaintiff’s motion for partial summary judgment is therefore denied.
B.
Whether Plaintiff Exhausted His Available Administrative Remedies as to
the Claims Against Defendants Goodman, Kelly, Waite, and Jenkins
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ memoranda of law. (Dkt. No. 127, Attach. 22, at 8-11 [Defs.’
Mem. of Law]; Dkt. No. 136, at 3-5 [Defs.’ Reply Mem. of Law].) To those reasons, the Court
adds the following analysis.
“The [PRLA] mandates that an inmate exhaust ‘such administrative remedies as are
available’ before bringing suit to challenge prison conditions.” Ross, 136 S.Ct. at 1854-55
(quoting 42 U.S.C. § 1997e[a]). As discussed above in Part II.B. of this Decision and Order, the
Supreme Court has therefore interpreted the Prison Litigation Reform Act to require exhaustion
of administrative remedies in all circumstances so long as those remedies were actually available
to the inmate. Ross, 136 S.Ct. at 1856-58. Additionally, the inmate must exhaust every claim
he raises in a case before a federal court. See Moreau v. Peterson, 672 F. App’x 119, 121 (2d
Cir. 2017) (finding dismissal of four of six claims was proper because the plaintiff did not file
27
grievances on those four claims); Shariff v. Coombe, 655 F. Supp. 2d 274, 287-90 (S.D.N.Y.
2009) (noting that, “in order to maintain a claim in this action, each [p]laintiff must have
individually exhausted his administrative remedies with respect to that claim” and dismissing
claims for which there was no evidence that grievances had ever been filled related to those
specific claims); Collins v. Goord, 438 F. Supp. 2d 399, 413-14 (S.D.N.Y. 2006) (dismissing
some of the plaintiff’s claims because he did not file grievances or appeal any grievances related
to those specific claims). “Because failure to exhaust is an affirmative defense, . . . defendants
bear the initial burden of establishing, by pointing to ‘legally sufficient sources’ such as statutes,
regulations, or grievance procedures, that a grievance process exists and applies to the
underlying dispute.” Hubbs v. Suffolk Cnty. Sheriff’s Dept., 788 F.3d 54, 59 (2d Cir. 2015)
(citations omitted). “[O]nce a defendant has adduced reliable evidence that administrative
remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those
administrative remedies, the plaintiff must then ‘counter’ the defendant’s assertion by showing
exhaustion [or] unavailability.” Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013)
(Suddaby, J.) (citation omitted).
Both parties agree that DOCCS has an applicable procedure for inmate grievances, which
is outlined in 7 NYCRR § 701.5. (Dkt. No. 127, Attach. 22, at 9-10 [Defs.’ Mem. of Law]; Dkt.
No. 132, Attach. 9, at 9 [Pl.’s Opp’n Mem. of Law].) Additionally, Plaintiff does not allege that
the grievance procedure was unavailable to him for the relevant claims against Defendants
Goodman, Kelly, Waite, and Jenkins. (Dkt. No. 132, Attach. 9, at 8-10 [Pl.’s Opp’n Mem. of
Law].) Instead, Plaintiff argues that the grievance he filed regarding the incident on November
15, 2011, which he appealed to CORC, was sufficient to exhaust his administrative remedies.
28
The Court agrees with Defendants that whether Plaintiff exhausted his remedies
regarding the incident on November 15, 2011, does not answer the question of whether Plaintiff
exhausted his remedies regarding the claims asserted against Defendants Goodman, Kelly,
Waite, and Jenkins. (Dkt. No. 136, at 3-5 [Defs.’ Reply Mem. of Law].) In the grievance
regarding the incident on November 15, 2011, Plaintiff alleges he was attacked and assaulted by
unnamed corrections officers in the draft processing area at GMCF. (Dkt. No. 127, Attach. 8, at
8.) In his Complaint, Plaintiff identifies the officers involved in that incident as Defendants
Morin, McClenning, Burch, Schlogl, Beecher, Frazier, and Livermore. (Dkt. No. 1, at ¶¶ 43-67
[Compl.].) Plaintiff never alleges that Defendants Goodman, Kelly, Waite, or Jenkins
participated in the incident on November 15, 2011. The specific mentioning of seven officers
other than Defendants Goodman, Kelly, Waite, and Jenkins did not place DOCCS on reasonable
notice of his claims against those four Defendants such that they could know of, and investigate,
those claims. The grievance regarding the incident on November 15, 2011, therefore does not
provide evidence that Plaintiff exhausted his administrative remedies on his specific claims
against Defendants Goodman, Kelly, Waite, and Jenkins.
