Rogers v. Artus et al
Filing
282
DECISION, ORDER AND NOTICE: For the reasons set forth in the attached Decision and Order, Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 259 is adopted in part as follows: The motions for summary judgment pursuant to Fed. R. Civ. P. 56(a) of defendants Myers 207 , and Barlow-Harper 208 are denied; the motion for summary judgment of defendant Artus 206 is granted in part and denied in part; and the motions for partial summary judgment of defendants Michienzi 203 and McCann 205 are denied. Further briefing shall be submitted consistent with the deadlines set forth in the Decision and Order, and Oral Argument on the issues raised in the Court's Fed.R.Civ.P. 56(f)(3) notice is set for 6/3/2019 at 1:30 PM before Hon. Richard J. Arcara. On 6/3/19, the parties shall also be prepared to set dates for further proceedings, including a bench trial. SO ORDERED.. Signed by Hon. Richard J. Arcara on 5/3/2019. (LAS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WALTER DIAZ a/k/a
ERIC ROGERS,
Plaintiff,
v.
DECISION, ORDER
AND NOTICE
13-CV-21-A
SUPERINTENDENT D. ARTUS. et al.,
Defendants.
This prisoner’s civil rights case is brought by the plaintiff, Walter Diaz, to assert
two primary claims under 42 U.S.C. § 1983 that his constitutional rights were violated
by staff of the Wende Correctional Facility (“Wende”): first, that plaintiff was retaliated
against by the defendants for complaining about being mistreated by corrections
officers; and, second, that plaintiff was assaulted by the defendants on March 22,
2012, and the Superintendent at Wende is also responsible for the assault even
though the Superintendent did not participate in the assault by corrections officers.
Dkt. No. 71.
The case was referred to Magistrate Judge Jeremiah J. McCarthy pursuant to
28 U.S.C. § 636(b)(1) for the conduct of pretrial proceedings. On May 9, 2018, after
the close of pretrial discovery and dispositive motions were filed, the Magistrate Judge
filed a Report and Recommendation recommending that summary judgment pursuant
to Fed. R. Civ. P 56(a) be granted in part, and denied in part, as follows:
(a) granted in favor of all defendants and against plaintiff Diaz
on plaintiff’s claim that the defendants unconstitutionally
retaliated against him for his complaints about mistreatment
by assaulting him on March 22, 2012, and by taking certain
actions to cover up the assault, on the ground that plaintiff
failed to exhaust available administrative grievance
procedures as required by 42 U.S.C. § 1997e(a);
(b) granted in favor of defendants Robert Michienzi, Gloria
Barlow-Harper and James Myers on the plaintiff’s claim that
the defendants unconstitutionally retaliated against the
plaintiff for complaints about mistreatment by corrections
officers on the ground that there is insufficient evidence that
these particular defendants knew of his complaints and that
there is, therefore, insufficient evidence these defendants
acted against him because of his complaints;
(c) denied on the defendants’ argument that the Heck1
doctrine bars the plaintiff’s retaliation claim;
(d) denied on defendant Myers’ arguments (i) that he used
only de minimis force against plaintiff on March 22, 2012, and
cannot therefore have used excessive force during the
alleged assault of the plaintiff, and (ii) that the defendant
failed to intervene to protect plaintiff during the assault by
others;
(e) granted on defendant Barlow-Harper’s argument that she
did not fail to intervene to protect the plaintiff during the
assault by others;
(f) granted in favor of defendant Artus on the ground that he
lacked sufficient personal involvement in any retaliatory acts,
including the assault, to be liable, and because he did not
maintain a de facto policy allowing officers to assault and
retaliate against prisoners at Wende.
See Dkt. No. 259. The parties’ objections to the Report and Recommendation are
presently before the Court.
The Court reviews the findings and conclusions of the Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1). To the extent that a party makes
1
Heck v. Humphrey, 512 U.S. 477 (1994).
2
a timely and specific objection to a magistrate judge’s report and recommendation, the
standard of review is de novo. Id.
In addition, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Accordingly, in order to address in the first instance potentially meritorious issues, the
Court also reviews unobjected-to findings or recommendations in a report and
recommendation by the clear error and manifest injustice standards of review, which
are the standards that govern the Court of Appeals’ discretionary review of forfeited
issues and legal issues that require no fact finding. See Mhany Mgmt., Inc. v. Cty. of
Nassau, 819 F.3d 581, 615 (2d Cir. 2016).
