Affidavit of Deo Read, sworn to October 17, 1991, P 4.
In his letter of February 20, 1992 submitted in response to defendants' motion, plaintiff refers to a "pattern of wrong doing by defendants" allegedly shown by documents enclosed with the letter (treatment notes already submitted with defendants' motion) and copies of four unsworn documents addressed by other inmates to various prison officials. The four documents are: a letter from another inmate to the DOCS Commissioner alleging harassment of Jewish inmates by Jacoby and two other correction officers; a petition signed by several inmates to Dr. Jeanty asking that Nurse Kennedy be removed; a memorandum to the Superintendent from one of the signatories to that petition complaining about Kennedy and several correction officers; and a request for disciplinary action against Jacoby from another inmate.
Summary Judgment Standards
Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.
The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion," Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied 480 US. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987), and extend extra consideration to a pro se plaintiff who is to be given "special latitude on summary judgment motions," McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986). See also Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Williams V. Smith, 781 F.2d 319, 322 (2d Cir. 1986). But the court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50; Knight v. U.S. Fire Insurance Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the nonmoving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. U.S. Fire Insurance Co., 804 F.2d at 11-12. In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 US 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)); see also Weg v. Marchiola, 654 F. Supp. 1189, 1191-92 (S.D.N.Y. 1989).
The gravamen of plaintiff's complaint is not clear. In order to state a claim in federal court under 42 U.S.C. § 1983, a federal constitutional or statutory provision must be implicated. The only reference in plaintiff's complaint to any federal constitutional or statutory provision is in its pre-printed title: "Form To Be Used by Prisoners in Filing a Complaint Under the Civil Rights Act, 42 U.S.C. § 1983." In essence, the claim appears to be that plaintiff was caused such emotional distress by the events of September 25, 1990 and his subsequent keeplock and disciplinary proceedings that it caused a worsening of his cardiac condition and forced him into surgery. Mindful of our duty, however, to construe pro se actions liberally, see Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28-29 (2d Cir. 1986), we have analyzed the case under all possible constitutional theories that it may be seen possibly to invoke and find it may be read to imply three constitutional claims: (1) defendant Jacoby used excessive force and was otherwise deliberately indifferent to plaintiff's medical needs in violation of the Eighth Amendment; (2) Nurse Kennedy was deliberately indifferent to plaintiff's medical needs in violation of the Eighth Amendment; and (3) Lt. Sanford and defendant Artuz, through their involvement in plaintiff's hearing, denied him due process of law in violation of the Fourteenth Amendment.
The claim against Jacoby
In order to sustain a constitutional claim with respect to prison officials' use of force or causation of medical harm, the behavior of the officials must have been such that it rose to the level of a violation of the cruel and unusual punishments clause of the Eighth Amendment. The Eighth Amendment is violated only when such behavior by officials involves the "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986); Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)); see Hudson v. McMillan, 117 L. Ed. 2d 156, 112 S. Ct. 995, 998 (1992); Ingraham v. Wright, 430 U.S. 651, 664-69, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). "What is necessary to establish an 'unnecessary and wanton infliction of pain' . . . varies according to the nature of the alleged constitutional violation." Hudson v. McMillan, 112 S. Ct. at 998 (citing Whitley v. Albers, 475 U.S. at 320). "The appropriate inquiry when an inmate alleges that prison officials failed to attend to serious medical needs is whether the officials exhibited 'deliberate indifference.'" Hudson v. McMillan, 112 S. Ct. at 998 (citing Estelle v. Gamble, 429 U.S. at 104). By contrast, "whenever prison officials stand accused of using excessive physical force," i.e., whether they are confronted with a prison disturbance or otherwise use force to keep order, "the core judicial inquiry is that set forth in Whitley: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillan, 112 S. Ct. at 999; see id. at 998; Whitley v. Albers, 475 U.S. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 38 L. Ed. 2d 324, 94 S. Ct. 462 (1973)).
Jacoby disputes plaintiff's allegation that he pushed him into a chair, causing a bruise on his arm, but even when we accept plaintiff's account as true for the purpose of this motion, it is insufficient to state a claim. The undisputed evidence shows that the bruise was not a serious injury, and, while the use of excessive force against a prisoner may violate the Eighth Amendment even where no serious injury is suffered, see Hudson v. McMillan, 112 S. Ct. at 997, plaintiff does not allege any facts to indicate that Jacoby applied force "maliciously and sadistically to cause harm," and not "in a good-faith effort to maintain or restore discipline." Id. at 999. As the late Judge Friendly stated in Johnson v. Glick:
Certainly the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it; still less is it as extensive as that afforded by the common law tort action for assault, redressing "any act of such a nature as to excite an apprehension of battery". . . . Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.
481 F.2d at 1033 (citations omitted).
Plaintiff merely alleges that a chair was shoved at him; he does not allege any facts to indicate Jacoby's state of mind at the time of the alleged shove or indicate that the shove into him was purposeful, rather than inadvertent, and does not even allege that it was. In his own account, there is no basis for concluding that it was a "malicious and sadistic use [of] force to cause harm," Hudson v. McMillan, 112 s. Ct. at 1000, or that it "evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur," id. at 999 (quoting Whitley v. Albers, 475 U.S. at 321). It therefore does not reflect a "sufficiently culpable state of mind" to support an Eighth Amendment claim. Hudson v. McMillan, 112 S. Ct. at 999 (quoting Wilson v. Seiter, 501 U.S. , 111 S. Ct. 2321, 2326, 115 L. Ed. 2d 271 (1991)). See also Candelaria v. Coughlin, 787 F. Supp. 368, 374-75 (S.D.N.Y. 1992) (under Hudson v. McMillan, Eighth Amendment claim dismissed where plaintiff alleged correction officer "pushed his fist against my neck so that I couldn't move and I was losing my breath because of the pressure" but did not allege "any repeated or continuous grabbing of the throat, or any choking" or "any resulting physical injury").
