Heyliger v. Krygier et al
Filing
60
DECISION AND ORDER granting Defendants' 53 Motion for Summary Judgment and denying Plaintiff's 55 Cross-Motion for Summary Judgment. Plaintiff's Amended Complaint is dismissed. The Clerk of Court is directed to enter judgment in favor of Defendants and close this case. Signed by Hon. Elizabeth A. Wolford on 09/28/2018. (DPS)-CLERK TO FOLLOW UP-
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF NEW YORK
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DEREK A. HEYEIGER,#I2-B-0269,
Plaintiff,
DECISION AND ORDER
6:I4-CV-06I23 EAW
V.
JOYCE KRYGIER, STEPHEN
CASACELI,PAUL BLACK,and
RICHARD BEAEL,'
Defendants.
INTRODUCTION
Pro se plaintiff Derek A. Heyliger ("Plaintiff) brings this aetion asserting elaims
under 42 U.S.C. § 1983. (Dkt. I). The operative eomplaint in this aetion is Plaintiffs
Amended Complaint, filed on June 19, 2014. (Dkt. 8). Defendants Paul Blaek ("Blaek"),
Stephen Casaeeli ("Casaeeli"), Riehard Beall ("Beall"), and Joyee Krygier ("Krygier")
(eollectively "Defendants") have now moved for summary judgment. (Dkt. 53).
Defendants contend that summary Judgment is appropriate because they did not
use excessive force against Plaintiff, violate Plaintiffs equal protection or First
Amendment rights, or thwart Plaintiffs right of access to the courts. (Dkt. 53-8).
Plaintiff responded with a cross-motion for summary judgment. (Dkt. 55). In his eross-
'
Defendants Casaeeli and Beall are named in Plaintiffs Amended Complaint as "S.
Casaeeli" and "Beall," respectively. (Dkt. 8 at I). The Clerk of Court is directed to
amend the caption of this matter to reflect the full names of these defendants.
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motion, Plaintiff indicated he wishes to waive all claims against Casaceli, Beall, and
Krygier—^thus, only pursuing claims against Black. {Id. at 31).^ However, he contends
there are genuine issues of material fact regarding his claims against Black and requests
that summary judgment as to those claims be denied. {Id.). For the reasons that follow.
Defendants' motion for summary judgment (Dkt. 53) is granted and Plaintiffs crossmotion for summary judgment(Dkt. 55) is denied.
BACKGROUND
I.
Procedural Background
Plaintiff commenced this action on March 13, 2014, alleging claims against
employees at the Wende Correctional Facility ("Wende") and the Clinton Correctional
Facility. (Dkt. 1). On May 21, 2014, the Court ordered that Plaintiffs claims regarding
the Clinton Correctional Facility be transferred to the Northern District of New York.
(Dkt. 7). Plaintiff then filed his Amended Complaint on June 19, 2014. (Dkt. 8). The
Court screened the Amended Complaint pursuant to 28 U.S.C. § 1915(e) and allowed the
following claims to proceed to service:(1) excessive use of force on Plaintiff by Black;
(2) violation of Plaintiffs equal protection rights by Black; (3) violation of Plaintiffs
First Amendment rights by Black; (4) failure to adequately train subordinates or to
supervise, control, discipline, or correct unconstitutional practices or conditions by
^
Although Plaintiff did not submit a substantive opposition to Defendants' request
for summary judgment as to these defendants, in light of his pro se status and mindful of
its duty to assure that summary judgment is warranted, the Court has nonetheless
assessed the viability of all the claims remaining in this matter below.
Casaceli, Beall, Dale Artus, and Brian Fisher; and (5) thwarting of Plaintiffs access to
physical evidence by Krygier and Casaceli. (Dkt. 9 at 5-7).
On February 18, 2015, the remaining defendants moved to dismiss the Amended
Complaint in part. (Dkt. 13). The Court granted the motion by Decision and Order dated
March 21, 2016, dismissing Dale Artus and Brian Fisher from the case and dismissing
Plaintiffs claims against Defendants in their official capacities. (Dkt. 18 at 6, 8).
Defendants subsequently filed their answers to Plaintiffs Amended Complaint. (Dkt. 19;
Dkt. 20; Dkt. 21; Dkt. 22).
Discovery in this matter closed on May 20, 2017. (Dkt. 46). On July 5, 2017,
Defendants filed the instant motion (Dkt. 53), seeking summary judgment on all
remaining claims, namely:(1) excessive use of force on Plaintiff by Black in his personal
capacity; (2) violation of Plaintiffs equal protection rights by Black in his personal
capacity; (3) violation of Plaintiffs First Amendment rights by Black in his personal
capacity;(4) failure to adequately train subordinates or to supervise, control, discipline,
or correct unconstitutional practices or conditions by Casaceli and Beall in their personal
capacities; and (5) thwarting Plaintiffs access to physical evidence by BCrygier and
Casaceli in their personal capacities. (Dkt. 53-8 at 3). On July 31, 2017, Plaintiff
responded to Defendants' motion with a cross-motion for summary judgment. (Dkt. 55).
Defendants replied to Plaintiffs cross-motion for summary judgment on August 16,
2017. (Dkt. 57).
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II.
