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ALI v. SZABO

January 13, 2000

KAREEM ALI, PLAINTIFF,
V.
OFFICER SZABO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pauley, District Judge.

  MEMORANDUM AND ORDER

Plaintiff Kareem Ali filed this action pursuant to 42 U.S.C. § 1983 against Putnam County Jail Corrections Officers Szabo and Dalo and the Sheriff of the Putnam County Jail alleging use of excessive force, denial of medical treatment, retaliation, and religious discrimination retaliation. Defendants moved for summary judgment on each of plaintiff's claims pursuant to Fed.R.Civ.P. 56.

This action was referred to Magistrate Judge Peck for general pretrial management, including preparation of a report and recommendation on dispositive motions. Magistrate Judge Peck recommended that defendants' summary judgment motion be granted as to the following claims: plaintiff's excessive force claims against the Sheriff; plaintiff's deprivation of medical treatment claims against each of the defendants; plaintiff's retaliation claims against each of the defendants; and plaintiff's religious discrimination retaliation claims against Corrections Officers Szabo and Dalo.

Magistrate Judge Peck recommended that defendants' summary judgment motion be denied as to the following claims: plaintiff's excessive force claims against Corrections Officers Szabo and Dalo; and plaintiff's claim of religious discrimination retaliation against the Sheriff.

Defendant Sheriff filed timely objections to the report and recommendation (the "Report"). The Sheriff objected to the Report's recommendation to deny summary judgment of plaintiff's religious discrimination retaliation claim.

This Court has reviewed the Report, and made a de novo determination, as required by 28 U.S.C. § 636(b)(1), that the Report is legally correct and proper. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). In addition, this Court has considered defendant Sheriff's objections to the Report and finds them to be without merit. Viewing the evidence most favorably to plaintiff, this Court agrees with the Report that issues of fact exist as to whether the Sheriff instituted a rule banning headwear that arguably applied to kufis while plaintiff was in Putnam County jail and whether the uncertainty as to the rule's application discouraged plaintiff from wearing his kufi. The Sheriff did not deny that he instituted a ban on kufis in his Rule 56.1 Statement. Rather, he merely stated that a thorough investigation was conducted as to whether plaintiff would be allowed to wear his kufi and that the law was unclear. (Defs.' Rule 56.1 Stmt. ¶ 29) The Sheriff's reference to plaintiff's letter to Lt. LeFever and Lt. LeFever's response do not resolve all disputed issues of fact. (Obj. To Proposed Findings and Recommendations Ex. A, Ex. B) Additionally, defendant's Rule 56.1 Statement is devoid of any proffered penological reason to support the rule banning headwear. Therefore, this Court adopts the Report in its entirety.

Accordingly, for the reasons set forth in the Report, defendants' motion for summary judgment is granted in part and denied in part.

SO ORDERED.

REPORT AND RECOMMENDATION

Pro se plaintiff Kareem Ali brings this 42 U.S.C. § 1983 action against Putnam County Jail Corrections Officers Szabo and Dalo, and the Putnam Sheriff, alleging use of excessive force, denial of medical treatment, and retaliation including religious discrimination. Presently before the Court is defendants' motion to dismiss and for summary judgment.*fn1

For the reasons set forth below, because there are material facts in dispute as to whether Officers Szabo and Dalo used excessive force on Ali, I recommend that Officers Szabo and Dalo be denied summary judgment on Ali's excessive force claim. Because Ali does not allege that the Sheriff was personally involved in the excessive force incident or that any of the defendants were personally involved in the deprivation of medical treatment and general retaliation, I recommend that all defendants be granted summary judgment on those claims. Officers Szabo and Dalo also should be granted summary judgment on Ali's religious discrimination retaliation claim for lack of personal involvement. The Sheriff, however, should be denied summary judgment on Ali's religious discrimination retaliation claim because Ali has alleged that the Sheriff instituted a ban on kufis (religious headwear) in violation of his religious freedom, and the Sheriff has not denied that there was a ban nor offered any legitimate penological reason for the alleged ban.

FACTS

From June 10, 1997 to February 13, 1998, Ali, a federal pretrial detainee, was housed at the Putnam County Jail. (Defs.Rule 56.1 Stmt. ¶¶ 1-5; Ali Dep. at 6, 34.)*fn2 Ali has pleaded guilty to ten bank robberies, check and credit card fraud, gun running, car thefts and other robberies. (Ali Dep. at 6-7, 10-11.)

