Stewart v. Fisher et al
Filing
157
OPINION AND ORDER: re: 102 MOTION for Summary Judgment filed by Bentivegna, Koskowski, K. O'Connor, Hess G.H., Coffey, Chakravorty, T. Gotsch, Richard Burns, R. Collins. I have considered the parties' remaining arguments and find them meritless. For the reasons stated above, Defendants' motion for summary judgment is GRANTED as to Timothy Gotsch, Raymond Koskowski, Ronald Collins, Robert Bentivegna, and Hari Chakravorty. The motion is DENIED as to Bryan Hess, Chad Coffey, Kevin O'Connor, and Richard Bums. The Clerk of Court is instructed to close this motion and remove it from my docket. SO ORDERED. (Signed by Judge Harold Baer on 10/15/2013) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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AL-FATAH S. STEWART,
:
:
Plaintiff,
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:
-against:
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BRIAN FISCHER, COMMISIONER OF THE :
DEPARTMENT OF CORRECTIONS, et al.,
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:
Defendants.
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11 Civ. 2184 (HB)
OPINION & ORDER
Hon. HAROLD BAER, JR., District Judge:
Plaintiff brings claims pursuant to 42 U.S.C. § 1983 arguing that Defendants violated his
rights under the Eighth Amendment. Specifically, Plaintiff urges that Chad Coffey, Ronald
Collins, Timothy Gotsch, Bryan Hess, Raymond Koskowski, and Kevin O’Connor failed to
protect him after he was stabbed on February 4, 2011. According to Plaintiff, this resulted in a
second stabbing on February 28. And Plaintiff urges that those officers aware of his injuries
along with medical personnel Robert Bentivegna, Richard Burns, and Hari Chakravorty were
deliberately indifferent to his serious medical needs. Defendants now move for summary
judgment. For the reasons stated below, Defendants’ motion is GRANTED in part and DENIED
in part.
BACKGROUND
This opinion takes into account not only the evidence provided in the parties’ initial
summary judgment briefing, but also the supplemental materials that the parties submitted on or
before October 2, 2013. On December 12, 2011, I granted in part and denied in part Defendants’
motion to dismiss Plaintiffs’ amended complaint. Stewart v. Fischer, No. 11 Civ. 2184, 2011
WL 6153084 (S.D.N.Y. Dec. 12, 2011). Familiarity with that opinion is assumed.
A. The Assaults on Plaintiff
I turn now to the parties’ substantive dispute, viewing as I must all facts in the light most
favorable to Plaintiff. This saga began on February 4, 2011 when Plaintiff claims he was stabbed
in his left forearm while in state custody at Green Haven Correctional Facility. According to
Plaintiff, Officer Hess, who was stationed on the roof overlooking the yard, saw the stabbing
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itself and shouted down to the inmates to “break it up.” (Stewart Decl. ¶¶ 6, 9.) Hess denies
witnessing any altercation. After leaving the yard, Plaintiff then told Officer Coffey that he had
been “hit”—meaning he had been stabbed. (Stewart Decl. ¶ 11.) But all Coffey did was direct
Plaintiff to return to his cell, adding that “if he had to do paperwork[,] [Plaintiff] would really get
hurt.” (Id.) Plaintiff claims that his fear of retribution from Coffey prevented him from
complaining further to Green Haven personnel. And neither Hess nor Coffey reported a stabbing
that day.
Two days later on February 6, Sergeant O’Connor asked Plaintiff about his injuries. He
also escorted Plaintiff to the clinic. Plaintiff then told O’Connor that another inmate had stabbed
him. Plaintiff claims O’Connor refused him protective custody unless he identified his assailant.
Plaintiff was unable to do so. O’Connor also prevented Nurse Burns from properly treating
Plaintiff’s injuries. Instead, Nurse Burns noted only that Plaintiff’s wounds “looked like a
cigarette burn.” (Stewart Decl. ¶¶ 31–32.) And Plaintiff’s medical records following Burns’
examination reflect his determination that Plaintiff suffered from “minor” burn wounds that
appeared to be a “few days old.” (Kim Decl. Ex. G.) On February 10, Plaintiff then wrote to
Chakravorty, his primary prison physician, asking for immediate treatment for a “serious injury”
sustained on February 4. (Stewart Decl. ¶ 39 & Ex. A.) Plaintiff did not see Chakravorty until
the next month.
