Telesford v. Wenderlich et al
Filing
29
DECISION AND ORDER granting in part and denying in part 18 Motion for Summary Judgment. Defendants motion for partial summary judgment [#18] is denied as to the sexual abuse claim, but is otherwise granted. Defendants are granted summary judgment as to the retaliation claim, the conditions of confinement claim and the denial-of-medical-care claim. The Clerk of the Court is directed to terminate Wenderlich, Fagan, Chapman, Wilcox, Godfrey, Seyman, Thrall, Kitts, Potter, Sabol, Caporiccio and Brink as parties to this action. The remaining claims are the excessive-force claim against Tillinghast, Harvey and Lamb, the failure-to-intervene claim against Belz and the sexual abuse claim against Tillinghast. The remaining Defendants shall fi le and serve an answer to the Complaint within fourteen days of the date of this Decision and Order.Signed by Hon. Charles J. Siragusa on 10/5/18. Copy of this NEF and decision and order mailed to pro se plaintiff at Southport. (KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
MARCUS TELESFORD,
Plaintiff,
DECISION and ORDER
-vs16-CV-6130 CJS
SUPERINTENDENT STEPHEN
WENDERLICH, et al.,
Defendants.
__________________________________________
INTRODUCTION
This is an action by prison inmate Marcus Telesford (“Telesford” or “Plaintiff”),
proceeding pro se, alleging pursuant to 42 U.S.C. § 1983 that Defendants violated his Eighth
Amendment Right to be free from cruel and unusual punishment. Now before the Court is
Defendants’ pre-discovery motion (Docket No. [#18]) for partial summary judgment pursuant
to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 56. The application is granted in part and
denied in part.
FACTUAL BACKGROUND
For purposes of this Decision and Order only, the following are the undisputed facts as
viewed in the light most-favorable to Plaintiff, the non-moving party. At all relevant times
Plaintiff was an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”) and Defendants were employed by DOCCS at Southport
Correctional Facility (“Southport”). Southport is a Special Housing Unit (“SHU”) facility where
inmates serve disciplinary sentences.
In October 2014, Plaintiff was transferred to Southport to serve a disciplinary sentence.
Shortly thereafter, Plaintiff walked past defendant Corrections Officer Tillinghast (“Tillinghast”),
1
(incorrectly identified as “Tillyhanst” and “Tillyhast” in Plaintiff’s submissions)1 who was familiar
with Plaintiff from having worked in a different correctional facility where Plaintiff had been
housed.
According to Plaintiff, Tillinghast had previously harassed him and filed false
misbehavior reports against him. Upon seeing Plaintiff at Southport, Tillinghast asked him
why he was there, but Plaintiff refused to answer. Tillinghast then stated, “I see you haven’t
learned your lesson but trust me, I’m going to get you this time.”2
Prior to November 11, 2014, Plaintiff received medical treatment at Southport for various
ailments, including daily headaches (which he attributed to having been assaulted by
corrections officers in May 2014),3 “sharp low back pain,”4 loss of hearing in his right ear,5
“testicular hydroceles” (swelling),6 and left elbow pain.
On November 11, 2014, Plaintiff was returning to his cell from recreation, when he was
stopped by several corrections officers, including Tillinghast and defendant Corrections
Sergeant Belz (“Belz”), who directed him to go into a shower for a strip search. Tillinghast
claims that he decided to strip search Plaintiff after he conducted a pat frisk and felt “an unusual
bulge in [Plaintiff’s] buttocks area.”7 However, the Complaint denies that Tillinghast conducted
a pat frisk or that he observed any contraband or bulge in Plaintiff’s clothing.
Plaintiff
nevertheless complied with the officers’ directions, went into the shower, removed his clothing
and assumed the strip search position. Tillinghast and Corrections Officer Lamb (“Lamb”),
though, began punching and kicking him in the “face, head, body area, back and ribs,”8 and
1
See, Docket No. [#18-3] at p. 44.
Complaint [#1] at p. 5.
3
Docket No. [#18-4] at p. 11.
4
Id.
5
Id.
6
Docket No. [#18-4] at p. 10.
7
Docket No. [#18-3] at p. 47.
8
Complaint [#1] at p. 7.
2
2
Corrections Officer Harvey (“Harvey”) began to choke him.
Sergeant Belz stood by and
observed the assault without intervening. Tillinghast then grabbed Plaintiff’s buttocks, spread
them apart and stated, “He doesn’t have [anything] in between his [buttocks], he must [have]f
stuff[ed] it up his rectum.”9 Plaintiff denies that he pushed anything into his rectum or did
anything else to warrant the use of force.
Tillinghast subsequently filed a false misbehavior report accusing Plaintiff of having
placed contraband in his rectum.10 Additionally, Plaintiff was placed on “contraband watch,”
between November 11, 2014 and November 14, 2014. While on contraband watch, Plaintiff
remained in an observation cell, without a toilet, clothes, bed linens or running water. When
Plaintiff needed to use the toilet, he had to inform corrections staff, who would then take him to
a cell with a toilet and observe him to see if he passed any contraband.
During the period that he was on contraband watch, Plaintiff told the corrections officers
who were guarding him, (Officers Wilcox (“Wilcox”), Godfrey (“Godfrey”), Seyman (“Seyman”),
Thrall (“Thrall”), Kitts (“Kitts”), Potter (“Potter”), Sabol (“Sabol”), Caporiccio (“Caporiccio”) and
Brink (“Brink”), that he needed medical attention, but they refused to relay his request to
Southport’s medical staff.
