Sloane v. Robinson et al
Filing
37
DECISION AND ORDER granting in part and denying in part 27 Motion for Summary Judgment. Signed by Hon. H. Kenneth Schroeder, Jr. on December 4, 2014. (APG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DEREK SLOANE,
Plaintiff,
12-CV-25(Sr)
v.
BORAWSKI, et al.,
Defendants.
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. #36.
Plaintiff filed this pro se action on or about January 11, 2012, seeking
relief pursuant to 42 U.S.C. § 1983 and state common law. Dkt. #1. By Decision and
Order filed August 30, 2012, United States District Judge David G. Larimer ordered that
several of plaintiff’s claims be dismissed. Dkt. #6. Presently pending before this Court
is defendants’ motion for summary judgment. Dkt. #27.
Plaintiff claims that on March 22, 2011, while an inmate housed at the
Attica Correctional Facility, defendants Correction Officers Bryniarski and Mulla used
excessive force against plaintiff and filed a false misbehavior report. Plaintiff further
alleges that defendant Lieutenant Borawski denied him due process in connection with
a Tier III disciplinary hearing resulting from the March 22, 2011 incident. Finally, plaintiff
alleges that defendant Jennings violated his rights by denying him adequate medical
treatment after the alleged excessive use of force incident.
FACTUAL BACKGROUND
In his complaint, plaintiff alleges that on March 22, 2011, he was walking
to the mess hall, when Correction Officer Mulla and Correction Officer Bryniarski told
him to place his hands on the wall and then began to yell at him, slam his head into the
wall and kick, punch and hit him with sticks. After a bell sounded, more unidentified
correction officers came running, took him downstairs, and “jump[ed] him again.”
Plaintiff claims that his “head [was] busted,” and that he suffered from cuts over his left
eye and chin, broken ribs, an ankle fracture and a back injury. Dkt. #1, ¶¶ 8-10.
Plaintiff maintains that notwithstanding the fact that he was bleeding heavily and
informed Nurse Jennings of the extent of his injuries, the only treatment he received
was a bandage for his head. Thereafter, plaintiff alleges, he was sent to the “box.” Id.
at ¶¶ 11, 17-19.
Plaintiff further alleges defendant, Lt. Borawski denied him due process at
the Superintendent’s Hearing held with respect to the misbehavior report issued
following the alleged excessive use of force on March 22, 2011. Dkt. #1, ¶30.
Specifically, plaintiff alleges that defendant Lt. Borawski “fix[ed] the hearing by denying
plaintiff’s [sic] his witnesses, denying his assistant, misprison of felony, conspiring to
violate plaintiff’s federal, statutory rights by assaulting [sic] him without cause, creating a
false misbehavior report, preparing false physical evidence after the attack. [i]n
2
addition, submitting false statements to the prison, offering a false instrument for filing.
and [sic] denying him a fair and impartial hearing.” Id.
In support of the instant motion, defendants rely on the affidavit of
defendant Correction Officer Jeffrey Bryniarski. Dkt. #27-4. As it relates to the March
22, 2011 incident alleged in the complaint, defendant Bryniarski states in his affidavit,
[o]n March 22, 2011, I was working as a CO in Attica
Correctional Facility, where my duties consisted of care,
custody and control of the inmates. On the above date, at
approximately 4:10 pm, while inmates were lined up for
chow, I ordered inmate Sloane, #07-A-1140, from 22-04-T,
to step out of line, because he had both hands in his
pockets. This is a security concern due to weapons and
other contraband that may be kept inside of pockets and
used to harm staff and other inmates. Moreover, all inmates
housed at Attica are informed in the Inmate Orientation
Guideline Manual that their hands “will be kept out of
pockets or waistbands of pants while in formation.” . . . As I
began to talk to the plaintiff, he then turned, unprovoked, and
swung to punch me with his closed right fist.
Dkt. #27-4, ¶¶4-5 (internal citations omitted). Thereafter, defendant Bryniarski states
that with the assistance of defendant Mulla, force was used to subdue plaintiff. Id. at
¶6. Specifically, defendant Bryniarski described, “I assisted in subduing the inmate by
grabbing his right arm and sweater with both of my hands and forced him into the wall
onto the floor. I maintained control of his right arm with both of my hands while the
mechanical restraints were applied.” Id. at ¶7. A Use of Force Report was generated
and plaintiff was issued a Misbehavior Report.
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Defendant Correction Officer Joseph Mulla also submitted an affidavit in
support of the instant motion for summary judgment wherein he describes that on March
22, 2011 at approximately 4:10 p.m. he “witnessed plaintiff, unprovoked, attempt to
swing and punch CO Bryniarski with a closed fist.” Dkt. #27-6, ¶5. Moreover,
defendant Mulla states, “[t]o assist Bryniarski, I gained control of the inmate’s left arm
with both of my hands and forced him to the wall and then onto the floor. I applied the
mechanical restraints to the non-struggling inmate.” Defendants Bryniarski and Mulla
both state that plaintiff was subsequently moved to the lobby without incident. Both
defendants Bryniarski and Mulla maintain that the force used in connection with this
incident was only what was necessary to regain control of plaintiff. Dkt. #27-4, ¶9; Dkt.
#27-6, ¶6.
In sharp contrast, in his counter-statement filed in opposition to
defendants’ motion for summary judgment, plaintiff maintains,
on March 22, 2011 Plaintiff was infact assaulted by the
defendants on that date and time. For no apparent reasons,
or justified reason. [sic] Plaintiff was inroute to the messhall, as such, a you not you, the ball-head one [sic]. Step
over here. Place your hands on the wall. Didn’t I tell you
about that shit being in your pants? I informed him that I
don’t [sic] have an [sic] belt? He stated in his own words:
are you cazy [sic] or insane? He then placed his hands on
my neck and started pushing my head against the wall by
the lock-box. He looked at me with this ugly face. And
stated to the other C.O., Officers. Take him down. That’s
when they all started all [sic] assaulting me for no reasons.
Dkt. #32, ¶13. Plaintiff does not dispute that “all inmates housed at Attica are informed
in the Inmate Orientation Guideline Manuel that their hands ‘will be kept out of pockets
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or waistbands of pants while in formation.’ This is a security concern due to weapons
and other contraband that may be kept inside of pockets and used to harm staff and
other inmates.” Dkt. #27-2, ¶15.