After two hours, Ali's cell door opened, and Ali went to the day room to heat up a slice of pizza and a cup of coffee in a microwave. (Defs.Rule 56.1 Stmt. ¶ 8; Ali Dep. at 55.) As Ali walked toward the microwave, Officer Dalo approached and told Ali that he was supposed to be locked-in. (Defs.Rule 56.1 Stmt. ¶ 9; Ali Dep. at 55, 57.) Ali said he thought he was given a two-hour lock-in, and Officer Dalo replied, "No, I gave you 23 hours, you said you could do more." (Ali Dep. at 55, 57.) Ali said, "Well, I'm going to heat up my pizza and my coffee." (Ali Dep. at 56.) According to Ali, Officer Dalo told Ali to go back to his cell as soon as he was through heating his food. (Ali Rule 56.1 Stmt. ¶¶ 10, 11; Ali Dep. at 57.) While the food was heating, Ali and Dalo spoke about what Ali meant by being discriminated against. (Ali Rule 56.1 Stmt. ¶¶ 11, 14; Ali Dep. at 58-59.) Officer Dalo told Ali to hurry up, at which point Officer Szabo walked over. (Defs.Rule 56.1 Stmt. ¶ 12; Ali Rule 56.1 Stmt. ¶¶ 12, 14; Ali Dep. at 59, 68-69.) Ali took his pizza out of the microwave and put his coffee in to heat it up. (Defs.Rule 56.1 Stmt. ¶ 13; Ali Rule 56.1 Stmt. ¶ 12; Ali Dep. at 59.) Officer Szabo "screamed, [']Take it out and go to your cell right now.['] " (Ali Dep. at 59; Defs.Rule 56.1 Stmt. ¶ 14.) Ali immediately took the cold coffee out of the microwave and said to Szabo, "You don't got to be screaming on nobody." (Ali Dep. at 59-60; Ali Rule 56.1 Stmt. ¶¶ 13, 14.) Officer Szabo replied, "You just do it." (Ali Dep. at 59.) As Ali walked toward his cell, he yelled at Szabo, "You don't have to be screaming on anybody." (Ali Dep. at 59-60; Defs.Rule 56.1 Stmt. ¶¶ 15, 16; Ali Rule 56.1 Stmt. ¶¶ 14, 16.) According to Ali, as Ali passed Szabo, Szabo bumped into Ali's arm and again told Ali to lock-in to his cell. (Ali Rule 56.1 Stmt. ¶ 16; Ali Dep. at 60-61.) Ali told Szabo that he was on his way to lock-in, and added, "Ain't nobody scared of you, so I don't know what you're screaming for. Ain't nobody scared of you. . . . You can't intimidate me. You don't scare me." (Ali Dep. at 61, 65-66; Ali Rule 56.1 Stmt. ¶ 16.)

According to Ali, when he reached the staircase, Officer Szabo "attacked" him, hitting Ali in the chest and grabbing his left arm. (Ali Rule 56.1 Stmt. ¶¶ 16, 17, 19; Ali Dep. at 62, 64, 66.) Officer Dalo joined Szabo and banged Ali's back and right hand against the wall. (Ali Dep. at 62, 81.) Ali "grabbed Szabo's neck and threw him off," and broke loose of Dalo. (Ali & Defs. Rule 56.1 Stmts. ¶ 17; Ali Dep. at 62-63, 65.) Officer Szabo again slammed Ali against the wall and Ali "took [Szabo] by the neck and threw . . . off [Szabo]." (Ali & Defs.Rule 56.1 Stmts. ¶ 18; Ali Dep. at 63.) The incident ended before other officers arrived. (Ali Rule 56.1 Stmt. ¶ 19; Ali Dep. at 63.)*fn3

After the incident, Ali complained of pain in his right hand and his lower back. (Ali Dep. at 69, 81-82.) The next day, Ali went to the Putnam Hospital Center where x-rays of his right hand revealed no broken bones, but an examination showed that Ali had a contusion, with redness and swelling. (Ali & Defs.Rule 56.1 Stmts. ¶ 20; Ali Dep. at 74, 76, 89-90; Seymour Aff.Ex. C: Putnam Progress Notes; Report of Injury; 8/7/97 Report of Consultation; 8/7/97 Putnam Hosp. Ctr. Emergency Rm. Report.) Ali was advised to keep his hand elevated and was given Ibuprofen and an ice pack. (Ali & Defs.Rule 56.1 Stmts. ¶ 22; Seymour Aff.Ex. C: Putnam Progress Notes.)