Following his conversation with Plaintiff, O’Connor instead of attending to his wound
issued Plaintiff a misbehavior report, ordered him to be detained in his cell pending a
disciplinary hearing, and noted in the report that Plaintiff had injured himself while playing
“chicken” with another inmate. (Kim Decl. Ex. E.) O’Connor’s report also described the
possibility that inmates had been fighting with “homemade knives.” (Id.) And on February 12,
Plaintiff attended a hearing before Lieutenant Gotsch. During that hearing, Plaintiff admitted
that he had injured himself playing “chicken” using cigarettes. He also denied being involved in
a knife fight. But Plaintiff now urges that these statements were lies. According to Plaintiff, the
door to the hearing room was ajar while he spoke with Gotsch. This permitted other inmates to
eavesdrop on their conversation. (Stewart Decl. ¶ 41.) And because other inmates might view
Plaintiff as a snitch if they overheard him mention the stabbing, Plaintiff fabricated his story.
Following the hearing, Gotsch directed Plaintiff to be confined for thirty days in
“keeplock.” According to prison records, Deputy Superintendent Koskowski was responsible for
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reviewing this determination. But none of the misbehavior reports or medical records that
Koskowski would have reviewed indicated that Plaintiff had been involved in a knife fight.
(Kim Decl. Ex. I.) And Plaintiff offers no evidence that Koskowski otherwise knew of the
assault on February 4 until after the second stabbing.
Then, on the evening of February 28, while Plaintiff was in keeplock, Officer Collins
remotely opened Plaintiff’s cell door. (Collins Decl. ¶ 9.) According to Collins, Plaintiff was
scheduled to be escorted to the clinic for his medication that evening. (Id.) Officer Hess claims
that Plaintiff himself requested medication. (Hess Decl. ¶ 8; Kim Decl. Ex. N.) But soon
thereafter, an inmate stabbed Plaintiff again “with an ice-pick type weapon.” (Stewart Decl.
¶ 48.) Medical records following that attack confirmed that Plaintiff received multiple puncture
wounds. (Kim Decl. Ex. O, at STEWART 100.) After receiving treatment for his injuries,
Plaintiff was placed in involuntary protective custody.
B. Plaintiff’s First Grievances
According to Plaintiff, he then filed two written grievances on February 28. The first
grievance complained both about the circumstances leading to Plaintiff’s second stabbing as well
as the medical treatment he received for both that stabbing as well as a knee injury. Plaintiff also
described the February 4 stabbing and his placement in keeplock “for not reporting a[n] injury.”
(Stewart Decl. Ex. B.) He further complained that Nurse Burns failed to treat properly his initial
wounds. (Id.) But this grievance was not assigned a tracking number.
Plaintiff’s second February 28 grievance—numbered 71274 and addressed to the Inmate
Grievance Resolution Committee (“IGRC”)—again described the February 4 stabbing. Plaintiff
also asked that the prison place metal detectors in the yard to prevent such attacks. (Kim Decl.
Ex. S, at 30.) And on March 4, Plaintiff also raised complaints with regard to his two stabbings
and the “breach of security.” These concerns were voiced in additional letters to the
superintendent and to the IGRC. (Stewart Decl. Ex. D; Kim Decl. Ex. S, at 34–35.) Plaintiff
urged that he had not requested medication on February 28 and thus there was no reason for his
cell door to be opened that day. (Kim Decl. Ex. S, at 34.) In response to these complaints, the
IGRC forwarded Plaintiff’s March 4 letter to Koskowski, noting that “an inmate-on-inmate
assault is not within the purview of . . . the IGRC.” (Kim Decl. Ex. S, at 36.) Prison officials
filed this response using the same grievance number as Plaintiff’s February 28 grievance:
71274. (Id.; see also Kim Decl. Ex. T.)