Nor does the evidence substantiate that Plaintiff otherwise exhausted his administrative
remedies against these Defendants. The conduct that is the basis for Plaintiff’s claims against
these Defendants occurred before November 2011; however, a list of grievances from the
DOCCS database shows only a grievance for assault by an escort officer filed on May 3, 2011,
and a grievance related to mail on June 1, 2011. (Dkt. No. 127, Attach. 7, at 2.) However, even
the filing of a grievance is not by itself sufficient to exhaust administrative remedies. Rather,
DOCCS policy requires an inmate to appeal a denial of his grievance, first to the superintendent,
29
and then to CORC. 7 NYCRR § 701.5. In a declaration dated July 17, 2017, Rachel Seguin, the
Assistant Director of the Inmate Grievance Program for DOCCS, stated that Plaintiff had filed
appeals with CORC in the past, but that “none of these appeals concern matters stemming from
alleged incidents of harassment, assault, threats, retaliation, and religious discrimination during
the period from June 2011 through October 2011.” (Dkt. No. 127, Attach. 6, at 4-5 [Seguin
Decl.].) The evidence submitted by Plaintiff and Defendants does show that Plaintiff wrote
letters to Superintendent Racette and Defendant Kelly regarding conduct by Defendants Waite
and Jenkins in June and September 2011. (Dkt. No. 132, Attach. 3, at 2; Dkt. No. 123, Attach. 4,
at 2-3; Dkt. No. 127, Attach. 14, at 2-7; Dkt. No. 127, Attach. 17, at 2-4.) However, even if
these letters were to be construed as grievances (a finding that would be contrary to established
law),17 there is no evidence that Plaintiff appealed the responses (to any of these complaints) to
CORC as required by 7 NYCRR § 701.5. Notably, Plaintiff never attempts to argue as much,
focusing instead solely on the appeals related to the incident on November 15, 2011. (Dkt. No.
132, Attach. 9, at 9-10 [Pl.’s Opp’n Mem. of Law].)
Because Defendants met their initial burden to show that there was an applicable
grievance procedure and that Plaintiff failed to avail himself of that procedure, Plaintiff had the
burden of providing contrary evidence of exhaustion or unavailability. However, Plaintiff has
not provided evidence that he exhausted any claims related to conduct occurring before
November 2011, or that the applicable grievance procedures were unavailable to him.
Consequently, there is no genuine dispute of material fact as to whether Plaintiff failed to
17
See Nelson v. Rodas, 01-CV-7887, 2002 WL 31075804, at *3 (S.D.N.Y. Sept. 17,
2002) (“Courts have repeatedly held that complaint letters to the [DOCCS] Commissioner or the
facility Superintendent do not satisfy the PRLA’s exhaustion requirements.”).
30
exhaust his administrative remedies with regard to any claim against Defendants Goodman,
Kelly, Waite, and Jenkins. Defendant’s motion for summary judgment on this issue is therefore
granted.18
C.
Whether Plaintiff’s Claims Against Defendants Waite and Jenkins Are
Barred by the Statute of Limitations
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Defendants’ memoranda of law. (Dkt. No. 127, at 12-13 [Defs.’ Mem.
of Law]; Dkt. No. 136, at 5-6 [Defs.’ Reply Mem. of Law].) To those reasons, the Court adds
the following analysis.
As discussed above in Part III.B. of this Decision and Order, Plaintiff failed to exhaust
his administrative remedies as to any claims other than those related to the incident on
November 15, 2011. Consequently, Plaintiff is barred from asserting his claims against
Defendants Waite or Jenkins for conduct occurring before the incident on November 15, 2011,
regardless of whether those claims are also barred by the statute of limitations. However, for the
sake of thoroughness, the application of the statute of limitations (and the unavailability of the
continuing-violation doctrine) will be discussed as an alternative basis for granting Defendants’
motion for summary judgment on this issue.