There is no dispute that immediately following the incident, plaintiff was
taken to the Attica Emergency Room and was seen by defendant Nurse Jennings.
Plaintiff claims that he was not “examined” by Nurse Jennings. Rather, plaintiff states,
“the only thing that she did was put a bandage on my head and sent [sic] to the box.
She did not examining [sic] me at any time that I was in the medical office or sent to the
box no medical care was offered or given.” Dkt. #32, ¶¶17 and 19. In her affidavit
submitted in support of the instant motion for summary judgment, defendant Helen
Jennings states, based on her review of the inmate injury report and the physical
examination reports included with the use of force report all dated March 22, 2011,
On March 22, 2011, at approximately 4:25 PM, I examined
the patient in the Attica Emergency Room. At that time, I
noted a 2½ inch laceration to the top of his left head, a ½
inch laceration to the left eye brow and a small abrasion on
the left chin. I then cleaned the laceration on the top of the
head and the left brow with sterile water and applied steristrips and dermaband.
Dkt. #27-5, ¶5.
On March 22, 2011, defendant Correction Officer Mulla completed an
Inmate Misbehavior Report concerning the above-described incident. Plaintiff Sloane
was charged with the following violations: 100.11 attempted assault; 104.11 violent
conduct; 104.13 disturbing the order of the facility, 107.10 interference with an
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employee. Dkt. #27-4, p.5. In the Inmate Misbehavior Report, defendant Mulla
described the incident as follows:
On the above date and approximate time inmate Sloane
07A1140 came down the stairs with the 22 co. inmates going
to chow. He had both of his hands in his pockets and C.O.
Bryniarski ordered him to step out of the line. As C.O.
Bryniarski began to talk to him he swung at C.O. Bryniarski
with his right hand in a closed fist. At this time it became
necessary to use force. (See use of force report)
Inmate Sloane was then escorted to the infirmary by
uninvolved staff with no further incident.
Dkt. #27-4, p.5. Defendant Borawski was assigned to conduct the Tier III hearing. Dkt.
#27-3, ¶5. The hearing began on March 25, 2011 and concluded on March 28, 2011.
Id. at ¶8. In an affidavit submitted in support of the instant motion, defendant Borawski
states that when the hearing first began he explained to plaintiff that he could call
witnesses on his behalf, that nothing he said in the hearing would be used against him
and that he could submit documentary evidence. Id. at ¶9. After confirming that plaintiff
understood these rights, defendant Borawski confirmed that plaintiff had been served
with a copy of the Misbehavior Report on March 23, 2011. Id. at ¶10. Moreover,
defendant Borawski confirmed that plaintiff had been provided with the opportunity to
select an employee hearing assistant. As reflected in the Assistant Selection Form
(Dkt. #27-3, p.10), plaintiff refused to sign the form and waived his right to an employee
hearing assistant. During the hearing, plaintiff requested that Acting Attica
Superintendent Bradt serve as his hearing assistant, such request was denied. Dkt.
#27-3, ¶10.
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During the hearing, plaintiff indicated that he wished to call inmate Booker,
RN Jennings, then Acting Superintendent Bradt, CO Mulla, five unknown inmates and
an unknown officer to testify at the hearing. Id. at ¶11. Defendant Borawski denied
plaintiff’s request to call then Acting Superintendent Bradt as a witness because he did
not have knowledge of the event. Id. In addition, defendant Borawski denied plaintiff’s
request with respect to the unknown witnesses because plaintiff was unable to provide
any information to identify the individuals. Id.
Prior to hearing the testimony of the first witness, defendant Borawski read
the charges and plaintiff entered a plea of not guilty to each charge. Id. at ¶12.
Thereafter, the inmate misbehavior report was read into the record and defendant
Mulla, the author of the report was called as the first witness. Id. at ¶13. Consistent
with standard procedure at Tier hearings, defendant Borawski asked each witness
some questions and then plaintiff advised defendant Borawski what questions he would
like asked of the witness. Id. at ¶14. According to defendant Borawski, he asked every
question that plaintiff asked him to ask the witnesses. Id. Following defendant Mulla’s
testimony, plaintiff wished to call defendant Jennings as a witness. Defendant Borawski
denied the request because he “did not see how the plaintiff’s physical condition after
the incident would be relevant to whether or not he engaged in violent, disruptive
behavior, and whether he interfered with an employee.” Id. at ¶18. Plaintiff next
requested to have inmate Luther Booker testify as a witness. Inmate Booker refused to
testify stating that he did not know anything. Id. at ¶19.
7
At the continuation of the Tier III hearing on March 28, 2011, Correction
Officer Bryniarski was called to testify. Dkt. #27-3, pp.24-27. At the conclusion of
Correction Officer Bryniarski’s testimony, plaintiff stated that he did not have any
questions for him and further stated, “this is not the Officer that I swung, and he’s lying, I
don’t know why he’s lying for him, but he’s covering up for the other Officer.” Dkt. #273, p.27. Finally, the last witness to testify during the hearing was Sergeant Baker, the B
block supervisor on March 22, 2011 on the 3-11 p.m. shift. According to his testimony,
Sergeant Baker responded after the incident and assisted in completing the paperwork.
Dkt. #27-3, pp.27-28. At the conclusion of the witness testimony, defendant Borawski
gave plaintiff an opportunity to put any additional information on the record. At that
time, plaintiff offered the following explanation as to how the incident started. Id. at
pp.28-32. As a threshold matter, from the transcript of the hearing it appears that
plaintiff believes that it was defendant Mulla, not defendant Bryniarski, who called him
out of formation and who pushed plaintiff against the wall. Dkt. #27-3, pp.26-29.
Specifically, plaintiff testified,
Inmate Sloane:
Well, I’ll tell you how the incident started
from the very beginning.
Lt. Borawski:
Okay.
Inmate Sloane:
All right, from the very beginning. All
right, 22 company was going to chow.
...
Inmate Sloane:
I stepped out first, there was 4 inmates
behind me. I came downstairs, walked
down the stairs, my hands to my side.
Okay?
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Lt. Borawski:
Okay.