Subsequently, Putnam's Medical Director Dr. Eric Teitel referred Ali to neurologist Dr. Rothman, who saw Ali in November 1997. (Defs.Rule 56.1 Stmt. ¶ 21; Seymour Aff.Ex. C: 11/25/97 Dr. Rothman Report.) Dr. Rothman found that Ali's third metacarpel was swollen and that Ali had cervical strain. (Seymour Aff.Ex. C: 11/25/97 Dr. Rothman Report.) Dr. Rothman prescribed Advil and muscle relaxants. (Id.) Ali thereafter repeatedly sought and received medical treatment for numbness in his back and hand. (Ali Rule 56.1 Stmt. ¶ 22; Defs.Rule 56.1 Stmt. ¶ 24; Ali Dep. at 72-73; Seymour Aff.Ex. C: 8/25/97 Ryan Memo; 9/30/97 Ryan Memo; 8/20/97 Ali Medical Treatment Request; 9/30/97 Ali Medical Treatment Request.)

Ali admits that each time he filled out a written request for medical treatment he was treated, and was only denied treatment when he did not fill out a request form. (Defs.Rule 56.1 Stmt. ¶ 23-24; Ali Dep. at 80-81.) Ali also alleges that he requested medication stronger than Motrin but his request was denied, as was his request for therapy for his hand. (Ali Rule 56.1 Stmt. ¶¶ 22-24; Ali Dep. at 73, 82-84.) At the time of Ali's deposition in March 1999, he still could not straighten out his hand and still had pain. (Ali Dep. at 73-75; Ali Rule 56.1 Stmt. ¶ 25.)*fn4

ANALYSIS

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988); Jackson v. Johnson, 15 F. Supp.2d 341, 355 (S.D.N.Y. 1998) (Kaplan, D.J. & Peck, M.J.); Williams v. Kane, 95 Civ. 0379, 1997 WL 527677 at *3 (S.D.N.Y. Aug. 25, 1997) (Peck, M.J.). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749, 129 L.Ed.2d 867 (1994); accord, e.g., Jackson v. Johnson, 15 F. Supp.2d at 355-56; Williams v. Kane, 1997 WL 527677 at *3; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *4 (S.D.N Y March 24, 1997) (Peck, M.J.); Morris v. Dann, No. 95-CV-975, 1996 WL 732559 at *3 (N.D.N.Y. Dec. 11, 1996); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. & Peck, M.J.). Proof that state procedural law was violated does not by itself constitute a deprivation of due process because "[f]ederal constitutional standards rather than state law define the requirements of procedural due process." Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir. 1990); accord, e.g., Jackson v. Johnson, 15 F. Supp.2d at 356; Williams v. Kane, 1997 WL 527677 at *3; Ruiz v. Selsky, 1997 WL 137448 at *4; Zamakshari v. Dvoskin, 899 F. Supp. at 1104.

For a discussion of the applicable standards governing summary judgment motions, see, e.g., Vanguard Mun. Bond Fund, Inc. v. Cantor, Fitzgerald L.P., 40 F. Supp.2d 183, 188-89 (S.D.N Y 1999) (Stein, D.J. & Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 534-35 (S.D.N.Y. 1998) (Rakoff, D.J. & Peck, M.J.); Ruiz v. Selsky, 1997 WL 137448 at *3, and the cases cited in those opinions.

I. STANDARDS FOR § 1983 EXCESSIVE FORCE CLAIMS BROUGHT BY PRETRIAL DETAINEES ARE GOVERNED BY DUE PROCESS, NOT EIGHTH AMENDMENT, STANDARDS

Ali asserts that Officers Szabo and Dalo used excessive force on him. There is no dispute that Officers Szabo and Dalo acted under color of state law. Defendants treat Ali's claim as alleging a violation of the Eighth Amendment's Cruel and Unusual Punishment Clause. (Defs.Br. at 8-13.) Ali, however, was a pretrial detainee rather than a convicted inmate.*fn5

In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court stated that "[i]n addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Id. at 394, 109 S.Ct. at 1870. An excessive force claim can arise under the Fourth, Eighth or Fourteenth Amendments. See id. at 394, 395 & n. 10, 109 S.Ct. at 1871 & n. 10.

The Supreme Court has expressly stated that the Eighth Amendment applies to post-conviction prisoners.*fn6 See Graham v. Connor, 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10 ("After conviction, the Eighth Amendment `serves as the primary source of substantive protection . . . in cases . . . where the deliberate use of force is challenged as excessive and unjustified.'") (citing Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)); see also, e.g., Brown v. Doe, 2 F.3d 1236, 1242 n. 1 (2d Cir. 1993), cert. denied, 510 U.S. 1125, 114 S.Ct. 1088, 127 L.Ed.2d 403 (1994); Covino v. Vermont Dep't of Corrections, 933 F.2d 128, 129 (2d Cir. 1991); Malloy v. DeFrank, 95 Civ. 9122, 1996 WL 631725 at *3 (S.D.N.Y. Oct. 31, 1996) (Peck, M.J.).