18
Dismissal for failure to exhaust is ordinarily without prejudice to allow the
plaintiff-prisoner a chance to exhaust his administrative remedies and refile the complaint.
Gizewski v. New York State Dept. of Corrs., 14-CV-0124, 2016 WL 3661434, at *14 (N.D.N.Y.
July 5, 2016) (Suddaby, C.J.). However, the Court finds that the claims against Defendants
Goodman, Kelly, Waite, and Jenkins are alternatively invalid for other reasons (as will be
discussed in Parts III.C. and III.D. of this Decision and Order), such as the statute of limitations
and lack of personal involvement. Because there is an alternative basis for dismissing the claims
against these Defendants that cannot be overcome by allowing Plaintiff a chance to exhaust his
administrative remedies, the dismissal is with prejudice.
31
For claims arising under Section 1983, the statute of limitations is determined by looking
to the law of the state in which the cause of action arose, while the accrual date for the cause of
action is a question of federal law. Wallace v. Kato, 549 U.S. 384, 385 (2007) (citations
omitted). Under New York law, the statute of limitations for a Section 1983 action is three
years. Oakes v. Cooke, 858 F. Supp. 330, 333 (N.D.N.Y. 1994) (McAvoy, J.) (citing
N.Y.C.P.L.R. § 214; Owens v. Okure, 488 U.S. 235, 249 [1989]); see also Green v. Deputy
Superintendent, 12-CV-0606, 2013 WL 1966383, at *3 (W.D.N.Y. May 7, 2013) (“Plaintiff is
advised that the statute of limitations for actions filed under 42 U.S.C. § 1983 is three years.”).
Under federal law, “[a] [Section] 1983 claim accrues ‘when the plaintiff knows or has reason to
know of the injury which is the basis of his action.’” Swergold v. Murray, 667 F. App’x 342,
342-43 (2d Cir. 2016) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80 [2d Cir. 2002]).
As an initial matter, Plaintiff concedes that the allegations of excessive use of force and
retaliation against Defendant Waite are barred by the statute of limitations. (Dkt. No. 132,
Attach. 9, at 10 [Pl.’s Opp’n Mem. of Law].) However, he argues that the allegations against
Defendant Jenkins are not barred because, although Defendant Jenkins did not participate in the
incident on November 15, 2011, that incident was a continuation of his previous alleged
violations of Plaintiff’s rights. (Id.) Because, as Defendants note, the last documented
complaint about conduct by Defendant Jenkins occurred in September 2011, Plaintiff’s
Complaint of November 12, 2014, does not fall within the three-year statute of limitations. (Dkt.
No. 127, Attach. 22, at 12 [Defs.’ Mem. of Law].) The Court therefore must examine whether
the incident on November 15, 2011, was a continuation of Defendant Jenkins’ previous conduct
such that the claim did not accrue until that date.
32
The continuing-violation doctrine applies to claims that are “composed of a series of
separate acts that collectively constitute one unlawful . . . practice.” Washington v. Cty. of
Rockland, 373 F.3d 310, 318 (2d Cir. 2004). “The continuing violation doctrine thus applies not
to discrete unlawful acts, even where those discrete acts are part of a ‘serial violation[],’ but to
claims that by their nature accrue only after the plaintiff has been subjected to some threshold
amount of mistreatment.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015) (citing Nat’l R.
R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 [2002]).
Plaintiff’s argument is unpersuasive. Defendant Jenkins did not participate in the
incident on November 15, 2011, a fact that Plaintiff admits. (Dkt. No. 132, Attach. 9, at 10 [Pl.’s
Opp’n Mem. of Law].) Nor does Plaintiff allege or provide any evidence that Defendant Jenkins
suggested, persuaded, or in any way caused other Defendants to commit such actions. Plaintiff’s
theory of a continuing violation relies entirely on the alleged statements by participating
Defendants regarding Plaintiff’s complaints about Defendant Jenkins’ conduct; however, even if
true, those allegations do not establish that Defendant Jenkins was involved in the actions of
those Defendants. The allegation that other Defendants assaulted Plaintiff in part in retaliation
for his complaints against Defendant Jenkins does not mean that their actions can be imputed to
Defendant Jenkins. Nor does the pattern of incidents that Plaintiff alleges leading up to, and
including, the incident on November 15, 2011, suggest that these actions were “a single wrong”
that accrued only after a “threshold amount of mistreatment,” rather than discrete acts by
different Defendants.