Factual Background
The following facts are taken from Defendants' Local Rule 56 Statement of Facts
(Dkt. 53-1) ("Defendants' Statement") and Plaintiffs responsive papers (Dkt. 55).
Because Plaintiff has failed to respond to each paragraph of Defendants' Statement as
required by the Local Rules of Civil Procedure (see L. R. Civ. P. 56(a)(2)), and because
the facts set forth therein are supported by citations to admissible evidence, the Court has
generally deemed them admitted for purposes of this Decision and Order. See N.Y. State
Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49
(2d Cir. 2005). However, where Plaintiff has specifically controverted particular facts,
the Court has noted the disagreement, and has viewed the evidence in the light most
favorable to Plaintiff.
A. The Prison Fight
On May 24, 2012, Black, Beall, and other New York State Department of
Corrections and Community Supervision ("DOCCS") staff responded to a seven-inmate
fight in a yard at Wende. (Dkt. 53-1 at Tf 10). Beall was the area supervisor. (Id. at
^11). Casaceli was not present in the yard when the fight occurred, nor did he directly
supervise Black. (Id. at^^ 12, 82).
At the time the fight broke out, there were approximately 66 inmates in the yard.
(Id. at ^ 13). Two inmates were fighting when Beall arrived. (Id. at ^ 14). The DOCCS
officers gave numerous orders to the inmates to stop, and when neither complied,
additional staff was called, including Black. (Id. at
-4
15, 18).
Plaintiff punched one of the two fighting inmates, and then a fourth inmate
attacked Plaintiff before three more inmates joined the fight. {Id. at
16-17), When
Black arrived, he saw Plaintiff fighting with another inmate. {Id. at ^ 18). Plaintiff was
hit on the top of the head by the inmate, which knocked him back onto the ground. (Dkt.
53-4 at 9). Plaintiff then got up and ran back towards the fight. {Id. at ^ 19). Black and
other staff instructed Plaintiff to stop fighting, but Plaintiff continued to try to rejoin the
fight.^ {Id. at ^ 20). Black struck Plaintiff with his baton, and Plaintiff fell to the ground.
{Id. at T| 21). Defendants allege Black struck Plaintiff on the knee {id.), while Plaintiff
maintains he was struck on his head and then his knee(Dkt. 55 at 3, 5).
Plaintiff was handcuffed while the fight was ongoing, at which time Plaintiff, who
is an African American male, protested Black's actions. {Id.). In response to Plaintiff,
Black allegedly said, "Shut up you nigger, before I hit you again." {Id.). The entire
incident, from the start of the fight to the officers placing Plaintiff in handcuffs, lasted
approximately 30 seconds. (Dkt. 53-1 at ^ 25; Dkt. 55 at 5).
Plaintiff was taken for medical examination and later transported to the Erie
County Medical Center for further medical treatment. (Dkt. 53-1 at
23, 26). Medical
staff determined Plaintiff had three abrasions on his face, a two-inch long, half-inch deep
laceration on the top of his head, an abrasion on his elbow, and scratches on his hand and
near his eye. (Dkt. 55 at 27). Plaintiff alleges that he received 14 staples in his scalp for
^
Plaintiff alleges the DOCCS staff did not order Plaintiff to stop fighting at that
time. (Dkt. 55 at 4). However, as discussed more fully below, the Court has reviewed
the DOCCS' surveillance videotape of this incident, and while the video has no audio, it
unquestionably shows the DOCCS guards communicating with the prisoners, including
Plaintiff, to stop fighting. {See Dkt. 53-4 at 9).
the laceration. {Id. at 38). A 2-14 inch tin can lid was recovered from the yard by
DOCCS staff after the fight. (Dkt. 53-1 at ^ 27).
Plaintiff maintains that Black's conduct amounts to excessive use of force and a
violation of Plaintiffs equal protection and First Amendment rights,(Dkt. 55 at 6), and
alleged in his Amended Complaint that Casaceli and Beall failed to adequately train
subordinates or to supervise, control, discipline, or correct unconstitutional practices or
conditions (Dkt. 8 at 13).
B. The Surveillance Video
A surveillance camera recorded the yard-fight incident described above on
videotape. (Dkt. 53-1 at ^ 49). During a disciplinary hearing for Plaintiff regarding this
incident, the video was viewed several times by Plaintiff and the presiding officer,
Casaceli. {Id.). On June 19, 2012, Casaceli informed Plaintiff in a memorandum that the
videotape would be preserved. {Id. at ^ 54). The Inmate Record Coordinator ("IRC")
office generally only saves surveillance videos for two weeks unless an inmate requests
preservation. {Id. at ^ 63). The Freedom of Information Law ("FOIL") office and IRC
office are usually not aware of the existence of videotapes shown at inmate disciplinary
hearings and had no knowledge of the videotape shown at Plaintiffs hearing. {Id. at
Till 56-57). Plaintiff sent a FOIL request asking for the videotape of the incident. {Id.
at T| 58). An IRC staff member responded to Plaintiffs request under Krygier's name and
advised Plaintiff that the videotape no longer existed because more than two weeks had
passed since the yard fight. {Id. at ^ 64). The video was later discovered in the hearing
packet and was provided to Plaintiff. {Id. at ^ 77).
