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NUNEZ v. GOORD
October 23, 2001
MARCO NUNEZ, PLAINTIFF,
COMMISSIONER GLENN S. GOORD, OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONS, SUPERINTENDENT C. ARTUZ, DEPUTY SUPERINTENDENT SCHNEIDER, SGT. TURSO, SGT. SCHWARTZMAN, OFFICER SUPER, OFFICER WOODLY, OFFICER HENSCHEL, JOHN DOE AND JANE DOE, OFFICERS IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES. DEFENDANT.
The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
Marco Nunez ("Nunez"), pro se and incarcerated, brought this action
under 42 U.S.C. § 1983 against defendants Commissioner Glenn S.
Goord, Superintendent Artuz, Deputy Superintendent Schneider, Sergeants
Turso and Schwartzman, Officers Suber, Woodly, and Henschel and two
unidentified Doe Officers (collectively, "Defendants"), all of whom
served at all relevant times as officials of the New York State
Department of Correctional Services ("DOCS"). Nunez alleges that
Defendants (1) failed to protect him from inmate assaults, (2) engaged in
retaliatory harassment, (3) used excessive force, (4) failed to train and
supervise prison personnel and (5) were negligent under New York law.
Defendants moved for summary judgment on all claims on the grounds that
Nunez failed to exhaust administrative remedies prior to filing suit and
that Nunez presented insufficient evidence in support of his § 1983
claims. For the reasons set forth below, Defendant's motion is granted in
part and denied in part.
At all relevant times, Nunez was incarcerated in DOCS's Green Haven
Correctional Facility ("Green Haven"). The parties agree that on April
25, 1998, Nunez was stabbed by an unidentified inmate in the Green Haven
Yard. Nunez was rushed to an outside hospital for treatment. Nunez claims
that Green Haven failed to adequately monitor the Yard. On this point the
parties agree that approximately 20 percent of the inmates were searched
prior to entering the Yard and 10 guards were assigned and present on
April 25, 1998 to oversee the Yard.
A. NUNEZ'S FACTUAL ALLEGATIONS
Unhappy with his placement in protective custody after having been
assaulted, Nunez alleges that he then filed a grievance regarding the
assaults and that it was not answered. Compl. at ¶ 9; Dep. at 86.
Nunez also appealed his involuntary protective custody hearing on
procedural grounds. His appeal was granted in early July, 1998. Upon
rehearing, however, his placement in involuntary protective custody was
reaffirmed. Dep. at 98, 102-3.
Nunez claimed that Officer Suber ("Suber") and others conspired to
retaliate against Nunez for his successful appeal. Compl. at ¶ 9
(m)-(t). Nunez stated that "almost daily" during 1998 Suber would take
action against him, including taking him to an "old hospital area" of the
prison for beatings. Dep. at 130; Compl. at ¶ 9. In his deposition,
Nunez specified that he suffered a beating in the old hospital area on
July 16, 1998. Nunez claims that he was taken there from his cell by
Suber, who punched Nunez in the rib cage and sides while Deputy
Superintendent Schneider ("Schneider") watched. Dep. 130-35. Nunez
suffered bruises as a result of Suber's blows. Dep. at 177. On that day
two other inmates, known to Nunez only as "Smooth" and Perez, were also
taken to the old hospital area and beaten by two unidentified officers.
Id. at 131, 135, 149. None of the inmates filed grievances. Id. at 149.
Nunez claims he does not know precisely what provoked Suber's actions.
Dep. at 144-46, 155-56.
In a letter dated July 29, 1998 and addressed to Superintendent Artuz
("Artuz") Nunez complained about the July 16 beating. Defendants allege
that this letter never reached Artuz. See Affidavit of James Lagoi, dated
August 27, 2000 ("Lagoi Aff.") at ¶ 3. Even though he received no
response, Nunez did not pursue that complaint any further. Dep. at 88,
126-130. Nunez said he did not file additional grievances, claiming
futility of such action. In his view, the grievance procedure, which he
had utilized in the past, did not function. Compl. at ¶ 9(v); Dep.
In the July 29, 1998 letter Nunez also complained that a photograph of
a family member was wrongly taken from him during a retaliatory search of
his cell on July 28, 1998. Again, Nunez filed no grievance and pursued
the matter no further. Dep. at 136-37.