The Fourth Amendment applies to pre-arraignment excessive force claims arising out of a search or seizure, neither of which Ali claims occurred in this instance. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1715, 140 L.Ed.2d 1043 (1998) (Fourth Amendment is not applicable where excessive force claim arose during a police chase, not during an actual search or seizure); Tierney v. Davidson, 133 F.3d 189, 199 (2d Cir. 1998) ("Plaintiffs do not assert that they were arrested or seized, and therefore these [excessive force] claims fall outside the Fourth Amendment protections applied in Graham v. Connor . . ., and are governed instead by the Due Process Clause of the Fourteenth Amendment."); Blake v. Base, No. 90-CV-0008, 1998 WL 642621 at *10-11 & n. 21-22 (N.D.N.Y. Sept. 14, 1998) (distinguishing between a Fourth Amendment excessive force claim brought by a post-arrest detainee pre-arraignment before he had been formerly charged, and a claim brought by a post-arraignment pretrial detainee).

Because Ali's claim arose while he was a post-arraignment, pre-conviction pretrial detainee, and since neither the Eighth nor the Fourth Amendment covers his claim, it is properly analyzed under the Fourteenth Amendment substantive due process standard. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. at 1714-15 (substantive due process analysis is the applicable standard where a constitutional claim relating to physically abusive government conduct does not arise under either the Fourth or Eighth Amendments); Graham v. Connor, 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10 ("It is clear, however, that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment"); Brown v. Doe, 2 F.3d at 1242 & n. 1 (prisoner "properly invokes the Due Process Clause as the source of constitutional protection against the violence inflicted on him" when he was "brutally beaten by law enforcement officials during his detention at [a state] [j]ail"); Covino v. Vermont Dep't of Corrections, 933 F.2d at 129 ("the district court correctly observed that as a pre-trial detainee, [plaintiff's] claims were governed by the due process clause, rather than the eighth amendment"); Rivera v. New York, 96 Civ. 7697, 1999 WL 13240 at *10 (S.D.N.Y. Jan. 12, 1999); Santiago v. Semenza, 965 F. Supp. 468, 471 (S.D.N.Y. 1997); Cuoco v. Hershberger, 93 Civ. 2806, 1996 WL 648963 at *4-5 (S.D.N.Y. Nov. 6, 1996); Pristell v. County of Sullivan, 91 Civ. 6317, 1996 WL 11210 at *4-5 (S.D.N.Y. Jan. 10, 1996); Rahman v. Philip, 92 Civ. 5349, 1995 WL 679251 at *4 (S.D.N.Y. Nov. 15, 1995), aff'd mem., 104 F.3d 356 (2d Cir. 1996), cert. denied, 520 U.S. 1267, 117 S.Ct. 2438, 138 L.Ed.2d 198 (1997).

In order to state a claim for excessive force under the Fourteenth Amendment, the governmental act complained of must be such an abuse of power as to shock the conscience in a constitutional sense. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. at 1717 ("for a half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience") (citing, inter alia, Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, C.J.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)); Rivera v. New York, 1999 WL 13240 at *10; Santiago v. Semenza, 965 F. Supp. at 471; Cuoco v. Hershberger, 1996 WL 648963 at *5; Mathie v. Fries, 935 F. Supp. 1284, 1299 (E.D.N.Y. 1996), aff'd, 121 F.3d 808 (2d Cir. 1997).

The Supreme Court has explained that the "conscience shocking" standard is higher than that of common law negligence: "the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. at 1718. Since the "[r]ules of due process are not . . . subject to mechanical application," the concept of "conscience shocking," varies according to the different environments in which the alleged excessive force occurs. County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. at 1718-19.

In Johnson v. Glick, 481 F.2d at 1033, which involved facts remarkably similar to this case (the prisoner alleged excessive force when a corrections officer attacked him for talking back), Judge Friendly applied the conscience shocking standard later reiterated by the Supreme Court in County of Sacramento v. Lewis, and articulated four factors a court should consider in determining whether a prison officer's conduct violated a pretrial detainee's substantive due process rights:

In determining whether the constitutional line has been crossed, a court must look to such factors as [A] the need for the application of force, [B] the relationship between the need and the amount of force that was used, [C] the extent of injury inflicted, and [D] 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.

Johnson v. Glick, 481 F.2d at 1033; accord, e.g., Tierney v. Davidson, 133 F.3d at 199; Rivera v. New York, 1999 WL 13240 at *10; Santiago v. Semenza, 965 F. Supp. at 471; Cuoco v. Hershberger, 1996 WL 648963 at *5; Pristell v. County ...


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