Nevertheless, Plaintiff acknowledges that he received his usual mental health
medications from a nurse each day that he was on contraband watch. Additionally, Plaintiff’s
ambulatory health record (“AHR”) indicates that on November 13, 2014, while he was still on
contraband watch, he complained to a nurse about needing “something [for his] shoulder.”11
9
Docket No. [#18-3] at p. 15.
Docket No. [#18-3] at p. 47 (Tillinghast’s misbehavior report alleged that during the strip frisk, Plaintiff
reached back and pushed something into his anus.)
11
Docket No. [#18-4] at p. 9.
10
3
The nurse reported that Plaintiff had a “nicked size[d] abrasion” on his left shoulder, with no
redness or sign of infection.12 The nurse advised Plaintiff to monitor the abrasion and keep
the area around it clean.13
On November 14, 2014, Plaintiff was allowed to return to his usual cell, because he had
defecated three times without passing any contraband.14 Defendant Corrections Sergeant
Chapman (“Chapman”) escorted Plaintiff back to his cell. During the escort, Plaintiff told
Chapman that he had been assaulted and needed medical attention, but Chapman told him to
“shut up,” and warned him not to make a “sick call” request.
Plaintiff nevertheless made a sick call request that same day, and that evening
(November 14, 2014) he was examined by Nurse M. Warr (“Warr”). Warr noted that Plaintiff
was complaining about an assault by staff on November 11, 2014, in which he had been
“kicked, punched [and] choked,” and that he was having “chest pain, respiratory problems and
headaches.”15 Upon examination, Warr noted that Plaintiff had a scabbed abrasion on his left
shoulder; subjective tenderness of his right-side ribs; and swollen testicles.16
On November 16, 2014, Plaintiff wrote an inmate grievance in which he complained
about the assault and “sexual harassment” on November 11th, and the denial of medical
attention between November 11th and November 14th.
On November 17, 2014, Plaintiff was placed back on contraband watch. When Plaintiff
asked why he was being placed on contraband watch for a second time, an unidentified
corrections officer told him that it had been ordered by defendant Deputy Superintendent for
12
13
14
15
16
Id.
Id.
Complaint [#1] at pp. 8-9.
Docket No. [#18-3] at p. 48.
Id.
4
Security Fagan (“Fagan”), because Plaintiff had told medical staff that he had been assaulted,
and he needed to learn to keep his mouth shut.
On November 18, 2014, Plaintiff was seen by Nurse Grant (“Grant”), who reported that
he was complaining of burning sensation when urinating, loss of hearing in his right ear,
migraine headaches and rib pain.17 Plaintiff reportedly told Grant that he had been having such
symptoms “since 11/11,” but as previously noted, Plaintiff was already complaining of daily
headaches and loss of hearing in his right ear prior to November 11th.
Plaintiff remained on this second contraband watch until November 21, 2014. During
that period, Deputy Superintendent Wenderlich interviewed Plaintiff and asked him what had
happened on November 11th. Plaintiff told Wenderlich that the officers had assaulted him, and
that Tillinghast had filed a false misbehavior report. Wenderlich responded that Plaintiff was
on contraband watch because he was a “complete asshole,” and because he had filed a lawsuit
against Wenderlich in 2005. Wenderlich subsequently dismissed Tillinghast’s misbehavior
report against Plaintiff.
Thereafter, Plaintiff falsely told mental health staff at Southport that he was suicidal,
which resulted in him being transferred to Sullivan Correctional Facility (“Sullivan”).
On December 3, 2014, Wenderlich denied Plaintiff’s grievance. 18 In that regard,
Wenderlich noted that an investigation had been conducted into Plaintiff’s allegations, the
results of which did not support Plaintiff’s version of events.
Plaintiff then appealed to the DOCCS Central Office Review Committee (“CORC”). As
part of CORC’s investigation into the appeal, it had a corrections captain interview Plaintiff, who
17
18
Docket No. [#18-4] at p. 7.
Docket No. [#18-3] at p. 32.
5
by that time (April 22, 2015) was housed at Great Meadow Correctional Facility (“Great
Meadow”). The corrections captain subsequently prepared a memo for CORC concerning the
interview, which stated:
Inmate Telesford 02A0506 was interviewed in regards to his Southport CF Grievance.
He stated his grievance was complete as written and he had no new information to add
to his complaint nor did he identify any witnesses.
Docket No. [#18-3] at p. 63. CORC eventually upheld Wenderlich’s determination.19
Almost a year after the events at Southport, Plaintiff attempted to file a new grievance.
Specifically, in or about November 2015, Plaintiff, who by that time was housed at Upstate
Correctional Facility (“Upstate”), attempted to file a “late grievance” concerning
the incident that took place on November 17, 2014 to November 21, 2014 [at Southport,
in which] Deputy Superintendent of Security Fagan and Superintendent Stephen J.
Wenderlich retaliate[ed] against the Plaintiff [by placing him] back on contraband watch
after [he] was released from contraband watch on November 14, 2014 in retaliation [for
him] reporting to mental health staff that he [had been] assaulted by correctional staff.
Docket No. [#21] at p. 5. In other words, Plaintiff attempted to file a grievance concerning the
second, allegedly-retaliatory stint on contraband watch, which was not described in his original
grievance.
However, DOCCS did not accept the grievance, purportedly because it was
submitted more than forty-five days after the alleged incident, in violation of DOCCS Directive
4040.20 Indeed, as already noted, the grievance was approximately a year late. Plaintiff next
19
Docket No. [#18-3] at p. 10.