To the extent plaintiff seeks to allege that Jacoby's behavior evidenced deliberate indifference to his medical needs in that Jacoby prevented him from returning immediately to his cell and caused him stress that affected his heart condition, his claim must also fail. Jacoby has explained in his affidavit, which repeats the account set forth in his misbehavior report, that, as plaintiff knew from prior visits to the clinic, all inmates are required to wait in the "bullpen" for a "goback" to their cells. Plaintiff, nevertheless, refused to go to the bullpen, creating a disturbance and requiring two additional correction officers to take him into the waiting room. Jacoby states that at no time did he strike plaintiff or hit him with a chair or anything else. In his letter responding to defendants' motion, plaintiff has submitted no evidence (or even allegations) to rebut Jacoby's statements, despite his being advised by this court and by the defendants' motion papers that unrebutted statements of fact of the defendants could mean dismissal of his case on this motion. Jacoby's sworn statements indicate nothing more than his attempt to have plaintiff follow regular prison procedure. (Plaintiff has never indicated why he should not have been expected to do so.) Plaintiff has not shown that Jacoby's acts were done with the intent to cause physical harm to plaintiff. According to Jacoby, when it became known to him plaintiff might be suffering chest pain and shortness of breath, he immediately called Nurse Kennedy. This behavior hardly evidences a deliberate indifference to plaintiff's medical needs. With respect to plaintiff's claim that Jacoby's behavior exacerbated his heart condition and forced him to have surgery, even if there were evidence of intent on Jacoby's part, plaintiff has submitted no evidence to rebut the sworn statements from two medical professionals who treated plaintiff at the relevant time that his aortic valve replacement surgery was made necessary by years of a deteriorating heart condition, and that the September 25, 1990 incident had nothing to do with his need for surgery. In view of plaintiff's failure to rebut the evidence presented by defendants by coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), "there is simply no adequate basis for allowing this action to continue against" Jacoby. Weg v. Marchiola, 654 F. Supp. at 1194.
The claim against Artuz
Defendants argue that the complaint fails to state a claim against defendant Artuz because it contains no allegations demonstrating his personal involvement in the incidents of which plaintiff complains, and the doctrine of respondeat superior is not available in § 1983 actions. Monell v. New York City Dep't of Social Services, 436 U.S. 658, 692-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). However, liberally construed, plaintiff's complaint can be read to state a claim that, after learning of Sanford's denial of plaintiff's right to due process of law at the hearing through plaintiff's appeal, Artuz failed to remedy the wrong by overturning the hearing officer's decision. See, e.g., Smith v. Tucker, No. 88 Civ. 2798 (VLB) (MHD), 1991 U.S. Dist. LEXIS 14334 at 22-24, 1991 WL 211209 at *7-8 (S.D.N.Y. Oct. 4, 1991); Howard v. Wilkerson, 768 F. Supp. 1002, 1005, 1009 n.12 (S.D.N.Y. 1991).
Plaintiff's only complaint herein concerning his hearing is that he was denied an interpreter. But he has not rebutted the sworn statements by defendants' affiants that he understands spoken and written English and is able to function in English. He does not set forth how, if at all, he was prejudiced by the denial of an interpreter. Thus, the failure to provide plaintiff with a Hebrew interpreter at his hearing in no way violated his rights under the Due Process Clause. Compare Powell v. Ward, 487 F. Supp. 917, 932 (S.D.N.Y. 1980), modified on other grounds, 643 F.2d 924 (2d Cir.), cert. denied, 454 U.S. 832, 102 S. Ct. 131, 70 L. Ed. 2d 111 (1981) (translator should be present at hearings for Spanish speaking inmates "who cannot read and understand English"). With respect to his appeal, he complains that he did not receive a copy of the tape of his hearing until after his appeal was decided. However, even if we assume plaintiff had a right to the tape, again, he has indicated no way in which he was prejudiced on his appeal by the failure to have received the tape earlier. He does not indicate what, if anything, he would have done differently if he had had the tape or anything the tape reveals that would have affected his appeal. Under these circumstances, there is no issue of fact raised for trial.
For the above reasons, I respectfully recommend that your Honor grant defendants' motion for summary judgment.
Copies of the foregoing report and recommendation have been mailed this date to:
Mr. David Gabai
Green Haven Correctional Facility
Stormville, New York 12582
Nancy Miller Lerner, Esq.
Assistant Attorney General
New York, New York 10271
The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Shirley Wohl Kram, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Kram. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P 72(b); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298, 1992 U.S. App. LEXIS 16213 at *4-5, (2d Cir. 1992); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam). See generally Fed. R. Civ. P. 6(a), 6(e).
Dated: New York, New York
August 6, 1992
SHARON E. GRUBIN
United States Magistrate Judge