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Plaintiff completed the appeals process for grievance 71274 by July 27, 2011. In
response, the Central Office Review Committee (“CORC”) investigated Plaintiff’s failure to
report his assault and observed that Sergeant O’Connor had issued a misbehavior report for
inflicting self-harm. (Kim Decl. Ex. S, at 38.) CORC also conducted an investigation into the
identity of his assailant. But they failed to identify him. (Id.)
C. Plaintiff’s Medical Care and Related Grievances
Beginning in early March, Plaintiff complained on multiple occasions to Dr. Bentivegna
about the stab wounds to his arm. Plaintiff also complained about his knee pain. Over the
course of the next few days, Bentivegna provided Plaintiff with band-aids and painkillers.
Bentivegna also ordered an x-ray for Plaintiff’s knee in late April. And at Plaintiff’s request on
May 2, Bentivegna referred Plaintiff to another physician.
Yet on March 2, Plaintiff complained about his treatment from Bentivegna to the IGRC.
(Kim Decl. Ex. S, at 11–12.) Plaintiff also noted that “[his] arm [hadn’t] been tended to since the
[February 4] incident.” (Id. at 12.) This grievance was numbered 71137. In a report following
this grievance, prison officials described Plaintiff’s injuries as “small stab wounds” and “a right
knee sprain/strain.” (Id. at 14.) On April 8, the IGRC concluded in response to this grievance
that while a “medical determination [was] beyond the purview of the IGRC,” Plaintiff should be
treated. Nevertheless, on April 13, Plaintiff appealed this determination. (Stewart Decl. Ex. R.)
On March 9, Dr. Chakravorty saw Plaintiff. Yet despite Plaintiff telling him he had been
stabbed and that his arm was “numb,” Chakravorty did not provide immediate treatment, rather
Chakravorty advised Plaintiff to wait. Plaintiff also complained of knee pain from falling during
the February 28 altercation. But Chakravorty advised Plaintiff only not to strain his knee again
until it healed. Plaintiff complained about this treatment that day to the IGRC and the
superintendent. (Stewart Decl. Ex. H.)
On April 30, Plaintiff again complained to the IGRC that he “still ha[d] not received any
treatment” for either his “stab wound of 2-4-11” or his “knee injury of 2-28-11” following the
resolution of his March 2 grievance, numbered 71137 as noted above. (Kim Decl. Ex. S, at 42.)
Plaintiff’s April 30 complaint was separately numbered 71405. IGRC eventually noted that
grievance 71137 and grievance 71405 “are regarding the same issue” and were “being
consolidated . . . because [grievance 71405] [was] currently out for investigation.” (Berkman
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Decl. Ex. G, at IGP-00053.) Nevertheless, CORC concluded that there was insufficient evidence
“to substantiate malfeasance by staff.” (Kim Decl. Ex. S, at 47; see also id. Ex. T.)
An MRI of Plaintiff’s knee in December 2011 revealed that he suffered from cysts, fluid
collection, and a small joint effusion. And nearly one year after his appeals and following
multiple complaints to various public officials about his treatment, Plaintiff finally received
surgery on his left forearm on April 12, 2012. Doctors determined that Plaintiff had suffered an
ulnar nerve injury. His operating physician believed an object “that caused both entry and exit
wounds in the forearm” had caused Plaintiff’s injury. (Callahan Dep. 40:5–10.) That physician
also described Plaintiff’s arm injury as a “through-and-through gunshot wound.” (Kim Decl. Ex.
R, at CALLAHAN-004.)
DISCUSSION
“Summary judgment shall be granted when there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Hill v. Curcione, 657 F.3d 116, 124
(2d Cir. 2011) (quoting Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 84 (2d Cir. 2004)).
In making that determination, “[a]ll reasonable inferences must be construed in the nonmoving
party’s favor, and if ‘there is any evidence in the record from any source from which a
reasonable inference in the [nonmoving party’s] favor may be drawn, the moving party simply
cannot obtain a summary judgment.’” Id. (second alteration in original) (quoting R.B. Ventures,
Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997)).
