Smith v. Goord et al
Filing
66
ORDER granting 62 Defendants' Second Motion for Summary Judgment. Plaintiff's 1 Complaint is dismissed in its entirety with prejudice. CLERK TO FOLLOW UP. Signed by Hon. Michael A. Telesca on 02/27/12. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANDRÉ SMITH,
DECISION AND ORDER
No. 07-CV-6265(MAT)
Plaintiff,
-vsCOMMISSIONER GLENN GOORD, ACTING
SUPERINTENDENT L. McNAMARA,1
CORRECTIONS OFFICER AUGUSTINE,
CORRECTIONS OFFICER J. GILBERT,
CORRECTIONS OFFICER T. HABLE,
Defendants.
I.
Introduction
André Smith (“Smith” or “Plaintiff”), proceeding pro se and in
forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983,
complaining of a violation of his civil rights by prison officials
at
Southport
Correctional
Facility
(“Southport”)
and
seeking
recovery of compensatory and punitive damages. (Dkt. #1). With the
permission of the Court (Siragusa, D.J.), defendants have filed a
second motion for summary judgment (Dkt. #62), and Plaintiff has
submitted a response (Dkt. #65). This matter was transferred to the
undersigned on January 10, 2012. (Dkt. #64). For the reasons that
follow,
defendants’
motion
is
granted
and
the
complaint
is
dismissed in its entirety.
1
In a Decision and Order entered on February 11, 2008 (Dkt. #19), Judge
Siragusa Court dismissed the claims against Commissioner Goord and Acting
Superintendent McNamara.
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II.
Background
A.
The July 5, 2005 Use-Of-Force Incident and Plaintiffs’
Grievances
At about 7:45 a.m. on July 5, 2005, Corrections Officer (“CO”)
Timothy Hable (“Hable”), who was accompanied by CO James Gilbert
(“Gilbert”), handcuffed Smith through the food slot of his celldoor as part of the procedure for allowing Smith to exit his cell
for recreation hour, and instructed him, according to the standard
practice, to turn his back to the cell door. Plaintiff contends
that Hable and Gilbert opened the cell door, rushed into the cell,
and began beating him. Smith also asserts that several minutes into
the beating, CO Richard Augustine (“Augustine”) arrived and punched
him in the face twice. The photos taken after the assault show
Smith with massive swelling on all parts of his head as well as
several lacerations. Smith v. Goord, No. 07-CV-6265-CJS, 2009 WL
3213289, at *1 (W.D.N.Y. Aug. 27, 2009) (Siragusa, D.J.) (Dkt. #56)
(citation
to
record
omitted).
Smith,
who
appears
to
be
semi-conscious, is being propped up by two guards for the camera.
Id.
According to the report filed by prison staff, Smith while
being let out of his cell for exercise, turned to his right
and–unprovoked–kicked Gilbert in his left shin. See Use Of Force
Report, attached to the Declaration of Karen Bellamy (“Bellamy
Decl.”) (Dkt. #48).
As Hable attempted to push Smith into his
cell, Smith hit Hable in the chest with a closed fist and his
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restraints. Id. Gilbert applied a “bear hug” to Smith’s upper body,
forcing him to the floor face-first. Id. Hable assisted Gilbert by
grabbing Smith’s left upper torso with his hands. Augustine applied
a “figure four” leg-lock and CO Evans (not a defendant in this
action) applied leg irons and the waist chain with assistance from
Hable. The corrections officers all denied using excessive force
against Smith. Id.
As a result of the incident, Smith was charged with violent
conduct, assault on staff, interference with an employee, and
refusing a direct order. However, on July 13, 2005, he was found
not guilty on all charges at a Tier III hearing. Smith, 009 WL
3213289, at *1 (Dkt. #56).
Aside from a one-page hearing record
sheet, Southport has no other record of the proceeding. Id.