Docket No. [#21-1] at pp. 3 & 5. As part of his response to Defendants’ summary judgment motion, Plaintiff
has submitted what purports to be a copy of a letter that he sent to the Inmate Grievance Supervisor at
Southport on November 8, 2015. (Docket No. [#21-1] at p. 14.). The letter purports to explain that Plaintiff was
prevented from filing the grievance sooner because staff at Great Meadow had “thrown away [his] outgoing
mail,” suggesting that he was attempting to mail the grievance to Southport. However, Plaintiff now
acknowledges that grievances must be filed at the facility at which an inmate is presently housed, even if they
pertain to events that occurred at other facilities. See, Docket No. [#21-1] at p. 3. Consequently, Plaintiff did not
need access to the U.S. mail in order to file a grievance.
20
6
attempted to file a complaint against Wenderlich and Fagan pursuant to New York Civil Service
Law § 75.
On March 2, 2016, Plaintiff commenced this action, proceeding pro se.
Liberally
construing the Complaint, it purports to state claims under the Eighth Amendment, for physical
assault, “sexual harassment,” deliberate indifference to serious medical needs, conditions of
confinement while on contraband watch21 and retaliation.
On February 8, 2017, Defendants filed the subject motion [#18] for partial summary
judgment, in lieu of answering the Complaint. Defendants indicate that they are seeking
“dismissal of all claims other than [claims for] physical assault.”22 In that regard, Defendants
categorize the alleged beating and choking as a “physical assault,” while categorizing
Tillinghast’s alleged improper touching of Plaintiff’s body during the two strip searches as
“sexual harassment.” Defendants’ motion is based upon Plaintiff’s alleged failure to exhaust
administrative remedies before commencing this action, his alleged inability to sustain a claim
for deliberate indifference to his medical needs, and his alleged failure to state an actionable
claim for “sexual harassment.”
With regard to Plaintiff’s alleged failure to exhaust his administrative remedies,
Defendants contend, for example, that the grievance which Plaintiff exhausted fails to mention
anything that occurred after November 16, 2014, and that he therefore “failed to exhaust” as to
any alleged violation that occurred after that date. With regard to the medical-deliberate-
21
See, Mitchell v. Chappius, No. 6:17-CV-06673(MAT), 2018 WL 4095108, at *5 (W.D.N.Y. Aug. 27, 2018)
(“The question of ‘whether incarceration in the SHU violates the Eighth Amendment ... depends on the duration
and conditions of the confinement.’ Gonzalez v. Hasty, 802 F.3d 212, 224 (2d Cir. 2015). To establish an Eighth
Amendment violation, an inmate must show “(1) a deprivation that is ‘objectively, sufficiently serious’ that he was
denied ‘the minimal civilized measure of life’s necessities’, and (2) a ‘sufficiently culpable state of mind’ on the
part of the defendant official such as deliberate indifference to inmate health or safety.” Gaston v. Coughlin, 249
F.3d 156, 164 (2d Cir. 2001) (quoting Farmer, 511 U.S. at 834)”).
22
Docket No. [#18-5] at p. 3.
7
indifference claim, Defendants contend that Plaintiff’s AHR demonstrates that he was “properly
treated,” that he did not have a sufficiently serious injury, and that Defendants did not act with
a sufficiently culpable state of mind. With regard to the alleged failure to state a claim for
“sexual harassment,” Defendants argue that even if Tillinghast improperly grabbed Plaintiff’s
buttocks during a strip search, as alleged in the Complaint, that such fact is insufficient to
sustain an Eighth Amendment claim.
On March 6, 2017 and March 8, 2017, Plaintiff filed, respectively, a Counter-Statement
of Facts [#21] and a Memorandum of Law [#22]. Regarding his alleged failure to exhaust
administrative remedies as to certain claims asserted in this action, Plaintiff notes that he
attempted to file the “late” grievance at Upstate, a year after the events at issue in this action.
Plaintiff vaguely suggests that he was prevented from filing the grievance sooner, either
because he was receiving mental health treatment, or because unidentified staff at Great
Meadow tampered with his mail. Plaintiff further contends that he filed a separate complaint
against Wenderlich and Fagan pursuant to New York Civil Service Law sec. 75.
Regarding medical treatment, Plaintiff maintains that his AHR does not correctly
document what happened following the assault on November 11th. Plaintiff admits that he was
seen by facility mental health staff on November 12th, 13th and 14th to receive his usual
medications, but contends that they ignored him when he attempted to tell them that he had
been assaulted.23 As for the injuries that he allegedly sustained during the assault, Plaintiff
describes “scars,” “swollen face,” a “nickel sized abrasion” on his left shoulder, sore testicles,
burning sensation when urinating, mental trauma, “severe sharp back pains” and “migraine
23
Docket No. [#21] at p. 3.
8
headaches . . . from being repeatedly punched.” 24 Although, as already noted, the AHR
indicates that Plaintiff was already being treated for headaches, back pain and testicular
swelling prior to the alleged assault.
Regarding his alleged failure to state an actionable claim for “sexual harassment”
against Tillinghast, Plaintiff contends that he has adequately asserted a claim based upon
Tillinghast’s conduct during the strip search on November 11th , since Tillinghast had “no
penological reason” to conduct the search.
On March 10, 2017, Defendants filed a reply [#23].
Regarding exhaustion of
administrative remedies, Defendants contend that Plaintiff’s response lacks merit and is
misleading, since during the period between November 2014 and November 2015, he filed and
exhausted sixteen various grievances pertaining to other matters, which shows that nothing
was preventing him from filing his “late” grievance sooner.