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A copy of the surveillance video was provided to and reviewed by the Court in
connection with the instant motion for summary judgment. (See Dkt. 53-4 at 9). The
surveillance video comports with the description of the yard fight set forth above.
Plaintiff acknowledges that the surveillance video "accurately shows the events on May
24,2012...." (Dkt. 55 at ^ 18).
In his Amended Complaint, Plaintiff alleged Casaceli and Krygier violated his
constitutional rights because the initial response to his request for the videotape thwarted
his access to physical evidence and consequently to the courts. (Dkt. 8 at 16-2; Dkt. 9 at
6-7).
DISCUSSION
1.
Standard of Review
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes "that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury
could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Once
the moving party has met its burden, the opposing party "must do more than simply show
that there is some metaphysical doubt as to the material facts. ... [T]he nonmoving party
must come forward with specific facts showing that there is a genuine issue for trial."
Caldarola v. Calabrese, 298 F.3d 156, 160(2d Cir. 2002)(quoting Matsushita Elec., 475
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U.S. at 586-87). "[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment...." Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48 (1986).
Rule 56 also provides that if a non-moving party fails to oppose a summary
judgment motion, "summary judgment, if appropriate, shall be entered against" him.
Fed. R. Civ. P. 56(e). However,"where the non-moving party 'chooses the perilous path
of failing to submit a response to a summary judgment motion, the district court may not
grant the motion without first examining the moving party's submission to determine if it
has met its burden of demonstrating that no material issue of fact remains for trial.'"
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 313 F.3d 241, 244 (2d Cir. 2004)
(quoting Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)). If the evidence submitted
in support of the motion for summary judgment does not meet the movant's burden of
production,"summary judgment must be denied even if no opposing evidentiary matter is
presented." Amaker, 274 F.3d at 681. "Moreover, in determining whether the moving
party has met this burden of showing the absence of a genuine issue for trial, the district
court may not rely solely on the statement of undisputed facts contained in the moving
party's [Local Rule 56] statement. It must be satisfied that the citation to evidence in the
record supports the assertion." Vermont Teddy Bear Co., 313 F.3d at 244; see also
Jackson v. Fed. Exp., 766 F.3d 189, 194(2d Cir. 2014).
II.
PlaintifPs Cross-Motion for Summary Judgment
in response to Defendants' motion for summary judgment. Plaintiff filed a
document also purporting to be a motion for summary judgment pursuant to Rule 56(b).
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(Dkt. 55). However, a review of this document reveals that Plaintiff is not in fact
requesting summary judgment in his favor. To the contrary, Plaintiff expressly asks the
Court to deny Defendants' motion and to find that there "exist[s] a genuine issue for
trial." {Id. at 1-2). Accordingly, to the extent Plaintiffs response can be construed as a
cross-motion for summary judgment, it is denied. See Fed. R. Civ. P. 56(a)("The court
shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law."). However,
in light of Plaintiffs pro se status, the Court has not disregarded Plaintiffs submission,
but has treated it as a response in opposition to Defendants' motion for summary
judgment. See Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010)(noting the Court's
duty to liberally construe submissions by pro se litigants).
III.
Defendants' Motion for Summary Judgment
A. Excessive Use of Force Claim
Plaintiff claims that Black used excessive and unnecessary force on him during the
yard-fight incident, in violation of his Eighth Amendment right to be free from cruel and
unusual punishment. For the following reasons, the Court finds the force used by Black
does not rise to the level of a constitutional violation as a matter of law.
"A claim of cruel and unusual punishment in violation of the Eighth Amendment
has two components—one subjective, focusing on the defendant's motive for his
conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554
F.3d 255, 268 (2d Cir. 2009). In order to prove an Eighth Amendment violation, a
plaintiff must demonstrate each of the following two elements by a preponderance of the
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evidence:(1) the defendant used force against the plaintiff maliciously and sadistically,
for the very purpose of causing the plaintiff harm; and (2) the plaintiff suffered some
harm as a result of the defendant's use of force/ Hudson v. McMillian, 503 U.S. 1, 7-8
(1992).
The first element is considered a subjective analysis of the defendant's state of
mind at the time of the incident. This requires a showing that the defendant had "'the
necessary level of culpability, shown by actions characterized by wantonness' in light of
the particular circumstances surrounding the challenged conduct." Goord, 554 F.3d at
268 (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). Whether a use of
force against a prison inmate is unnecessary or wanton depends on "whether force was
applied in a good faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Id. (quoting Hudson,503 U.S. at 7).
Some factors courts consider when determining whether prison officials
unnecessarily and wantonly inflicted pain on an inmate include: (1) the extent of the
injury suffered;(2)the need for the application of force;(3)the relationship between the
need and the amount of force used;(4)the threat reasonably perceived by the responsible
officials; and (5) any efforts made to temper the severity of a forceful response. Romano
V. Howarth,998 F.2d 101, 105(2d Cir. 1993)(citing Whitley v. Alters, 475 U.S. 312, 321
Defendants do not dispute that Plaintiff suffered some harm as a result of Black's
use of force. (See Dkt. 57 at 3). Viewing the record in the light most favorable to
Plaintiff, the Court finds the objective portion of the Hudson test to be satisfied for
purposes of Defendants' motion and focuses the remainder of its analysis on the first
component.
