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BROWN v. BUSCH

November 19, 1996

ANTHONY BROWN, Plaintiff,
v.
M. BUSCH and G. KANIA, Defendants.



The opinion of the court was delivered by: HECKMAN

REPORT AND RECOMMENDATION AND ORDER

 CAROL E. HECKMAN

 UNITED STATES MAGISTRATE JUDGE

 This matter was referred to the undersigned by the Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes this motion (Item 17), and has moved for assignment of counsel (Item 18). For the following reasons, it is recommended that defendants' summary judgment motion be granted. Plaintiff's motion for assignment of counsel is denied.

 BACKGROUND

 The complaint in this action was filed by plaintiff pro se under 42 U.S.C. § 1983. Plaintiff alleges that on April 23, 1994, he was confined in the Special Housing Unit ("SHU") at the Attica Correctional Facility maintained by the New York State Department of Correctional Services ("NYSDOCS"). He alleges that on that date Corrections Officers M. Busch and G. Kania came to plaintiff's cell to escort him to the shower. As required by SHU regulations, *fn1" upon removing plaintiff from his cell, the officers conducted a "pat frisk" prior to escorting plaintiff to the shower.

 During the pat frisk, plaintiff asked a question of another inmate in a neighboring cell. According to the complaint, Officer Busch told plaintiff to "shut the fuck up." Plaintiff asked Busch what the problem was. Busch stated, "Just keep your fucking mouth closed because I don't want to hear your shit." Plaintiff then asked Busch if there was a rule against speaking, and requested to see the sergeant in charge of the unit upon his return from the shower. Busch stated, "You're not getting your shower." Plaintiff alleges that Officers Busch and Kania then forced him into his cell by pushing, shoving and hitting him in his lower back (see Item 1).

 On April 23, 1994, Officer Busch filed an inmate misbehavior report against plaintiff, describing the incident as follows:

 
On the above date and time [approximately 4:55 p.m.] I . . . was pat frisking [plaintiff]. [Plaintiff] started to mouth off during the frisk. I stopped the pat frisk and ordered [plaintiff] to remain quiet during the pat frisk. [Plaintiff] refused to comply and became loud and boisterous saying something about his freedom of speech. I gave [plaintiff] another order to shut his mouth during the pat frisk and he refused to comply.
 
I gave [plaintiff] a direct order to step in his cell, he refused to comply, and said "I'm taking my shower."

 (Item 17, Ex. A). Busch charged plaintiff with refusing a direct order in violation of inmate disciplinary Rule 106.10, *fn2" and refusal to comply with frisk procedures in violation of disciplinary Rule 115.10 *fn3" (id.). The misbehavior report was also signed by Officer Kania (id.). Both Busch and Kania filed "Use of Force" reports containing descriptions of the incident consistent with the description in the misbehavior report (see Item 14, Exs. A & B).

 Also on April 23, 1994, Busch filed a second misbehavior report against plaintiff charging that at approximately 5:00 p.m. on that day (about five minutes after the incident described above), as Busch and Kania passed plaintiff's cell on their way to give another inmate a shower, plaintiff "reached out with his right arm and tried to grab" Busch. According to Busch, plaintiff said, "I'll knock your fucking block off. If I'm going upstairs, I'm going with a reason." Busch and Kania "had to stop the shower program and walk off the gallery" (Item 17, Ex. B). As a result of this second incident, Busch charged plaintiff with violation of inmate disciplinary Rules 106.10, 102.10 *fn4" and 107.10 *fn5" (id.).

 On May 3, 1994, a Tier III *fn6" disciplinary hearing was held on the charges contained in the two misbehavior reports. The hearing officer, Captain J. Conway, dismissed all of the charges against plaintiff, stating that the "video tape fails to support charges filed" (Item 17, Ex. C).

 On May 9, 1994, plaintiff filed an inmate grievance complaint against Busch and Kania (Item 14, Ex. D). The grievance was investigated by Sergeant D.J. Elbow, who interviewed plaintiff and Kania, and obtained a written report from Busch. Based on this investigation, Sgt. Elbow concluded as follows:

 
It appears [plaintiff] didn't fully cooperate with pat frisk procedures and is attempting to institute some type of legal action based on the fact that the misbehavior report was dismissed. It also appears that regardless of the misbehavior report both C.O.'s Busch and Kania didn't use excessive force and were justified when [plaintiff] refused to return to cell when ordered to do so. [Plaintiff] couldn't be allowed to remain out of his cell once he didn't fully comply with pat frisk and refused several direct orders to return to his cell.

 On June 23, 1994, plaintiff filed this action. Plaintiff claims that Busch used "extreme and unnecessary force by pushing, shoving and hitting me in my lower and upper back therefore trying to force me in to my cell" (Item 1, P 14). He also claims that Kania struck him and pushed him back into his cell "with enough unwarranted and unnecessary force to thereby deliberately with malicious intent" cause him to stumble into his cell and fall (id., P 15). Plaintiff claims that as a result of the conduct of Busch and Kania, he suffered bruises, contusions and abrasions on his lower back and aggravation of a previous back injury, as well as "emotional anguish" (id., P 23). He seeks damages in the amount of $ 375,000.00 for violations of his rights under the first, eighth and fourteenth amendments to the United States Constitution (Item 1).

 By order dated November 21, 1994, Judge Skretny granted plaintiff's request to proceed in forma pauperis, but dismissed the complaint sua sponte against three defendants sued in their supervisory capacity (Item 3). Defendants Busch and Kania now move for summary judgment dismissing the complaint against them on the grounds that plaintiff cannot meet the pleading requirements for either a first amendment or an eighth amendment violation, and that Busch and Kania are entitled to qualified immunity.

 DISCUSSION

 I. Summary Judgment.

 Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202 (1986); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995), and must give extra latitude to a pro se plaintiff. McDonald v. Doe, 650 F. Supp. 858, 861 (S.D.N.Y. 1986).

 A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., supra, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Bryant v. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986)). However, where the parties have relied solely on assertions made in affidavits or sworn statements to demonstrate the presence or lack of genuine issues of material fact, the nonmoving party "will have his [or her] allegations taken as true, and will receive the benefit of the doubt when his [or her] assertions conflict with those of the movant." Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996)(quoting 10 Wright, Miller & Kane, Federal Practice and Procedure § 2716 (1983)); see also Piesco v. City of New York, 933 F.2d 1149 (2d Cir.), cert. denied, 502 U.S. 921, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991).

 II. Eighth Amendment.

 A claim that prison guards subjected an inmate to excessive force is governed by the eighth amendment, which protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials. Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993)(citing Wilson v. Seiter, 501 U.S. 294, 297, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991), and Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976)). The core inquiry for the court in assessing a prisoner's claim that prison officials used excessive force in violation of the eighth amendment is "whether force was applied in a good-faith effort to maintain or restore prison discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992).

 An inmate claiming that prison officials subjected him or her to cruel and unusual punishment by the use of excessive force has the burden of establishing both an objective and a subjective component. Romano v. Howarth, supra, 998 F.2d at 105. Objectively, the plaintiff must establish that the deprivation alleged is sufficiently serious or harmful enough to reach constitutional dimensions. Id. ; see also Wilson v. Seiter, supra. While a de minimis use of force will rarely suffice to state a constitutional claim, the plaintiff is not required to show that ...


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