Nunez alleges that Scwartzman and Officers Woodly ("Woodly"), Zito
("Zito") and Henschel ("Henschel") fabricated misbehavior reports in
order to cover up their failure to protect him. Compl. at ¶ 9. In
support of this claim, Nunez stated that, on November 17, 1998, another
inmate bleeding from self-inflicted wounds approached and engaged Nunez
in an altercation. Compi. ¶ 9(w). Woodly observed the altercation
and initially filed administrative charges against him, per Schwartzman's
command. After an investigation of the matter, it was found that the
assailant ambushed Nunez and Nunez did not fight back. Accordingly, the
fighting charges against Nunez were dismissed. Id. at ¶ 9.
The final incident Nunez describes occurred on December 1, 1998. An
inmate allegedly assaulted Nunez in front of Zito. Zito observed the
attack, without interfering in it, and made a report in which he charged
Nunez with fighting. Compl. at ¶ 11. The charge was dismissed later
by Zito's testimony. Dep. at 162. Nunez
believes that Zito's conduct represents a failure to protect him. Dep. at
Nunez complains that all named officers and their supervisors were
acting pursuant to orders and directives from Commissioner Goord
("Goord"). Compl. at ¶ 16. Moreover, Nunez alleges that Henschel, in
furtherance of a retaliatory conspiracy against him for suspected
participation in gang activities, selectively enforced rules and singled
out Nunez for sanctions. Compl. at ¶ 9(w); Dep. at 121-23. Nunez
does not specify particular acts. According to Nunez, as a proximate
result of Defendants' conduct he has suffered great bodily harm,
including injuries to his arm, neck, back, head and body, and suffered
emotional pain and distress. Compl. at ¶¶ 22-23.
B. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants filed a motion for summary judgment on the grounds that
Nunez failed to exhaust administrative remedies or submit facts in
support of his claims. See Defendants' Memorandum of Law in Support of
their Motion for Summary Judgment (hereinafter "Defs. Memo") at 2.
Defendants argue that the Prison Litigation Reform Act of 1996 ("PLRA"),
42 U.S.C. § 1997e(a), applies to all claims regarding conditions of
confinement and requires a prisoner to follow formal grievance procedures
before filing suit in federal court. Defendants assert that Nunez did not
file any grievances with respect to any of his claims, including
excessive force. In support of the failure-to-exhaust defense, Defendants
submitted the transcript of Nunez's deposition. During that proceeding
Nunez stated that he did not in fact file any grievances with respect to
the conduct alleged in his complaint. Dep. at 81-84, 87-88, 127-29.
Factually, Defendants assert that Nunez presented insufficient evidence
in support of his § 1983 claims. Defendants also submitted evidence
in opposition to these claims. First, Defendants do not contest that
Nunez was assaulted by a fellow inmate on April 25, 1998. As to
subsequent events, Defendants' version of events varies from Nunez's.
According to them, on May 5, 1998, Schwartzman interviewed Nunez and
recommended that he voluntarily enter protective custody. Nunez refused.
Defs. Memo at 3. On May 6, 1998, Schwartzman served Nunez with an
involuntary protective custody recommendation. Nunez again refused to
enter protective custody and "a disturbance ensued" during which time
Nunez was directed to put his hands on the wall and be frisked. Faced
with Nunez's refusal to comply, officers physically "placed plaintiff
against the wall". Id. at 4 The following day, May 7, 1998, Nunez was
placed in involuntary protective custody.
As evidence, Defendants submitted the "Report Packet of Disciplinary
Hearing Disposition, Hearing date May 11, 1998" containing official
memoranda, reports and findings regarding the May 6, 1998 incident.