Inmate Sloane:
Now that Officer just lied, - - - there was
another older Officer,
Lt. Borawski:
Okay, we’ve established that was
Officer Mulla.
Inmate Sloane:
Okay, that Officer that was on the
phone, okay, stated, other inmates that
was walking toward him, he said, “you”
and other inmates stopped, turned
around. He said, “no, not you, you keep
going, you.” And he called me from out
the line. I then stepped back and he
said “step to the wall.” I step to the right
side of the lock box, that goes right to
the pipe chase.
Lt. Borawski:
Okay, that’s what this Officer testified to,
that you were between the lock boxes.
Inmate Sloane:
Correct, so I’m facing like this against
the wall. The other Officer was there,
not this one, Officer Mulla, he started
questioning me about my shirt being out
my pants. He said, “didn’t I tell you
twice about your shirt hanging out your
pants.” I said, “yes, but I don’t have a
belt.” He then said, “what are you
stupid?” “That’s when this one here,
approached me on my left. Officer
Mulla was on my right hand side.
Lt. Borawski:
Okay.
Inmate Sloane:
Okay, he then asked me, “what you
stupid?” I said, “no I’m not stupid.” He
then stated, “oh you think you a tough
guy?” I said, “no, why do I gotta be a
tough guy?” He then looked at me and
he looked at the Officer, he placed his
right hand on the back of my neck. And
then he pushed me up against the wall
like this.
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Lt. Borawski:
Okay.
Inmate Sloane:
Okay, he then asked me again, “was I
stupid?” I said, “no, I’m not stupid,
Officer.” He then look at this Officer and
then there was another third Officer who
came, see, I don’t know who the third
Officer was, but that was the Officer that
ran us to chow. The Officer that was on
22 was a young rookie, very young, slick
back hair, he was like brown skin. He
came down stairs and he stood on the
far left. So I mean there was [sic] three
Officers present. He then told another
Officer, “take him down.” Those was
[sic] his exact words, “take him down.”
That’s when they all jumped on me, right
there in front of the lock box, between
the pipe chase, the lock box. I then
stated, “what did I do?” That’s when
they all piled up on me, grabbing my
arms and legs, and then started kicking
me all on my face, stomping me, and I
don’t know, somebody cut me, because
when I went to the nurse, the nurse
asked me did somebody cut me. I don’t
know what happened, cuz I went
unconscious for a couple of minutes.
Okay, they then lift me up off the floor,
and more Officers coming, they began
stomping and kicking my head. That’s
when the blood started gushing out of
my head. Then they took me
downstairs and put me against the wall
by the clerk’s office.
Dkt. #27-3, pp.29-30.
10
Following plaintiff’s testimony offering his explanation of the events of
March 22, 2011, defendant Borawski issued his disposition on the record. Defendant
Borawski stated as follows:
Okay. I adjourned this hearing in order to render a
disposition, and I have. I have found you guilty of the
charges, 104.11 violent conduct, 104.13 creating a
disturbance, 107.10 interference, and 100.11 assault on
staff. I took into account the written report and the verbal
testimony of Officer Mulla, the testimony of Officer Bernarski
[sic], and Sgt. Baker. Your witness or [sic] Booker has failed
to or refused to testify and you did ask for several witnesses,
none of which you could provide any information about, so
due to the fact that there is no witness testimony and I do not
find your version credible, I have found you guilty of these
charges. Bottom line is any type of violent or assaultive
behavior towards staff must be severely punished. The
bottom line is you had a lack of opportunity [sic] in that the
Officer was not hit. Just because it was an attempt does not
mitigate the factors. And therefore, this penalty is justified.
The penalty I’m going to give you is 6 months SHU, loss of
packages, commissary and phone and recommended good
time. The start date is the date of the incident, 3/22/11, your
release date is 9/22/11. This was a Tier III Hearing, as a
result, you do have the right to an appeal. You have 30 days
in which to make an appeal to the Commissioner. You can
get a copy of the appeal form from the Gallery Officers that
work up there. Do you understand your appeal rights?
Dkt. #27-3, p.33. In response to defendant Borawski’s question, plaintiff indicated that
he understood his appeal rights.
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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 ‛metaphysical doubt’ concerning the facts, or on the basis of
12
conjecture or surmise.” Bryant, 923 F.2d at 982 (internal citations omitted). A party
seeking to defeat a motion for summary judgment,
must do more than make broad factual allegations and
invoke the appropriate statute. The [party] must also show,
by affidavits or as otherwise provided in Rule 56 of the
Federal Rules of Civil Procedure, that there are specific
factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Denial of Due Process – Tier III Disciplinary Hearing
To state a cognizable § 1983 due process claim, a plaintiff must
demonstrate that he possessed a protected liberty or property interest and that he was
deprived of that interest without due process. Bedoya v. Coughlin, 91 F.3d 349, 351-52
(2d Cir. 1996); Frazier v. Coughlin, 81 F.3d 313, 316 (2d Cir. 1996).
Liberty Interest
“A prisoner’s liberty interest is implicated by prison discipline, such as
SHU confinement, only if the discipline ‘imposes [an] atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.’” Palmer v. Richards,
364 F.3d 60, 64 (2d Cir. 2004), quoting Sandin v. Conner, 515 U.S. 472, 484 (1995). In
assessing whether the discipline imposed rises to this level, the Court of Appeals for the
Second Circuit has directed the district courts to consider both the conditions of
confinement and their duration, “since especially harsh conditions endured for a brief
interval and somewhat harsh conditions endured for a prolonged interval might both be
atypical.” Id., quoting Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999). In light of this
13
standard, the Court of Appeals has “explicitly avoided a bright line rule that a certain
period of SHU confinement automatically fails to implicate due process rights” and has
“explicitly noted that SHU confinements of fewer than 101 days could constitute atypical
and significant hardships if the conditions were more severe than the normal SHU
conditions . . . or a more fully developed record showed that even relatively brief
confinements under normal SHU conditions were, in fact, atypical.” Id. at 64-65.