Smith filed a grievance, SPT-34084-05, on July 5, 2005,
alleging the following:
On July 5th, 2005, as I was attempting to go to
recreation, I was assaulted by three C.O.s (correctional
officers) in A-Block, 12 Gallery. These three officers
ran in my cell, without a seargant [sic] being present
and hit me 20 times in the face.
I currently have a lawsuit pending against Commissioner
Glenn Goord. I believe this assault was done in
retaliation to my lawsuit and was meant to intimidate me.
Plaintiff’s Exhibit (“Pl. Ex.”) H (Dkt. #53). Plaintiff also
submitted a handwritten memorandum from a “Sgt. Sampsell” dated
August 5, 2005, in which the sergeant reported that he interviewed
Plaintiff and three witnesses.
In
a
written
decision
Id.
dated
-3-
August 20,
2005,
an
acting
superintendent (whose signature is illegible) at Southport denied
Plaintiff’s
grievance
stating
that
he
found
no
evidence
to
substantiate the allegations asserted in the grievance. Smith, 2009
WL 3213289, at *2 (Dkt. #56).
Plaintiff did not appeal this denial but instead filed a
second
grievance
Superintendent
(SPT-34335-05)
Michael
P.
on
McGinnis
August
4,
2005,
(“McGinnis”),
against
and
Deputy
Superintendent for Security P. Chappius, Jr. (“Chappius”).
See
Grievance SPT-34335-05, Aug. 2, 2005, at 2-3, Pl. Ex. I (Dkt. #53).
SPT-34335-05 sought redress against McGinnis and Chappius for
rejecting Smith’s first grievance and for failing to adequately
investigate his allegations of retaliation and excessive use of
force. The relief requested was for McGinnis and Chappius to
“properly
investigate”
the
first
grievance.
Id.
at
3.2
This
grievance was denied, and Plaintiff’s appeal to the Central Office
Review Committee (“CORC”) was unsuccessful.
B.
In
The First Summary Judgment Motion
Presently Pending Before This Court
support
of
their
first
motion
for
and
the
summary
Claims
judgment,
defendants submitted evidence establishing that SPT-34084-05 was
not appealed, see Bellamy Decl., ¶¶4-5 & Exhibit (“Ex.”) A, and
refuted Plaintiff’s assertion in a post-deposition filing that he
2
Defendants have submitted proof, e.g., a declaration from the director of
the Inmate Grievance Program at the New York State Department of Corrections,
establishing that this grievance was appealed to CORC and therefore is exhausted
for purposes of this litigation. See Bellamy Decl., ¶¶4-5 & Ex. A (Dkt. #48).
-4-
filled out all the necessary paperwork to appeal this decision to
the CORC, but Southport’s Inmate Grievance Resolution Committee
(“IGRC”) did not process his appeal. Because Smith failed to appeal
the first grievance (SPT-34084-05) to the CORC, Judge Siragusa
therefore granted summary judgment to defendants on any claims
stemming from SPT-34084-05. Specifically, Judge Siragusa dismissed
Plaintiff’s claims that defendants Augustine, Hable, and Gilbert
used excessive
force
against
him
in violation
of
the
Eighth
Amendment. Smith, 2009 WL 3213289, at *6 (Dkt. #56).
As Judge Siragusa found, the alleged July 5, 2005 assault,
“though mentioned by the superintendent in his response to the
August grievance [SPT-34335-05], was not challenged [by Plaintiff]
in the August grievance.” Smith, 2009 WL 3213289, at *5 (Dkt. #56)
(citing Grievance SPT-34335-05, Aug. 2, 2005, at 2-3, Pl. Ex. I
(Dkt.
#53)).3
Judge
Siragusa
interpreted
SPT-34335-05
as
challenging the allegedly inadequate investigation into the July 5,
2005 assault, as well as a claim that Augustine verbally harassed
Smith
regarding
his
pending
lawsuits
and
his
character
and
religion. Smith, 2009 WL 3213289, at *5 (Dkt. #56). Noting that
Plaintiff’s claims in this lawsuit were that Defendants used
excessive force in violation of his Eighth Amendment rights, and
3
For instance, in a paragraph of the August grievance which Plaintiff
labeled “Action Requested,” he wrote, “I would appreciate it if you would contact
Superintendent McGinnis and Deputy Chappus [sic] and ask them to investigate my
claims and properly investigate this situation.” Id. (quoting SPT-34335-05, Aug.