The only case Plaintiff cites in support of his argument is Laureano v. Goord, 06-CV7845, 2007 WL 2826649 (S.D.N.Y. Aug. 31, 2007). (Dkt. No. 132, Attach. 9, at 10-11 [Pl.’s
33
Opp’n Mem. of Law].) However, this case does not support applying the continuing-violation
doctrine to Defendant Jenkins’ time-barred conduct. In Laureano, the court found that the denial
of mental health treatment for an ongoing period of time constituted a continuing violation for
two reasons: (1) the fact “it would have been unreasonable to expect [plaintiff] [] to file suit the
first day he was denied mental health treatment, and then bring additional suits on each
subsequent day he was denied treatment, in order to preserve his right to have three full years to
bring a claim,” and (2) the fact that, “because no one day in which he was denied treatment ‘can
fairly or realistically be identified as the cause of significant harm, it seems proper to regard the
cumulative effect as actionable.’” Laureano, 2007 WL 2826649, at *4 (citations omitted).
Unlike the ongoing failure to provide mental health treatment in Laureano, the alleged violations
of Plaintiff’s rights were discrete acts that each produced their own identifiable harm. Therefore,
the discussion in Laureano supports this Court’s finding that Defendant Jenkins’ acts were not
part of a continuing violation culminating in the incident on November 15, 2011. Because the
Court finds that the continuing-violation doctrine is not applicable and there is no genuine
dispute of material fact as to whether Defendant Jenkins was personally involved in the incident
of November 15, 2011, summary judgment is granted to Defendants Waite and Jenkins regarding
the time-barred claims Plaintiff asserts against them.
D.
Whether Defendants Goodman and Kelly Were Personally Involved in the
Alleged Violations
After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ memorandum of law. (Dkt. No. 127, Attach. 22 [Defs.’ Mem.
of Law].) To those reasons, the Court adds the following analysis.
34
“To establish the liability of a supervisory official under [Section] 1983, a plaintiff must
show the defendant’s personal involvement in the alleged constitutional violations.” Richardson
v. Goord, 346 F.3d 431, 435 (2d Cir. 2003) (citing Green v. Bauvi, 46 F.3d 189, 194 [2d Cir.
1995]). The Second Circuit has identified five ways in which supervisory liability can be
established: “(1) actual direct participation in the constitutional violation; (2) failure to remedy a
wrong after being informed through a report or appeal; (3) creation of a policy or custom that
sanctioned conduct amounting to a constitutional violation, or allowing such policy or custom to
continue; (4) grossly negligent supervision of subordinates who committed a violation; or (5)
failure to act on information indicating that unconstitutional acts were occurring.” Richardson,
346 F.3d at 435 (quoting Hernandez v. Keane, 341, F.3d 137, 145 [2d Cir. 2003]).
Plaintiff argues that Defendants Goodman and Kelly were personally involved in the
violations committed by the other Defendants based on their (a) failure to remedy violations after
learning of them, (b) failure to act on information that unconstitutional practices were occurring,
(c) creation or continuance of policies or customs under which violations occurred, and (d) gross
negligence in training or supervising the subordinate Defendants. (Dkt. No. 132, Attach. 9, at 12
[Pl.’s Opp’n Mem. of Law].)
The majority of the evidence related to Defendants Goodman and Kelly is from incidents
that occurred before November 15, 2011; and the letters related to those incidents are the focus
of the narrative in Plaintiff’s memorandum of law. (Dkt. No. 132, Attach. 9, at 12-16 [Pl.’s
Opp’n Mem. of Law].) As discussed above in Part III.B. of this Decision and Order, Plaintiff
did not exhaust any claims related to these incidents. Consequently, to the extent that Plaintiff is
asserting that Defendants Goodman and Kelly were personally involved in violations for
35
which he has not exhausted his administrative remedies, he is barred from bringing those claims
regardless of whether he can establish personal involvement. Additionally, to the extent Plaintiff
argues personal involvement in these specific incidents, those claims would also be barred by the
statute of limitations, because all of these incidents occurred more than three years before the
filing of the Complaint on November 12, 2014, and the continuing-violation doctrine is
inapplicable. (Dkt. No. 127, Attach. 22, at 15 [Defs.’ Mem. of Law].)
