Mirabella v. O'Keenan et al
Filing
58
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 48 Motion for Summary Judgment; DISMISSING Defendant Brown; DIRECTING mediation as specified. Signed by Hon. William M. Skretny on 7/31/2018. (MEAL)- CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TODD MIRABELLA,
Plaintiff,
v.
DECISION AND ORDER
15-CV-142S
CORRECTION OFFICER O’KEENAN, et al.,
Defendants.
I. INTRODUCTION
Plaintiff Todd Mirabella, an inmate housed at Attica Correctional Facility (“Attica”),
filed this action alleging violations of his Eighth Amendment rights under 42 U.S.C.
§ 1983.
Presently before the Court is Defendants Correctional Officer Kiener and
Sergeant Brown’s Motion for Summary Judgment (Docket No. 48), seeking dismissal of
the claims against them.1 For the following reasons, the motion is denied as to the claim
against Correctional Officer Kiener and granted as to the claim against Sergeant Brown.
II. BACKGROUND2
At the time of the events alleged in the Complaint, Mirabella was an inmate in the
care and custody of the Department of Corrections and Community Supervision
(“DOCCS”), serving time for a sex crime. In February 2014, Mirabella transferred from
Elmira Correctional Facility into Attica, where he was eventually placed in D Block, 39
Company. During the relevant period, Defendant Kiener was assigned as the 3 p.m. to
Kiener and Brown are the only remaining Defendants following this Court’s decision on the Defendants’
earlier motion to dismiss brought under Rule 12(b)(6). (Docket No. 35.)
2 The facts are derived principally from the parties’ Local Rule 56 Statements, the parties’ declarations, and
exhibits attached thereto. Only the facts necessary to the resolution of the motion are recounted below.
The facts are undisputed unless otherwise stated.
1
1
11 p.m. shift officer for 39 and 40 companies, though he sometimes worked other jobs
and shifts; Defendant Brown was employed as a Correction Sergeant at Attica and may
have been assigned to D Block on the 3 p.m. to 1 a.m. shift, though he also worked other
jobs and shifts.
Mirabella alleges that, soon after he moved to Attica’s D Block, around April 7,
2014, an inmate informed him that “Officer K” had put a “hit” out on him and showed other
inmates a printed copy Mirabella’s criminal charges. Mirabella further alleges that, on
that same day, Kiener told Mirabella there was a “hit” on him and that he had printed out
Mirabella’s charges and shown them to the inmates because he thought it was important
they know the nature of Mirabella’s conviction. Mirabella also alleges that, on April 16,
2014, he saw Kiener whisper in to the porter’s cell “When are you going to take care of
this guy?” Mirabella understood this to be encouraging an attack.
Kiener states that he recalls having a conversation with an inmate who was later
slashed in the yard, who he believes to be Mirabella, but denies that it took place as
Mirabella described. Kiener contends that the inmate told him the nature of the criminal
charges without Kiener asking3 and, in response, Kiener inquired why the inmate was
going into the yard because it is a common location for inmate-on-inmate violence. Kiener
later stated that, in his experience as a corrections officer, an inmate convicted on sexrelated charges is more likely to be a victim of attacks from other inmates. Kiener also
disputes having printed out any criminal charges.4
3
Mirabella contends that he never told anyone at Attica the nature of his conviction after the day that he
arrived there.
4 Kiener states that he did not have access to the inmate conviction information maintained on DOCCS
computers. However, certain information pertaining to DOCCS inmates is publicly available online,
including an inmate’s crimes of conviction. See Department of Corrections and Community Supervision
Inmate Lookup, http://nysdoccslookup.doccs.ny.gov/.
2
Mirabella alleges that, due to his concern regarding the “hit” and other harassment
by correctional officers, he wrote two letters directed to “Sergeant” and placed them into
a locked mailbox in D Block into which inmates can deposit correspondence to the Block
Sergeants. In the first letter, dated April 13, 2014, Mirabella stated that a correctional
officer threatened to kill him, that another correctional officer put a “hit” on him, and that
he had been denied certain privileges, without naming any specific officers. In the second
letter, dated April 17, 2014, Mirabella specified that “Officer K,” presumably Kiener, “has
effectively put a ‘hit’ on me by printing out the incidentals of my case and providing that
info to several 39 company inmates for the sole reason of inciting violence.” (Docket No.