2, 2005, at 3) (emphasis supplied).
-5-
that the fully exhausted grievance did not challenge the alleged
assault by Augustine, Hable, and Gilbert, Judge Siragusa found that
the “fully exhausted August grievance does not support Plaintiff’s
Eighth Amendment excessive force claims against Defendants and
those claims must be dismissed.” Id. at *6 (Dkt. #56). Judge
Siragusa stated that “[a]ny remaining claims may go forward, as
limited by the scope of Plaintiff’s fully-exhausted grievance SPT3433-05, dated August 4, 2005.” Smith v. Goord, No. 07-CV-6265-CJS,
2009 WL 3213289, at *6 (W.D.N.Y. Aug. 27, 2009). Smith v. Goord,
2009 WL 3213289, at *5.
Judge Siragusa granted defendants permission to file a second
motion for summary judgment, in which they now argue that any claim
pertaining
to
an
allegedly
deficient
investigation
must
fail
because the individuals who failed to investigate (Chappius and
McGinnis) are not defendants in this lawsuit and, in any event,
there is no liability under 42 U.S.C. § 1983 for an inadequate
investigation of a prisoner’s grievance. With regard to the claim
of verbal harassment by
Augustine, defendants argue that Smith’s
allegations do not state a cognizable constitutional violation.
In
his
response,
Plaintiff
asserts
that
his
exhausted
grievance (SPT-34335-05) includes the following three claims: (1)
a
Fourteenth
Amendment
Equal
Protection
Clause
claim;
(2)
a
Fourteenth Amendment Equal Protection Clause claim; and (3) a First
Amendment retaliation claim. Plaintiff did not submit any argument
-6-
in
support
of
these
assertions.
He
requested
that
the
Court
schedule a pre-trial conference so that the parties might discuss
settlement possibilities and trial-management matters.
III. Discussion
A.
General Legal Standards
1.
Summary
Summary Judgment
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. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). A material fact
is genuinely in dispute “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248. Unrepresented litigants are entitled to “a certain
liberality with respect to procedural requirements.” Mount v.
Book-of-the-Month Club, Inc., 555 F.2d 1108, 1112 (2d Cir. 1977);
see also Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998)
(“[P]ro se litigants are afforded some latitude in meeting the
rules governing litigation[.]”) (citations omitted).
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2.
42 U.S.C. § 1983
Plaintiff brings this action pursuant to 42 U.S.C. § 1983,
which provides in relevant part as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any state . . . ,
subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action
at law . . . for redress.
42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must
allege (1) that the challenged conduct was attributable at least in
part to a person acting under color of state law, and (2) that such
conduct deprived plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States. E.g.,
Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir. 1993).
B.
Plaintiff’s Claim of Verbal Harassment Against Augustine
According to Smith, prior to the use-of-force incident, CO
Augustine had made several insulting comments about him, including
“Your [sic] a fake freedom fighter”; and “You Muslims are pieces of
shit.” Grievance SPT-34335-05, Aug. 2, 2005, at 1, Pl. Ex. I (Dkt.
#53)). Plaintiff claims that CO Augustine implicitly threatened him
by stating, “You better drop that lawsuit against Goord”. Id.
“‘Verbal harassment itself does not rise to the level of a
constitutional violation. Verbal abuse, vulgarity, and even threats
are
insufficient
to
rise
to
the
level
of
constitutional
violations.’” Tafari v. McCarthy, 714 F. Supp.2d 317, 365 (N.D.N.Y.
-8-
2010) (quoting DeJesus v. Tierney, No. 9:04-CV-298, 2006 U.S. Dist.
