Martinez v. Goord, et al
Filing
73
ORDER granting in part and denying in part 44 Motion for Summary Judgment. Signed by Hon. H. Kenneth Schroeder, Jr. on June 23, 2009. (APG)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
JAMEL MARTINEZ, Plaintiff, v. RICHARD AUGUSTINE, et al., Defendants. 02-CV-0579(Sr)
DECISION AND ORDER Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #19.
Plaintiff filed this pro se action on or about August 13, 2002 seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that while an inmate at the Southport Correctional Facility ("Southport"), his rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution were violated.1 Id. Currently before the Court is defendants' motion for summary judgment. Dkt. #44. For the
By Decision and Order dated October 10, 2002, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, United States District Judge Richard J. Arcara ordered that "all but plaintiff's Eighth Amendment claims against defendants Augustine, McLaughlin, Siuda, McKlevis, McKernan, O'Herron, Litwiler, Warren, MacIntyre, Carrigan, Dyer, Ameigh, Held, Rocco, Michalko and Bartach [sic] are dismissed with prejudice." Dkt. #3, p.18.
1
following reasons, defendants' motion for summary judgment is granted in part and denied in part.
BACKGROUND Plaintiff, proceeding pro se, filed this action on or about August 13, 2002, against defendants Glenn S. Goord, Donald Selsky, M. McGinnis, R. Hazelton, Richard Cerio, W.E. Wilcox, Brian D. Chuttey, Richard Augustine, Richard E. McLaughlin, Richard M. Siuda, Wendy McKlevis, Dennis McKernan, James O'Herron, Jodi Litwiler, Michael P. Warren, Dean MacIntyre, G. Carrigan, B. Dyer, J. Ameigh, B. Held, Rocco, Michalko and Bartsch pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment, compensatory and punitive damages. Dkt. #1. By Decision and Order dated October 10, 2002, United States District Judge Richard J. Arcara dismissed the claims against defendants Glenn Goord, Donald Selsky, Michael McGinnis, R. Hazelton, Richard Cerio, W.E. Wilcox, and Brian Chuttey with prejudice. Dkt. #3; see also, footnote 1, supra. Accordingly, only plaintiff's claims of excessive use of force and failure to protect against defendants Richard Augustine, Richard E. McLaughlin, Richard M. Siuda, Wendy McKlevis, Dennis McKernan, James O'Herron, Jodi Litwiler, Michael P.
-2-
Warren, Dean MacIntyre, G. Carrigan, B. Dyer, J. Ameigh, B. Held, Rocco2, Michalko and Bartsch remain. Id.
Plaintiff's Complaint Plaintiff's claims all arise from an incident that occurred on June 24, 2000, while he was incarcerated at Southport. Dkt. #1. Plaintiff alleges that at approximately 12:30 p.m., on June 24, 2000, he was advised that he had visitors. Dkt. #1, ¶ 12. Prior to be being placed in the "caged-in area where inmates are designated to sit when in the visiting area," plaintiff was pat-frisked twice and scanned with a hand-held metal detector. Id. at ¶¶ 13-14. Plaintiff was placed in the caged-in area with approximately six other inmates and while plaintiff was visiting with his family members, "a disturbance occurred between a few inmates in the same caged-in visiting area as plaintiff." Id. at ¶ 16. Plaintiff alleges that the inmates involved in the disturbance used weapons either supplied by their visitors or smuggled into the caged-in area by the inmates. Id. at ¶ 17. Plaintiff alleges that "[d]uring the early moments of this disturbance, plaintiff received a cut to his face and began to bleed profusely." Id. at ¶ 18. Plaintiff further claims that Defendants state in their Memorandum of Law that neither defendants nor their counsel are aware of anyone by the name "Rocco." The Court notes that although Docket No. 28 suggests that "Rocco" was served with a copy of the Summons and Complaint, the file maintained in the Clerk's Office does not contain a Return of Service for "Rocco." Defendants further assert that although service was not effectuated on "Rocco," predecessor counsel for defendants filed a motion for summary judgment and inadvertently filed the motion on behalf of "all defendants" and the Clerk of Court deemed that reference to include "Rocco." Notwithstanding the foregoing, defendants maintain that a judgment entered against "Rocco" would be meaningless and unenforceable. Accordingly, defendants request that this Court remove "Rocco" as a defendant in this action. See Dkt. #46, p.2. At this time and based on the record before it, this Court declines to grant defendants the relief requested. -32