Multiple officers filed reports. According to Officer Limaye, after Nunez
was served with an involuntary protective custody paper, Limaye ordered
him to move to the isolation room. Nunez refused and entered the day room
instead. Nunez was yelling, did not immediately obey direct orders to
exit the day room and "did not comply with [p]at frisking and refused to
put his hands on the wall prior to frisking and turned around at Sgt Turso
and was physically moved against the wall. Inmate Nunez was escorted to
the Clinic." Inmate Misbehavior Report dated 6 May 98. Additional detail
is provided by Turso, who stated that it was corrections officers
"Rhyders and Clerc [who] grabbed the inmate and pushed inmate Nunez to
the wall," and that Nunez received an injury to his left [b]row, a direct
result of being
pushed to the wall [a]fter he refused to be frisked, and turned [t]owards
staff." Memorandum from Sergeant Turso to Lieutenant Russett (May 6,
Corrections Officer Salzer stated he also ordered Nunez to enter
involuntary protective custody after Nunez was served with the
recommendation, and that Nunez disobeyed. Further, Salzer stated that
Nunez was "yelling in a loud manner" in the day room. Salzer stated that
when Turso arrived and ordered Nunez to put his hands on the wall, Nunez
turned towards Turso and "was then forced back against the wall and
placed under control." Memorandum from Corrections Officer K. Salzer to
Sergeant Turso (May 6, 1998). At the disciplinary hearing Nunez "admitted
to the acts" and "said that he is sorry that he did this." Disciplinary
Hearing Disposition dated May 10, 1998. Nunez attributed his behavior to
a prior promise that he would not be "locked up" in the isolation of
protective custody, and to his recent injuries and medication. Id. Nunez
did not identify Corrections Officers Clerc, Limaye, Rhyders or Salzer as
defendants in this action. Moreover, Nunez has never identified the Doe
Defendants' version of the November 17, 1998 incident provides
additional details that do not vary in a material way from Nunez's
account. See Defendants' Memorandum of Law in Support of Motion for
Summary Judgement (hereinafter "Memo") at 5. Defendants submit documents
comprising the "Unusual Incident report packet, UI 98-0214, incident date
November 17, 1998." Nunez's assailant stated that he "had cut himself to
get inmates Perez and Nunez off the A-1 unit." Inmate Misbehavior Report
dated November 25, 1998. While the charges against Nunez were dropped,
the other inmate was charged with lying, inflicting bodily harm on
himself, and disruption. Id.
In addition, Defendants submitted the affidavit of Thomas Testo
("Testo"), DOCS's Director of Training, regarding the safety and
administrative responsibilities corrections officers have when inmates
fight. Testo opined that Woodly had no choice but to file a misbehavior
report on Nunez in response to the November 17, 1998 incident. See
Affidavit of Thomas Testo dated August 30, 2000 at ¶ 9.
Regarding the December 1, 1998 incident, Defendants submit only Nunez's
deposition regarding Zito's actions that day.
Regardless of any factual inconsistencies between Nunez's version and
their own, Defendants argue that Nunez's claims lack merit as to Goord
and Artuz in particular because Nunez presented no facts showing the
essential element of "personal involvement" as to them. First, Defendants
point out that Nunez presented no documentary or testimonial evidence,
aside from his own assertions, that Goord or Artuz had knowledge of risks
to Nunez's safety. Defs. Memo at 16. Likewise, only Nunez's general
assertions support his allegation that Goord or Arcuz was grossly
negligent in supervising, or had notice of Nunez's complaints and failed
to act. Id. at 17.
Finally, Defendants argue that there no merit to the conspiracy and
harassment claims in retaliation of Nunez's successful appeal of his May
6, 1998 involuntary protective custody determination or suspected gang
activity. Defs. Memo at 18. As to the conduct of Woodly, Defendants argue
that, on November 17, 1998, Woodly acted in compliance with DOCS rules
and therefore his conduct was neither retaliatory nor evidence of any
retaliatory conspiracy or intent. Id. at 18-19. Similarly, Defendants
urge that Schwartzman did not have any personal involvement in the events
giving rise to the second cause of action, and all his acts were
performed in the line of his duties. Id. at 19-20. Accordingly,
Defendants urge that in the absence of evidence showing discipline or
injury imposed as retaliation, Nunez's claim should be dismissed. Id. at
C. NVNEZ'S OPPOSITION TO SUMMARY JUDGMENT MOTION
Responding to Defendants' motion for summary judgment, Nunez contends
that DOCS employees intercepted and destroyed grievances and letters of
complaint that he attempted to file. See Affidavit in Opposition to
Defendant's Notion for Summary Judgement dated October 16, 2000, ("Nunez
Aff.") at ¶ 2. On the basis of DOCS employees' interference with the
grievance process, Nunez argues that he did not fail to exhaust
administrative remedies. Id. at ¶ 3. Nunez also countered that
security procedures established at the entrance to the yard and
Defendant's supervisory positions constituted inadequate safety
measures. Id. at ¶ 4. Nunez alleges that he personally handed
grievances to the inmate grievance clerk, at which point they
disappeared. Id. at ¶ 6. Finally, Nunez asserts that his letter to
Artuz was either received and ignored, or intercepted and destroyed by
DOCS employees. Id. at ¶ 7.
Defendants counter that Nunez's explanation for not exhausting
administrative remedies is contrary to his testimony during the
deposition, and therefore should be disregarded. See Reply Memorandum in
Support of Defendants' Motion for Summary Judgment ("Reply Memo") at
1-6. In addition, Defendants point out that Nunez testified that he did
not inform anyone of any threat of attack and that Nunez's complaints
regarding "general problems" is legally insufficient to show the element
of notice. Id. at 6. Defendants also maintain that Nunez's opinion ...