LEXIS 22949, 2006 WL 839541, at *33 (N.D.N.Y. Mar. 28, 2006)
(citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (“The
claim that a prison guard called Purcell names also did not allege
any appreciable injury and was properly dismissed.”) (citation
omitted)) and citing Ramirez v. Holmes, 921 F. Supp. 204, 210
(S.D.N.Y. 1996) (“Allegations of threats or verbal harassment,
without any injury or damage, do not state a claim under 42 U.S.C.
§ 1983”); footnote omitted). Because Smith did not suffer any
injuries as a result of Augustine’s alleged verbal harassment, he
cannot sustain a claim under 42 U.S.C. § 1983. Therefore, the
verbal harassment claim against Augustine is dismissed.
B.
Plaintiff’s First Amendment Retaliation Claim
As noted above, Plaintiff has asked the Court to construe his
grievance SPT-34335-05 as including a “First Amendment Retaliation
Claim” which is “detailed in the Complaint.” The Court has reviewed
the Complaint, and the only allegations that relate to a First
Amendment
claim
are
that
Augustine
destroyed
Smith’s
legal
documents after he filed the first grievance; and that Augustine,
Hable, and Gilbert assaulted Smith on July 5, 2005, in retaliation
for filing a lawsuit. See Complaint, ¶¶17-20, 22 (Dkt #1). With
regard to the destruction of his legal documents, Smith indicates
that he filed a grievance (not SPT-34335-05, which is the only
grievance at issue in this litigation), asserting that he was
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hindered in completing discovery in another civil rights lawsuit
pending in this district. Smith claims that Augustine was found to
have committed misconduct by failing to properly inventory Smith’s
belongings. Id., ¶¶19-20 (Dkt #1).
This claim of First Amendment retaliation is not properly
before the Court. As Judge Siragusa determined, the only claims
presently pending are those that can be discerned from the second
grievance, SPT-34335-05. By Plaintiff’s own admission, the alleged
destruction of Plaintiff’s legal documents was grieved in another
administrative proceeding and therefore is outside the scope of
this litigation. Accordingly, it is dismissed.
With regard to the claim that the assault by Augustine, Hable,
and Gilbert, constituted retaliatory treatment, this claim likewise
is not properly before the Court. The only claims that are pending
before the Court are those presented in the second grievance. The
alleged assault by Augustine, Hable, and Gilbert was grieved in the
first grievance, which was found to be unexhausted. It was not
grieved in the fully exhausted grievance. Therefore, Plaintiff’s
claim of retaliation arising from the corrections officers’ assault
must be dismissed.
C.
Plaintiff’s Equal Protection Claim
Plaintiff has asked the Court to find that grievance SPT34335-05 includes an equal protection claim, which he asserts is
“detailed in the Complaint.” The allegations in the Complaint that
-10-
pertain to an Equal Protection claim are that the July 5, 2005
assault by Augustine, Hable, and Gilbert was a violation of his
right to equal protection under the laws. See Complaint, ¶21 (Dkt.
#1).
Again, this claim is not properly before the Court. The only
claims that are pending before the Court are those presented in the
second grievance. The alleged assault by Augustine, Hable, and
Gilbert was addressed in the first grievance which was found to be
unexhausted.
Therefore,
Smith’s
claim
that
the
corrections
officers’ assault of him violated his right to equal protection
under the laws must be dismissed.
D.
Plaintiff’s Due Process Claim
Plaintiff has requested the Court find that grievance SPT34335-05
includes
a
due
process
claim,
which
he
asserts
is
“detailed in the Complaint.” The only allegation in the Complaint
that pertain to a due process claim is a statement that the July 5,
2005 assault by Augustine, Hable, and Gilbert was a violation of
his right to due process. See Complaint, ¶21 (Dkt. #1).
As with the equal protection and retaliation claims, the due
process
claim
is
not
properly
before
the
Court
because
the
underlying due process violation (the assault) was addressed in the
first grievance which was found to be unexhausted. Therefore,
Smith’s due process claim stemming from the corrections officers’
assault must be dismissed.