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(1986)). If, after evaluating these factors, the trier of fact finds the defendants acted
maliciously, then wantonness has been established "[a]nd an Eighth Amendment
violation has occurred." Id. However, if the factors lead the trier of fact "to find that the
defendants acted in a good-faith effort to maintain and restore discipline, no
constitutional violation has occurred because the subjective component of the claim has
not been satisfied." Id.
Prison administrators receive "wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security." Whitley, 475 U.S. at 321-22
(quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). This "deference extends to a prison
security measure taken in response to an actual confrontation," and "requires that neither
judge nor jury freely substitute their judgment for that of officials who have made a
considered choice." Id. at 322; see also Winters v. United States, No. 10 Civ. 7571(JMF),
2013 WL 1627950, at *6 (S.D.N.Y. Apr. 16, 2013)("As courts in this Circuit have held,
corrections officers responding to prison fights act with discretion based upon their
judgment and experience."); Kalwasinski v. Artnz, No. 02 CV 2582(LBS), 2003 WL
22973420, at *4 (S.D.N.Y. Dec. 18, 2003)("[Pjrison administrators should be accorded
wide-ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to maintain
institutional security."(internal quotation omitted)).
Moreover, "[t]he infliction of pain in the course of a prison security measure ...
does not amount to cruel and unusual punishment simply because it may appear in
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retrospect that the degree of force authorized or applied for security purposes was
unreasonable, and hence unnecessary in the strict sense." Whitley, 475 U.S. at 319. As
such, in order for an Eighth Amendment excessive use of force claim to survive a motion
for summary judgment, the evidence, viewed in the light most favorable to the nonmoving party, must go "beyond a mere dispute over the reasonableness of a particular use
of force or the existence of arguably superior alternatives," and instead "support a reliable
inference of wantonness in the infliction of pain...." Id. at 322. Otherwise, "the case
should not go to the Jury." Id.
The Kalwasinski decision is instructive. There, one of the prison guard-defendants
had ordered the plaintiff to move closer to the man in front of him in line. Kalwasinski,
2003 WL 22973420, at *1. When the plaintiff refused, the guard pushed the plaintiff
against a wall. Id. The plaintiff then pinned the guard on the ground in front of40 other
prisoners, and the other guards present lifted the plaintiff off the first guard and threw
him headfirst into another room. Id. The plaintiffs head struck the wall and a bench,
and he suffered from a bump to the head, scratches, bruises, and abrasions. Id. at *4.
The court granted summary judgment to the defendants, finding that the plaintiffs Eighth
Amendment rights were not violated because:(1) he suffered only minor injuries;(2)the
need for force was present because the plaintiff refused to follow a direct order and then
pinned a guard on the ground in a room with 40 other prisoners;(3) the amount of force
used was proportional to the need for force as demonstrated by the plaintiffs minor
injuries and the guards' need to secure prison order; (4) the plaintiff posed a threat to
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general prison security as well as the pinned guard; and (5) once the threat ended, the
prison guards halted their use of force. Id. at *4-5.
In this case, the Court finds that no rational trier of fact could determine Plaintiffs
Eighth Amendment rights were violated. Plaintiffs injuries were relatively minor.
Medical staff determined Plaintiff had three abrasions on his face, a two-inch laceration
on the top of his head, an abrasion on his elbow, and scratches on his hand and near his
eye. (Dkt. 55 at 27). There is no indication in the record that Plaintiff suffered any longterm injury. Additionally, even viewing the evidence in the light most favorable to
Plaintiff, at least some of these injuries are attributable to the prison fight itself, not
Black.
The surveillance video shows, among other blows received by Plaintiff
throughout the course of the fight, that Plaintiff was hit on the top of the head by another
inmate, which knocked him back onto the ground. {See Dkt. 53-4 at 9). Moreover, a tin
can lid was later found in the prison yard that was approximately the same size as
Plaintiffs laceration. (Dkt. 53-1 atT|27).
Of course, any injury can constitute an Eighth Amendment violation. See Hudson,
503 U.S. at 7; Romaine v. Rawson, 140 F. Supp. 2d 204 (N.D.N.Y. 2001)(holding that
when all parties admit that force was unnecessary, even a de minimus use of force
violates the Eighth Amendment). As a result, the absence of a serious injury here, while
relevant, is not dispositive. Accordingly, the Court must examine the other factors
identified in Romano.
A reasonable finder of fact would be compelled to conclude there was a need for
the application of force in cormection with the yard-fight incident.
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Courts have
consistently held that using force on a prisoner does not violate his constitutional rights if
done to maintain institutional security. See, e.g., Whitley, 475 U.S. at 322; Hudson, 503
U.S. at 7; Goord, 554 F.3d at 268. Here, a seven-person prison fight had broken out in an
area with 66 other inmates. (Dkt. 53-1 at
10, 13). A reasonable finder of fact could
only determine that Black's use of force on Plaintiff to quell a seven-person prison fight
and maintain institutional security was appropriate. See Kalwasinski, 2003 WL
22973420, at *4; Hernandez v. Jones, No. 06 CV 3738 ARR, 2006 WL 3335091, at *2
(E.D.N.Y. Oct. 10, 2006)(finding no Eighth Amendment violation where, in the course
of breaking up a prison fight, a prison guard allegedly sprayed pepper spray on inmate
and threw him to the ground, causing a head injury); Kee v. Hasty, No. 01
CIV.2123(KMW)(DF), 2004 WL 807071, at *12 (S.D.N.Y. Apr. 14, 2004)("Where a
prison disturbance was in progress at the time of the alleged constitutional violation,
wide-ranging deference must be accorded to the actions of the prison officials in quelling
the disturbance."(quotation omitted)).
