joined officer Selmer at the plaintiff's cell. On Sergeant Ross's orders, officer Selmer released the plaintiff from the bent-wrist lock and again ordered him to place his hands inside the cell. At this point, the plaintiff grabbed onto the open "feed-up" flap and refused to allow the officers to close the flap. Boyd was repeatedly warned that if he continued to prevent the officers from closing the "feed-up" flap, force might be used to insure compliance. Plaintiff Boyd continued to resist. Sergeant Ross thereupon ordered officers Lotano and Boyd to strike the plaintiff's arms in an effort to close the "feed-up" door.
Officers Lotano and Boyd as ordered, struck the plaintiff several times on his arms. These blows resulted in the plaintiff retracting his arms inside the cell. As the plaintiff retracted his arms inside the cell, correctional officer Selmer immediately closed the "feed-up" flap. Unfortunately, plaintiff Boyd had not completely brought his arms within the cell when correctional officer Selmer closed the "feed-up flap. Consequently, the plaintiff's right index finger was trapped between the "feed-up" flap and the cell door.
In an effort to free his finger, the plaintiff pulled his right hand away from the door with such force that it resulted in an avulsion fracture to the plaintiff's right index finger, along with several abrasions near the tip of this finger. The type of fracture displayed by the plaintiff's x-rays, according to the only medical testimony presented, clearly indicates that the fracture was the result of the pulling effort by the plaintiff, and not produced by a baton striking the plaintiff's hand. Upon notifying the guards of his injury, the plaintiff was escorted to the infirmary where he received appropriate medical attention.
Selmer's testimony was corroborated by the testimony of Sergeant Ross. Sergeant Ross gave a very similar account of the events as described by officer Selmer with the minor exception as to whether or not officer Selmer had a bent wrist lock on the plaintiff at the time Sergeant Ross arrived at plaintiff's cell.
After considering all of the testimony presented, and the credibility of the witnesses, this court finds the defendant's version of the events of May 30, 1990, to be a closer description of what actually took place. Support for this conclusion lies in the similarity of the testimony of defendants Ross and Selmer and the medical testimony of Dr. Edward Pasquarella. Dr. Pasquarella established with sufficient credibility, that the fracture of the plaintiff's right index finger could not have been produced by a baton blow and was more likely the result of the plaintiff pulling his finger from the closed "feed-up" flap.
Additionally, Gerald Allison, the facility nurse, testified that the plaintiff did not complain of, nor do any of the records indicate, any bruises or abrasions which would accompany a beating of 45-50 blows. Gerald Allison also testified that the right index fingernail was still attached to the plaintiff's finger at the time of his examination and the pictures verify this statement. Accordingly, because the plaintiff's version is filled with inconsistencies and ambiguities, this court will conclude the defendants version to be more similar to the truth and decide the matter on that basis.
II. CONCLUSIONS OF LAW
A. Eighth Amendment Excessive Force
Following the completion of the plaintiff's proof, the court dismissed the due process claims as to defendants pursuant to Fed.R.Civ.P. 50 on the grounds that their existed no credible evidence supporting such a claim. The following constitutes the court's conclusion of law as to the excessive force claim and the state law assault and battery claims brought against the defendants.
The Eighth Amendment protects prisoners from "cruel and unusual punishment." See Wilson v. Seiter, 501 U.S. 294, , 111 S. Ct. 2321, 2323, 115 L. Ed. 2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 102-05, 97 S. Ct. 285, 290-91, 50 L. Ed. 2d 251 (1976). However, it is "the unnecessary and wanton infliction of pain", Estelle v. Gamble, 429 U.S. at 103, 97 S. Ct. at 290, and not simply the "ordinary lack of due care for the prisoner's interests or safety" Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89 L. Ed. 2d 251 (1986), which the Eighth Amendment prohibits.
To prevail in this civil rights action grounded in the Eighth Amendment, the plaintiff must show that the defendants used such excessive force to subdue him that the force could fairly be characterized as the "unnecessary and wanton infliction of pain." See Hendricks v. Coughlin, 942 F.2d 109, 113 (2nd Cir. 1991). What is necessary to establish an "unnecessary and wanton infliction of pain" varies according to the nature of the constitutional violation. Whitley v. Albers, 475 U.S. at 320. "Wantonness does not have a fixed meaning but must be determined with 'due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.'" Wilson v. Seiter, 111 S. Ct. at 2326 (1991) (quoting Whitley v. Albers, 475 U.S. at 320). In this manner, the court must consider the "wantonness" element within the context of the situation in which the underlying force occurred. Id. What may amount to the "unreasonable and wanton infliction of pain" is determined by the constraints facing the state official. As the Whitley court stated:
Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm."
475 U.S. at 321-322, 106 S. Ct. at 1085 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)).
The Supreme Court has recently re-affirmed use of the Whitley test in situations such as the one now before the court. See Hudson v. McMillian, U.S. , 112 S. Ct. 995, 999 (1992). In Hudson, the Court stated that "whenever prison officials stand accused of using excessive force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id.
Applying the Whitley/Hudson test, the Second Circuit recently stated:
To determine whether the defendants acted maliciously, a jury should consider the following factors: the extent of the plaintiff's injuries; the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response. Id. (citing Whitley, 475 U.S. at 321, 106 S. Ct. at 1085). If an evaluation of these factors leads the jury to conclude that the defendants acted maliciously, wantonness has been established. And an Eighth Amendment violation has occurred. If, on the other hand, reflection upon these factors leads the jury 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.