With respect to the incident on November 15, 2011, the only evidence of personal
involvement by either of these Defendants was a letter dated December 6, 2011, in which
Defendant Goodman19 indicated that an investigation into Plaintiff’s grievance could not be
completed until the Inspector General finished its investigation into the incident.20 (Dkt. No.
127, Attach. 8, at 10.) Plaintiff has not adduced evidence that Defendant Goodman’s
involvement was anything greater than receiving Plaintiff’s grievance and responding with a
letter indicating that the incident had been referred to the Inspector General for investigation.
This very limited role does not establish that Defendant Goodman was personally involved in the
19
Notably, Plaintiff does not allege that Defendant Kelly was involved at all in the
incident on November 15, 2011. In his deposition, Defendant Kelly states that he was away
from GMCF on vacation beginning on November 7, 2011, and that he did not return to GMCF
after that time. (Dkt. No. 127, Attach. 11, at 91-92 [Kelly Decl.].) There is no contrary evidence
that Defendant Kelly was involved in Plaintiff’s grievance related to the incident on November
15, 2011. Consequently, there is no genuine dispute of material fact suggesting Defendant Kelly
was personally involved in the incident on November 15, 2011.
20
In his deposition, Defendant Goodman stated that he first heard about the incident
on November 15, 2011, on the radio as it was occurring, but did not personally respond because
it was not his assigned area. (Dkt. No. 127, Attach. 12, at 38-39 [Goodman Decl.].) He later
reviewed the watch commander’s logbook which contained details of the incident. (Id. at 3841). He also stated that he did not believe he saw photographs or video of Plaintiff after the
incident, did not speak with the officers involved about the incident, and did not speak with the
Inspector General about the incident. (Id. at 41-47.)
36
incident on November 15, 2011. See Goris v. Breslin, 402 F.App’x. 582, 584 (2d Cir. 2010)
(upholding a grant of summary judgment to defendant based on failure to establish personal
involvement where the defendant’s involvement was limited to receipt of two letters from the
plaintiff, both of which were promptly referred to other individuals for investigation and
response); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (upholding dismissal of a claim
against the Department of Corrections Commissioner for lack of personal involvement where
that defendant received two letters from the plaintiff, one of which [an appeal from an
administrative hearing] he referred to a different defendant for decision and the other of which [a
request for a status update] he responded to in order to inform plaintiff that a decision had been
made on the subject of the first letter); McDay v. Bushey, 14-CV-0997, 2016 WL 6638182, at *4
(N.D.N.Y. Aug. 10, 2016) (Baxter, M.J.) report and recommendation adopted by 2016 WL
6637969 (N.D.N.Y. Nov. 9, 2016) (Sharpe, J.) (“A supervisory official cannot be liable for a
constitutional violation merely because he received a grievance or complaint from an inmate and
referred the grievance to another individual for investigation.”).
Regarding Plaintiff’s arguments that Defendants Goodman and Kelly failed to act on
information of violations and to remedy those violations, the Inspector General’s report, dated
February 5, 2014, noted that (a) Defendants Frazier, Livermore, Burch, Scholgl, and Beecher
were issued Notices of Discipline related to the incident, (b) Defendants Frazier, Burch, and
McClenning were suspended without pay from November 22, 2011, through March 22, 2012, (c)
Defendant Livermore was suspended without pay from November 22, 2011, through February
14, 2012, and (d) Defendant Beecher was suspended without pay from January 11, 2012, through
July 10, 2012. (Dkt. No. 136, Attach. 4, at 2-3.) This report establishes that, even though
37
Defendant Goodman and Superintendent Racette decided to postpone investigation into the
incident until the Inspector General completed their investigation, Plaintiff’s complaints
regarding the incident were not merely ignored, as the subordinate Defendants involved in the
incident were subject to suspensions and sanctions. This is directly contrary to Plaintiff’s
assertion that “none of the responsible subordinates were disciplined.” (Dkt. No. 132, Attach. 9,
at 18 [Pl.’s Opp’n Mem. of Law].) Plaintiff has not provided evidence sufficient to create a
genuine dispute of material fact regarding whether the supervisors failed to remedy the
violations that occurred on November 15, 2011, or failed to act on information that the incident
had occurred.