despite his repeated requests for the officers to open the door (gate) of the caged-in area to let plaintiff out, the officers refused to open the door (gate). Id. at ¶ 20. As a result of the officers' refusal to open the door (gate), plaintiff continued to be attacked and he was stabbed and cut on his face, neck, torso and arms. Id. at ¶ 21. Plaintiff further alleges, 24. [i]nstead of assisting plaintiff, the officers placed their batons in a horizontal position and began jabbing their batons through the holes in the cage which resulted in plaintiff being physically assaulted about his head, neck, and back. 25. One particularly forceful jab caught plaintiff in his head causing him to almost lose consciousness (including the blurring of his vision) and forcing him to fall to his knees placing his head on one of the tables in the visiting area. 26. The officers began yelling for the inmates in the caged area to lay on the floor and plaintiff attempted to comply. However, since plaintiff could not breathe in the prone position due to the numerous stab wounds and cuts sustained to his head, neck, and torso, plaintiff attempted to adjust himself into a position whereby he could breathe. 27. As plaintiff attempted to adjust his position on the floor, plaintiff was physically assaulted with batons by Defendant Augustine and others as they entered the caged-in portion of the visiting area. 28. During the course of this incident, additional officers responded to the visiting area in an effort to quell the disturbance. 29. Plaintiff was then thrown/dragged out of the caged-in area into the area just outside the caged-in area where the correctional officers are posted to observe the visiting area. 30. Plaintiff was pinned to the floor in the prone position with the defendant correctional officers holding plaintiff firmly to the floor by leaning on and applying pressure to plaintiff's back and neck with their feet. -4-
31. Plaintiff was bleeding profusely from his neck and was unable to breathe due to the position he was in and the pressure being applied to his back and neck by the defendant officers. 32. While plaintiff was pinned to the floor, the defendant officers began to verbally assault and to physically assault plaintiff by yelling racial epithets and threats at plaintiff while kicking plaintiff about the ribs and back. Id. at ¶¶ 24-32. As discussed above, only plaintiff's claims of excessive use of force and failure to protect against defendants Augustine, McLaughlin, Siuda, McKlevis Rocco, McKernan, O'Herron, Litwiler, Warren, MacIntyre, Carrigan, Dyer, Ameigh, Held, Michalko and Bartsch remain and are before this Court.
In his excessive use of force claim, plaintiff alleges not only that defendants used physical force against him without need or provocation, but that defendants' failure to intervene to prevent the misuse of force constituted cruel and unusual punishment. Dkt. #1, ¶ 65. Plaintiff's claim for failure to protect alleges that defendants' failure to provide proper security measures, "such as proper and necessary searching for weapons and the proper observation of the inmates in the highly problematic Special Housing Unit facility, which allowed other inmates to cause serious physical injury to plaintiff" constituted cruel and unusual punishment. Id. at ¶ 61. Moreover, plaintiff alleges that defendants' failure to intervene and rescue plaintiff by opening the gate and allowing plaintiff to "escape the melee" resulted in plaintiff sustaining further serious injuries and constituted cruel and unusual punishment. Id. at ¶ 62.
-5-
Defendants' Statement of Undisputed Facts In contrast to the allegations in plaintiff's complaint, defendants maintain that only three defendants, Richard Augustine, Robert Michalko and Michael Warren, had any physical contact with plaintiff during the June 24, 2000 incident. Dkt. #46, p.5. Specifically, defendant Augustine was the first Corrections Officer to enter the Special Housing Unit ("SHU") visiting area pen to subdue the inmates and admittedly struck plaintiff across the back with his baton. Dkt. #45, ¶¶ 7-8; Dkt. #46, p.5. Defendant W arren assisted in securing plaintiff and thereafter, with the assistance of defendant Michalko, escorted plaintiff to the facility hospital. Dkt. #45, ¶¶ 41-56; Dkt. #46, p.6. Defendants argue that the amount of force used was not excessive, rather, it was "reasonably necessary to gain control of the situation, to restrain the plaintiff in order to maintain order, discipline, and security within the facility, and to protect themselves and others." Dkt. #46, p.2. Additionally, defendants claim that they did not fail to protect plaintiff from physical assault because, as defendants argue, plaintiff was "involved in the altercation at issue in this case and a participant in the physical assaults." Dkt. #46, p.2. Rather, defendants assert that they "stopped the violence and regained control of the situation as quickly as they were reasonably able." Id. As evidenced by the selected excerpts from plaintiff's complaint cited above, the allegations in plaintiff's complaint are of a general nature and do not specify which officer or officers plaintiff claims engaged in the alleged conduct. Conversely, defendants separately address each individual defendant and describe in detail what role, if any, each defendant played in connection with the June 24, 2000 incident. See Dkt. #45.