Notwithstanding the foregoing, courts in this Circuit “generally require that
the duration of confinement be at least 100 days” to be categorized as constituting an
“atypical and significant hardship.” Palmer v. Goss, No. 02 Civ 5804(HB), 2003 WL
22327110, at * 6 (S.D.N.Y. Oct. 10, 2003), aff’d, Palmer v. Richards, 364 F.3d 60 (2d
Cir. 2004); Smith v. Taylor, No. 03-0202, 2005 WL 2019547 (2d Cir. Aug. 23, 2005)
(determining that 45 days disciplinary confinement in SHU, absent evidence of
conditions more onerous than those generally present in the SHU, was insufficient to
establish a protected property interest); Sims v. Artuz, 230 F.3d 14, 24 (2d Cir. 2003)
(vacating dismissal of, inter alia, procedural due process claims, stating, during little
more than a 4½ month period, Sims was sentenced to SHU for a total of nearly 3½
years); Durran v. Selsky, 251 F.Supp.2d 1208, 1214 (W.D.N.Y. 2003), quoting, Tookes
v. Artuz, No. 00CIV4969, 2002 WL 1484391, at * 3 (S.D.N.Y. July 11, 2002) (“[c]ourts in
this Circuit routinely hold that an inmate’s confinement in special housing for 101 days
or less, absent additional egregious circumstances, does not implicate a liberty
interest.”); Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000) (instructing district courts
to develop detailed factual records “in cases challenging SHU confinements of durations
14
within the range bracketed by 101 days and 305 days”); cf. Prince v. Edwards, No.
99CIV8650, 2000 WL 633382 (S.D.N.Y. May 17, 2000) (suggesting that any period of
segregation of one year or less affords no protected liberty interest). Here, following the
Tier III disciplinary hearing, defendant Borawski imposed the following penalties: six
months in SHU, loss of commissary, packages and phone and recommended good
time.
Thus, there can be no dispute that plaintiff has demonstrated a protected liberty
interest. The issue that remains and that which will be addressed below, is whether
plaintiff was deprived of that protected liberty interest without due process.
Procedural Safeguards
In Wolff v. McDonnell, the Supreme Court enumerated certain procedural
safeguards that must be afforded to an inmate during the course of a prison disciplinary
proceeding in order to ensure that the minimum requirements of procedural due process
are satisfied. 418 U.S. 539 (1974). Specifically, the Supreme Court identified the
following procedures: advance written notice of the claimed violation or charges; a
written statement by the fact finder of the evidence relied upon and the reasons for the
disciplinary action taken; the opportunity for an inmate to call witnesses and present
documentary evidence in his/her defense, provided that such a process would not
jeopardize institutional safety. Id. at 563-66. Moreover, although not specifically
required by Wolff, plaintiff was provided with an opportunity to appeal each
determination and he did in fact exercise that right to appeal on several occasions and
with respect to each appeal taken, enumerated specific grounds for his appeal.
15
Plaintiff claims that defendant Borawski violated his Fourteenth
Amendment right to procedural due process during the Tier III disciplinary hearing
because he was: denied assistance to prepare for the hearing; denied production of
certain witnesses to testify at the hearing; erroneously found guilty of the charges; and
was prejudiced by defendant’s bias and failure to be impartial.
Employee Assistance
As discussed above, Wolff requires that an inmate be provided with at
least 24 hours advance written notice before the hearing “to inform [the inmate] of the
charges and to enable him to marshal the facts and prepare a defense.” Wolff, 418
U.S. at 563-64. Based on the transcript of the proceedings at the hearing, plaintiff does
not dispute that he received the misbehavior ticket on or about March 23, 2011, more
than 24 hours before the hearing commenced. Institutional concerns have generally
operated as a bar to inmates obtaining retained or appointed counsel. Wolff, 418 U.S.
at 570; Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). Inmates do, however, have a
“limited” right to assistance. Silva, 992 F.2d at 22. Both the Second Circuit case law
and DOCS’ regulations provide for an inmate to receive employee assistance when that
inmate is charged with an offense warranting SHU confinement. Silva, 992 F.2d at 22;
Eng v. Coughlin, 858 F.2d 889, 898 (2d Cir. 1988); 7 N.Y.C.R.R. § 251-4.1(b). In his
complaint, plaintiff complains that defendant Borawski denied him his right to an
assistant.” Dkt. #1, ¶30. For the following reasons, plaintiff’s claim that he was denied
an assistant in connection with the Tier III disciplinary hearing which began on March
25, 2011 and concluded on March 28, 2011, must fail as a matter of law.
16
The undisputed evidence before this Court reveals that plaintiff was
provided the opportunity to select three possible hearing assistants and rank them in
order of preference from a list of eleven. Dkt. #27-3, p.10. The form indicates that
plaintiff waived his rights to select an assistant and it is noted that plaintiff refused to
sign the form. Id. At the outset of the hearing, plaintiff was asked whether he was given
an opportunity to choose an assistant and the hearing officer stated, “and according to
this you waived that right and refused to sign. Uh, Officer Coggiola and witness Officer
Blanker signed to that effect on 3/23/11 and also on 10:20 AM. Is that correct?” Dkt.
#27-3, p.15. Plaintiff responded that that was incorrect and in response to the hearing
officer’s inquiry “well do you wish any assistance or any thing [sic] at this time?” plaintiff
responded that he wanted witnesses Sr. Counselor, Sgt. P. Corcoran and the
Superintendent. Id. While it is unclear from the transcript whether plaintiff was
requesting those individuals as witnesses or as an assistant, defendant Borawski
denied the request.
Denial of Witness Testimony
In Wolff v. McDonnell, the Supreme Court of the United States determined
that,
[an] inmate facing disciplinary proceedings should be
allowed to call witnesses and present documentary evidence
in his defense when permitting him to do so will not be
unduly hazardous to institutional safety or correctional goals.
418 U.S. at 566. In reaching this conclusion, the Court recognized that,
[p]rison officials must have the necessary discretion to keep
the hearing within reasonable limits and to refuse to call
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witnesses that may create a risk of reprisal or undermine
authority, as well as to limit access to other inmates to
collect statements or to compile other documentary
evidence.
Id. In exercising that discretion, prison officials must be able to,
explain, in a limited manner, the reason why witnesses were
not allowed to testify, . . . either by making the explanation a
part of the ‘administrative record’ in the disciplinary
proceeding, or by presenting testimony in court if the
deprivation of a ‘liberty’ interest is challenged because of
that claimed defect in the hearing. In other words, the prison
officials may choose to explain their decision at the hearing,
or they may choose to explain it ‘later.’