Regarding Plaintiff’s remaining arguments that Defendants Goodman and Kelly created
or continued policies allowing violations of his rights and that they were grossly negligent in
supervising the involved officers, Plaintiff offers no evidence to support such arguments in
relation to the incident on November 15, 2011; his discussion of evidence in support of this
argument is comprised of citations to incidents that were either not exhausted or are time-barred.
(Dkt. No. 132, Attach. 9, at 12-16 [Pl.’s Opp’n Mem. of Law].) Plaintiff fails to adduce
evidence that would create a dispute of material fact as to whether there was any policy or
custom that facilitated the violation of constitutional rights, nor does he even suggest what the
alleged policy or custom was other than to state that the multiple alleged violations (including
time-barred incidents) indicate a “culture at [GMCF] [] where officers knew they could harm and
retaliate against inmates with impunity.” (Id. at 17). See also Case v. City of New York, 233 F.
Supp. 3d 372, 400 (S.D.N.Y. 2017) (granting motion to dismiss on failure to show personal
involvement where the complaint merely alleged that the defendant had a “central role” in
38
“designing and implementing” policies that facilitated constitutional violations); Richardson v.
Dept. of Corr., 10-CV-6137, 2011 WL 710617, at *3 (S.D.N.Y. Feb. 28, 2011) (finding that
conclusory allegations that a supervisory defendant “was responsible for implementing” rules
that allegedly permitted unconstitutional practices was insufficient to establish personal
involvement); Loeber v. Cnty. of Albany, 216 F. Supp. 2d 20, 24 (N.D.N.Y. 2002) (Hurd, J.)
(dismissing claim for no personal involvement where the plaintiff did not claim that the
defendant was involved in the events that were the basis of the alleged violations).
Similarly, Plaintiff fails to cite evidence that would support his argument that Defendants
Goodman or Kelly were grossly negligent in supervising the relevant Defendants. The Second
Circuit has noted that gross negligence is “‘the kind of conduct where the defendant has reason
to know of facts creating a high degree of risk of . . . harm to another and deliberately acts or
fails to act in conscious disregard or indifference to that risk.’” Raspardo v. Carlone, 770 F.3d
97, 116 (2d Cir. 2014) (quoting Poe v. Leonard, 282 F.3d 123, 140 n.14, 146 [2d Cir. 2002]).
The Second Circuit further stated that “[t]he standard for gross negligence is satisfied where the
plaintiff establishes that the defendant-supervisor was aware of a subordinate’s prior substantial
misconduct but failed to take appropriate action to prevent similar misconduct.” Raspardo, 770
F.3d at 117 (citations omitted). In this case, Plaintiff has not provided any evidence establishing
that Defendants Goodman or Kelly were aware of any prior misconduct by the Defendants
involved in the incident on November 15, 2011, much less substantial misconduct. Even if this
Court considers the complaints for time-barred incidents that involved Defendants Waite and
Jenkins, Defendants Goodman and Kelly both testified at their depositions that their process was
to review the findings of investigations conducted into those incidents by subordinates and
39
determine whether the investigation had been complete. (Dkt. No. 127, Attach. 11, at 15-16
[Kelly Decl.]; Dkt. No. 127 Attach. 12, at 30-33 [Goodman Decl.].) Because the uncontroverted
record evidence establishes that the results of these investigations supported a finding that
Plaintiff’s allegations were unsubstantiated, these incidents do not serve as evidence that any of
the Defendants were engaged in substantial misconduct that would suggest Defendants Goodman
and Kelly were grossly negligent in failing to act. Plaintiff has therefore failed to raise a genuine
dispute of material fact as to whether Defendants Goodman and Kelly were grossly negligent in
supervising the subordinate Defendants.