-6-
Richard Augustine It is undisputed that defendant Augustine was on duty on June 24, 2000 and was assigned to Southport's SHU visiting room. Dkt. #45, ¶ 2. At or around 2:30 p.m., on June 24, 2000, a fight broke out in the visiting room among the inmates contained in pen number one. Id. at ¶ 3. Plaintiff was among those inmates involved in the incident. Id. Because he was assigned to the visiting room, defendant Augustine witnessed the incident and has also had the opportunity to review the videotape of the incident. Id. at ¶ 4.
After the fight commenced, defendant Augustine repeatedly gave orders to the inmates involved in the fight to stop fighting and to lie on the floor. Id. at ¶ 6. Defendant Augustine's initial recollection of the sequence of events that followed was that after initially ignoring his orders, the inmates eventually stopped fighting and complied with his orders to lie on the floor. Id. at ¶ 7. Thereafter, defendant Augustine recalled that the gate was opened and he and several other Corrections Officers entered the visiting room pen. Id. It was defendant Augustine's initial recollection that upon entering the visiting room pen, plaintiff began to get up from the floor in violation of the direct orders. Id. at ¶ 8. According to defendant Augustine's initial recollection, because of the weapons involved and in order to protect himself, defendant Augustine struck plaintiff across the back with his baton and plaintiff immediately fell to the floor. Id. Once plaintiff was subdued, defendant Augustine recalled continuing on into the visiting pen to subdue the other inmates. Id.
-7-
In his affidavit submitted in support of defendants' motion for summary judgment, defendant Augustine stated, Upon a subsequent review of the videotape on a large screen, it appears that Inmate Martinez eventually complied with the direct orders to lie on the floor, however, he got back up again and began fighting. When I came through the door, Inmate Martinez had gotten up and was standing and fighting with the other inmates; therefore, I struck him with my baton across his back ... Dkt. #52, ¶ 10. Accordingly, it is undisputed that defendant Augustine struck plaintiff across the back with his baton. Dkt. #45, ¶ 12. However, contrary to plaintiff's allegations, defendant Augustine states that "at no time did he strike Inmate Martinez in the head area, nor is he aware of any other officer doing so." Id.
An investigation into the June 24, 2000 incident revealed that two weapons, a razor blade and a plexiglass shank, were smuggled into the visiting area by inmate Matos' mother who hid the weapons in a potato chip bag. Id. at ¶ 13. According to defendant Augustine, inmate Matos' mother gave the razor blade to her son and gave the plexiglass shank to inmate Lugo. Id. In addition, it was later discovered that inmate Richardson had smuggled a weapon into the visiting area in his rectum and retrieved the concealed weapon prior to the incident. Id. at ¶ 14. As described by defendant Augustine, all inmates were pat-frisked and scanned with a hand wand prior to entering the visiting room area, however, a hand wand cannot detect a weapon that is concealed in an anal cavity. Id. at ¶ 15. Defendant Augustine further states, "[t]oday, the State of New York has provided us with what is called a `boss chair' which all inmates are required to slide their bottom across, prior to entering and leaving the -8-
Visiting Room, which can detect weapons being concealed in an anal cavity or rectum. At the time of the incident, we did not have such a device (i.e. "Boss chair")." Dkt. #52, ¶ 16.