Ponte v. Real, 471 U.S. 491, 497 (1985). A hearing officer may rationally exclude
witnesses or documents when they would be irrelevant or unnecessary to a
determination of the issues in the disciplinary hearing. Kalwasinski v. Morse, 201 F.3d
103, 109 (2d Cir. 1999). The burden is on the prison official to demonstrate “the
rationality of his position.” Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990).
Plaintiff claims that defendant Borawski denied him witnesses during the
disciplinary hearing. During the hearing, plaintiff requested Superintendent Bradt and
an unnamed Sr. Counselor as witnesses. Defendant Borawski denied plaintiff’s
requests for Superintendent Bradt and Sr. Counselor explaining that the witnesses
plaintiff may call must have a bearing on the case and must have firsthand knowledge
of the incident, “they have to have been present, they have to have seen it, they have to
have some knowledge of the incident.” Dkt. #27-3, p.16. Plaintiff claimed that there
were five witnesses to the incident who were behind him on the stairs. When defendant
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Borawski asked him for names, he stated that he did not know the names of the other
inmates. Id. at p.17. Defendant Borawski stated,
This is your copy of the witness form, I have refused to uh,
grant your request, okay. I have denied your request for
Superintendant [sic] Bradt on the grounds that he was not
present for and does not have any personal knowledge of
this incident. You’ve requested five unknown inmates and
an unknown Officer, and you are not giving me any other
information as to the identity of these people. It is your job to
call your own witnesses, not mine. You give something, you
give me information to work with, and I will get them for you.
Five unknown inmates and an unknown Officer is not
enough information, so therefore, I’m not doing your leg work
for you, so that is denied also.
Dkt. #27-3, p.18
In accordance with the principle set forth in Wolff v. McDonnell that a
hearing officer may refuse to call witnesses on the basis of “irrelevance, lack of
necessity, or the hazards presented in individual cases,” this Court agrees with
defendant Borawski’s determination that both Superintendent Bradt’s, Nurse Jennings’
and Sr. Counselor’s proposed testimony would have been irrelevant to the issues
presented in the hearing. Moreover, insofar as plaintiff refused to supply defendant
Borawski with any information concerning the identity of the purported five inmate
witnesses, defendant Borawski was justified in his denial of plaintiff’s request. Finally,
inmate Booker refused to testify on the grounds that he did not know anything. Based
on the foregoing, this Court concludes that the record contains more than sufficient
evidence to support defendant Borawski’s finding of plaintiff’s guilt, including, but not
limited to Officer Mulla’s testimony and Officer Bryniarski’s testimony.
19
Impartiality of Hearing Officer
“An inmate subject to a disciplinary hearing is entitled to an impartial
hearing officer.” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996); see Wolff v.
McDonnell 418 U.S. 539, 570-71 (1974); Russell v. Selsky, 35 F.3d 55, 59 (2d Cir.
1994). An impartial hearing officer “is one who, inter alia, does not prejudge the
evidence and who cannot say ... how he would assess evidence he has not yet seen."
Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir.1990); Francis v. Coughlin, 891
F.2d 43, 46 (2d Cir. 1989) ("it would be improper for prison officials to decide the
disposition of a case before it was heard").
It is well recognized, however, “that prison disciplinary hearing officers are
not held to the same standard of neutrality as adjudicators in other contexts.” Allen, 100
F.3d at 259; see Francis, 891 F.2d at 46 (“Because of the special characteristics of the
prison environment, it is permissible for the impartiality of such officials to be
encumbered by various conflicts of interest that, in other contexts, would be adjudged of
sufficient magnitude to violate due process.”). For example, “[t]he degree of impartiality
required of prison officials does not rise to the level of that required of judges generally.”
Allen, 100 F.3d at 259; see Francis, 891 F.2d at 46. A hearing officer may satisfy the
standard of impartiality if there is “some evidence in the record” to support the findings
of the hearing. Superintendent v. Hill, 472 U.S. 445, 455 (1985).
Plaintiff alleges that defendant Borawski denied him a fair and impartial
hearing. Dkt. #1, ¶30. At the conclusion of the disciplinary hearing, plaintiff objected
20
stating, “Yea, I have an objection and believe that this whole hearing and testimony,
nothing but a beefed up incident I also believe that this is nothing but what you call a
mob dominated racist attack against my person, this also for the record, you have a
long standing pattern in the Correction Facility of Officers attacking inmates, since I’ve
been here, since I’ve been on this gallery, there’s nothing but inmates being brought up
here for so called attempted assaults . . .” Dkt. #27-3, p.33. Notwithstanding his
general objection to the hearing and testimony, plaintiff offers nothing in opposition to
the instant motion to support his claim that defendant Borawski denied him a fair and
impartial hearing. The transcript of the disciplinary hearing reveals that defendant
Borawski was justified in his denial of plaintiff’s request to have five unidentified inmates
testify, as well as plaintiff’s request for testimony from Superintendent Bradt, Nurse
Jennings and Sr. Counselor on the basis that they had no knowledge of the incident.
Plaintiff’s bare, conclusory assertion that defendant Borawski denied him a
fair and impartial hearing is belied by the evidence in the record before this Court. The
disciplinary hearing spanned over two days, including the testimony of the two
Correction Officers involved in the incident and Sergeant Baker. Inmate Booker, the
only inmate witness identified by plaintiff, refused to testify stating that he did not know
anything. Finally, prior to rendering his decision, defendant Borawski heard plaintiff’s
testimony concerning the incident.
As reflected in the disciplinary hearing transcript and memorialized on the
Superintendent Hearing Disposition Rendered Forms, defendant Borawski permitted
21
plaintiff to voice his objections during the hearing, afforded plaintiff the opportunity to
testify or to present evidence in his defense, and set forth sufficient evidence in his
disposition to support his determination of guilt. Specifically, defendant Borawski states
that he relied upon the written report and verbal testimony of Correction Officer Mulla,
the verbal testimony of Correction Officer Bryniarski and Sergeant Baker. In addition,
defendant Borawski further states that his decision was, in part, based on the failure of
inmate Sloane’s witness to testify and inmate Sloane’s failure to present a credible
defense against the charges. Dkt. #27-3, p.8. As reflected in the transcript of the
disciplinary hearing, defendant Borawski imposed the following penalty, “6 month SHU,
loss of packages, commissary and recommended good time.” Dkt. #27-3, p.33.