1-1 at 5.)
Brown did not respond to Mirabella’s letters nor, apparently, did any other
Sergeant. On a given day, three Sergeants are assigned to D Block, one for each of the
three separate shifts.
In addition, other Sergeants would fill in for the scheduled
Sergeants on their days off. Any one of these Sergeants, aside from Brown, could have
received the Mirabella’s letters. Mirabella admits that he did not send the letters to a
specific sergeant and did not know which sergeant would receive them. Brown stated
that he checked the Sergeant’s mailbox at the start of each shift, never received either of
the Mirabella’s letters, and would have responded if he had.
On April 19, 2014, two days after Mirabella sent his second letter, Mirabella was
attacked in the D Block yard by another inmate. Mirabella states that he had never seen
his attacker prior to the incident, does not know his name, nickname, or department
identification number, and does not believe he was housed on 39 Company. Kiener and
Brown were not present in the yard when Mirabella was attacked.
3
Immediately after the attack, Mirabella left the yard and went inside where a group
of Officers were on duty, including Kiener. Kiener asked Mirabella to remove the paper
towels he had over the wound so Kiener could determine the severity of the injury and
assess whether Mirabella should be taken to the infirmary. Kiener did not say anything
to Mirabella when he examined at the wound.
Mirabella was then escorted to the
infirmary. The incident resulted in in a 7.5 inch slash to the left side of Mirabella’s face
that required 27 sutures and caused a permanent scar. Mirabella never saw his attacker
again.
Mirabella alleges that his cell was intentionally left open while he was being treated
for his injury, which facilitated payment (e.g., the valuable items in Mirabella’s cell) to the
inmate or inmates involved in the attack.5 Mirabella also cites a letter from Attica Captain
Gilmore sent to Mirabella’s family after the slashing, wherein Gilmore states that it was
“not unusual” for inmates like Mirabella to have “problems” with other inmates
“considering the nature of his crimes.” (Docket No. 56-20.)
III. DISCUSSION
“A motion for summary judgment may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v.
Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). A court’s function on a summary
judgment motion “is not to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute exists.” Id. (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).
5
Mirabella was reimbursed in full (less a few food items) for the property taken from his cell.
4
“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.’” Weinstock v. Columbia Univ., 224
F.3d 33, 41 (2d Cir. 2003) cert. denied, 540 U.S. 811 (2003) (quoting Anderson, 477 U.S.
at 248). A court must also “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against
the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
A.
Claim Against Kiener
Mirabella alleges that Kiener violated his Eighth Amendment rights by publishing
his charges to other inmates and that this was the cause of the attack by an unknown
inmate less than two weeks later. Kiener argues that Mirabella has failed to meet the
subjective and objective requirements of the Eighth Amendment, and that he has failed
to show causation.
Under the Eighth Amendment, “[p]rison officials have a duty to protect prisoners
from violence at the hands of other inmates since being violently assaulted in prison is
‘simply not part of the penalty that criminal offenders pay for their offenses against
society.’” Lee v. Artuz, No. 96-CV-8604, 2000 WL 231083, at *4 (S.D.N.Y. Feb. 29, 2000)
(quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)
(citation omitted)). To establish an Eighth Amendment claim, a prisoner must satisfy a
two-part test, composed of an objective and subjective element. Farmer, 511 U.S. at 845.
Objectively, the conduct at issue, evaluated “in light of contemporary standards of
decency,” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (internal quotation marks
omitted), must be “sufficiently serious . . . to reach constitutional dimensions,” Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1996) (internal quotation marks omitted). The
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subjective element requires the prison official accused of violating the Eighth Amendment
to have possessed a “wanton state of mind” in carrying out the conduct at issue. Branham
v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996) (internal quotation marks omitted).
Construing the disputed facts in the light most favorable to Mirabella, as this Court
must for the purposes of this motion, Kiener told Mirabella there was a “hit” on him, and
told other inmates that Mirabella had been convicted of a sex crime, knowing that inmates
who are convicted of such crimes are more likely to be the victim of inmate-on-inmate
violence. Kiener also asked the porter in a cell near Mirabella’s when he would “take care
of” Mirabella. As this Court has previously held, the allegations that Kiener purposefully
informed other inmates of the nature of Mirabella’s charges in order to incite violence
against him satisfies the first—objective—prong of the Eighth Amendment inquiry. Smith
v. Miller, No. 15-CV-9561 (NSR), 2017 WL 4838322, at *11 (S.D.N.Y. Oct. 23, 2017)
(“there is no question that instructing or encouraging other [inmates] to attack an inmate
poses an objectively serious risk of harm”).