Consistent with New York State Department of Correctional Services' policy, following the incident, defendant Augustine filed a Use of Force Report describing the incident. Dkt. #45, ¶ 17. According to Superintendent McGinnis who signed the Use of Force Report, the amount of force used was appropriate for the incident. Id. at ¶ 18. In addition, on August 22, 2000, after reviewing the visiting room surveillance video, Sergeant Marker prepared a written statement stating that the video did not reveal a baton striking the back of plaintiff's head. Id. at ¶ 19. Sergeant Marker states that he did, however, observe defendant Augustine "utilizing his baton in a manner consistent with defending himself and the other officers." Id. Moreover, Sergeant Marker determined that the Use of Force medical examination revealed no evidence of plaintiff's head being struck by a baton, nor did plaintiff verbalize such a complaint to the medical staff. Id.
The gate to the visiting room is electronically controlled and only supervisors have the ability to authorize when the gate may be opened. Id. at ¶ 21. Accordingly, at no point did defendant Augustine or any of the other named defendants have the authority and/or ability to open the gate. Id. Here, once it was determined
-9-
that sufficient staff were present, the supervisor issued an order directing that the gate to the visiting pen be opened. Id. at ¶ 22.
Erich Bartsch On June 24, 2000, defendant Bartsch was assigned to the control room for the Southport visiting pens and the visiting area. Dkt. #45, ¶ 25. Specifically, defendant Bartsch was responsible for operating the gates from the main gallery to the visiting area and from the visiting area to the visiting pens. Id. Defendant Bartsch did not, however, have any contact with inmates nor was he responsible for frisking or searching inmates. Id. at ¶ 26. In support of defendants' motion for summary judgment, defendant Bartsch states, [w]hile in the control room, my job is to properly identify the inmate being processed into the visiting room and to operate certain gates. To maintain the safety and security of the facility, I am absolutely prohibited from opening the gates to the visiting pens if an incident occurs, unless ordered to do so by the area supervisor. Dkt. #47, ¶ 5. After the fight broke out, the Sergeant ordered defendant Bartsch to open the gate to the visiting pens to allow the Corrections Officers who responded to the incident to enter the area. Id. at ¶ 6. Defendant Bartsch complied with the Sergeant's order and had no other involvement in the incident. Id.
-10-
Gregory Carrigan On June 24, 2000, defendant Gregory Carrigan responded to the SHU visiting room because there was a disturbance. Dkt. #45, ¶ 31. In his affidavit submitted in support of defendants' motion for summary judgment, defendant Carrigan stated that when he arrived at the SHU visiting room, he observed a number of inmates fighting in pen number one of the SHU visiting room and plaintiff was among those inmates involved in the incident. Id. at ¶ 32. As discussed above, numerous orders were given to the inmates to stop fighting and to lie on the floor. Id. at ¶ 34. After further orders were given and sufficient staff arrived to assist, defendant Carrigan, along with defendant Augustine and others, entered the visiting room. Id. Thereafter, defendant Carrigan assisted defendant Augustine in attempting to control inmate Matos. Id. at ¶ 35. Inmate Matos struggled violently and broke free from defendants Augustine and Carrigan and struck defendant O'Herron in the chest. Id. After a struggle, defendants Augustine and Carrigan were able to regain control of inmate Matos and defendants Augustine and Carrigan escorted inmate Matos to the frisk area. Id. at ¶¶ 35-36. Inmate Matos was able to break free of defendant Carrigan's hold of his left arm and turned and punched defendant Augustine in the right eye. Id. at ¶ 37. Thereafter, defendants Augustine and Carrigan were able to subdue Inmate Matos. Id. At no time did defendant Carrigan have any contact with plaintiff. Id. at ¶ 38. As discussed above, defendant Carrigan was not able to open the gate to the visiting area. Id. at ¶¶ 39-40.
-11-
Robert Michalko On June 24, 2000, defendant Michalko was neither assigned to nor present at the visiting room when the incident occurred. Dkt. #45, ¶ 42. In fact, defendant Michalko did not enter the visiting room with the other officers to restrain any of the inmates; defendant Michalko arrived just after the officers entered the visiting room and secured the inmates. Id. Defendant Michalko did not observe any officer throw plaintiff down or hold plaintiff down with their feet. Id. at ¶ 44. Moreover, defendant Michalko did not hear any racial epithets or threats made towards plaintiff, nor did defendant Michalko see anyone kick plaintiff. Id. at ¶ 45. Defendant Michalko's only involvement in the June 24, 2000 incident was to assist defendant Warren in escorting plaintiff, after he had already been subdued, to the facility hospital. Id. at ¶ 46. The only contact defendant Michalko had with plaintiff was limited to the amount of contact required in order to escort him to the facility hospital. Id. at ¶ 47.