A. Failure to Protect
Eighth Amendment failure-to-protect claims require that an inmate show “that (1) he was
incarcerated under conditions posing a substantial risk of serious harm, and that (2) the
defendants acted with ‘a sufficiently culpable state of mind.’” Warren v. Goord, 579 F. Supp. 2d
488, 494 (S.D.N.Y. 2008) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Sufficient
culpability is established where officials act with “deliberate indifference to inmate health or
safety.” Id. at 494–95 (quoting Farmer, 511 U.S. at 834). And a prison official acts with
deliberate indifference where “(1) he ‘knows that inmates face a substantial risk of serious
harm’; and (2) ‘disregards that risk by failing to take reasonable measure to abate it.’” Id.
(quoting Farmer, 511 U.S. at 847).
First, Defendants do not seriously contest that the conditions of Plaintiff’s incarceration
placed him at a substantial risk of harm. Indeed, Plaintiff’s February 28 stabbing conclusively
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establishes that Plaintiff faced serious risk. See id. at 491, 494 (objective prong of Eighth
Amendment claim established where inmate attacked plaintiff with razor blade). I turn then to
the officers’ culpability in failing to take additional measures to protect Plaintiff following the
February 4 assault.
In that regard, Plaintiff claims that Officer Hess saw the stabbing in the yard and that he
told Officer Coffey directly that he had been stabbed and feared for his life. Plaintiff further
claims he told Sergeant O’Connor that he had been stabbed. Yet according to Plaintiff, none of
these officers took steps to protect Plaintiff. For his part, Hess denies witnessing any altercation
in the yard from his perch on the roof of the prison. Coffey and O’Connor similarly deny that
Plaintiff told them he had been stabbed. These disputes present credibility issues best left for the
jury to decide. If in fact Hess, Coffey, and O’Connor took no further action after learning that a
prisoner had been stabbed, a jury could find deliberate indifference. Further, whether these
officials’ failure to notify anyone of this event was a proximate cause of Plaintiff’s subsequent
injury is also a factual question that cannot be decided on summary judgment. See Hawkins v.
Nassau Cnty. Corr. Facility, 781 F. Supp. 2d 107, 112 (E.D.N.Y. 2011) (“[D]efendants may be
held liable under § 1983 if . . . their failure to perform the duty or act to ameliorate the risk or
injury was a proximate cause of plaintiff’s deprivation of rights . . . .” (quoting Ortiz v. Goord,
276 F. App’x 97, 98 (2d Cir. 2008))); Martin v. City of N.Y., 793 F. Supp. 2d 583, 586 (E.D.N.Y.
2011) (“[I]ssues of proximate cause are normally questions of fact for the jury to decide, unless
the court concludes that a reasonable jury could reach only one conclusion.” (quoting Packer v.
Skid Roe, Inc., 938 F. Supp. 193, 196 (S.D.N.Y. 1996))).
But there is insufficient evidence to find that Lieutenant Gotsch, Deputy Superintendent
Koskowski, or Officer Collins knew of the February 4 assault and thus were required to take
action. The records that Koskowski was responsible for reviewing do not demonstrate that a
stabbing had occurred. Instead, these records only corroborate the story, whether true or not, that
Plaintiff injured himself playing “chicken” with cigarettes. And lastly, there is no evidence that
Collins knew of the February 4 assault. Thus, whether or not Plaintiff requested medication on
the evening of February 28, the evidence in the record before me at best supports a conclusion
that Collins opened Plaintiff’s cell door when he should not have. Such behavior falls below the
deliberate indifference standard required to support a failure-to-protect claim. See Fernandez v.
N.Y.C. Dep’t of Corr., No. 08 Civ. 4294, 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010)
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(“Mere negligence by a prison officer does not establish a claim for ‘deliberate indifference’ to
prisoner’s safety.” (quoting Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996))).
Because no reasonable juror could find the requisite degree of culpability, summary judgment as
to Gotsch, Koskowski, and Collins is granted.
B. Deliberate Indifference to Serious Medical Needs
I turn next to Plaintiff’s claims that Defendants were deliberately indifferent to his
medical needs. To succeed here, “a prisoner must show that: (1) as an objective matter, the
alleged deprivation is ‘sufficiently serious’; and (2) as a subjective matter, that the ‘charged
official [acted] with a sufficiently culpable state of mind.’” Fernandez, 2010 WL 1222017, at *4
(alteration in original) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
Defendants dispute both the objective and subjective prongs.