On March 23, 2017, with the Court’s permission, Plaintiff filed a sur-reply. 25
The
submission vaguely reiterates that various factors prevented Plaintiff from filing his “late”
grievance sooner, but does not address why those same factors did not prevent him from filing
and exhausting sixteen other grievances during the same period. As for his physical injuries,
Plaintiff now admits that it is “undisputed” that he had preexisting medical conditions (migraine
headaches, loss of hearing in right ear, back pain, painful urination), which he sustained during
an unrelated assault in May 2014. Nevertheless, he contends that the alleged assault on
November 11, 2014, exacerbated those preexisting injuries.
24
25
See, e.g., Docket No. [#21] at pp. 3-4.
See, Order [#25] treating Plaintiff’s submission [#24] as a sur-reply.
9
DISCUSSION
Preliminarily, the Court reiterates that Defendants are not seeking summary judgment
on Plaintiff’s claims against Tillinghast, Lamb, Harvey and Belz relating to the alleged
beating/choking on November 11, 2014.
Plaintiff’s Pro Se Status
Plaintiff is proceeding pro se, and the Court therefore reviews his papers “with special
solicitude, mindful that they must be construed liberally and interpreted to raise the strongest
arguments that they suggest.” Cicio v. Wenderlich, 714 F. App'x 96, 97 (2d Cir. Mar. 16, 2018)
(citation and internal quotation marks omitted).
Rule 56
Defendants have moved for partial summary judgment pursuant to Fed. R. Civ. P. 56.26
Summary judgment may not be granted unless "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.”
Fed.R.Civ.P. 56(a). A party seeking summary judgment bears the burden of establishing that
no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he movant must make a prima facie showing that
the standard for obtaining summary judgment has been satisfied.” 11 Moore's Federal Practice,
§ 56.11[1][a] (Matthew Bender 3d ed.). “In moving for summary judgment against a party who
will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to
an absence of evidence to support an essential element of the nonmoving party's claim.”
Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.1996) (citing Celotex Corp. v. Catrett, 477
26
Defendants served an Irby notice on the pro se Plaintiff as required by Local Rule 56.2. See, Docket No.
[#18-2].
10
U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate “specific facts showing
that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). To do this, the non-moving party must present evidence
sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249. The underlying facts
contained in affidavits, attached exhibits, and depositions, must be viewed in the light most
favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8
L.Ed.2d 176 (1962). Summary judgment is appropriate only where, “after drawing all
reasonable inferences in favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving party.” Leon v. Murphy, 988 F.2d
303, 308 (2d Cir.1993).
Exhaustion of Administrative Remedies
A prison inmate is required to exhaust his administrative remedies before bringing an
action in federal court complaining about prison conditions. See, 42 U.S.C.A. § 1997e(a) (“No
action shall be brought with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”).
For purposes of 42 U.S.C. § 1997e(a), New York inmates in the custody of DOCCS are
required to pursue their administrative grievances using New York’s Inmate Grievance
Program:
As an inmate of the New York State Department of Corrections and Community
Supervision (“DOCCS”), Plaintiff was required to submit his grievances through the New
York DOCCS' Inmate Grievance Program (“IGP”). The IGP has a three-tiered process
for adjudicating complaints: “(1) the prisoner files a grievance with the Inmate Grievance
Resolution Committee (‘IGRC’), (2) the prisoner may appeal an adverse decision by the
11
IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an
adverse decision by the superintendent to the Central Office Review Committee
(‘CORC’).” Espinal v. Goord, 558 F.3d 119, 125 (2d Cir.2009) (citing 7 N.Y. Comp.Codes
R. & Regs. § 701.7 (1999)).
Dabney v. Pegano, 604 F. App'x 1, 3 (2d Cir. Feb. 1, 2015).
To satisfy the requirements of 42 U.S.C. § 1997e(a), a grievance must adequately
describe the nature of the inmate’s problem. In this regard, the Second Circuit has stated:
The exhaustion requirement of the Prison Litigation Reform Act (“PLRA”) affords
“corrections officials time and opportunity to address complaints internally before
allowing the initiation of a federal case.” Brownell v. Krom, 446 F.3d 305, 310 (2d
Cir.2006) (internal quotation marks omitted). Consistent with this purpose, a prisoner
must allege facts sufficient to alert corrections officials “to the nature of the claim,” and
“provide enough information about the conduct” at issue “to allow prison officials to take
appropriate responsive measures.” Johnson v. Testman, 380 F.3d 691, 697 (2d
Cir.2004) (internal quotation marks omitted). The burden is not a heavy one; it can be
analogized to notice pleading. See id.
Singh v. Lynch, 2012 WL 386416, 460 F. App'x 45, 46–47 (2d Cir. Feb. 8, 2012); see also,
Dailey v. Fuller, No. 915CV01051BKSTWD, 2016 WL 7732236, at *8 (N.D.N.Y. Dec. 5, 2016)
(“Although it is appropriate to afford pro se inmates a liberal grievance pleading standard, the
grievance may not be so vague as to preclude prison officials from taking appropriate measures
to resolve the complaint internally.”) (citation omitted), report and recommendation adopted,
No. 915CV1051BKSTWD, 2017 WL 108056 (N.D.N.Y. Jan. 11, 2017).