Michael Warren On June 24, 2000, defendant Warren had just concluded his shift in CBlock and was leaving the facility when he responded to an alert to report to the SHU visiting room because of a disturbance. Dkt. #45, ¶ 50. When defendant Warren arrived at the SHU visiting room, he observed inmates fighting with weapons and refusing direct orders to stop fighting. Id. at ¶ 51. Defendant Warren proceeded to line up behind the other Corrections Officers who had responded to the incident and when the Sergeant (supervisor) ordered the gate to be opened, he entered the visiting room
-12-
behind a few other officers. Id. After entering the visiting room, defendant Warren noticed plaintiff on the floor and defendant Warren secured him until the visiting room was secured. Id. at ¶ 52. At no time did defendant Warren strike plaintiff. Rather, defendant Warren's only involvement was to secure plaintiff and assist defendant Michalko in escorting plaintiff to the facility hospital. Id. at ¶ 53. Upon his arrival at the facility hospital, plaintiff was immediately seen by medical staff. Id. Thereafter, defendant Warren was sent to St. Joseph's Hospital for treatment for blood exposure. Id. at ¶ 54. Finally, as discussed above, at no time was defendant Warren able to open the gate to the SHU visiting room. Id. at ¶ 55.
Richard McLaughlin On June 24, 2000, defendant Richard McLaughlin responded to the SHU visiting room because of a fight between the inmates. Dkt. #45, ¶¶ 58-59. When defendant McLaughlin arrived at the SHU visiting room other Corrections Officers were already in the SHU visiting room and defendant McLaughlin assisted defendant Siuda in applying restraints to inmate Richardson. Id. at ¶ 60. Defendant McLaughlin then assisted in escorting inmate Richardson to the frisk area. Id. At no time did defendant McLaughlin have any contact with plaintiff; the only inmate defendant McLaughlin had any contact with was inmate Richardson. Id. at ¶ 61. Thereafter, defendant McLaughlin was sent to St. Joseph's Hospital for treatment for blood exposure. Id. at ¶ 62. As discussed above, at the time defendant McLaughlin arrived at the SHU visiting room, the gate was open. Id. at ¶ 64. Moreover, defendant McLaughlin was not able to
-13-
open the gate to the SHU visiting room because only a supervisor may authorize the opening of the gate. Id. at ¶ 63.
Dennis McKernan On June 24, 2000, defendant McKernan responded to the SHU visiting room because of reports of a disturbance. Dkt. #45, ¶ 67. When defendant McKernan arrived, he observed a number of inmates, including plaintiff, fighting in pen number one of the SHU visiting room. Id. at ¶ 68. Defendant McKernan entered the visiting room with a number of other Corrections Officers and immediately ordered inmate Ellisano to lie on the floor; inmate Ellisano did not comply with defendant McKernan's order. Id. at ¶¶ 70-71. Because defendant McKernan believed that inmate Ellisano may have had a weapon and in an effort to gain control of inmate Ellisano and to protect himself and the other officers, defendant McKernan struck inmate Ellisano with his baton. Id. at ¶ 71. Thereafter, inmate Ellisano complied with the orders to lie on the floor. Id. Defendant McKernan and Correctional Officer Lovejoy later escorted inmate Lugo to the facility hospital. Id. at ¶ 73. At no time did defendant McKernan have any contact with plaintiff. Id. at ¶ 72. As discussed above, defendant McKernan was not able to open the gate to the visiting room. Id. at ¶ 74.
Richard Siuda On June 24, 2000, Richard Siuda responded to a notification that a fight had broken out in the SHU visiting room. Dkt. #45, ¶ 78. Defendant Siuda, along with
-14-
defendant Augustine was among the first officers to enter the visiting room after the supervisor authorized the gate to be opened. Id. at ¶ 80. As discussed above, defendant Augustine gave several direct orders to the inmates to stop fighting and to lie on the floor. Id. at ¶ 81. Notwithstanding these orders, plaintiff and inmate Richardson began to rise from the floor. Id. Because there were a number of weapons involved in the incident and in an effort to protect himself and others, defendant Siuda struck inmate Richardson across the back with his baton. Id. at ¶ 82. After all of the inmates were under control, defendant Siuda assisted defendant McLaughlin in applying restraints to inmate Richardson and defendants Siuda and McLaughlin escorted inmate Richardson to the frisk area. Id. at ¶ 83. Thereafter, defendants Siuda and McLaughlin escorted inmate Richardson to the facility hospital. Id. At no time did defendant Siuda strike plaintiff with a baton or have any involvement in restraining plaintiff. Id. at ¶ 84. Moreover, defendant Siuda was unable to open the gate to the visiting room. Id. at ¶ 86.