Mirabella’s allegations also satisfy the
second—subjective—portion of the test, as “[i]ntentionally exposing an inmate to the risk
of harm . . . with no penological purpose is indicative of deliberate indifference to the
inmate’s safety at best and manifests an intent to harm the inmate at worst.” Mirabella v.
Correction Officer O'Keenan, No. 15-CV-142S, 2016 WL 4678980, at *4 (W.D.N.Y. Sept.
7, 2016) (quoting Medina v. Whitehead, No. 3:13-CV-885 VLB, 2014 WL 3697886, at *2
(D. Conn. July 24, 2014)). Although Kiener argues that corrections officers are generally
not liable in a surprise or isolated attack, as happened here, that is because the officers
in such cases are not on notice of potential danger to the victim. See, e.g., Fernandez v.
New York City Dep't of Correction, No. 08 CV 4294(KMW), 2010 WL 1222017, at *4
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(S.D.N.Y. Mar. 29, 2010) (no liability in “surprise attacks” where there is not “clear notice
of a risk of harm to the prisoner”). Here, not only was Kiener alleged to be on notice of
potential inmate violence against Mirabella, his actions created the danger.
Kiener further contends that Mirabella has not submitted direct evidence to
establish that his alleged actions were the cause of the attack. However, circumstantial
evidence of causation can be “sufficient to raise a genuine issue of material fact
precluding the grant of summary judgment.” See Mateo v. Fischer, No. 08 CIV. 7779
RJH, 2011 WL 3586074, at *4 (S.D.N.Y. Aug. 11, 2011) (quoting Gayle v. Gonyea, 313
F.3d 677, 684 (2d Cir. 2002)). Here, the circumstantial facts that could allow a finder of
fact to conclude that Kiener’s alleged actions incited the attack include: (i) the temporal
proximity between Kiener informing other inmates of Mirabella’s charges and the attack;
(ii) Kiener’s statement that he thought the other inmates should know about Mirabella’s
charges; (iii) the incendiary nature of Mirabella’s charges and the acknowledgment that
inmates with such charges are more likely to be attacked; and (iv) Mirabella’s statement
that he did not know or have any prior issues with the inmate who attacked him.6
Mirabella’s allegations that Kiener conspicuously published his criminal charges to
inmates on the cell block, and that Kiener told Mirabella he had a “hit” on him, suggest
deliberate conduct that created a real risk of physical injury. These allegations are
distinguishable from the evidence in King v. Dep't of Correction, No. 95 CIV. 3057 (JGK),
1998 WL 67669 (S.D.N.Y. Feb. 18, 1998), in which the plaintiff relied primarily on his
“feeling” that an officer was colluding with his attackers and vague threats. Id. at *4.
Mirabella’s allegations regarding Kiener’s statements are sufficiently specific to suggest
6
Mirabella contends that the theft of his belongings and the lack of investigation after the attack further
demonstrates that the attack was encouraged by Kiener and condoned by other corrections officers.
7
that Kiener sought to provoke an inmate-attack, and Mirabella actually suffered such an
attack, resulting in an injury and a permanent facial scar. Such evidence, viewed in the
light most favorable to Mirabella, satisfies both the objective and subjective prongs of the
Farmer test and provides circumstantial evidence of causation.
Accordingly, Kiener’s motion for summary judgment as to the claim against him is
denied.
B.
Claim Against Brown
Mirabella alleges that Brown violated his constitutional rights by failing to respond
to the letters he placed in the Sergeant mailbox in which he expressed fear for his safety
and sought assistance. Brown contends that he did not receive the letters and that
Mirabella has provided evidence of personal involvement.
