Hill v. Napoli
Filing
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DECISION AND ORDER denying 40 Motion for Sanctions. ORDERED, that Plaintiffs application for sanctions [#40] is denied, as Plaintiff has not demonstrated his entitlement to such relief; and it is furtherORDERED, that Plaintiffs application for sum mary judgment shall consist of the statement of facts (Statement of Material Facts Pursuant to Rule 56.1) attached to his Complaint, the summary judgment motion [#26], and the supplemental documents filed as document [#40]; and it is furtherORDERED, Defendants shall file and serve a response to Plaintiffs motion for summary judgment and his motion to supplement the Complaint, along with any cross-motion for summary judgment, on or before January 4, 2013; and it is furtherORDERED, that Plaintiff may file and serve a reply on or before February 1, 2013 (such reply shall not exceed ten pages in length total, including exhibits); and it is furtherORDERED, that the Court shall issue a written decision after February 1, 2013.Signed by Hon. Charles J. Siragusa on 12/4/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
MICHAEL HILL, 90-B-0732,
Plaintiff
DECISION AND ORDER
-vs09-CV-6546 CJS
DAVID NAPOLI, NORMAN R. BEZIO, ANGIE
GORG, KATHY FELKER, ROGER HELD,
TIMOTHY HARVEY, JOHN ROBERS,
TIMOTHY ALLISON, RANDY P. HURT,
JACQUELINE M. MACKEY, JAMES ESGROW
AND WILLIAM J. ABRUNZO,
DefendantS
__________________________________________
INTRODUCTION
Plaintiff, a prisoner in the custody of the New York State Department of
Corrections and Community Supervision (“ DOCCS” ), is suing pursuant to 42 U.S.C.
§ § 1983 & 1985, alleging that Defendants violated his federal constitutional
rights. Now before the Court is Plaintiff’ s motion for summary judgment (Docket
No. [#26]) and his motion for sanctions [#40]. For the reasons that follow , the
application for sanctions [#40] is denied, and Defendants are granted leave to
respond to the summary judgment motion, by opposing the motion and/or filing a
cross-motion for summary judgment.
BACKGROUND
On October 29, 2009, Plaintiff commenced this action, complaining about a
variety of alleged incidents at Southport Correctional Facility (“ Southport” ). The
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“ Verified Complaint” is a 30-page document, supplemented by a 13-page
“ Statement of Material Facts Pursuant to Rule 56.1” and 96 pages of exhibits,
purporting to describe a number of different incidents and claims. Construed
liberally, the Complaint alleges the follow ing claims.
In or about June 2009, Corrections Officer Roger Held (“ Held” ) began to
verbally harass Plaintiff about law suits that Plaintiff had filed against DOCCS staff.
Specifically, Plaintiff alleges that Held w as aw are of other law suits that Plaintiff had
filed in this Court, Hill v. Washburn, 08-CV-6285 and Hill v. Mallory, 06-CV-6568.
See, Complaint ¶ ¶ 35-36. At around this same time, Corrections Officer Timothy
Harvey (“ Harvey” ) destroyed “ a large portion of Plaintiff’ s legal and personal
property,” after he learned about the Hill v. Mallory law suit. Complaint ¶ ¶ 29, 38.
Corrections Officer John Rogers (“ Rogers” ) also searched Plaintiff’ s cell w ithout
authorization and confiscated and destroyed Plaintiff’ s property. Complaint ¶ 42.
On or about July 13, 2009, Held allow ed a certain inmate out of his cell to
act as a porter. Plaintiff and other inmates protested against having that inmate as
a porter. Held subsequently issued a misbehavior report to Plaintiff, alleging that
Plaintiff had threatened not to return his food tray because he w as upset about the
new porter. Held alleged that Plaintiff w as a member of the Bloods Gang, and that
he had attempted to usurp Held’ s authority.
