Smith v. Goord, et al
ORDER denying 22 Motion for Summary Judgment; denying 31 Motion for Summary Judgment. Signed by Hon. H. Kenneth Schroeder, Jr. on April 24, 2009. (APG)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
THERNELL SMITH, Plaintiff, v. K. MACKAY and P. WEED, Defendants. 03-CV-0738(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. #12.
Plaintiff filed this pro se action on or about September 11, 2003 in the Northern District of New York seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #5. Thereafter, the case was transferred to the Western District of New York. Id. Plaintiff alleges that while an inmate at the Southport Correctional Facility ("Southport"), his rights pursuant to the Eighth Amendment to the United States Constitution were violated.1 Id. Currently before the Court are defendants' motion for summary judgment
By Decision and Order filed February 6, 2004, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, United States District Judge William M. Skretny dismissed the claims against all of the named defendants except defendants Mackay and Weed. Accordingly, the only remaining claims are for excessive use of force and failure to protect against defendants Weed and Mackay respectively. Dkt. #6.
(Dkt. #22) and plaintiff's motion for summary judgment (Dkt. #31). For the following reasons, defendants' motion for summary judgment is denied and plaintiff's motion for summary judgment is denied.
BACKGROUND Plaintiff, proceeding pro se, filed this action in the Northern District of New York on or about September 11, 2003 against defendants Glenn S. Goord, Michael Corcoran, Michael McGinnis, R. Hazelton, W. Wilcox, Marshall, K. Mackay, B. Potter, P. Weed, D. Flynn and Aderhold pursuant to 42 U.S.C. § 1983, seeking $5,000 in compensatory damages and $10,000 in punitive damages. Dkt. #5. Thereafter, the action was transferred to the Western District of New York. Id. By Decision and Order dated February 6, 2004, United States District Judge William M. Skretny dismissed the claims against defendants Goord, Corcoran, McGinnis, R. Hazelton, W. Wilcox, Marshall, B. Potter, D. Flynn and Aderhold with prejudice. Dkt. #6. Accordingly, only plaintiff's claims of excessive use of force against defendant Weed and the failure to protect against defendant Mackay remain. Id.
Plaintiff's Complaint Plaintiff alleges that on December 25, 2001, he requested three large legal envelopes, two grievance forms, and three advancement forms from Officer Aderhold. Dkt. #5, ¶ 16. Plaintiff asserts that he received only one grievance form, two advancement forms and was advised that he could not have three legal envelopes. Id.
Later, on December 25, 2001, plaintiff states that he advised Officer Potter that he had three letters to be mailed, that he requested that his pen be exchanged and that he placed the items in the security cart. Id. at ¶ 17. According to plaintiff, Officer Potter then placed three small white envelopes and one pen in the security cart. Id. Thereafter, plaintiff alleges that he stuck his arms out of the door hatch and into the security cart and demanded three legal envelopes or, in the alternative, to see a Sergeant. Id. According to plaintiff, Officer Potter notified the Officer in the control booth to call the Sergeant. Id. Plaintiff further alleges that defendant Officer Weed arrived and in an effort to force plaintiff to move his hands back into his cell, defendant W eed pushed the door hatch against his forearms and then used his baton on the door hatch to exert greater force on plaintiff's forearms. Id. Specifically, as against defendant Weed, plaintiff alleges, Officer Weed, then arrived and moved the security cart a little away from the cell door, at this time, he then forcefully pushed the door hatch against my forearms. Then in an attempt to enforce more force, Officer Weed, used his baton on the door hatch. Id. When defendant Sergeant Mackay arrived, plaintiff alleges that Officer Weed stated "Smith tried to stick me with a pen." Id. at ¶ 18.
Thereafter, plaintiff alleges that Sergeant Mackay instructed plaintiff to pull his hands inside his cell and plaintiff replied, "I'm only requesting what I'm entitled too [sic]." Id. at ¶ 19. Plaintiff alleges that he requested to speak to a Lieutenant and Sergeant Mackay responded that the Lieutenant was not coming to speak to him,
stating "`only one person is coming to talk to you' ... and if that don't [sic] work, I'm gonna have my Officer's use force." Id. As alleged in the complaint, Officer Flynn came to talk to plaintiff, took plaintiff's mail and pen out of the cart and placed his mail inside the mailbox, and plaintiff stated to Officer Flynn, "`I told him, I would listen to you, but Officer Weed, has gone to [sic] far by lying and assaulting me.'" Id. at ¶ 20. Plaintiff then alleges, The security cart was then pulled back from the cell door hatch. Officer Weed, raised his baton above his head, and forcefully came down striking my left wrist. I then pulled my hand in, and my wrist were [sic] badly swollen. Dkt. #5, ¶ 21. Finally, plaintiff alleges that Nurse Miller treated his injury and that when she left to get an ice bag, "Sgt. Mackay threatened me, stating, `If I make one false move, his Officer's [sic] will beat the shit out of me.'" Id. at ¶ 22.
Defendants' Statement of Undisputed Facts In contrast to the allegations in plaintiff's complaint, defendants maintain that when defendant Weed arrived at plaintiff's cell, defendant Weed ordered plaintiff to draw his arms back out of the hatch and into his cell, but plaintiff refused. Dkt. #25, ¶ 6. Thereafter, defendants insist that plaintiff "held his pen out through the window and stated that he was going to stab them with his pen." Id. at ¶ 7. Thereafter, defendants submit that the cart was moved and defendant Weed was able to secure the hatch against plaintiff's arms so that he could not move his hands freely in the cart. Id. at ¶ 8. Contrary to plaintiff's allegations, defendants maintain that defendant Weed "did not viciously push the hatch up or use his baton to produce pressure on the hatch." Id. at -4-
¶ 9. Defendants argue, "any pressure used, though minimal, was made pursuant to 7 N.Y.C.R.R. Sec. 251-1.2(d), which allows the use of physical force against an inmate to enforce compliance with a direct order or to quell a disturbance." Id. at ¶ 10.
According to defendants, when defendant Mackay arrived at plaintiff's cell, he attempted to have plaintiff pull his arms back into the cell, but plaintiff refused. Id. at ¶ 12. Defendant Mackay then gave plaintiff several direct orders to pull his arms back from out of the hatch and plaintiff still refused to obey the orders. Id. When Officer Flynn came to speak with plaintiff, plaintiff stated, "[t]his is what's going to happen every time my hatch is opened" and "[i]f you try anything, I'll stick you with my pen." Id. at ¶ 16. Following his discussion with Officer Flynn, defendant Mackay gave plaintiff "a final lawful direct order to pull his arms back into the cell, which he again refused." Id. at ¶ 17. At that time, defendants maintain that defendant Mackay directed defendant W eed to push plaintiff's arms back into the cell. Id. at ¶ 18. Defendant Mackay pulled the cart away from plaintiff's cell and defendant Weed attempted to push plaintiff's arms back into the cell. Id. at ¶ 19. Defendants allege, "[a]s CO Weed tried to push Smith's arms back into his cell, Smith grabbed CO Weed's hand and attempted to stab CO W eed's arm with his pen. In response to Smith's attempt to stab CO Weed with his pen, Sgt. Mackay directed CO Weed to strike Smith with his baton for his own selfdefense. CO Weed then struck Smith once on his left wrist with his baton" Id. at
¶¶ 20 - 21. Finally, defendants state that after defendant Weed used his baton against plaintiff's wrist, plaintiff pulled his arms back into his cell and the hatch was secured without further incident. Id. at ¶ 23.
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." 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?