To meet the objective prong, the deprivation of medical care “must present a ‘condition
of urgency, one that may produce death, degeneration, or extreme pain,’ or possibly ‘result in
further significant injury or the unnecessary and wanton infliction of pain.’” Burton v. Lynch,
664 F. Supp. 2d 349, 363–64 (S.D.N.Y. 2009) (citation omitted) (quoting Smith v. Carpenter,
316 F.3d 178, 187 (2d Cir. 2003)). Sufficient evidence exists for a jury to conclude that Plaintiff
was stabbed on February 4. And the jury could conclude that this wound resulted, after a long
period without proper treatment, in surgery for an ulnar nerve condition. This outcome is
“highly relevant to the question of whether the denial of treatment subjected the prisoner to a
significant risk of serious harm.” Smith, 316 F.3d at 187. And according to Plaintiff’s expert,
the delay in treating Plaintiff’s ulnar nerve injury may compromise his recovery. (Cipolla Decl.
Ex. M, at 6.) Thus, a jury could conclude that Plaintiff’s February 4 stab wound was objectively
serious.
Similarly, there is sufficient evidence for a jury to find that prison officials were
deliberately indifferent to his condition. According to Plaintiff, he told Officer Hess, Officer
Coffey, Sergeant O’Connor, and Nurse Burns that he had been stabbed. Yet none of these
individuals assisted Plaintiff in obtaining treatment. Indeed, Plaintiff claims that O’Connor and
Burns deliberately refused to provide adequate treatment because Plaintiff did not identify his
assailant when he was attacked on February 4. If a jury credits Plaintiff’s testimony, both
O’Connor and Burns then falsified reports of the incident. Such behavior would demonstrate
that these officials were “aware that Plaintiff had a serious medical condition and willfully
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disregarded whatever consequences might follow from failing to fully examine Plaintiff.”
Burton, 664 F. Supp. 2d at 366. Summary judgment therefore is unwarranted.
But Bentivegna and Chakravorty stand on different footing. These doctors examined
Plaintiff and apparently concluded that significant medical treatment was not required. Although
Plaintiff purportedly told both doctors that he had been stabbed and about his knee injury, and
while disheartening if true, “not every lapse in prison medical care will rise to the level of a
constitutional violation.” Smith, 316 F.3d at 184. Because “the Eighth Amendment is not a
vehicle for bringing medical malpractice claims,” Plaintiff must demonstrate more than “an
inadvertent failure to provide adequate medical care.” Id.
Yet here, even if Plaintiff’s knee injury were also objectively serious, there is no evidence
that demonstrates Bentivegna and Chakravorty knew that Plaintiff required greater care than he
was receiving. Following Plaintiff’s complaints, Bentivegna ordered x-rays for Plaintiff’s knee
and provided band-aids and painkillers. And ultimately, Bentivegna acceded to Plaintiff’s
request to refer him to another doctor. Likewise, when Chakravorty examined Plaintiff, he
concluded—while with hindsight it is hard to believe—that Plaintiff’s wounds did not require
immediate intervention. The fact is that there is no evidence that either Bentivegna or
Chakravorty deliberately disregarded Plaintiff’s condition. At worst, these doctors were
negligent. But because negligence is insufficient to sustain Plaintiff’s claims, summary
judgment as to these two doctors is granted. See Colon v. City of N.Y., No. 08 Civ. 3142, 2009
WL 1424169, at *7 (S.D.N.Y. May 21, 2009) (to establish deliberate indifference claim “a
defendant’s actions must be more than mere negligence or medical malpractice”).
C. Exhaustion Under the PLRA
Having determined that genuine issues of material fact remain only for Defendants Hess,
Coffey, O’Connor, and Burns, I turn next to whether Plaintiff exhausted his administrative
remedies pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e et seq.