Corrections Sergeant Timothy Allison (“ Allison” ) w as aw are that Held’ s
misbehavior report w as false, but he approved it, and subsequently issued Plaintiff
a number of Deprivation Orders and Restraint Orders, pending a hearing on the
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misbehavior report. Specifically, Allison issued Plaintiff Deprivation Orders denying
him various privileges such as exercise, show ers and haircuts. Allison also issued
Plaintiff Restraint Orders, requiring that he be handcuffed behind his back, w ith a
w aist chain and leg restraints, w henever he w as allow ed out of his cell. While on
this restraint order, Plaintiff w as placed in a dirty cell. Complaint ¶ 74. Plaintiff
further claims that w hile on this restraint order, he made daily requests for sick call,
but the medical staff only recorded one such request.
In preparation for his disciplinary hearing on the misbehavior report, Plaintiff
selected Jacqueline Mackey (“ Mackey” ) to serve as his Inmate Assistant. On or
about July 15, 2009, Plaintiff asked Mackey to gather w itness statements and
documentary evidence. In that regard, Plaintiff told Mackey that he intended to
defend himself at the disciplinary hearing by arguing that the misbehavior report
w as false and retaliatory. Plaintiff contends, though, that Mackey refused to
provide the material he requested, and told him that he should not claim that the
misbehavior report w as retaliatory, but should try to blame the incident on some
other inmate. Plaintiff also alleges that Mackey refused to turn over evidence that
w as helpful to him. Complaint ¶ ¶ 58-59.
On or about July 20, 2009, Hearing Officer James Esgrow (“ Esgrow ” )
commenced the disciplinary hearing on the misbehavior report. Complaint ¶ ¶ 5457. Plaintiff contends that Esgrow improperly adjourned the hearing for false
reasons, took statements from w itnesses outside of Plaintiff’ s presence, failed to
obtain evidence, and did not allow Plaintiff to question w itnesses. Esgrow found
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Plaintiff guilty and imposed a sentence that included six months in the Special
Housing Unit (“ SHU” ). Complaint ¶ 61.
Plaintiff subsequently filed an appeal based on the allegations set forth
above. DOCCS’ s Director of the Special Housing Inmate Disciplinary Program,
Norman Bezio (“ Bezio” ), denied Plaintiff’ s appeal. Complaint ¶ 60.
Plaintiff filed various grievances and complaints about the Misbehavior
Report, Deprivation Orders and Restraint Orders. Plaintiff also complained that
some of his property had been taken by staff. On or about August 3, 2009,
Southport Superintendent David Napoli (“ Napoli” ) w as making his rounds of the
prison, and Plaintiff asked him w hether an investigation w as being conducted
concerning his complaints. Napoli became “ belligerent” and stated that his staff
w ould not engage in w rongdoing, and that he w as tired of investigating Plaintiff’ s
complaints. Plaintiff alleges that Napoli further directed that he be deprived of food
for 72 hours. Complaint ¶ 77. Plaintiff further alleges that Corrections Sergeant
Randy Hurt (“ Hurt” ) assisted in the retaliation by falsifying the results of his
investigation into Plaintiff’ s grievances, and directing officers to destroy his
property. See, Complaint ¶ ¶ 40-41.
Plaintiff alleges that Nurse Angie Gorg (“ Gorg” ), and Nurse Administrator
Cathy Felker (“ Felker” ), refused to provide him w ith appropriate medical care for a
skin rash, stomach pain, diarrhea and vomiting. Complaint ¶ ¶ 85-86, 91-98.
Plaintiff indicates the he filed a grievance concerning this matter (SPT-47427-09),
and that w hen the grievance investigation w as completed, Gorg retaliated against
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him by attempting to force him to receive a Tuberculosis (“ TB” ) injection, w hich he
refused. Complaint ¶ 79. Plaintiff alleges that, in order to coerce him into having
the TB injection, Gorg threatened to file a false misbehavior report against him, and
then had him deprived of recreation, visits and all other privileges.
