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GIBRALTER v. CITY OF NEW YORK

June 18, 1985

NEAL D. GIBRALTER, Plaintiff against THE CITY OF NEW YORK, CAPTAIN ROCK, JOHN DOE ONE AND JOHN DOE TWO, Defendants


The opinion of the court was delivered by: MCLAUGHLIN

ORDER

McLAUGHLIN, District Judge

The attached Report and recommendation of Hon. Shira A. Scheindlin, United States Magistrate, is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted.

 It is hereby ORDERED that: 1) plaintiff's claim under 42 U.S.C. § 1981 is dismissed; 2) plaintiff's claim against defendant City of New York under 42 U.S.C. § 1983 is dismissed; 3) the motion of Captain Rock, John Doe I and John Doe II to dismiss claims against them under 42 U.S.C. § 1983 is denied; and 4) discovery in this action is to proceed forthwith under the guidance of Magistrate Scheindlin.

 SO ORDERED

 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

 Plaintiff, Neal D. Gilbralter, brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 seeking damages for alleged violations of his civil rights. Specifically, plaintiff alleges that the defendants failed to provide him with a safe prison environment while he was an inmate at the New York City Correctional Institution for Men on Riker's Island ("Rikers Island"). It is further alleged that there exists a de facto policy of the City of New York of failing to provide a safe environment for inmates at Riker's Island, and that defendant John Doe II is aware of this policy. Finally, plaintiff alleges that John Doe I witnessed, but did not intervene in a fight between plaintiff and another inmate in which plaintiff claims he was injured. This case was referred to me by the Honorable Joseph M. McLaughlin for a Report and Recommendation on defendants' motions for summary judgment.

 I. FACTUAL BACKGROUND

 On March 19, 1982, Gilbralter was interned at Rikers Island. Plaintiff alleges that since his internment he has been the victim of a series of assaults and robberies. Plaintiff further asserts that many of these attacks were motivated by "racist reasons" and that prison officials purposely placed him in the particular housing area where racial attacks were likely to occur.

 Riker's Island has an established grievance resolution program that is outlined in the orientation booklet that every inmate receives upon entering the prison. If an inmate complains about his living conditions or desires help in resolving a problem, "interview slips" are provided to the inmate so that he may requests consultation and assistance. If an inmate breaks the rules of the prison, by fighting or taking another's property for example, a "notice of infraction" is issued by a prison official. Upon issuance of such a notice, the inmate goes before a disciplinary board that determines his punishment, if any. A Captain or supervisory officer, at his discretion, may place an inmate in administrative segregation until the hearing. It is also a policy of the prison to provide medical treatment if needed or requested. *fn1"

 Plaintiff alleges that he has been the victim of a series of eight assaults, beginning with the day after his internment and culminating in the incident of November 6, 1982. Of these eight assaults, plaintiff alleges that five were reported to prison officials, although prison records indicate that only four were reported. The first incident occurred on March 20, 1982, when plaintiff was reprimanded for fighting with another inmate, named Ramirez. Plaintiff pleaded guilty at a disciplinary hearing and received medical treatment for a minor wrist injury. Plaintiff alleges that he had subsequent fights with inmates on August 15, October 1, October 10 and October 30. Although he believes he received medical treatment following the incident of October 10, the institution has no records of any treatment. Plaintiff does not allege that he reported these incidents to any prison official. *fn2"

 On August 1, 1982 plaintiff alleges that he was assaulted by a prison guard when he asked permission to use the washroom. Department of Corrections records reveal that at a disciplinary hearing on July 21, 1982, plaintiff was found guilty of refusing a direct order of a prison official and was given a five day punitive segregation. Medical records reveal that plaintiff first claimed that he was pushed against a wall, and later that he was punched by the officer. Medical treatment was found not to be necessary. *fn3"

 On November 6, 1982, plaintiff and Ramirez were involved in a second fight. Plaintiff asserts that other inmates held him down while Ramirez cut his face and neck with a razor blade. The weapon Ramirez used was a blade fashioned from a BIC disposable razor. Plaintiff alleges that Ramirez had concealed the blade in his toothbrush. Plaintiff sustained superficial lacerations to the left side of his face and was treated with a face suture. Captain Rock testified that it was prison policy that inmates' lockers be searched every day, although he was not certain when the last search was on or before November 6, 1982. Ramirez claimed, in a report of the incident prepared by prison authorities, that plaintiff struck him with a lock, and that he slashed plaintiff in self-defense. He claimed that he later flushed the razor down the toilet.

 Captain Rock testified that he interviewed the two inmates after the fight of November 5 and disciplined both men by issuing infraction notices against them. *fn4" He determined, however, that it was not necessary to order either inmate transferred to another housing area. He did offer a transfer to both men, but neither accepted. *fn5"

 Captain Rock testified that he was informed of the incident on November 6, although he had heard about it earlier from his colleagues in the institution. No corrections officer witnessed the assault, although two inmates submitted written statements in which they claimed to have witnessed plaintiff strike Ramirez with a lock. Plaintiff did receive an infraction notice for the November 6 incident.

 The Department of Corrections has no record of a request by plaintiff for either a transfer or an opportunity to speak with any corrections officials. Plaintiff does allege in his original complaint that he had requested to be ...


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