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JONES v. KELLY

October 26, 1995

MAURICE JONES, Plaintiff,
v.
WALTER R. KELLY, GERALD E. MORRISSEY and E. R. DONNELLY, Defendants.



The opinion of the court was delivered by: HECKMAN

 CAROL E. HECKMAN, UNITED STATES MAGISTRATE JUDGE

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment, in accordance with 28 U.S.C. § 636(c). Pending for decision is defendants' motion for summary judgment. For the following reasons, defendants' motion is granted.

 BACKGROUND

 Plaintiff filed this action on March 14, 1994, against defendants Walter R. Kelly, Gerald Morrissey and Edward Donnelly for an unspecified amount of damages under 42 U.S.C. § 1983 (Item 1). In 1993, at the time of the incidents and conduct alleged in the complaint, the defendants were employees of the New York State Department of Correctional Services ("DOCS"). Defendant Kelly was the Superintendent of the Attica Correctional Facility, defendant Morrissey was a Classification Analyst with the DOCS Division of Classification and Movement, and defendant Donnelly was the Deputy Superintendent for Security at Attica.

 Plaintiff claims that defendants placed his life in danger by transferring him to Attica in January, 1993, where he became the target of a cell fire in April, 1993 and the victim of an assault by other inmates in May, 1993 (id.). He also claims that Attica officials were aware of his need for protection from other inmates, based on several letters and memos he wrote to prison officials dating back to at least 1991.

 By way of background, the record shows that in March, 1991, while he was confined in the Special Housing Unit ("SHU") at the Attica facility, plaintiff wrote a letter to defendant Donnelly, who was then a Corrections Captain at Attica. Plaintiff stated in the letter that, on at least two occasions in December, 1990, he requested placement in protective custody because his life had been threatened by other inmates at Attica, but his requests were denied. He asked Donnelly to investigate the matter, and requested either transfer to another facility or continued assignment to SHU (Item 18, Ex. A).

 Donnelly referred the letter to the facility's Committee for Protective Custody. Deputy Superintendent of Security Albert Hall, Sergeant Brooks and Corrections Counselor K. Hermann were the committee members who reviewed plaintiff's request for protective custody (see Ex. attached to Kelly Aff., Item 18). In a memorandum to Superintendent Kelly dated May 7, 1991, the committee recommended that plaintiff not be assigned to protective custody. The recommendation was based on a review of plaintiff's file and an interview conducted on May 6, 1991. According to the committee, plaintiff alleged that while he was in the facility's general population, two inmates verbally threatened him and robbed him of his possessions. The accused inmates denied the allegations, and plaintiff was found guilty of creating a disturbance, possession of a weapon and refusing a direct order. He received 60 days in SHU and recommended 3 months loss of good time credit. The committee found that plaintiff's reasons for his protective custody request were vague and unsubstantiated. On May 8, 1991, Superintendent Kelly denied plaintiff's request for protective custody, based on the recommendation of the committee (id.).

 Meanwhile, on April 9, 1991, plaintiff wrote a letter to Deputy Superintendent Hall in which he requested assignment to "E" Block upon his release from SHU (Item 18, Ex. B). Plaintiff stated that such a placement might afford him some seclusion from the general population until he could get a transfer to another facility (id.).

 Upon his release from SHU, plaintiff was assigned to "E" Block. On May 14, 1991, Deputy Superintendent Hall received a letter from plaintiff thanking him for his efforts (id., Ex. C).

 On September 3, 1991, Deputy Superintendent Charles Brunelle filed an Unusual Incident Report indicating that plaintiff approached Corrections Officer Prentice on September 1, 1991 and informed him that he slipped and fell in "B" mess hall, injuring his jaw (id. Ex. D). Plaintiff was transported to Erie County Medical Center for treatment of a broken jaw and bleeding gums. The report indicates that there were no witnesses to the incident. A follow-up investigation was conducted, and all appropriate reports were submitted (id.).

 On September 12, 1991, plaintiff wrote a letter to Deputy Superintendent Hall in which he stated that he was in the prison hospital with a broken jaw "as a result of the problem I relayed to you in March" (id., Ex. E). He advised Hall that he was "no longer requesting protection" because he did not feel that the Attica Correctional Facility was capable of providing it. Instead, he requested a transfer to another facility upon his release from the hospital (id.).

 On November 8, 1991, plaintiff was transferred to the Auburn Correctional Facility. Although not alleged in his complaint, plaintiff stated at his deposition that one of the inmates who had previously threatened his life was transferred to Auburn at the same time, was shackled to him during the transfer, and was housed at Auburn only three cells away (Item 21 (Transcript of Plaintiff's Deposition 2/24/95), pp. 31-35). However, on November 12, 1991, plaintiff signed an interview form indicating that he had "no need for protection from anyone here at Auburn" and that "there is no threat to my life by remaining in the general population" (Ex. attached to Walling Aff., Item 18).

 On May 18, 1992, Lieutenant J. Rourke filed an Unusual Incident Report in which he stated that plaintiff was treated at the Auburn facility hospital for a three-inch slash over his right eye. The report indicated that plaintiff refused voluntary protective custody and was recommended for involuntary protective custody ("IPC") because of the incident. According to Lt. Rourke's Involuntary Protective Custody Recommendation dated May 13, 1992, plaintiff stated that he received the cut when he fell.

 On June 5, 1992, plaintiff was transferred from Auburn to the Wende Correctional Facility. He signed an inmate interview slip dated June 8, 1992 indicating that he had no enemies (Ex. attached to Walling Aff., Item 18). Plaintiff did not have any problems with other inmates while assigned to Wende (Item 21, p. 37).

 In January, 1993, Wende became a "reception facility," and plaintiff was transferred back to Attica (id.). An "Initial Interview" form dated January 12, 1993 indicated that plaintiff did ...


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