Where an inmate’s pleading asserts claims based upon events that occurred after the
inmate filed his administrative grievance, the Court must consider whether the earlier grievance
satisfies the exhaustion requirement of § 1997e(a), or whether the inmate should have filed
another grievance. Briefly, the inmate is required to separately grieve the later-occurring
incidents, unless they involve the “same problem” as to which the inmate previously exhausted
12
his administrative remedies. Johnson v. Killian, 680 F.3d 234, 238-239 (2d Cir. 2012).
Where “a prior [properly exhausted] grievance identifies a specific and continuing
complaint that ultimately becomes the basis for a lawsuit,” Johnson, 680 F.3d at 239,
the prior grievance is sufficient to exhaust a prisoner's administrative remedies with
respect to continuing violations at the facility. Id. at 238–39. However, “generalized
complaints regarding the conditions of an inmate's confinement will [not] suffice to
shortcut the administrative remedy process.” Id. at 239.
Reid v. Nassau Cty. Sheriff's Dep't, No. 13-CV-1192 SJF SIL, 2014 WL 4185195, at *27
(E.D.N.Y. Aug. 20, 2014); see also, White v. Velie, No. 9:15-CV-88 (TJM/ATB), 2015 WL
10567827, at *7 (N.D.N.Y. Dec. 18, 2015) (“Johnson is distinguishable from this action. In
Johnson, the plaintiff had already exhausted his remedies regarding the same policy, and the
substantive issues would have been the same. This action involves a specific instance of
alleged excessive force by defendant Velie and specific instances of the alleged denial of
medical care which plaintiff did not exhaust. The fact that plaintiff has previously raised
excessive force or medical care claims does not excuse him from exhausting all future claims
based on medical care or excessive force.”), report and recommendation adopted, No. 9:15CV-88 (TJM/ATB), 2016 WL 1238242 (N.D.N.Y. Mar. 28, 2016).
Of course, an inmate’s duty to exhaust administrative remedies under § 1997e(a) may
be excused in certain cases:
Though exhaustion is generally mandatory, we have explained that a failure to exhaust
administrative remedies may be excused where: (1) the administrative remedies were
not in fact available; (2) prison officials have forfeited, or are estopped from raising, the
affirmative defense of non-exhaustion; or (3) “special circumstances ... justify the
prisoner's failure to comply with administrative procedural requirements.” Hemphill v.
New York, 380 F.3d 680, 686 (2d Cir.2004) (internal quotation marks omitted).
Dabney v. Pegano, 2015 WL 664562 at *1.
However, an inmate who fails to utilize administrative remedies as to a particular claim
13
cannot create a triable issue of fact as whether exceptions (1) or (3) above apply merely by
making vague assertions, particularly where he utilized administrative remedies to exhaust
other claims during the same period. See, Engles v. Dougherty, No. 914CV1185TJMATB, 2017
WL 6466309, at *5 (N.D.N.Y. Aug. 22, 2017) (“Defendants have shown that there is no record
of plaintiff appealing a grievance regarding the October 6, 2011 incident to the CORC,
notwithstanding three other grievances that were filed close to the same time period and
appealed at every administrative level. Plaintiff's statement that he filed a ‘separate grievance,’
but it was somehow lost or destroyed, is not supported by anything but inconsistent assertions.
. . . [I]t defies logic to hold that administrative remedies were not “available” to plaintiff, given
the evidence in the record.”), report and recommendation adopted sub nom. Engles v. Souza,
No. 914CV1185TJMATB, 2017 WL 6463074 (N.D.N.Y. Dec. 18, 2017); see also, Toliver v.
Stefinik, No. 912CV00077MADATB, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016)
(“Plaintiff's vague and conclusory allegations that he filed other grievances that were not
accepted by the IGRC at Shawangunk do not, in light of the documentation that Defendants
have provided about Plaintiff's grievance history, create a factual dispute material to the issue
of whether Plaintiff exhausted his administrative remedies before he filed his initial complaint.”).
As already mentioned, in the instant case the Complaint purports to assert Eighth
Amendment claims for physical assault, “sexual harassment,” deliberate indifference to serious
medical needs, conditions of confinement while on contraband watch 27 and retaliation.
27
See, Mitchell v. Chappius, No. 6:17-CV-06673(MAT), 2018 WL 4095108, at *5 (W.D.N.Y. Aug. 27, 2018)
(“The question of ‘whether incarceration in the SHU violates the Eighth Amendment ... depends on the duration
and conditions of the confinement.’ Gonzalez v. Hasty, 802 F.3d 212, 224 (2d Cir. 2015). To establish an Eighth
Amendment violation, an inmate must show “(1) a deprivation that is ‘objectively, sufficiently serious’ that he was
denied ‘the minimal civilized measure of life’s necessities’, and (2) a ‘sufficiently culpable state of mind’ on the
part of the defendant official such as deliberate indifference to inmate health or safety.” Gaston v. Coughlin, 249
F.3d 156, 164 (2d Cir. 2001) (quoting Farmer, 511 U.S. at 834)”).
14
However, Plaintiff did not exhaust his administrative remedies as to the conditions-ofconfinement claim or retaliation claim before commencing this action. In particular, Plaintiff’s
six-page handwritten grievance 28 describes only the assault and “sexual harassment” on
November 11th and the denial of medical attention between November 11th and November 14
by officers assigned to watch the contraband observation cell. The grievance does not allude
to any improper conditions of confinement during the contraband watch, except the denial of
medical treatment.