Here, plaintiff’s bare, conclusory allegations of bias and prejudgment,
without more, are insufficient to defeat defendant’s motion for partial summary
judgment. As reflected in the Hearing Disposition Sheet and hearing transcript,
defendant Borawski based his determination on the Misbehavior Report, the testimony
of plaintiff, testimony of witnesses present during the incident, and the documentary
evidence. Additionally, as noted above, defendant Borawski’s decision was based, in
part, on plaintiff’s failure to present a credible defense. Thus, the record before this
Court unequivocally establishes that defendant Borawski was neither biased nor
prejudged the evidence. To the contrary, defendant Borawski based his finding of guilt
on the credible evidence presented during the hearing and made an objectively
reasonable determination based on the evidence. Thus, the Court agrees with
22
defendant Borawski that plaintiff has failed to meet his burden of demonstrating that
defendant Borawski was so partial so as to violate plaintiff’s due process rights.
False Misbehavior Report
As set forth above, the Inmate Misbehavior Report relative to the March
22, 2011 incident was prepared by defendant Correction Officer Mulla. Dkt. #27-3, p.9.
Plaintiff Sloane was charged with the following violations: 100.11 attempted assault;
104.11 violent conduct; 104.13 disturbing the order of the facility, 107.10 interference
with an employee. Dkt. #27-4, p.5. In the Inmate Misbehavior Report, defendant Mulla
described the incident as follows:
On the above date and approximate time inmate Sloane
07A1140 came down the stairs with the 22 co. inmates going
to chow. He had both of his hands in his pockets and C.O.
Bryniarski ordered him to step out of the line. As C.O.
Bryniarski began to talk to him he swung at C.O. Bryniarski
with his right hand in a closed fist. At this time it became
necessary to use force. (See use of force report)
Inmate Sloane was then escorted to the infirmary by
uninvolved staff with no further incident.
Dkt. #27-4, p.5.
The Second Circuit has held that “a prison inmate has no general
constitutional right to be free from being falsely accused in a misbehavior report.”
Boddie v. Robinson, 105 F.3d 857, 862 (2d Cir. 1997). However, an allegation that a
prison official filed false disciplinary charges in retaliation for the exercise of a
constitutionally protected right, such as the filing of a grievance, does state a claim
under § 1983. Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir.1988). A plaintiff alleging
23
retaliatory punishment “bears the burden of showing that the conduct at issue was
constitutionally protected and that the protected conduct was a substantial or motivating
factor in the prison officials' decision to discipline the plaintiff.” Graham v. Henderson, 89
F.3d 75, 79 (2d Cir.1996). The burden then shifts to the defendant to show that the
plaintiff would have received the same punishment even absent the retaliatory
motivation. Id. at 80. The defendant can meet this burden by demonstrating that there is
no dispute that the plaintiff “committed the most serious, if not all, of the prohibited
conduct charged in the misbehavior report.” Hynes v. Squillace, 143 F.3d 653, 657 (2d
Cir.) (per curiam), cert. denied, 525 U.S. 907 (1998); see also Lowrance v. Achtyl, 20
F.3d 529, 535 (2d Cir.1994) (holding that the defendants met their burden when “it was
undisputed that [the plaintiff] had in fact committed the prohibited conduct”).
To prove that retaliation was the motivating factor behind the adverse
action, the plaintiff must present facts supporting an inference of a causal connection
between the adverse actions and the protected conduct. Dawes v. Walker, 239 F.3d
489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002). In determining whether a causal connection exists between the
plaintiff’s protected activity and a prison official’s actions, a number of factors may be
considered, including: (1) the temporal proximity between the protected activity and the
alleged retaliatory act; (2) the inmate’s prior good disciplinary record; (3) vindication at a
hearing on the matter; and (4) statements by the defendant concerning his motivation.
See Colon, 58 F.3d at 872. Here, neither plaintiff’s complaint nor his opposition to the
instant motion offers any facts to support his conclusory allegation that defendant Mulla
24
drafted a false misbehavior report in retaliation for some constitutionally protected
conduct. Accordingly, defendant’s motion for summary judgment on that claim is
granted.
Excessive Use of Force
Plaintiff claims that defendants, Correction Officer Mulla and Correction
Officer Bryniarski, used excessive force against him in violation of the Eighth
Amendment prohibition against cruel and unusual punishment. Dkt. #1, ¶¶9-10.
That rule, applicable to the states through the Fourteenth Amendment, see Estelle v.
Gamble, 429 U.S. 97, 101-02 (1976), is violated by the unnecessary and wanton
infliction of pain and suffering. See Whitley v. Albers, 475 U.S. 312, 320 (1986). In
assessing an inmate's claims that prison officials subjected him to cruel and unusual
punishment by using excessive force, courts must determine whether the prison officials
acted “in a good-faith effort to maintain or restore prison discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).
To prove an excessive force claim, an inmate must satisfy both an
objective test and a subjective test. Hudson, 503 U.S. at 7-8. Objectively, a section
1983 plaintiff must establish that the force applied was “sufficiently serious” or harmful
to establish a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (additional citations omitted); see
also Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993). This objective component is
25
“contextual and responsive to ‘contemporary standards of decency.’” Hudson, 503 U.S.
at 9. A plaintiff “need not prove ‘significant injury to make out an excessive force claim,”
Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir. 1999), but “a de minimis use of force will
rarely suffice to state a constitutional claim.” Romano, 998 F.2d at 105. De minimis
force, even if clearly unpleasant to endure, does not violate the Eighth Amendment
where “the use of force is not of a sort repugnant to the conscience of mankind.”
Hudson, 503 U.S. at 9-10 (internal quotation marks and citation omitted). Although
“some degree of injury is ordinarily required to state a claim,” United States v. Walsh,
194 F.3d 37, 50 (2d Cir. 1999), the core judicial inquiry is not the extent of the injury
sustained, but rather “‘whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.’” Wilkins v. Gaddy, -U.S. --, 130 S.Ct. 1175, 1179 (2010) (quoting Hudson, 503 U.S. at 7).