Moreover, the amount of force used was proportional to the threat. Plaintiffs
injuries in this case were minor, while the need to secure the prison yard by halting the
seven-person fight was great. Accepting Plaintiffs testimony as true. Black struck
Plaintiff on the head with a baton before hitting him again on the knee, after Plaintiff had
ignored orders given by Black and the other DOCCS officers to stop fighting. (Dkt. 53-1
at TI20; Dkt. 53-4 at 9; Dkt. 55 at 37). This evidence, viewed in the light most favorable
to Plaintiff, does not go "beyond a mere dispute over the reasonableness of a particular
use of force or the existence of arguably superior alternatives. . . ." Whitley, 475 U.S. at
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322. Plaintiffs opposition to Defendants' motion merely contests the reasonableness of
the force Black used, i.e. hitting Plaintiff on the head as opposed to another method of
detention. However, "[t]he Court must give considerable deference to prison officials
and their decisions about how to best maintain institutional security." Id. at 321-22. The
Court finds here that a rational trier of fact could not determine that Defendant Black
using a baton to strike Plaintiff, who concedes he was attempting to rejoin a prison fight,
was an unreasonable use of force. Kalwasinski, 2003 WL 22973420, at *1 (finding that
throwing the plaintiff, who had pinned a prison guard on the ground, headfirst into
another room was a reasonable use of force by the prison guards).
A rational trier of fact would also find the threat was reasonably perceived by
Black. A seven-person fight in a prison yard with 66 prisoners is unquestionably
threatening, both to the prison's general institutional security and to the DOCCS staff. It
is beyond dispute that "attempting to stop an inmate fight . . . is a legitimate
governmental objective for a [DOCCS] Officer." Vargas v. N.Y.C. Dep't of Corr., No.
17 CIV. 2544(JGK),2018 WL 3392873, at *3(S.D.N.Y. July 12, 2018).
Finally, Black only used force to the extent necessary to remove the threat. It is
undisputed that as soon as Plaintiff was on the ground, he was handcuffed and no further
force was used on him. (Dkt. 55 at 5). This demonstrates that Defendant Black did not
use force wantonly, but in an effort to restore institutional security. Summary judgment
on an Eighth Amendment excessive force claim is appropriate where a plaintiff cannot
show the defendant "used any degree of force that was more than necessary to effect" his
lawful objective. Faruki v. City ofN.Y., 517 F. App'x 1, 2(2d Cir. 2013).
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After reviewing the factors laid out in Romano as applied to Plaintiffs case, and
looking at the evidence in the light most favorable to Plaintiff, the Court concludes that
no reasonable trier of fact could find Plaintiffs Eighth Amendment rights were violated
by Black. Accordingly, summary judgment for Defendants is warranted as to this claim.
B. Equal Protectioii Claim
Plaintiff also claims Black violated his rights under the Equal Protection Clause of
the Fourteenth Amendment when Black threatened Plaintiff using a racial slur. The
Court finds the alleged use of a racial epithet by Defendant Black, while deplorable, does
not violate Plaintiffs equal protection rights.
"The equal protection clause directs state actors to treat similarly situated people
alike. To prove an equal protection violation, claimants must prove purposeful
discrimination, directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d
1050, 1057(2d Cir. 1995)(citations omitted). "In other words, '[t]o prove a violation of
the Equal Protection Clause ... a plaintiff must demonstrate that he was treated
differently than others similarly situated as a result of intentional or purposeful
discrimination.'" Randle v. Alexander, 960 F. Supp. 2d 457, 476 (S.D.N.Y. 2013)
(quoting Phillips v. Girdich, 408 F.3d 124, 129(2d Cir. 2005))(alternations in original).
"Prison officials' use of racial epithets or discriminatory comments reflecting
racial prejudice do not, without more, violate the Constitution." McEachin v. Bek, No.
06-CV-6453(MAT), 2012 WL 1113584, at * 13(W.D.N.Y. Apr. 2, 2012);
Baskerville
V. Goord, No. 97-CV-6413, 2000 WL 897153, at *3 (S.D.N.Y. July 6, 2000)("[T]he use
of racial slurs or epithets reflecting racial prejudice, although reprehensible, does not
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form the basis of a claim pursuant to § 1983."); Wright v. Santoro, 714 F. Supp. 665, 667
(S.D.N.Y. 1989)(holding comments made by prison official, including "Get your black
ass out of my office" and "I'll lock your black ass up," unaccompanied by physical
injury, did not amount to a violation of the plaintiffs Constitutional rights); Keyes v. City
of Albany, 594 F. Supp. 1147, 1155 (N.D.N.Y. 1984)("[T]he use of vile and abusive
language, no matter how abhorrent or reprehensible, cannot form the basis for a § 1983
claim.").