Neither does the grievance allude to the alleged denial of medical
treatment by Chapman, or the alleged retaliation by Fagan and Wenderlich (consisting of
placing Plaintiff on contraband watch for a second time). The conditions of confinement in the
contraband-watch cell, the alleged denial of medical treatment by Chapman and the alleged
retaliation by Fagan and Wenderlich, are not the “same problem” which Plaintiff included in the
grievance that he wrote on November 16, 2014. Accordingly, and as Plaintiff later recognized,
he needed to file a separate grievance concerning those matters.
Plaintiff argues that his failure to exhaust (using the inmate grievance system) those
claims which were not included in his grievance should be excused, either because he was
receiving mental health treatment, or because prison staff at Great Meadow prevented him
from filing a supplemental grievance by tampering with his outgoing mail. However, Plaintiff’s
vague assertions in that regard are insufficient to create a triable issue of fact, particularly
where, as here, it is undisputed that Plaintiff filed and exhausted a large number of other
grievances during the same period. It is also undisputed that in April 2015, at Great Meadow,
a Corrections Captain interviewed Plaintiff concerning his November 2014 grievance, and
Plaintiff stated that the “grievance was complete as written and he had no new information to
28
Docket No. [#18-3] at pp. 23-28 (Grievance SPT-59452-14).
15
add to his complaint.”29 Accordingly, Plaintiff’s contention that remedies were unavailable or
that he was prevented from using them are disproven by the record, and are therefore
insufficient to defeat summary judgment as to the unexhausted claims.
Plaintiff nevertheless argues that he should be deemed to have exhausted his
administrative remedies (at least with regard to the retaliation claims) by virtue of having filed
a complaint against Wenderlich and Fagan pursuant to New York Civil Service Law § 75.30
However, such act is insufficient to satisfy 42 U.S.C. § 1997e(a), for several reasons. First,
New York Civil Service Law § 75 is a labor provision that has nothing to do with Plaintiff’s
claims, and provides no right to inmates to complain about DOCCS employees.31 Indeed, this
Court has previously rejected attempts by inmates to use Civil Service Law § 75 to exhaust
administrative remedies. See, Tapp v. Kitchen, No. 02-CV-6658 CJS, 2004 WL 2403827
(W.D.N.Y. Oct. 26, 2004) (filing complaint under Civil Service Law sec. 75 was not sufficient to
satisfy 42 U.S.C. § 1997e(a)); accord, Rodriguez v. Skubis, 2009 WL 1158785 at *5-6
(W.D.N.Y. Apri. 28, 2009). Further, Plaintiff cannot claim that he was unaware of the need to
use the DOCCS IGP procedures, rather than the Civil Service Law, to exhaust his
administrative remedies as to the matters at issue in this lawsuit. Rather, Plaintiff only filed
the Civil Service Law § 75 complaint after he was told that the “late” inmate grievance that he
was attempting to file in November 2015 was time-barred under the IGP rules.32
29
Docket No. [#18-3] at p. 63.
Docket No. [#21-1] at p. 16. This Civil Service Law complaint was filed on December 3, 2015, more than a
year after the matters complained of therein. Id.
31
See, Ortlieb v. Lewis Cty. Sheriff's Dep't, 155 A.D.3d 1628, 1629–30, 65 N.Y.S.3d 390, 391 (N.Y. App. Div.
2017) (“Civil Service Law § 75 provides that a public employer may not terminate or otherwise discipline certain
public employees “except for incompetency or misconduct shown after a hearing upon stated charges.”) (citation
omitted).
32
This Civil Service Law complaint was filed on December 3, 2015, more than a year after the matters
complained of therein. Docket No. [#21-1] at p. 16.
30
16
For all of the foregoing reasons, Plaintiff failed to exhaust his administrative remedies
as to the alleged conditions of confinement in the contraband-watch cell, the alleged denial of
medical care by Chapman and the alleged retaliation by Fagan and Wenderlich. Accordingly,
Defendants are granted summary judgment on those claims.
Section 1983
Defendants further contend that Plaintiff cannot establish Eighth Amendment claims, for
either deliberate indifference to serious medical need or sexual abuse, under Section 1983.
The Court agrees as to the medical claim, but disagrees as to the sexual abuse claim.
Section 1983 Ais not itself a source of a substantive rights, but merely provides a method
for vindication of federal rights elsewhere conferred.@ Long v. Crowley, No. 09BCVB00456A(F),
2012 WL 1202181 (W.D.N.Y. Mar. 22, 2012) (citations and internal quotation marks omitted).
To establish individual liability under Section 1983, a plaintiff must show that the defendant
acted under color of state law and caused the plaintiff to be deprived of a constitutional right.
42 U.S.C. ' 1983.
Here, Plaintiff contends that Defendants violated his Eighth Amendment rights, and the
applicable law is clear:
The Eighth Amendment protects prison inmates against cruel and unusual punishment.
U.S. Const. amend. VIII; see Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89
L.Ed.2d 251 (1986) (protecting inmates against the “unnecessary and wanton infliction
of pain”) (internal quotation marks omitted). To be actionable, the punishment must be
“objectively, sufficiently serious,” and the corrections officer must have a “sufficiently
culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994) (citation and internal quotation marks omitted).
Delee v. Hannigan, 729 F. App'x 25, 29 (2d Cir. Mar. 28, 2018).