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E.
The Claim of Inadequate Investigation Against McGinnis
and Chappius
At the conclusion of SPT-34335-04, Plaintiff wrote, “I have
asked
Superintendent
McGinnis
and
Deputy
Chappius,
Jr.
to
investigate this situation [the July 5, 2005 incident involving
Augustine, Gilbert, and Hable].” The relief requested by Plaintiff
was as follows: “I would appreciate it if you would contact
Superintendent
McGinnis
and
Deputy
Chappius
and
ask
them
to
investigate my claims and properly investigate this situation.” As
defendants point out, McGinnis and Chappius were not named as
defendants in this lawsuit, and Plaintiff does not explicitly
discuss them in his Complaint. He does, however, impute their
alleged deficient investigation to their supervisors, dismissed
defendants Goord and McNamara.
“A prerequisite to recovery under the Civil Rights Act, 42
U.S.C. § 1983, is that the plaintiff prove that the defendants
deprived him of a right secured by the Constitution and the laws of
the United States.” Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir.
1985) (citing Martinez v. California, 444 U.S. 277, 284 (1980)).
The Supreme Court has held that “the Due Process Clauses generally
confer no affirmative right to governmental aid, even where such
aid may be necessary to secure life, liberty, or property interests
of which the government itself may not deprive the individual.”
DeShaney v. Winnebago Soc. Servs., 489 U.S. 189, 196 (1989).
Denying a claim that the police failed to conduct a full and fair
-12-
investigation into plaintiff’s son’s death, which occurred while he
was trespassing on a construction site, the Ninth Circuit noted in
Gomez that it could “find no instance where the courts have
recognized inadequate investigation as sufficient to state a civil
rights claim unless there was another recognized constitutional
right involved.” 757 F.2d at 1006 (citation omitted; emphasis
supplied); see also Bernstein v. New York, 591 F. Supp.2d 448, 460
(S.D.N.Y. 2008) (“‘There is . . . no constitutional right to an
investigation
by
government
officials.’”)(quoting
Nieves
v.
Gonzalez, No. 05 Civ. 17, 2006 WL 758615, at *4 (W.D.N.Y. Mar. 2,
2006) (quoting Bal v. City of New York, No. 94 Civ. 4450, 1995 WL
46700, at *2 (S.D.N.Y. Feb. 7), aff’d, 99 F.3d 402 (2d Cir. 1995))
(alterations in Nieves)).
Here, Smith has made no showing that the alleged failure to
investigate was due to constitutionally impermissible reasons–for
instance, his race, ethnicity, or religion, so as to implicate the
equal protection clause. Because he has failed to “state facts that
constitute the infringement of a protected right,” Gomez, 757 F.2d
at 1006, Smith does not have a cognizable
§ 1983 claim based upon
the failure to investigate, see id. Accord, e.g., Faison v. Hash,
03–CV–6475P, 2004 WL 944523, at *2–3 (W.D.N.Y. Apr. 23, 2004)
(granting motion to dismiss prisoner’s § 1983 claim that prison
officials failed to properly investigate his request to be placed
in protective custody) (citation omitted); Lewis v. Gallivan, 315
-13-
F. Supp.2d 313, 317 (W.D.N.Y. 2004) (holding that inmate-plaintiff
had “no cognizable claim” that the sheriff and district attorney’s
office “were under an obligation to investigate or prosecute”
plaintiff’s claims that correctional officers had threatened him).
Smith’s claim pertaining to an inadequate investigation by prison
officials into grievance SPT-34335-05 must be dismissed.
IV.
Conclusion
For the foregoing reasons, defendants’ second motion for
summary judgment (Dkt. #62) is granted and Plaintiff’s complaint
(Dkt. #1) is dismissed in its entirety with prejudice. The Clerk of
the Court is directed to close this case.
SO ORDERED.
/s/ Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
February 27, 2012
Rochester, New York
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