Notwithstanding the foregoing, "[cjourts in this circuit and elsewhere have held
that officers' use of racial epithets may be regarded as direct evidence of racial animus
and, when combined with physical abuse or other unlawful actions, may establish an
equal protection violation." Ali v. Connick, 136 F. Supp. 3d 270, 280 (E.D.N.Y. 2015).
As such, the use of racially derogatory language coupled with "simultaneous physical
abuse" can support an equal protection claim. Cole v. Fischer, 379 F. App'x 40, 43 (2d
Cir. 2010). However, on a motion for summary judgment, it is not enough for the
plaintiff to "demonstrate [the] defendant's bad motive." Oliver v. Cuttler, 968 F. Supp.
83, 88 (E.D.N.Y. 1997) (granting summary judgment as to an equal protection claim
where a police officer allegedly struck plaintiff and used racial slurs during a traffic stop).
The plaintiff must come forward with some evidence from which a trier offact could find
that a similarly-situated individual of a different race would have been treated differently.
Id.; see also Ali, 136 F. Supp. 3d at 279 (holding no equal protection violation occurs
when "the same result would have occurred even without consideration of the plaintiffs
race or national origin").
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In this case, no reasonable trier of fact could find that Plaintiff has established a
violation of his right to equal protection. The record before the Court demonstrates that
Black used force on Plaintiff to restore order in the prison yard, not to inflict injury
because of racial prejudice. Black struck Plaintiff during the course of a seven-person
prison fight after Plaintiff ignored orders from DOCCS staff to stop fighting. (Dkt. 53-1
at
20-21). Once Plaintiff was on the ground and no longer trying to engage in the
fight. Black immediately stopped using force. (Dkt. 53-1 at ^21, 23). While Plaintiff
was being handcuffed, the other inmates were still fighting, and it was at this time that
Black allegedly threatened to hit Plaintiff again and used the racial slur. (Dkt. 53-1 at
^ 23-25; Dkt. 55 at 5). These circumstances indicate that Defendant Black's use of force
and subsequent threat were attempts to control the situation in the prison yard, not to hurt
Plaintiff because of his race. More importantly, there is no evidence in the record from
which a trier of fact could reasonably conclude that Black would have treated a similarlysituated individual of a different race—namely, an inmate who had ignored direct orders
and was attempting to rejoin a fight in progress—any differently than Plaintiff. Plaintiff
cannot establish an equal protection violation on these facts. See Stone v. Earner, No.
7:15-CV-97 (LEK/ATB), 2018 WL 557872, at *8 (N.D.N.Y. Jan. 19, 2018)(granting
summary judgment to prison guard as to an equal protection claim, "his alleged use of
racial slurs notwithstanding," because there was no evidence he had treated similarlysituated individuals differently on the basis of race).
To be clear, if the allegations Plaintiff makes against Black are true, they are
reprehensible. However, not all deplorable behavior rises to the level of a constitutional
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violation, and in this case, Plaintiff has failed to adduce sufficient evidence for a
reasonable trier of fact to find his right to equal protection was violated. Defendants are
therefore entitled to summary judgment as to Plaintiffs equal protection claim.
C. First Amendment Claim
Plaintiff claims his First Amendment rights were violated when, during the prison
fight and in response to his protests over Black's use of force. Black silenced Plaintiff
with a threat. Plaintiff has failed to support this claim with legally sufficient evidence.
To establish a First Amendment retaliation claim under § 1983, a prisoner must
demonstrate: "(1) that his speech or conduct was constitutionally protected,(2) that the
defendant took adverse action against him, and (3) that there was a causal connection
between the protected speech and the adverse action." Gill v. Pidlypchak, 389 F.3d 379,
380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001),
overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)). When
determining whether speech is constitutionally protected under the first prong of the
analysis, the Supreme Court has upheld the use of reasonable time, place, and manner
restrictions. See, e.g.. Pell v. Procunier, 417 U.S. 817, 826 (1974). "The nature of a
place, the pattern of its normal activities, dictate the kinds of regulations of time, place,
and manner that are reasonable." Groyned v. City ofRockford, 408 U.S. 104, 116 (1972).
"The 'normal activity' to which a prison is committed—the involuntary confinement and
isolation of large numbers of people, some of whom have demonstrated a capacity for
violence—necessarily requires that considerable attention be devoted to the maintenance
of security." Pell, 417 U.S. at 826-27. If a time, place, or manner restriction imposed in
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a prison is content-neutral and leaves open alternative channels of communication, it
"does not abridge any First Amendment freedoms retained by prison inmates." Id. at
828; see also Brown v. McGinnis, No. 05-CV-758S, 2012 WL 267638, at *3 (W.D.N.Y.
Jan. 30, 2012) ("[P]rovided that reasonable and effective means of communication
remain open to inmates, and no discrimination in terms of content is involved, prison
officials are accorded latitude in fashioning restrictions on the time, place and manner of
communications by inmates.").