Plaintiff maintains that Defendants violated his Eighth Amendment rights by committing
17
sexual abuse against him during a strip search, and by denying him medical attention while he
was confined in the contraband-watch cell. With regard to the first type of claim,
[s]exual abuse of a prisoner by a corrections officer may in some circumstances violate
the prisoner’s right to be free from cruel and unusual punishment.” Boddie v. Schnieder,
105 F.3d 857, 860-61 (2d Cir. 1997). A single incident can reach constitutional
significance “if sufficiently severe or serious.” Crawford[v. Cuomo], 796 F.3d [252,] 257
[(2d Cir. 2015)]. “A corrections officer’s intentional contact with an inmate’s genitalia or
other intimate area, which serves no penological purpose and is undertaken with the
intent to gratify the officer’s sexual desire or humiliate the inmate, violates the Eighth
Amendment.” Id. At the same time, there are “searches of an intensely personal nature”
that are not “properly the subject of a lawsuit.” Id. at 258. “[T]he principal inquiry is
whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk
or strip search, or by contrast whether it is undertaken to arouse or gratify the officer or
humiliate the inmate.” Id. at 257-5.
Delee v. Hannigan, 729 F. App'x at 29.
In the instant case, Defendants contend that they are entitled to summary judgment on
the sexual abuse claim, because such claims are generally not actionable if they arise from “a
single strip search,” and because “even assuming the conduct alleged occurred – which
Defendants deny – the act alleged [grabbing and spreading Plaintiff’s buttocks] does not rise
to the level of an Eighth Amendment violation.”33 Defendants further contend that
Plaintiff makes no allegation [that] the strip search was for an improper purpose, other
than conclusorily stat[ing] he was sexually harassed by it, and concedes the stated
purpose of the officer’s alleged actions – which Defendants deny – was to find
contraband.
Def. Memo of Law [#18-5] at p. 9.
However, Defendants’ characterization of Plaintiff’s claim is inaccurate and misleading,
since Plaintiff obviously contends that “the stated purpose of the officers’ actions” was false,
33
Def. Memo of Law [#18-5] at p. 8.
18
and that the strip search was indeed conducted for an improper purpose. The Complaint
expressly asserts that Tillinghast had a history of “blatantly harass[ing] the plaintiff for no
apparent reason” at other facilities, and that he had promised to “get” Plaintiff while he was at
Southport.34 Further, the Complaint describes Tillinghast’s version of events as “lies.”35 For
example, the Complaint alleges that on November 11th, Tillinghast, Belz and other officers were
already gathered and waiting for Plaintiff upon his return from recreation, and that they ordered
him into the shower for a strip search without performing any pat frisk and without having any
basis to believe that he had contraband.36 Meanwhile, Tillinghast’s misbehavior report asserts
that he conducted the strip search only after he conducted a pat frisk and “felt an unusual bulge
in [Plaintiff’s] buttocks area.”37 In sum, there is a triable issue of fact as to whether the strip
search served a valid penological purpose or whether it was undertaken with the intent to
harass and humiliate Plaintiff.38
To the extent that Defendants are arguing that the strip search (as described by Plaintiff)
was not objectively “sufficiently severe or serious” to establish an Eighth Amendment violation
regardless of Tillinghast’s subjective motivation, the Court again disagrees. Defendants imply
that a “single strip search” cannot establish an Eighth Amendment claim. However, the cases
cited by Defendants merely indicate that claims arising from strip searches typically fail to rise
to the level of an Eighth Amendment violation, provided that they serve a valid penological
34
Complaint [#1] at pp. 5.
Complaint [#1] at p. 11.
36
Complaint [#1] at pp. 5.
37
Docket No. [#18-3] at p. 56.
38
There also seems to be a disagreement as to whether Plaintiff actually had contraband secreted in his body –
Belz asserted that an x-ray showed that Plaintiff had such contraband, but no contraband was actually found,
even though Plaintiff was on contraband watch for six days. Docket No. [#18-3] at pp. 24, 37, 47, 74-75.
Moreover, although the AHR indicates that “security” requested an x-ray to check for contraband, it does not
indicate that such an x-ray was actually performed. Docket No. [#18-4] at p. 10.
35
19
purpose.39 Again, Plaintiff clearly alleges that the strip search on November 11, 2014, had no
valid penological purpose.
Moreover, Second Circuit caselaw indicates that an Eighth
Amendment sexual abuse claim arising from a single strip search may be actionable, provided
that the search involved “intentional contact with an inmate’s genitalia or other intimate area”
without valid penological purpose. See, Shannon v. Venettozzi, No. 17-2092, 2018 WL
4224321, at *2 (2d Cir. Sept. 6, 2018) (“[T]he Eighth Amendment is violated by even a single
instance of a corrections officer’s intentional contact with an inmate’s genitalia or other intimate
area when such contact serves no penological purpose and is undertaken with the intent to
gratify the officer’s sexual desire or humiliate the inmate.”) (citation and internal quotation marks
omitted). Consequently, Defendants’ request for partial summary judgment on the Eighth
Amendment sexual abuse claim is denied.
However, the Court agrees with Defendants that Plaintiff’s Eighth Amendment medical
claim fails. Briefly summarized, the applicable legal principles are well settled:
To prevail on a claim for deliberate indifference to his serious medical needs under the
Eighth Amendment, a plaintiff must prove that, (1) objectively, the alleged deprivation of
medical care was “sufficiently serious,” and, (2) subjectively, the defendants acted or
failed to act “while actually aware of a substantial risk that serious inmate harm will
result.” Salahuddin v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006). Mere negligence will
not suffice. Id. at 280. Additionally, “a prisoner does not have the right to choose his
medical treatment as long as he receives adequate treatment.” Hill v. Curcione, 657
F.3d 116, 123 (2d Cir. 2011).
Tolliver v. Sidorowicz, 714 F. App'x 73, 73–74 (2d Cir. Mar. 8, 2018).