The subjective test for an Eighth Amendment excessive force claim
requires the inmate to show that the prison officials “had a ‘wanton’ state of mind when
they were engaging in the alleged misconduct.” Davidson v. Flynn, 32 F.3d 27, 30 (2d
Cir. 1994) (citing Hudson, 503 U.S. at 7). When determining whether the subjective test
has been satisfied, courts may consider, “the need for application of force, the
relationship between that need and the amount of force used, the threat ‘reasonably
perceived by the responsible officials’ and ‘any efforts made to temper the severity of a
forceful response.’” Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321). “The
absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but
does not end it.” Id.
26
Here, plaintiff claims that he was maliciously attacked by defendants
Bryniarski and Mulla. Plaintiff further claims that he suffered a “(1) head busted, (2) left
eye cut open, eyebrow over my left eye, (3) under my chin cut open, (4) both hands
numb, devoid of sensation esp., (5) left-side ribs broken, (6) right lower ankle bone
fracture, (7) lower rightside back injured.” Dkt. #1, ¶10. A Use of Force Report was
prepared by defendant Nurse Jennings, wherein she described plaintiff’s injuries and
the treatment she provided as follows: “Injury #1: 2½ inch laceration to top of left head,
cleansed with sterile water, (8) steri-strips and dermaband applied. #2: ½” laceration to
left eye brow, cleansed with sterile water, (4) steri-strips and dermaband applied. #3: left
chin with small abrasion – cleansed. Inmate alert, cognitively stable; steady gait with
ambulation.” Dkt. #27-5, p.5.
Defendants argue that their use of force was justified and plaintiff suffered only de
minimis injury and further, he received the proper medical care.
Defendants maintain that plaintiff can satisfy neither the objective nor
subjective elements of an excessive use of force claim. Indeed, defendant Jennings
stated that her examination revealed no injuries that needed further medical attention at
that time. Moreover, according to the defendants, the photographs taken immediately
after the use of force support the contention that none of plaintiff’s injuries were
sufficiently serious. With respect to the subjective element, the defendants assert that
the force applied by defendants Bryniarski and Mulla was not done with malicious or
sadistic intent to cause plaintiff harm. More specifically, defendants claim that the
minimal amount of force was used to control the situation and maintain order.
27
Notwithstanding the foregoing, the parties disagree substantially as to how the alleged
incident unfolded. Specifically, plaintiff maintains that as he was walking to the mess
hall, Correction Officer Mulla and Correction Officer Bryniarski told him to place his
hands on the wall and then began to yell at him, slam his head into the wall and kick,
punch and hit him with sticks. Plaintiff further claims that after a bell sounded, more
unidentified correction officers came running, took him downstairs, and “jump[ed] him
again.” Dkt. #1, ¶¶9-10. In sharp contrast, defendants maintain that as plaintiff was
lining up for “chow,” defendant Bryniarski ordered plaintiff to step out of line because he
had both hands in his pockets. Dkt. #27-4, ¶5. Defendant Bryniarski asserts that “as
[he] began to talk to the plaintiff, he [plaintiff] then turned, unprovoked, and swung to
punch me with his closed right fist.” Id. It was at that point that defendant Bryniarski,
assisted by defendant Mulla, used force to subdue plaintiff.
The Court recognizes that plaintiff’s proof of his injuries and of the
excessive force incident itself may be weak. Nonetheless, if “a prisoner’s allegations
and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find
that corrections officers used force maliciously and sadistically,” summary judgment is
improper “even where the plaintiff’s evidence of injury [is] slight and the proof of
excessive force [is] weak.” Wright v. Goord, 554 F.3d 255, 269 (2d Cir. 2009).
Crediting plaintiff's version of events, as this court must in considering the defendants'
motion for summary judgment, Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775,
780 (2d Cir. 2003), there is a question of fact whether the use of force was unrelated to
any effort to maintain order or discipline. See Clarke v. Anderson, 2012 WL 3292879
28
(W.D.N.Y. August 10, 2012) (despite no visible injuries, summary judgment denied
where plaintiff alleged that he was victim of unprovoked assault); Abascal v.
Fleckenstein, 2012 WL 638977, *6 (W.D.N.Y. February 27, 2012) (despite minor injury,
summary judgment denied where plaintiff alleged that CO committed brief but
unprovoked assault unrelated to any effort to maintain or restore discipline); see also
Griffin v. Crippen, 193 F.3d at 90–92 (although plaintiff could offer only his own
testimony and evidence of a bruised shin and a swollen left knee in support of his
excessive force claim, dismissal was inappropriate because there were genuine issues
of material fact concerning whether correction officers, whom plaintiff admittedly
assaulted, maliciously used force against him after he was subdued and handcuffed);
Jordan v. Fischer, 773 F.Supp.2d 255, 272 (N.D.N.Y. 2011) (although plaintiff suffered
only minor injury, summary judgment denied where excessive force claims turned on
issues of credibility). In so concluding, this court expresses no view on the underlying
merits of plaintiff’s claim, but notes only that, if successful, “the relatively modest nature
of his alleged injuries will no doubt limit the damages he may recover.” Wilkins, 130
S.Ct. at 1180. Accordingly, the defendants' motion for summary judgment dismissing
the excessive force claim is denied.
Deliberate Indifference to Serious Medical Needs
In Estelle v. Gamble, the United States Supreme Court determined that
“deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment” to the
United States Constitution. 429 U.S. 97, 104 (1976). To establish an unconstitutional
29
denial of medical care that rises to the level of an Eighth Amendment violation, a
prisoner must prove, beyond mere conclusory allegations, that the defendant acted with
“deliberate indifference to [his] serious medical needs.” Estelle, 429 U.S. at 104. More
specifically, the prisoner must demonstrate both that the alleged deprivation is, in
objective terms, “sufficiently serious,” and that, subjectively, the defendant is acting with
a “sufficiently culpable state of mind.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994), cert. denied, 513 U.S. 1154 (1995). Both the objective and subjective
components must be satisfied in order for a plaintiff to prevail on his claim. Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
Under the objective component, in assessing whether a medical condition
is “sufficiently serious,” the Court considers all relevant facts and circumstances,
including whether a reasonable doctor or patient would consider the injury worthy of
treatment; the impact of the ailment upon an individual’s daily activities; and, the
severity and persistence of pain. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998). A serious medical condition exists where the failure to treat a prisoner’s
condition could result in further significant injury or the unnecessary and wanton
infliction of pain. Id. The alleged deprivation must be “sufficiently serious, in the sense
that a condition of urgency, one that may produce death, degeneration, or extreme pain
exists.” Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998). “[I]n most cases, the
actual medical consequences that flow from the alleged denial of care will be highly
relevant to the question of whether the denial of treatment subjected the prisoner to a
significant risk of serious harm.” Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003).