The Court has found oral argument of the parties’ objections to the Report and
Recommendation unnecessary. The Court assumes the parties’ close familiarity with
all the issues before the Court and provides only enough explanation in this Decision,
Order and Notice to describe its findings, conclusions, and directions to the parties.
I. Retaliation--Failure to Exhaust. With respect to the recommendation of the
Magistrate Judge to grant summary judgment pursuant to Fed. R. Civ. P. 56(a)
against plaintiff Diaz on his § 1983 claim that the defendants retaliated against him for
complaining about mistreatment by taking various actions under color of law, the
Court does not adopt the recommended finding that plaintiff failed to exhaust available
administrative remedies as required by 42 U.S.C. § 1997e(a), and does not adopt the
recommendation to grant summary judgment in favor of the defendants on this claim.
Dkt. No. 259, pp. 5-8. Plaintiff’s Grievance Number WDE-36319-12 concerning the
3
alleged assault by corrections officers on March 22, 2012, seems clearly to have led
to exhaustion of plaintiff’s claim that he was assaulted in retaliation for complaining
about mistreatment by corrections officers. The administrative process with respect to
this grievance began with plaintiff’s March 25, 2012 letter describing the assault and
his retaliation theory and that letter was amended by an April 10, 2012 letter. Dkt.
Nos. 223-45, 223-52. It continued with the disposition of Superintendent Artus’ review
dated April 26, 2012, Dkt. No. 223-44, and concluded, for § 1997e(a) exhaustion
purposes, with the September 26, 2012 response of the Central Office Review
Committee of the Department of Corrections and Community Supervision to plaintiff’s
appeal of the prior dispositions. Dkt. No. 223-42; see e.g., Nelson v. Deming, 140
F.Supp.3d 248, 264-66 (W.D.N.Y. 2015). Because plaintiff therefore seems to have
admissible evidence that he did exhaust a claim that he was assaulted on March 22,
2012 in retaliation by defendants under color of law for complaints of mistreatment,
the Court does not adopt the recommendation to grant summary judgment on
plaintiff’s retaliation claim based upon the defendants’ affirmative defense pursuant to
42 U.S.C. § 1997e(a).2
The Magistrate Judge concluded plaintiff Diaz failed to exhaust his retaliation
2
The Court gives Fed. R. Civ. P. 56(f)(3) notice below that it will consider
summary judgment in plaintiff Diaz’s favor that this central claims were exhausted under
42 U.S.C. § 1997e(a). Plaintiff seems also to have exhausted a claim that he was
deprived of property and harassed in retaliation under color of law for his having
complained of mistreatment on March 19, 2012, three days before the alleged
retaliatory assault. Dkt. No. 223-35; see id. 223-33, and 223-32 (grievance
WDE-36274-12); see Dkt. Nos. 223-36, 223-40, 223-38 (claim of abuse of authority on
March 14, 2012 five days before the claim of retaliation on March 19, 2012).
4
claim by finding that other specific alleged retaliatory acts by various defendants —
exclusive of the allegedly retaliatory assault of the plaintiff — were not raised by
plaintiff during administrative proceedings. Dkt. No. 259, pp. 5-8; but see Dkt. No. 71,
pp. 4-8, ¶¶ 19-40; Dkt. No. 222, p. 6, ¶¶ 15-16; pp. 97-98, ¶¶ 74-79; Dkt. No. 258, pp.
20-23. Excluding consideration of the assault, the Magistrate Judge concluded the
following specific allegations that certain defendants retaliated against plaintiff after
the assault are unexhausted:
knowingly filing a false Inmate Misbehavior Report, knowingly
providing false or misleading testimony before the Tier III
Hearing, and knowingly providing false or misleading
testimony to the Erie County Grand Jury
Compare Dkt. No. 259, p. 5, with Dkt. No. 71, ¶ 64. But it is clear that a failure to
administratively exhaust these additional allegations of retaliation does not warrant
summary judgment for a failure to exhaust the entire retaliation claim because, for the
reasons stated above, the retaliation claim was exhausted at least as to the allegedly
retaliatory assault. Jones v. Bock, 549 U.S. 199, 219-24 (2007).
Moreover, because plaintiff Diaz raises fact issues whether false-report and
false-testimony acts by defendants to retaliate against him were part of an effort to
thwart the processing of his administrative grievance that he suffered a retaliatory
assault, see Dkt. No. 222, pp. 94-102, ¶¶ 57-107, it is not clear as a matter of law that
the exhaustion requirement even applies to specific claims based upon these acts.
See Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016). Dead end administrative
grievance procedures are not subject to the § 1997e(a) exhaustion requirement. 136
S.Ct. at 1859. If officials made administrative relief functionally unavailable to plaintiff
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by specific post-assault threats, see Dkt. No. 222, p. 92, ¶ 50 (citing Dkt. No. 223-45,
p. 4); see e.g., Galberth v. Durkin, 2016 WL 3910270, at *3 (N.D.N.Y. 2016), or by a
concerted effort to cover-up a defendant’s actions to retaliate against plaintiff for
plaintiff’s complaints of mistreatment by lying and making false reports, the
defendants’ failure-to-exhaust affirmative defense will fail3 . 136 S.Ct. at 1859-60. The
Court finds plaintiff has raised triable issues of material fact with respect to the
availability of the administrative remedy for the alleged acts of retaliation after the
assault of plaintiff. For all of these reasons, summary judgment in the defendants’
favor pursuant to Fed. R. Civ. P. 56(a) on their failure-to-exhaust affirmative defense
is denied.
II. Retaliation--Lack of Knowledge of Complaints. The Magistrate Judge
recommended that the Court find that defendants Michienzi, Barlow-Harper and Myers
could not be found to be liable for the assault of plaintiff Diaz in retaliation under color
of law for his complaints about mistreatment by corrections officers, Dkt. No. 259, pp.
8-11, because there is insufficient evidence that these particular defendants actually
knew of his complaints. That recommendation presumed that the only actionable
retaliation against plaintiff is the portion of the alleged assault that occurred in D-Block
at Wende. There are triable issues of fact whether each defendant further retaliated
3
Because some defendants’ allegedly false testimony before a Grand Jury
investigating the assault was secret until after this action was filed, plaintiff could not have
invoked the administrative grievance process to claim the false testimony was retaliatory before
commencing the action without engaging in speculation that some of the testimony was false.
Under these circumstances, it is not clear as a matter of law that the administrative grievance
process was functionally available to the defendant.
6
by participating in efforts to thwart the administrative grievance process, and those
additional acts may therefore be actionable even absent administrative exhaustion.
See Ross v. Blake, 136 S.Ct. 1850, 1859-60 (2016). Summary judgment pursuant to
Fed. R. Civ. P. 56(a) in favor of defendants Michienzi, Barlow-Harper and Myers on
plaintiff’s retaliation claim is therefore denied.
III. A Heck v. Humphrey4 Bar to the Claims. The Court adopts the findings
and conclusions in the Report and Recommendation on this argument of the
defendants, Dkt. No. 259, pp. 11-12, and the defendants’ motion for partial summary
judgment on the retaliation claim pursuant to Fed. R. Civ. P. 56(a) is denied for the
reasons stated by the Magistrate Judge. Id.
IV. Defendant Myers’ Use of Force and Failure to Protect. The Court
adopts the findings and conclusions in the Report and Recommendation on the
argument of defendant Myers that he used only de minimus force to restrain plaintiff
Diaz and that he did violate his duty to intervene to protect plaintiff. Dkt. No. 259, pp.
12-17. Defendant Myers’ motion for summary judgment on the assault claim pursuant
to Fed. R. Civ. P. 56(a) is denied for the reasons stated by the Magistrate Judge. Id.
V. Defendant Barlow-Harper’s Failure to Protect. The Court finds that
plaintiff Diaz has raised triable issues of material fact whether defendant BarlowHarper could have intervened to protect the plaintiff at various points of time during
the allegedly lengthy assault in D-Block, or later, when she may have seen and heard
the assault continuing in the infirmary at Wende. Dkt. No. 222, pp. 89-92, ¶¶ 33-49.
4
512 U.S. 477 (1994).
7
Accordingly, the Court does not adopt the findings and conclusions in the Report and
Recommendation with respect to defendant Barlow-Harper’s motion for summary
judgment pursuant to Fed. R. Civ. P. 56(a) in her favor on a failure-to-protect theory
and denies her motion for partial summary judgment on this ground.
VI. Defendant Artus’ Lack of Personal Involvement and
his De Facto Policy Allowing Assaults and Retaliation.
The Court adopts the findings of the Magistrate Judge that plaintiff Diaz raises
no triable issues of fact sufficient to merit trial involving defendant Artus’ having a
direct role in the alleged assault of plaintiff. Dkt. No. 259, pp. 17-23. Defendant Artus
was not present or otherwise directly involved during the March 22, 2012 assault.