1. Personal Involvement
“It is well settled that, in order to establish a defendant’s individual liability in a suit
brought under § 1983, a plaintiff must show, inter alia, the defendant’s personal
involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720
F.3d 133, 138 (2d Cir. 2013). A plaintiff can show that a supervisor was personally
involved in at least one of five ways: “(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom
under which unconstitutional practices occurred, or allowed the continuance of such a
policy or custom, (4) the defendant was grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information indicating that unconstitutional acts were
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occurring.” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In Grullon, the Second Circuit held that, “[a]t the pleading stage, even if [the
plaintiff] had no knowledge or information as to what became of his Letter after he sent it,
he would be entitled to have the court draw the reasonable inference . . . that the Warden
in fact received the Letter, read it, and thereby became aware of the alleged conditions
of which [the plaintiff] complained.” 720 F.3d at 141. See also Toliver v. City of New
York, 530 Fed. App’x 90, 93 (2d Cir. 2013) (describing Grullon as: “pro se allegations that
a prisoner sent a letter to a warden complaining of unconstitutional conditions that were
not remedied are sufficient to state a claim for deliberate indifference against the
warden”). Following Grullon’s approach, this Court denied Brown’s 12(b)(6) motion to
dismiss in order to allow discovery as to whether Brown received Mirabella’s letters and
read them.
But the holding in Grullon—that properly addressing and sending a letter to the
official is sufficient to support a plausible claim of deliberate indifference to safety at the
pleading stage —does not extend past discovery. See Grullon, 720 F.3d at 140-41; Davis
v. Kelly, 160 F.3d 917, 921-22 (2d Cir. 1998) (“After an opportunity for discovery,
undisputed allegations that the supervisor lacked personal involvement will ultimately
suffice to dismiss that official from the case.”). At the summary judgment stage, Mirabella
must provide evidence to support his claim that Brown in fact received his letters and
failed to take corrective action. See Paschal-Barros v. Santili, No. 3:16-CV-1690 (JCH),
2017 WL 8776959, at *5 (D. Conn. Nov. 30, 2017) (“Without evidence showing that
[defendant] actually received and reviewed [plaintiff’s communication], no reasonable jury
could conclude that [defendant] was aware that [plaintiff] faced a substantial risk of
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harm”); Braham v. Perelmuter, 3:15-cv-1094 (JCH), 2017 WL 3222532, *13 (D. Conn.
Jul. 28, 2017) (rejecting the argument that Grullon applies at the summary judgment stage
and holding that the plaintiff “must provide evidence to support his claim that the
defendant in fact received the letter [in question]”).
Discovery now having closed, Brown has asserted that he did not receive the
letters and was not aware of Mirabella’s allegations of constitutional violations. Further,
although Brown may have been assigned to D Block on the dates in question, he was
also assigned to other jobs and shifts at Attica, and, even if he had been assigned to D
Block on the days that the Mirabella placed the generically addressed letters into the
sergeants’ mailbox, at least two other sergeants also had access to that mailbox. The
only evidence submitted by Mirabella that might suggest Brown did receive the letters are
inadmissible hearsay statements from other inmates.
This Court finds that Brown was able to provide sufficient evidence through
discovery to demonstrate that he was not personally involved in the violations at issue,
and Mirabella has failed to oppose that evidence. See Cater v. New York, No. 17 CIV.
9032 (RWS), 2018 WL 3093964, at *5 (S.D.N.Y. June 21, 2018) (dismissing claim where
there were “no factual allegations to support an inference that the [defendant] was aware
of Plaintiff's telephone and email communications to his office”). Accordingly, the claim
against him is dismissed.7
IV. CONCLUSION
For the foregoing reasons, Kiener’s motion for summary judgment is denied.
Brown’s motion for summary judgment is granted and the claim against him is dismissed.
7
Because this Court has dismissed the claim against Brown for lack of evidence of his personal
involvement, it does not reach Brown’s argument as to qualified immunity.
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V. ORDERS
IT HEREBY IS ORDERED that the Motion for Summary Judgment (Docket No.
47) is GRANTED in part and DENIED in part;
FURTHER, that Defendant Brown is dismissed;
FURTHER, that the parties shall re-engage in mediation. The parties must contact
their mediator within ten days of the entry date of this order to schedule a mediation
session. A mediation session must take place within 45 days of the entry date of this
order. The mediator must thereafter file a Mediation Certificate advising this Court on the
progress of mediation. If mediation concludes unsuccessfully, this Court will schedule a
status conference to discuss trial readiness.
SO ORDERED.
Dated: July 31, 2018
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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