Because there is no genuine dispute of material fact regarding the absence of personal
involvement of Defendants Goodman and Kelly in the incident on November 15, 2011, summary
judgment is granted to Defendants Goodman and Kelly on this issue.
E.
Whether Defendants Goodman, Kelly, Waite, and Jenkins Are Immune from
Suit Based on the Eleventh Amendment and the Doctrine of Qualified
Immunity
After carefully considering the matter, the Court answers this question in the negative for
the following two reasons.
First, Defendant argues that Plaintiff’s claims against Defendants Goodman, Kelly,
Waite, and Jenkins are barred by the Eleventh Amendment to the extent that they are asserted
against these Defendants in their official capacities. (Dkt. No. 127, Attach. 22, at 15-16 [Defs.’
Mem. of Law].) “The eleventh amendment bars recovery against an employee who is sued in his
official capacity, but does not protect him from personal liability if he is sued in his ‘individual’
or ‘personal’ capacity.” Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (citing Kentucky v.
Graham, 473 U.S. 159, 166-67 [1985]). However, as Plaintiff argues, there is no indication that
40
he brought his claims against these Defendants in their official capacity (i.e., against the State of
New York) rather than in their personal capacities. (Dkt. No. 132, Attach. 9, at 18 [Pl.’s Opp’n
Mem. of Law].); see also Hoit v. Capital Dist. Transp. Auth., 15-CV-0134, 2016 WL 3947613,
at *16 (N.D.N.Y. July 19, 2016) (Suddaby, C.J.). Consequently, the Eleventh Amendment is not
applicable to this case.
Second, these Defendants argue that they are entitled to qualified immunity. (Dkt. No.
127, Attach. 22, at 16-17 [Defs.’ Mem. of Law].) “The threshold inquiry a court must undertake
in a qualified immunity analysis is whether plaintiff’s allegations, if true, establish a
constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002) (citing Saucier v. Katz, 533
U.S. 194, 201 [2001]). “‘[T]he unnecessary and wanton infliction of pain . . . constitutes cruel
and unusual punishment forbidden by the Eighth Amendment.’” Hope, 536 U.S. at 737 (quoting
Whitley v. Albers, 475 U.S. 312, 319 [1986]). The Supreme Court has defined “unnecessary and
wanton inflictions of pain” as “those that are ‘totally without penological justification.’” Id.
(quoting Rhodes v. Chapman, 452 U.S. 337, 346 [1981]). Once a violation has been established,
a defendant may still be shielded from liability “if their actions did not violate ‘clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Id. at 739 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 [1982]). “For a constitutional right
to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would
understand that what he was doing violates that right.’” Id.
The question of whether these Defendants are entitled to qualified immunity is moot in
light of the Court’s findings that Plaintiff failed to exhaust his claims against them and that the
claims against these Defendants are largely barred by the statute of limitations. To the extent
41
that Plaintiff’s claims against Defendants Goodman or Kelly are related to the incident on
November 15, 2011, these Defendants were not personally involved in that incident and
therefore Plaintiff cannot sustain claims against them regardless of whether they are entitled to
qualified immunity.21 Defendants’ motion on this issue is therefore denied as moot.
F.
Whether Plaintiff Stated a Sufficient Claim of First Amendment Retaliation
Against Defendants Beecher, Burch, and McClenning
After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated in Plaintiff’s opposition memorandum of law. (Dkt. No. 132, Attach. 9, at
20-22 [Pl.’s Opp’n Mem. of Law].) To those reasons, the Court adds the following analysis.
“In order to state a claim for retaliation in violation of the First Amendment, a plaintiff
must allege ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action.’” Gonzalez, 802 F.3d at 222 (quoting Garcia v. SUNY
Health Scis. Ctr., 280 F.3d 98, 106-07 [2d Cir. 2001]). “‘In order to succeed on a retaliation
claim, a plaintiff must establish that he engaged in protected conduct and that the protected
conduct was a substantial or motivating factor in the prison officials’ decision to discipline
him.’” Seymore v. Joslyn, 06-CV-1010, 2009 WL 995620, at *3 (N.D.N.Y. Apr. 14, 2009)
(Strom, J.).