However, the Court does not adopt the recommendation to grant summary
judgment on the claim that defendant Artus maintained a de facto policy permitting
officers’ assaults and retaliation against prisoners who complained of mistreatment at
the time of the events alleged by plaintiff Diaz. Although the defendant became the
Superintendent of Wende when he was assigned there on August 22, 2011,
approximately seven months before the alleged assault and cover-up, admissible
Department of Correctional Services records combined with available witness
testimony create triable issues of fact.
Moreover, there are triable issues of fact whether defendant Artus was
personally involved in thwarting the administrative grievance process after the assault,
and thereby personally involved in continuing retaliation against plaintiff Diaz for
plaintiff’s complaints of mistreatment by corrections officers. Dkt. No. 222, pp. 94-96,
8
¶¶ 57-72. Accordingly, summary judgment in favor of defendant Artus pursuant to
Fed. R. Civ. P. 56(a) is partially denied as described above, but is granted with
respect to any claim that he was directly involved in the assault.
VII. Further Proceedings and Rule 56(f)(3) Notice. Before May 17, 2019, the
parties shall confer about their availability for a bench trial pursuant to Fed. R. Civ. P.
42(b) of the defendants’ failure-to-exhaust affirmative defenses under 42 U.S.C.
§ 1997e(a). See Messa v. Goord, 652 F.3d 305, 309-310 (2d Cir. 2011); see e.g.,
Adams v. O’Hara, 2019 WL 652409 (N.D.N.Y. 2019).
Further, pursuant to Fed. R. Civ. P. 56(f)(3), the Court hereby notifies the
parties that the Court intends to consider granting partial summary judgment to
plaintiff Diaz with respect to the defendants’ failure-to-exhaust affirmative defenses
under 42 U.S.C. § 1997e(a). On or before May 17, 2019, the defendants shall file
statements whether the following facts are disputed or undisputed:
1. The documents at Dkt. Nos. 223-42, 223-45, 223-52, and 223-44 are each
fair and accurate copies of records related to plaintiff Diaz’s grievance
WDE-36319-12.
2. The documents at Dkt. Nos. 223-35, 223-33, and 223-32 are each fair and
accurate copies of records related to plaintiff’s grievance WDE-36344-l2.
If defendants dispute any of the facts referenced in the preceding two paragraphs,
they shall provide the Court with a proffer of the admissible evidence and governing
law upon which they rely to dispute any facts relevant to the authenticity of each of the
documents.
9
On or before May 17, 2019, the defendants shall show cause why the Court
should not grant partial summary judgment pursuant to Fed. R. Civ. P. 56(a) and
56(f)(3) in favor of plaintiff Diaz on the defendants’ 42 U.S.C. § 1997e(a) exhaustion
affirmative defenses as follows:
1. Plaintiff exhausted the claim in grievance WDE-36319-l2 that he was
assaulted on March 22, 2012 by prison officials acting under color of law.
2. Plaintiff exhausted the claim in grievance WDE-36319-l2 that the alleged
assault on March 22, 2012 by prison officials was retaliation under color of law for
complaints plaintiff had made of being mistreated.
3. Plaintiff exhausted the claim in grievance WDE-36344-l2 that he was
deprived of property and harassed by a prison official or prison officials on March 19,
2012, and that the officials were acting under color of law in retaliation for complaints
plaintiff had made of being mistreated.
Plaintiff shall respond to the defendants’ May 17, 2019 filings on or before May
24, 2019. Defendants’ shall reply on or before May 29, 2019.
Counsel shall appear for a status conference, for oral argument of the issues
raised in the Court’s Fed. R. Civ. P. 56(f)(3) notice, and to set dates for further
proceedings, including commencement of a bench trial pursuant to Fed. R. Civ. P.
42(b) of the defendants’ remaining failure-to-exhaust affirmative defenses under 42
U.S.C. § 1997e(a) on June 3, 2019 at 1:30 p.m.
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CONCLUSION
For the reasons stated above, the motions for summary judgment pursuant to
Fed. R. Civ. P. 56(a) of defendants Myers (Dkt. No. 207), and Barlow-Harper (Dkt. No.
208) are denied; the motion of for summary judgment of defendant Artus (Dkt. No.
206) is granted in part and denied in part as specified above; and the motions for
partial summary judgment of defendants Michienzi (Dkt. No. 203) and McCann (Dkt.
No. 205) are denied. The Report and Recommendation (Dkt. No. 259) is adopted in
part and rejected in part as specified above.
IT IS SO ORDERED.
__s/Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 3, 2019
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