This inquiry “requires that [the Court] look at the state prison procedures and the prisoner’s
grievance to determine whether the prisoner has complied with those procedures.” Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009). Here, New York’s Department of Corrections and
Community Supervision provides for a three-step grievance process. N.Y. Comp. Codes R. &
Regs. tit. 7, § 701.5. First, a prisoner must file a grievance with the IGRC. § 701.5(a)(1);
Espinal, 558 F.3d at 125. If the IGRC renders an adverse decision, the prisoner may appeal to
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the superintendent of the facility. § 701.5(c)(1); Espinal, 558 F.3d at 125. And if the
superintendent also denies the grievance, the prisoner may escalate his appeal to CORC.
§ 701.5(d)(1); Espinal, 558 F.3d at 125.
As noted above, Plaintiff here filed numerous grievances. Exhaustion thus turns on
whether those grievances were both fully appealed and sufficiently specific to allow Plaintiff to
bring his claims here. In that regard, “a New York state prisoner is not required to name
responsible parties in a grievance in order to exhaust administrative remedies.” Espinal, 558
F.3d at 126. So long as a prisoner utilizes the grievance process, “the question for the Court is
‘whether [the] plaintiff’s grievance sufficiently alerted prison officials that he was alleging some
wrongdoing beyond’ that alleged against the individual or individuals specifically named in the
grievance.” Hilbert v. Fischer, No. 12 Civ. 3843, 2013 WL 4774731, at *4 (S.D.N.Y. Sept. 5,
2013) (quoting Percinthe v. Julien, No. 08 Civ. 893, 2009 WL 2223070, at *4 (S.D.N.Y. July 24,
2009)). And even if a prisoner fails explicitly to mention the claim or files an untimely
grievance, a claim may be exhausted “as long as the claim was specifically addressed in the
prison’s denial of the grievance and, hence, was properly investigated.” Percinthe, 2009 WL
2223070, at *4 (citing Espinal, 558 F.3d at 128); see also Hill, 657 F.3d at 125 (“[T]he PLRA is
satisfied by an untimely filing of a grievance if it is accepted and decided on the merits by the
appropriate prison authority.”).
I turn first to Plaintiff’s three numbered grievances: (1) grievance 71274, filed February
28, 2011; (2) grievance 71137, filed March 2, 2011; and (3) grievance 71405, filed April 30,
2011. As noted above, the IGRC expressly consolidated grievance 71137 with grievance 71405.
And the evidence shows that Plaintiff’s March 4 letter to the IGRC complaining of security
breaches following the opening of Plaintiff’s cell door was given the same grievance number as
the February 28 grievance. Thus, that letter was consolidated with grievance 71274. And
Plaintiff appealed through all three levels of internal review for both grievance 71405 and
grievance 71274. At no point did any reviewing body reject Plaintiff’s appeals based on
timeliness concerns. Accordingly, I find all three of these grievances, as well as the March 4
letter, were fully exhausted in accordance with the PLRA. See Pugh v. Goord, 571 F. Supp. 2d
477, 492 (S.D.N.Y. 2008) (all grievances exhausted due to consolidation prior to CORC’s final
decision). Plaintiff also urges that his additional February 28 complaint should have been
consolidated with grievances 71137 and 71405 pursuant to prison procedures. But Plaintiff only
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speculates that such consolidation actually occurred. Without more, he fails to show exhaustion
of the unnumbered February 28 letter. See Thomas v. Connolly, No. 10 Civ. 2401, 2012 WL
3758457, at *10 (S.D.N.Y. Aug. 30, 2012).
I next examine the substance of Plaintiff’s exhausted grievances and the scope of the
prison’s investigations into those grievances. First, grievance 71274 was sufficient to alert
prison officials that Plaintiff alleged wrongdoing against O’Connor. Indeed, CORC commented
directly upon O’Connor’s misbehavior report and concluded that Plaintiff “did not report his
alleged assault.” (Kim Decl. Ex. S, at 38.) Plaintiff’s grievance was thus sufficient to alert
prison officials that Plaintiff viewed this report as false and that O’Connor may have failed to
take appropriate action. See Percinthe, 2009 WL 2223070, at *4 (grievance exhausted where
“claim was specifically addressed in the prison’s denial of the grievance”).
And not only was Hess stationed on the roof overlooking Plaintiff’s first stabbing, but he
was also the officer who caused Collins to open Plaintiff’s cell door prior to the second stabbing.