Plaintiff attempted to file a grievance against Gorg, but the Grievance
Program Supervisor, William Abrunzo (“ Abrunzo” ), did not process or investigate
the grievance. Complaint ¶ ¶ 79-81.
On March 12, 2010, Defendants answ ered the Complaint. The undersigned
then referred the matter to the Honorable Jonathan W. Feldman, United States
Magistrate Judge, for all non-dispositive pretrial matters.
On November 16, 2010, Plaintiff filed the subject motion for summary
judgment. On December 2, 2010, Defendant’ s counsel, Mr. Pernick, w rote to the
Court, and stated that Plaintiff’ s motion w as procedurally “ inadequate.” For
example, Pernick indicated that Plaintiff had not filed a statement of facts w ith
citations to the record. Pernick asked that the Court relieve him from having to
respond to the motion, and direct Plaintiff to file another motion. The Court did not
respond directly to Pernick’ s letter.
On February 8, 2011, the Court ordered that Plaintiff’ s summary judgment
motion be held in abeyance, pending the resolution of certain discovery-related
motions that w ere pending before Magistrate Judge Feldman. In that Order [#35],
the Court observed that the deadline for filing dispositive motions, February 18,
2011, w as fast approaching, and that Defendants should address any request to
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extend that deadline to Magistrate Judge Feldman. Defendants did not make any
such request, apparently because Mr. Pernick w as aw aiting a response to his earlier
letter.
On March 31, 2011, Magistrate Judge Feldman issued a Decision and Order
[#37] resolving the outstanding discovery motions. As part of that Decision and
Order, Magistrate Judge Feldman noted that Defendants had not requested any
extension of the deadline for dispositive motions, and that accordingly, “ the only
summary judgment that has been timely filed is the Plaintiff’ s.” Id. at p. 5. On April
11, 2011, Mr. Pernick responded by contacting Magistrate Judge Feldman’ s
chambers, explaining that his December 2, 2010 letter, of w hich Magistrate Judge
Feldman had been unaw are, should be construed as a request for an extension of
the filing deadline, and requesting an opportunity to respond to Plaintiff’ s motion
and/or to file a cross-motion for summary judgment. Magistrate Judge Feldman
forw arded Mr. Pernick’ s request to the undersigned. On April 14, 2011, Plaintiff
filed an opposition to Pernick’ s request.
On November 4, 2011, Plaintiff filed a document [#40] designated as a
“ Notice of Motion Adoption of Exhibits.” In it, Plaintiff asks that the Court accept
additional documents in support of his summary judgment motion, but prohibit
Defendants from responding to them, and “ not utilize [the submission] as a means
to grant the Defendants’ an excuse to file a late answ er to the summary judgment
motion.” Plaintiff further asked that the Court “ grant sanction[s] against the
Defense Counsel for bad faith acts.”
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ORDER
Having considered all of the foregoing, it is hereby
ORDERED, that Plaintiff’ s application for sanctions [#40] is denied, as
Plaintiff has not demonstrated his entitlement to such relief; and it is further
ORDERED, that Plaintiff’ s application for summary judgment shall consist of
the statement of facts (“ Statement of Material Facts Pursuant to Rule 56.1” )
attached to his Complaint, the summary judgment motion [#26], and the
supplemental documents filed as document [#40]; and it is further
ORDERED, Defendants shall file and serve a response to Plaintiff’ s motion for
summary judgment and his motion to supplement the Complaint, along w ith any
cross-motion for summary judgment, on or before January 4, 2013; and it is further
ORDERED, that Plaintiff may file and serve a reply on or before February 1,
2013 (such reply shall not exceed ten pages in length total, including exhibits); and
it is further
ORDERED, that the Court shall issue a w ritten decision after February 1,
2013.
SO ORDERED.
Dated:
Rochester, New York
December 4, 2012
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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