Defendants argue that there is no evidence that they knew about Plaintiff’s religion or his
claims against other officers before November 15, 2011, and that their actions should not be
21
Defendants Beecher, Burch, and McClenning have not sought summary judgment
on the basis of qualified immunity. In any event, without deciding the issue, the Court observes
that, based on the legal standards outlined above and the evidence presented with the motions, it
would not appear that summary judgment would be appropriate as to those Defendants.
42
construed as retaliatory because they had a legitimate purpose for using force against Plaintiff:
Plaintiff’s threatening and antagonistic behavior and disregard for the Defendants’ orders
necessitated physically removing him to another cell. (Dkt. No. 128, Attach. 11, at 9-11 [Defs.’
Mem. of Law]; Dkt. No. 135, at 4-5 [Defs.’ Reply Mem. of Law].) However, Plaintiff argues
that Defendants Beecher, Burch, and McClenning retaliated against him through their actions on
November 15, 2011, because of both the his practice of his religion and his filing of grievances
against other corrections officers, notably Defendant Jenkins. (Dkt. No. 132, Attach. 9, at 20-22
[Pl.’s Opp’n Mem. of Law].) Plaintiff cites his own deposition, in which he testified that, on
November 15, 2011, Defendant Burch had made comments expressing his dislike for Muslims,
and that both Defendant Beecher and Defendant Burch made comments indicating they were
aware of the complaints Plaintiff had filed against other corrections officers. (Id. at 21.) The
temporal proximity between protected activity and adverse action, and the statements made by a
defendant regarding his motivation may be factors in determining the existence of a causal
connection between a prisoner’s protected activity and an adverse action. Baskerville v. Blot,
224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002). Because of the admissible record evidence adduced
by Plaintiff, the Court finds that he has created a genuine dispute of material fact as to
whetherDefendants took adverse action against him because of Plaintiff’s protected activity.
Defendants’ motion for summary judgment on this issue is denied.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for summary judgment against the counterclaims of
Defendants Beecher, Burch, and McClenning (Dkt. No. 126) is DENIED; and it is further
43
ORDERED that Defendants Goodman, Kelly, Waite, and Jenkins’ motion for summary
judgment (Dkt. No. 127) is GRANTED in part and DENIED in part such that the following
claims are DISMISSED:
(a)
Plaintiff’s First Cause of Action for excessive use of force as against Defendants
Waite and Jenkins;
(b)
Plaintiff’s Second Cause of Action for retaliation as against Defendants Waite and
Jenkins;
(c)
Plaintiff’s Third Cause of Action against Defendants Kelly and Goodman; and it
is further
ORDERED that Defendants Beecher, Burch, and McClenning’s motion for partial
summary judgment (Dkt. No. 128) is DENIED; and it is further
ORDERED that SURVIVING these motions for summary judgment are the following
claims:
(a)
Plaintiff’s First Cause of Action for excessive use of force as against Defendants
Frazier, Beecher, Burch, Morin, and McClenning;
(b)
Plaintiff’s First Cause of Action for failure to intervene during the excessive use
of force as against Defendant Livermore;
(c)
Plaintiff’s Second Cause of Action for retaliation as against Defendants Frazier,
Beecher, Burch, Morin, McClenning, and Livermore; and
(d)
Defendants Beecher, Burch, and McClenning’s counter-claims for assault and
battery; and it is further
44
ORDERED that counsel are direct to appear on January 16, 2018 at 1:30 pm in
Syracuse, NY, in chambers for a pretrial conference, at which time counsel are directed to appear
with settlement authority, and in the event that the case does not settle, trial will be scheduled at
that time to begin on February 26, 2018 with pretrial submissions being due on February 5,
2018. Plaintiff is further directed to forward a written settlement demand to Defendants no later
than January 2, 2018, and the parties are directed to engage in meaningful settlement
negotiations before the conference. In the event that counsel feel settlement is unlikely, counsel
may file a letter request at least one week before the scheduled conference advising that
settlement is not feasible, and the Court will cancel the conference and issue a trial order
scheduling trial for February 26, 2018.
Dated: December 15, 2017
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
45
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