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HEISLER v. KRALIK

October 29, 1997

RICHARD ANTHONY HEISLER, Plaintiff,
v.
SHERIFF KRALIK; LIEUT. CONJURA; SERGEANT SCHONLIEBER; SERGEANT CLAHASSE; OFFICER JOHN DOE # 1; OFFICER JOHN DOE # 2; OFFICER JOHN DOE # 3; OFFICER BECK; OFFICER SHERMAN; OFFICER BROOKS; ROCKLAND COUNTY JAIL; and ROCKLAND COUNTY SHERIFF DEPT., Defendants.



The opinion of the court was delivered by: COTE

 DENISE COTE, District Judge:

 On March 30, 1994, Richard Anthony Heisler ("Heisler") filed this action pro se pursuant to Section 1983 of Title 42, United States Code, alleging that the defendants Rockland County, its Sheriff's Department, the Medical Department at its County Jail (referred to herein as the Rockland County Correctional Center or "RCCC") and various individual officers at the RCCC were, among other things, deliberately indifferent to his safety and medical needs. The Judge to whom this case was then assigned referred the case to Magistrate Judge James C. Francis IV for general pretrial supervision and the preparation of a Report and Recommendation ("Report") on any motion for summary judgment. Such a motion was made on November 22, 1996 and on April 17, 1997, the Report was issued recommending that the motion be granted in part. The defendants and plaintiff have filed timely objections to the Report. For the reasons given below, the Report is accepted.

 Background

 Prior to being transferred to the RCCC on May 3, 1993, Heisler was held at the Bergen County Jail in the custody of the Orangetown Police. Apparently Heisler was charged with sexual assault of a minor and feared that he would be harmed by other prisoners. He understood that Bergen County Sheriff Terhune had contacted Rockland County Sheriff Kralik to advise him of the need for extra security for Heisler. He understood also that Orangetown Detective Toth had telephoned the RCCC to inquire as to whether Heisler would be housed in protective custody.

 On May 9, 1993, six days after his transfer to the RCCC, Heisler was assaulted by another inmate and suffered contusions and swelling. After the assault, Heisler was placed in protective custody, where he remained until his transfer to state custody on September 17, 1993. Heisler alleges principally that the defendants knew of the risk of such an assault and did nothing to prevent it, that officers witnessed the actual assault but did nothing to stop it, that he was not given adequate pain medication following the assault, and that while he was held in protective custody some officers denied him access to showers, recreation, the law library, and the telephone to call his attorney.

 The Report

 The Report recommended that the motion by defendants Acuna, DeGroat and Makara for summary judgment on the claim that they failed to prevent the attack as it was occurring be denied, finding that there are disputed issues of material fact as to whether they ignored Heisler's cries for help, did nothing to stop the assault, and permitted the assailant to reenter Heisler's cell to continue the assault. The Report further recommended dismissal of the claim that Rockland County, its Sheriff's Department and the Sheriff failed to supervise or train the Department's officers since this claim was based on a single incident. It recommended against granting the motion for summary judgment against these same three defendants on the claim that they had failed to protect the plaintiff, however, because it found that there were disputed issues of fact as to whether the Sheriff had been personally advised as to the danger to the plaintiff and had failed to act on that warning.

 The Report recommended that all of the claims based on inadequate medical care be dismissed since the injuries were not sufficiently serious to warrant constitutional protection. The only physical injuries suffered by the plaintiff were contusions, none of which required follow-up care or medication beyond motrin or advil for the immediate pain.

 The Report also recommended dismissal of the claims against several of the other individual defendants. It recommended dismissal of the claim that defendant Sherman had refused to allow Heisler to contact his attorney on a single occasion. Heisler also alleges that, while in protective custody following the attack, defendant Schoenleber denied him access to a telephone and television and prevented him from purchasing a radio and cigarettes in the RCCC commissary. The Report recommended dismissal of these allegations for failure to state a claim. Heisler alleges that defendant Conjura did not permit him to have contact visits for a period of time. Given the defendant's unrebutted evidence that this restriction was imposed for the plaintiff's safety, the Report recommended that this allegation be dismissed. As to the claims against defendants Acuna, Brooks and Beck that they had informed certain inmates about the charges against Heisler after Heisler was in protective custody, the Report recommended dismissal for failure to allege any injury suffered as a result of these actions.

 Turning to Heisler's Section 1985(3) claim, the Report recommended dismissal for, among other reasons, failure to identify Heisler's membership in a particular class of persons whose rights are protected by that section. The Report recommended dismissal of the state law claims for failure to file a notice of claim pursuant to the New York statutory scheme which requires notice before suing a municipality or its agents in tort.

 The Report recommended denial of the claim of qualified immunity since it had been clearly established prior to May 1993 that prison officials violate a pretrial detainee's due process right to be free from punishment when they fail to protect him from known risks posed by other inmates. Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir. 1988). Similarly, the Report found that the right to be free from arbitrary and purposeless restrictions, such as restrictions on showers, outdoor recreation, and cell cleaning privileges, was well established by May 1993. Bell v. Wolfish, 441 U.S. 520, 539, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979).

 Standard of Review

 A court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. ยง 636(b)(1)(C). See Fed.R.Civ.P. 72(b). A court may accept those findings to which no specific written objection is made as long as those findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1996); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). A de novo review must be conducted of those issues to which a specific written objection has been made. Fed.R.Civ.P. 72(b). See Greene, 956 F. Supp. at 513.

 Discussion

 Defendants' Objections

 1. Defendants Acuna, DeGroat and Makara

 The defendants contend that Heisler's claims based on the guards' failure to protect him should be dismissed since it is undisputed that he sustained no serious physical injury from the assault by a fellow inmate. It is well established that the Eighth Amendment imposes on prison officials the duty to protect inmates from violence at the hands of other inmates.) *fn1" See, e.g., Fischl v. Armitage, 128 F.3d 50, 1997 U.S. App. LEXIS 27854, 1997 WL 619821 at *5 (2d Cir. 1997).

 The Supreme Court has articulated a two part test for determining whether an inmate has suffered an injury of constitutional magnitude. See Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). First, there is an objective component which,

 
for a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing ...

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