(Hess Decl. ¶¶ 3, 8.) In his March 4 grievance, Plaintiff complained specifically about his cell
door being opened in violation of prison rules, placing prison officials on notice of a failure-toprotect claim against Hess. (Kim Decl. Ex. S, at 34.) And a jury could conclude that CORC’s
investigations into the first stabbing would also have included speaking with Hess. See Brown v.
Austin, No. 05 Civ. 9443, 2009 WL 613316, at *4 (S.D.N.Y. Mar. 4, 2009) (noting that “date,
time and location” is sufficient because “[t]he point is that prison officials had the necessary
information to investigate the complaints and the opportunity to learn which officers were
involved in the alleged incident” (quoting Espinal, 554 F.3d at 226)). Thus, prison officials were
on notice of Hess’s involvement.
Finally, in addition to the investigation following grievance 71274, Plaintiff further
claims that Coffey’s threats prevented him from filing a grievance. Thus, not only was the
prison placed on notice of Plaintiff’s failure-to-protect claim against Coffey, but such allegations
are also sufficient at summary judgment to estop Coffey from asserting a nonexhaustion defense.
See Hepworth v. Suffolk Cnty., No 02. Civ. 6473, 2006 WL 2844408, at *7 (E.D.N.Y. Sept. 29,
2006) (citing McCullough v. T. Burroughs, No. 04 Civ. 3216, 2005 WL 3164248, at *4
(E.D.N.Y. Nov. 29, 2005)). Accordingly, Defendants’ exhaustion defense fails as to all three of
these officials.
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And turning next to Plaintiff’s medical grievances, grievance 71137 and grievance 71405
indicated that Plaintiff had complained that he had not received any medical treatment following
the February 4 stabbing. But CORC concluded that there had been no malfeasance on the part of
prison staff. Thus, the prison was on notice that Plaintiff was complaining about the medical
care he received from all individuals with whom he interacted following the February 4 incident,
including Burns, O’Connor, Hess, and Coffey. Thus, Plaintiff also exhausted his medical claims.
D. Qualified Immunity
Finally, Defendants urge that they are entitled to qualified immunity. Qualified immunity
extends to government actors “insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Okin v. Vill.
of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 432–33 (2d Cir. 2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). A right is clearly established when “it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Id. (quoting
Saucier v. Katz, 533 U.S. 194, 206 (2001)). And indeed, “[t]here is undoubtedly a clearly
established right to be free from deliberate indifference to serious medical needs.” Hardy v. City
of N.Y., 732 F. Supp. 2d 112, 138 (E.D.N.Y. 2010) (citing LaBounty v. Coughlin, 137 F.3d 68,
74 (2d Cir. 1998)). And “[t]here can be no doubt that inmates have a clearly established right to
remain incarcerated in reasonably safe conditions.” See, e.g., Randle v. Alexander, No. 10 Civ.
9235, 2013 WL 2358601, at *15 (S.D.N.Y. May 30, 2013) (citing Williams v. Carbello, 666 F.
Supp. 2d 373, 378 (S.D.N.Y. 2009)).
Defendants’ descriptions of their own conduct is subject to numerous factual disputes, as
explained above. Defendants also urge that there is no constitutional right requiring prison
official to impose involuntary protective custody on little notice of a threat or prohibiting “a
prudent and conservative course of medical treatment.” But “courts need not have ruled in favor
of a prisoner under precisely the same factual circumstances in order for the right to be clearly
established.” Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). And if Plaintiff’s version of
the facts is true, the remaining Defendants failed to take any steps in response to his assault and
failed to provide any medical care whatsoever. These facts would not merit qualified immunity.
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CONCLUSION
I have considered the parties' remaining arguments and find them meritless. For the
reasons stated above, Defendants' motion for summary judgment is GRANTED as to Timothy
Gotsch, Raymond Koskowski, Ronald Collins, Robert Bentivegna, and Hari Chakravorty. The
motion is DENIED as to Bryan Hess, Chad Coffey, Kevin O'Connor, and Richard Bums. The
Clerk of Court is instructed to close this motion and remove it from my docket.
SO ORDERED.
Date: .".....::....,1 ~!-=-~--:
O
New York,
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