James O'Herron On June 24, 2000, defendant O'Herron responded to a call to report to the SHU visiting room because of a disturbance. Dkt. #45, ¶¶ 89-90. When defendant O'Herron arrived at the SHU visiting room, he observed a number of inmates fighting in pen number one. Id. at ¶ 91. After the supervisor had authorized the gate to be opened, defendant O'Herron entered the visiting room with a number of other officers. Id. at ¶ 93. Immediately upon entering the visiting room, defendant O'Herron was
-15-
struck in the chest by inmate Matos who had broken free from defendants Augustine and Carrigan. Id. at ¶ 94. Thereafter, defendant O'Herron and Corrections Officer Lovejoy escorted inmate Roman to the frisk area. Id. at ¶ 95. At no time during the incident did defendant O'Herron have any contact with plaintiff. Id. at ¶ 96. Moreover, at all times relevant to the incident, defendant O'Herron did not have the ability to open the gate. At the conclusion of the incident, defendant O'Herron was sent to St. Joseph's Hospital to be treated for blood exposure. Id. at ¶ 99.
Bruce Dyer On June 24, 2000, defendant Dyer was on duty in the SHU visiting room where he was responsible for frisking and scanning inmates with a hand wand and controlling the inside, key operated gate leading from the frisk area to the sally-port area. Dkt. #45, ¶¶ 101-102. Once an inmate was frisked and scanned with a hand wand, defendant Dyer was responsible for opening the gate leading to the sally-port area and then closing the gate. Id. at ¶ 103. The sally-port gate was then electronically opened by a different officer and the inmate entered the area in front of the visiting pens. Id. Thereafter, a different officer electronically opened the gate to the visiting pen for the inmate to enter for his visit. Id. Defendant Dyer is required to always remain at his post and to operate the keyed gate leading from the frisk area to the sallyport area. Id. at ¶ 104. At all times during the June 24, 2000 incident, defendant Dyer remained at his post and operated the gate as he was required to do. Accordingly, at no time during the incident did defendant Dyer participate in the restraining or escorting
-16-
of plaintiff. Finally, defendant Dyer did not have the ability to open the electronically controlled gate to the visiting room, defendant Dyer was in charge of an entirely separate and distinct gate. Id. at ¶ 106.
Dean MacIntyre On June 24, 2000, defendant MacIntyre was assigned to the SHU visiting room where he was responsible for assigning seats to inmates and monitoring the visiting room area which consists of five pens. Dkt. #45, ¶ 109. In addition, defendant MacIntyre was responsible for informing the visitors which seats the inmates would be seated in and directing the visitors to seat themselves accordingly. Id. Visitors are first processed in a separate building where their belongings are searched and screened. Id. at ¶ 110. Following this initial screening, the visitors are then sent to the entrance area of the facility where they are sent through a metal detector and/or screened with a hand wand before being permitted to enter the visiting room area. Id. Defendant MacIntyre was not responsible for searching or screening any of the visitors, he was responsible for advising the visitors of the appropriate seats and for monitoring the visits. Id. at ¶ 111.
Immediately after the fight broke out in the SHU visiting room pen number one, defendant MacIntyre announced that a fight had broken out over the two-way radio system. Id. at ¶ 112. After being advised by defendant Augustine that weapons were involved, defendant MacIntyre made another announcement over the two-way radio.
