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October 23, 2001


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.


Nunez claims that upon his return to Green Haven he was interviewed by Sergeants Schwartzman ("Schwartzman") and Turso ("Turso") who opined that the attack was gang-related and recommended that Nunez voluntarily enter protective custody, a form of solitary confinement. Nunez stated that he was not involved in any gang-related activity and refused to enter protective custody because the programs he needed for parole were not available there. Nunez claims he was ordered to stretch against the wall, and that when he tried to explain that his wounds prevented him from complying, Turso hit Nunez's head against the wall, causing injury to his eye. See Complaint ("Compl.") at ¶ 9. Nunez further alleged that Turso dragged Nunez down the stairs while unidentified officers, the Doe defendants, struck him. Nunez stated that he was returned to the hospital and into an isolation room for medical attention. Compl. at ¶ 9. He sustained injury to his eyebrow and cheek. Deposition of Marco Nunez ("Dep.") at 95-96.

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. at 172-75.

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 160.

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.


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, 1998).

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.

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 21.


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 ...

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