The opinion of the court was delivered by: Pauley, District Judge.
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
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.
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.
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
Inmates at Putnam were required to wear ID tags on their left
breast pocket, but on August 6, 1997, Ali left his cell
without his tag. (Defs.Rule 56.1 Stmt. ¶ 5; Ali Dep. at 50-51,
54.) Officer Dalo saw that Ali was not wearing his tag, and told
Ali he would receive a two hour "lock-in" in his cell. (Defs.Rule
56.1 Stmt. ¶ 6; Ali Dep. at 51-52.) Ali, believing that normally
a prisoner would receive only a one hour lock-in for not wearing
his tag, told Dalo that he was discriminating against him, and
that "I've stayed years in a cell at a time, there ain't no big
thing, but I do not like someone to discriminate against me."
(Ali Dep. at 53; see Defs.Rule 56.1 Stmt. ¶ 7.) Ali complied
with Officer Dalo's order and went to his cell. (Defs.Rule 56.1
Stmt. ¶ 7; Ali Dep. at 53, 55.)
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
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
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
I. STANDARDS FOR § 1983 EXCESSIVE FORCE CLAIMS BROUGHT BY
PRETRIAL DETAINEES ARE GOVERNED BY DUE PROCESS, NOT EIGHTH
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
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
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 ...