In this case, a reasonable trier of fact could not determine Plaintiffs First
Amendment freedoms were abridged. A restriction on speech does not violate a prison
inmate's First Amendment rights if it is content-neutral and leaves open alternative
channels of communication. Pell, 417 U.S. at 828. Here, Black purportedly silenced
Plaintiff while a prison fight was ongoing and other officers were still securing the
situation. (Dkt. 55 at 5). He told Plaintiff to "shut up" without indicating that he was
upset with the content of Plaintiffs complaint. {Id.). Under these circumstances, a
reasonable trier of fact would necessarily determine that Black would have silenced
Plaintiff at that time, no matter what Plaintiff said, to make sure the situation was
secured.
Additionally, there is no question that Plaintiff had other channels of
communication available to him. Plaintiff later filed a grievance against Black, had a
witness testify regarding Black's actions at a disciplinary hearing, and filed the instant
lawsuit. (Dkt. 53-1 at ^41; Dkt. 1). The hearing and filings demonstrate conclusively
that Plaintiff had alternate ways to communicate his objections to Black's treatment of
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him. Therefore, a trier of fact could not reasonably find Plaintiffs First Amendment
rights were violated by Defendant Black's actions, and summary judgment is warranted
as to this claim. See Mclntosh v. United States, No. 14-CV-7889 (KMK), 2016 WL
1274585, at *27 (S.D.N.Y. Mar. 31, 2016)(noting that "there is a distinction to be made
between the inmate who stridently challenges a prison official's authority in the moment
and his peer who instead brings his complaints through the designated channels, such as
the prison's grievance procedure," and that "an effort to "confront [a member of] staff
and discuss [an] issue[]with him,... in prison, simply does not enjoy First Amendment
protection")(quotation omitted); of. Garrido v. Coughlin, 716 F. Supp. 98, 101 (S.D.N.Y.
1989)(distinguishing between an exercise of First Amendment rights and a mere "verbal
confrontation" with prison staff).
D. Failure to Train or Supervise Claim
Plaintiff claims Casaceli and Beall violated his Eighth Amendment rights through
a failure to adequately train subordinates or to supervise, control, discipline, or correct
unconstitutional practices or conditions. The Court finds Defendants' conduct did not
violate Plaintiffs Eighth Amendment rights.
In the Second Circuit, it is well settled that "personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under
§ 1983." Moffitt V. Town ofBroolfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v.
Patterson, 568 F.2d 930,934(2d Cir. 1977), cert, denied, 434 U.S. 1087(1978); see also
Glick, 481 F.2d at 1034 ("The rule in this circuit is that when monetary damages are
sought under § 1983, the general doctrine of respondeat superior does not suffice and a
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showing of some personal responsibility of the defendant is required."). A supervisory
defendant's personal involvement may be shown by evidence that:
(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 occurring.
Colon V. Coughlin, 58 F.3d 865, 873(2d Cir. 1995).
Here, a reasonable trier of fact could not find that Beall or Casaceli violated
Plaintiffs Eighth Amendment rights by failing to adequately train, supervise, control,
discipline, or correct Black. As a threshold matter, and for the reasons discussed above.
Black did not engage in behavior that violated Plaintiffs constitutional rights. Therefore,
Beall and Casaceli could not have violated Plaintiffs constitutional rights in their
capacities as Black's supervisors. See Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir.
1999)("Of course, for a supervisor to be liable under Section 1983, there must have been
an underlying constitutional deprivation.").
Even assuming, for the sake of argument. Black had violated Plaintiffs
constitutional rights, Beall and Casaceli would still not face liability under § 1983. "A
police officer is personally involved in the use of excessive force if he ... was present
during the assault, yet failed to intercede on behalf of the victim even though he had a
reasonable opportunity to do so." Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474 (N.D.N.Y.
2003); see O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)("A law enforcement
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officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional
rights are being violated in his presence by other officers."); Jones v. Huff, 789 F. Supp.
526, 535 (N.D.N.Y. 1992)("A corrections officer bears an affirmative duty to intercede
on behalf of an inmate when the officer witnesses other officers maliciously beating that
inmate in violation of the inmate's Eighth Amendment rights."). "[A]n officer is excused
from liability, despite his presence, if the assault is 'sudden and brief,' such that there is
no real opportunity to prevent it." Cusamano v. Sobek, 604 F. Supp. 2d 416, 428 n.9
(N.D.N.Y. 2009).
In this case, Casaceli was not in the prison yard when Black hit Plaintiff, so he is
excused from § 1983 liability pursuant to this well-established case law. Beall was
present during the fight (Dkt. 53-1 at ^ 10), but the entire incident, from the start of the
fight to the officers placing Plaintiff in handcuffs, lasted only approximately 30 seconds,
{Id. at ^ 25; Dkt. 55 at 5). Additionally, it only took five seconds for Black to run across
the yard and hit Plaintiff, and the hit occurred when Beall was securing other prisoners
involved in the fight. (See Dkt. 53-4 at 9). Based on the suddenness and brief duration of
the claimed assault, a reasonable trier of fact could not conclude Beall had any real
opportunity to prevent it. Therefore, Beall cannot be held liable under § 1983.