30
Where the claim is that the care provided was inadequate, plaintiff must
demonstrate that, as an objective matter, the alleged deprivation of adequate medical
care was sufficiently serious, i.e., that he “was actually deprived of adequate medical
care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). In making this
determination, courts assess whether the inadequacy in medical care is sufficiently
serious, i.e., “how the offending conduct is inadequate and what harm, if any, the
inadequacy has caused or will likely cause the prisoner.” Id. at 280.
The subjective component for a claim of deliberate indifference to a
serious medical need requires that the plaintiff establish that the defendant acted with a
“sufficiently culpable state of mind” so as to violate the Eighth Amendment’s cruel and
unusual punishment clause. Wilson v. Seiter, 501 U.S. 294, 298 (1991). “[A] prison
official does not act in a deliberately indifferent manner unless that official ‘knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’” Hathaway, 37 F.3d at 66, quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1994). In Estelle, the Supreme Court ruled that
deliberate indifference may manifest itself in a doctor’s refusal to administer needed
treatment, a prison guard’s intentional denial or delay in granting an inmate access to
medical care, or intentional interference with prescribed treatment. Estelle, 429 U.S. at
104-05.
31
“The subjective element of deliberate indifference ‘entails something more
than mere negligence . . . [but] something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result.’” Hathaway, 99 F.3d at
553, citing Farmer v. Brennan, 511 U.S. 825 (1994); see also Hernandez v. Keane, 341
F.3d 137, 144 (2d Cir. 2003), cert. denied, 543 U.S. 1093 (2005). The Supreme Court
further stated in Estelle that, “an inadvertent failure to provide adequate medical care
cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be
‘repugnant to the conscience of mankind.’” Estelle, 429 U.S. at 105-06. Thus, the
Supreme Court added,
[a] complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a
valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner. In order to state a cognizable claim, a prisoner
must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.
Id. at 106; see also Chance, 143 F.3d at 703 (“[s]o long as the treatment given is
adequate, the fact that a prisoner might prefer a different treatment does not give rise to
an Eighth Amendment violation”). Indeed,
it is well-established that mere disagreement over the proper
treatment does not create a constitutional claim. So long as
the treatment given is adequate, the fact that a prisoner
might prefer a different treatment does not give rise to an
Eighth Amendment violation.
Chance, 143 F.3d at 703. Thus, “a delay in treatment based on a bad diagnosis or
erroneous calculus of risks and costs, or a mistaken decision not to treat based on an
erroneous view that the condition is benign or trivial or hopeless, or that treatment is
unreliable, or that the cure is as risky or painful or bad as the malady” will not constitute
deliberate indifference. Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000).
However, “[p]rison officials are more than merely negligent if they deliberately defy the
express instructions of a prisoner’s doctors.” Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.
1987).
Here, plaintiff’s allegations do not meet the objective component of an
Eighth Amendment violation. Defendant Jennings saw plaintiff after the use of force
incident on March 22, 2011, and described plaintiff’s injuries as follows, “Injury #1: 2½
inch laceration to top of left head, cleansed with sterile water, (8) steri-strips and
dermaband applied. #2: ½” laceration to left eye brow, cleansed with sterile water, (4)
steri-strips and dermaband applied. #3: left chin with small abrasion – cleansed. Inmate
alert, cognitively stable; steady gait with ambulation.” Dkt. #27-5, p.5. Such injuries do
not, as a matter of law, rise to the level of a “serious medical condition” warranting
Eighth Amendment protection. See Davidson v. Scully, 914 F.Supp. 1011, 1015
(S.D.N.Y.1996) (plaintiff’s combined allegations of an eye condition, tinnitus, allergies,
podiatric and knee injuries, post-surgery hernia condition, urological, dermatological and
cardiological problems did not amount to a sufficiently serious injury); Pabon v. Goord,
No. 99 Civ. 5869(THK), 2003 WL 1787268, *4 (S.D.N.Y. March 28, 2003) (clival lesion
at the base of the inmate‘s skull not sufficiently serious); Rodriguez v. Mercado, No. 00
CIV. 8588 JSRFM, 2002 WL 1997885, *8 (S.D.N.Y. Aug. 28, 2002) (bruises to head,
back, and wrists not sufficiently serious); Sonds v. St. Barnabas Hosp. Corr. Health
Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y.2001) (bleeding finger not a severe injury);
Henderson v. Doe, No. 98 Civ. 5011, 1999 WL 378333, *2 (S.D.N.Y. June 10, 1999)
33
(broken finger not severe). In his complaint, plaintiff alleges injuries in addition to those
documented by defendant Jennings, including broken ribs, an ankle fracture and a
“lower right-side back injury.” Dkt. #1, ¶10. Neither plaintiff’s medical records, nor any
of the reports following the March 22, 2011 incident suggest any injuries other than
those described and treated by defendant Jennings. Indeed, plaintiff offers no
elaboration on his broken ribs, ankle fracture and lower right-side back injury. Even
assuming that those injuries were ignored by defendant Jennings, which is not evident
in the record before the Court, plaintiff cannot meet the objective component of an
Eighth Amendment violation. With respect to the subjective component, plaintiff was
seen and treated by defendant Jennings and the medical records support that
conclusion. Plaintiff has thus not presented any evidence to raise a material issue of
fact of deliberate indifference, and therefore it is recommended that defendant’s motion
for summary judgment on this claim be granted.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment
(Dkt. #27) is granted in part and denied in part.
SO ORDERED.
DATED:
Buffalo, New York
December 4, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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