In responding to Defendants’ arguments regarding the lack of a serious injury, Plaintiff
cites medical problems such as headaches, back pain and testicular swelling, for which he was
39
Docket No. [#18-5] at pp. 8-9.
20
already being treated prior to the assault, as well as facial swelling, sore ribs and a small
abrasion on his shoulder. These types of minor injuries are not sufficiently serious to support
an Eighth Amendment medical claim. See, e.g., McDay v. Bushey, No. 914CV997GLSATB,
2016 WL 6638182, at *6 (N.D.N.Y. Aug. 10, 2016) (Where inmate alleged that he suffered “(1)
a bruise at the top of his head, (2) an abrasion to the right lateral head, (3) scratches to his
right upper back, (4) a scratch to his left lower back, (5) a swollen lip, (6) a “skin nick” on his
left knee, (7) a swollen left pinky finger, (8) a skin tear between the third and fourth finger on
his left hand, and (9) an approximately ten inch scratch to his right forearm,” the district court
held that “[t]hese types of minor, temporary injuries have been held not to constitute serious
medical needs as a matter of law.”) (collecting cases), report and recommendation adopted,
No. 914CV997GLSATB, 2016 WL 6637969 (N.D.N.Y. Nov. 9, 2016); see also, Jackson v.
Kaufman, No. 13 CIV. 6544 PAC DF, 2015 WL 5521432, at *9–10 (S.D.N.Y. Sept. 18, 2015)
(“[W]hile the medical records may suggest that, at most, Plaintiff suffered from mild swelling
and bruising, Plaintiff himself testified under oath, at his deposition, that he suffered from severe
bruising and swelling, accompanied by significant pain, rendering him “barely able to walk” for
nearly a month. At the summary judgment stage, Plaintiff is entitled to have the Court draw
every favorable inference from this testimony. Nonetheless, even absent the medical records,
and even if Plaintiff s testimony were fully credited by a jury, Bentivegna is correct that this
would likely be inadequate, as a matter of law, to show that Plaintiff's injury was “sufficiently
serious” for the alleged denial of treatment to constitute a potential Eighth Amendment violation.
Even if his leg showed substantial bruising and swelling, Plaintiff still appears to claim a softtissue injury, and analogous case law regarding similar injuries shows that, even when fairly
significant, such injuries are generally not considered to create a condition of urgency or pain
21
sufficient to render a lack of treatment constitutionally suspect.”).
Additionally, even assuming arguendo that Plaintiff’s injuries were sufficiently serious to
support the objective prong of an Eighth Amendment medical claim, his own submissions
undercut his claim that Wilcox, Godfrey, Seyman, Thrall, Kitts, Potter, Sabol, Caporiccio or
Brink had the requisite state of mind to deny him medical attention by refusing to relay his
request to Southport’s medical staff. In this regard, Plaintiff admits that he was actually seen
by Southport medical staff each day that he was on contraband watch, and that he complained
to them about the injuries that he allegedly sustained during the assault on November 11, 2014.
See, Plaintiff’s Counter-statement of Facts, Docket No. [#21] at p. 3 (“He was seen by medical
and mental health staff on November 12, 13 & 14 to receive his medication, but when the
Plaintiff attempted to bring to their attention that he was assaulted and in need of medical
attention he was ignored and denied medical treatment.”). Although Plaintiff alleges that the
medical staff ignored his complaints, the corrections officers monitoring him while he was in
the observation cell were entitled to rely upon the expertise of the medical staff.
The
corrections officers were not required to summon other medical providers simply because
Plaintiff was dissatisfied with the level of treatment that he was receiving. See, Cuoco v.
Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000) (“Cuoco was under medical treatment. Cuoco
suggests no basis on which to conclude that Moore or Hershberger should have challenged
the responsible doctors' diagnosis. One can imagine the repercussions if non-medical prison
officials were to attempt to dictate the specific medical treatment to be given to particular
prisoners—for whatever reason. It was, as a matter of law, objectively reasonable for Moore
and Hershberger not to have done so with respect to Cuoco.”); see also, Hanrahan v. Menon,
No. 9:07-CV-610, 2010 WL 6427650, at *12 (N.D.N.Y. Dec. 15, 2010) (“Defendant McGrail
22
[(the jail administrator)] cannot be liable under Section 1983 for failure to supervise the prison
medical staff, because he lacks the medical training and authority to do so.”), report and
recommendation adopted, No. 9:07-CV-610 FJS ATB, 2011 WL 1213171 (N.D.N.Y. Mar. 31,
2011), aff'd sub nom. Hanrahan v. Mennon, 470 F. App'x 32 (2d Cir. 2012).
For all of the foregoing reasons, Defendants are entitled to summary judgment on the
denial-of-medical-care claim.
CONCLUSION
Defendants’ motion for partial summary judgment [#18] is denied as to the sexual abuse
claim, but is otherwise granted.
Defendants are granted summary judgment as to the
retaliation claim, the conditions of confinement claim and the denial-of-medical-care claim.
The Clerk of the Court is directed to terminate Wenderlich, Fagan, Chapman, Wilcox, Godfrey,
Seyman, Thrall, Kitts, Potter, Sabol, Caporiccio and Brink as parties to this action.
The
remaining claims are the excessive-force claim against Tillinghast, Harvey and Lamb, the
failure-to-intervene claim against Belz and the sexual abuse claim against Tillinghast. The
remaining Defendants shall file and serve an answer to the Complaint within fourteen days of
the date of this Decision and Order.
SO ORDERED.
Dated: Rochester, New York
October 5, 2018
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
23
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