Plaintiffs claim that Beall and Casaceli failed to train Black also does not pass
muster. "A general allegation that [a supervisor] failed to train subordinates ... is
insufficient to establish personal involvement, absent some factual connection between
their failure to train and the harm that eventually befell Plaintiff." Samuels v. Fischer,
168 F. Supp. 3d 625, 639 (S.D.N.Y. 2016); see also Canales v. Sheahan, No. 12-CV-23-
693(LJV)(HBS), 2017 WL 1164462, at *4 (W.D.N.Y. Mar. 28, 2017) (holding the
plaintiffs claim that the supervisor was not present in the area where the assault occurred
was too general to adequately allege any wrongful conduct on the part of the supervisor).
The plaintiff must show that the defendant "knew or should have known that there was a
high degree of risk that his subordinates would behave inappropriately" and then
"deliberately or recklessly disregarded that risk by failing to take action that a reasonable
supervisor would find necessary to prevent such a risk, and that failure caused a
constitutional injury to Plaintiff." Frederick v. Sheahan, No. lO-CV-6527, 2014 WL
3748587, at *8 (W.D.N.Y. July 29, 2014)(alterations omitted)(quoting Poe v. Leonard,
282 F.3d 123, 142 (2d Cir. 2002)); Samuels, 168 F. Supp. 3d at 638. On the record
before the Court, Plaintiff has made no showing that Black had a high risk of behaving
inappropriately, or that Beall or Casaceli knew or should have known of any such risk.
To the contrary, the record shows Defendant Black received training prior to working for
DOCCS and takes continuing training each year in use of force. (Dkt. 53-1 at
84-85).
Therefore, a reasonable finder of fact could not determine that Beall or Casaceli failed to
train Black in violation ofPlaintiffs Eighth Amendment rights.
E. Thwarting of Access to the Courts Claim
Finally, Plaintiff claims Casaceli and Krygier thwarted his access to physical
evidence in violation of his constitutional rights. However, there is no evidence in the
record to demonstrate that either of these Defendants thwarted Plaintiffs access to
physical evidence, and consequently Plaintiffs rights were not violated.
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"A prisoner has a constitutional right of access to the courts for the purpose of
presenting his claims, a right that prison officials cannot unreasonably obstruct and that
states have affirmative obligations to assure." Washington v. James, 782 F.2d 1134, 1138
(2d Cir. 1986)(citing Bounds v. Smith, 430 U.S. 817, 821-23 (1977)). A § 1983 claim
for denial of access to the courts requires the plaintiff to demonstrate there is "(1) a
'nonfrivolous, arguable underlying claim' that has been frustrated by the defendants'
actions, and (2) a continued inability to obtain the relief sought by the underlying claim."
See Arar v. Ashcroft, 585 F.3d 559, 592(2d Cir. 2009)(quoting Christopher v. Harbury,
536 U.S. 403,415 (2002)). The plaintiff must demonstrate an "actual injury" by showing
that his underlying claim was non-frivolous. Lewis v. Casey, 518 U.S. 343, 351-353
(1996) (reasoning that the "actual injury" requirement means that inmates must
"demonstrate that a nonfrivolous legal claim [has] been frustrated or was being
impeded.").
On the instant record, a reasonable trier of fact could not find any of Defendants
denied Plaintiff access to the courts. To prevail. Plaintiff must demonstrate Defendants'
actions frustrated a non-frivolous underlying claim. The uncontroverted evidence shows
Casaceli informed Plaintiff in a memorandum that the videotape ofthe prison fight where
Black struck Plaintiff would be preserved. (Dkt. 53-1 at
54). After requesting a copy
of the video. Plaintiff initially received a response from the IRC under Krygier's name
mistakenly advising him that the video no longer existed. {Id. at ^ 64). However, the
video was later discovered in the hearing packet and was then provided to Plaintiff. {Id.
at ^ 77). Plaintiff subsequently filed the instant lawsuit. (Dkt. 1). In other words,
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Plaintiff ultimately was able to obtain the physical evidence he sought and to pursue this
matter without any interference. Therefore, a reasonable trier of fact would find that
Casaceli and Krygier did not frustrate Plaintiffs access to the courts and that their actions
were at most a minor inconvenience for Plaintiff. Defendants are therefore entitled to
summary judgment with respect to this claim.
F.
Qualified Immunity
Defendants also contend that they are entitled to qualified immunity with respect
to all ofPlaintiffs claims. {See Dkt. 53-8 at 22-25). "The doctrine of qualified immunity
protects government officials from liability for civil damages 'unless a plaintiff pleads
facts showing (1) that the official violated a statutory or constitutional right, and (2) that
the right was clearly established at the time of the challenged conduct.'" McGowan v.
United States, 825 F.3d 118, 124(2d Cir. 2016)(quoting Wood v. Moss, 134 S. Ct. 2056,
2066-67 (2014)). Here, because the Court holds a reasonable trier of fact would find
Plaintiff did not produce enough evidence to demonstrate that Defendants violated his
constitutional rights, the Court does not reach the issue of whether Defendants are
entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment(Dkt. 53) is
granted, and Plaintiffs cross-motion for summary judgment (Dkt. 55) is denied.
Plaintiffs Amended Complaint is dismissed. The Clerk of Court is directed to enter
judgment in favor of Defendants and close this case.
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so ORDERED.
ELIZA^H ^^Ob^
UnitedlStates District Judge
Dated; September 28, 2018
Roehester, New York
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