-17-
Id. Thereafter, numerous Corrections Officers responded to the SHU visiting area to assist. Id. at ¶ 113. Defendant MacIntyre was not involved in securing the inmates involved in the fight, rather, he picked up the telephone and waited for the Sergeant (supervisor) to give the order to open the gate to pen number one. Id. at ¶ 114. When the Sergeant (supervisor) gave the order, defendant MacIntyre relayed the order to the visiting room control room and the gate was immediately opened. Id. Thereafter, defendant MacIntyre checked the visiting room for weapons and assisted in controlling the visitors that were present in the visiting room. Id. at ¶¶ 115 and 117. Defendant MacIntyre was not involved in any use of force concerning plaintiff or any other inmate and in fact, defendant MacIntyre had no contact whatsoever with any of the inmates. Id. at ¶ 116. With respect to plaintiff's claim that defendant MacIntyre failed to protect him because he failed to open the gate, defendant MacIntyre argues that as soon as he witnessed the incident he immediately radioed for assistance and as soon as the Sergeant gave the order to open the gate, defendant MacIntyre relayed that order and the gate was opened. Id. at ¶ 118. Defendant MacIntyre further states that he had no reason to suspect or know that any of the visitors had any weapons or that they had supplied weapons to the inmates. Id. at ¶ 119. Finally, defendant MacIntyre argues that he had no knowledge that any inmates were going to be attacked or that a fight would break out. Id.
-18-
James Ameigh On June 24, 2000, defendant Ameigh was working in the guest area of the SHU visiting room. Dkt. #45, ¶ 121. Defendant Ameigh was responsible for coordinating and monitoring the visitors and he and the visitors were separated from the inmates by the pens. Id. Defendant Ameigh was not responsible for searching or screening any of the visitors. Id. at ¶ 123. After the fight broke out at approximately 2:30 p.m., on June 24, 2000, defendant Ameigh responded by attempting to control and keep the visitors away from the pens. Id. at ¶ 125. Defendant Ameigh did not have access to the area where the inmates were fighting and therefore he was not involved in securing the inmates. Id. at ¶ 128. Rather, he was responsible for securing the visitor's section of the visiting room. Id. Thus, defendant Ameigh was not involved in any use of force and had no contact with plaintiff. Id. at ¶ 129. Finally, defendant Ameigh insists that he immediately responded to the incident by keeping the visitors away from the pens and further, that he had no reason to know that any of the visitors had weapons or that they had supplied weapons to the inmates. Id.
Robert Held On June 24, 2000, defendant Held was working in the Cadre Visit Room located at the opposite end of Southport from the SHU visiting room. Dkt. #45, ¶ 132. Defendant Held did not respond to the SHU visiting room after the incident occurred because his duties in the Cade Visit Room required him to remain there. Id. at ¶¶ 133134. Defendant Held had absolutely no involvement in, nor does he have any first-
-19-
hand knowledge of the incident which took place on June 24, 2000 in the SHU visiting room. Id. at ¶ 135.
Jodi Litwiler At the time of the June 24, 2000 incident, defendant Litwiler was assigned to the Blood Exposure Response Team ("BERT"). Dkt. #45, ¶ 138. Defendant Litwiler was not on duty on June 24, 2000, however, she was contacted by the facility in her capacity as a member of the BERT and was notified about the incident that took place in the SHU visiting room. Id. at ¶¶ 139-140. As a member of the BERT, defendant Litwiler is responsible for assisting staff who have been exposed to blood during the course of their duties to ensure that the proper precautions are taken. Id. at ¶ 141. After being notified of the incident, defendant Litwiler responded to either the facility or directly to the hospital where the staff members who had been exposed to blood had been taken for the purpose of assisting them in obtaining the proper and necessary testing and treatment. Id. at ¶ 142. Other than as described above, defendant Litwiler had no personal involvement in the June 24, 2000 incident. Id. at ¶ 143.
Wendy McKlevis Defendant Wendy McKlevis was also assigned to the BERT. Dkt. #45, ¶ 144. At no time during the June 24, 2000 incident was defendant McKlevis in the SHU visiting room. Id. at ¶ 145. Defendant McKlevis was notified of the incident that
-20-
had taken place and in her capacity as a member of the BERT, she responded to assist staff who had been exposed to blood to ensure that they received the proper and necessary testing and treatment. Id. at ¶¶ 148-149. Other than as described above, defendant McKlevis had no personal involvement in the June 24, 2000 incident. Id. at ¶ 150.
DISCUSSION AND ANALYSIS Summary Judgment Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 798 (W .D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
-21-
Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of ?demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?