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United States District Court, S.D. New York

September 1, 2004.

RUBEN A. SLACKS, Plaintiff,

The opinion of the court was delivered by: DENISE COTE, District Judge


On September 3, 2002, pro se plaintiff Ruben A. Slacks ("Slacks") filed this action pursuant to Title 42, United States Code, Section 1983 ("Section 1983") against Charles Grenier ("Grenier"), then Superintendent of the Green Haven Correctional Facility ("Green Haven").*fn1 Slacks seeks compensatory damages for injuries suffered when he was struck by a softball from a game played by other inmates in a recreational field at Green Haven. Slacks claims that under policies implemented by Grenier, Green Haven does not provide adequate space for multiple forms of inmate recreation, creating an unreasonable risk of injury to inmates using the field while softball games are underway.

  Slacks filed an amended complaint on June 10, 2003. A September 25 Opinion denied Grenier's motion to dismiss Slacks' claim for compensatory damages and granted the defendant's motion to dismiss a claim for injunctive relief. Slacks v. Grenier, No. 02 Civ. 7668 (DLC), 2003 WL 22232942 (S.D.N.Y. Sept. 25, 2003). A September 25 Order granted Slacks' application for the appointment of counsel and requested that this Court's Pro Se Office seek pro bono counsel for Slacks. The schedule for this action was stayed until December 26 to determine whether an attorney would agree to represent Slacks. No attorney came forward, and the stay was lifted on January 7, 2004. Discovery concluded on June 4.

  Grenier has moved for summary judgment on the ground that the complaint fails to state a claim, that he was not personally involved in any constitutional violation, that he is shielded by qualified immunity, that no subject matter jurisdiction exists over any state law claims,*fn2 and that the Eleventh Amendment bars any claim for damages against Grenier in his official capacity. For the following reasons, Grenier's motion for summary judgment is granted. Background

  The following facts are undisputed or taken in the light most favorable to the plaintiff, unless otherwise noted. Green Haven's G and H recreational yard (the "Recreational Yard") is one of four yards at the facility used to provide inmates with outdoor space for exercise and recreational activities, including softball, football and soccer. The Recreational Yard measures approximately 300 feet by 300 feet and includes a batting cage around home plate, showers, televisions, and areas for inmates to play table games such as chess. Green Haven furnishes sporting equipment for the inmates, including "limited flight" softballs.

  On April 27, 2002, Slacks was struck on the left side of his face by a softball while standing in the Recreational Yard approximately 300 feet from the batter's box. He was not participating in the softball game. Slacks was treated that day by a member of the Department of Correctional Services ("DOCS") medical staff, who determined that Slacks had a red mark on his left cheekbone and some swelling in the area. His medical records reveal that the following day his left eye was closed and his left cheek was swollen. Slacks was seen by DOCS staff again on April 29 and 30, when it was noted that he was experiencing pain and had some bleeding in his left eye. He was given an eye patch on April 30 and was seen by an outside specialist on May 3. Records from the May 3 appointment indicate that the specialist found no apparent occular damage.

  Slacks alleges that he also experienced numbness and loss of feeling in the left side of his face and that he continues to suffer from blurred vision and migraine headaches as a result of the accident. He has not offered medical records that support these claims.

  Slacks has introduced affidavits from two other inmates at Green Haven, Ryan Anjorie ("Anjorie") and Luis Alvarez ("Alvarez"). Anjorie was hit by a softball while in the Recreational Yard and states that he has witnessed many other inmates being struck by softballs between 2000 and 2002. Alvarez has also seen more than one inmate hit by a softball in the Recreational Yard between 1996 and 2003. Slacks has offered two redacted Reports of Inmate Injury describing incidents in which inmates were hit by softballs in recreational yards, although neither suffered serious injury. Grenier states that three reports were produced to Slacks and that there are no other Reports of Inmate Injury resulting from softballs between 2000 and 2002.

  As Superintendent, Grenier is responsible for the safety and security of inmates and staff at Greenhaven. He visits the Recreational Yard and is familiar with the physical space and the recreational activities available to inmates. Grenier does not recall learning, prior to April 27, 2002, of any security staff reports or complaints that inmates were being injured by softballs in the Recreational Yard. Slacks had not complained of the risk posed by the softballs prior to being injured. Grenier has since learned from Green Haven staff that approximately two to three inmates are struck each year by flying softballs, although no serious injuries have been reported. Grenier acknowledges that limited flight softballs are supplied in order to prevent injuries to staff or inmates during softball games.

  Slacks filed an Inmate Grievance Complaint on April 29, 2002, seeking financial compensation for his injury, as well as a policy change permitting softball games to be played on Green Haven's Faye Field and allowing inmates not playing softball to enter the E and F recreational yard. An Investigative Report completed by a DOCS employee in connection with Slacks' grievance complaint concludes that "with all the activity going on in the yard . . . it is highly probable someone will be accidentally struck by a thrown or batted softball." Slacks was informed by Grenier that inmates in the Recreational Yard are expected to remain alert for softballs, that Faye Field is not always available as a result of security concerns, and that compensatory damages are unavailable through the grievance mechanism.


  Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R. Civ. P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). When a party is proceeding pro se, courts have an obligation to "read his papers liberally, interpreting them to raise the strongest arguments they suggest." Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003).

  To prevail on a claim under Section 1983, a plaintiff must demonstrate "the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) (citation omitted). "The conditions of a prisoner's confinement can give rise to an Eighth Amendment violation." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002); see also Farmer v. Brennan, 511 U.S. 825, 828 (1994). To establish such a violation, an inmate must prove an objective element — that the condition was "sufficiently serious" — and a subjective element — that the prison official acted, or failed to act, with a "sufficiently culpable state of mind." Phelps, 308 F.3d at 185 (citation omitted). A plaintiff satisfies the objective requirement if he demonstrates that prison conditions deny inmates "the minimal civilized measure of life's necessities." Id. (citation omitted). Prisoners may not be deprived of their basic need for reasonable safety by conditions that "pose an unreasonable risk of serious damage to their future health." Id. (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). It is also clearly established that "some opportunity for exercise must be afforded to prisoners." Williams v. Greifinger, 97 F.3d 699, 704 (2d Cir. 1996) (emphasis in original) (citing Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985)).*fn3 "Ultimately, to establish the objective element of an Eighth Amendment claim, a prisoner must prove that the conditions of his confinement violate contemporary standards of decency." Phelps, 308 F.3d at 185.

  To satisfy the subjective requirement, a plaintiff must establish that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference." Id. at 185-86 (citing Farmer, 511 U.S. at 837). This standard of "deliberate indifference" is equivalent to the "recklessness" standard employed in criminal law. Id. at 186; see also Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). A plaintiff may use circumstantial evidence to prove a prison official's knowledge, and knowledge may be inferred from the fact that a risk was obvious. Phelps, 308 F.3d at 186.

  Slacks has not raised a material issue of fact as to whether Grenier acted with deliberate indifference to a substantial risk of serious injury to inmates present in the Recreational Yard during softball games. There is no evidence that Grenier received any letters, complaints, or staff reports expressing concerns about inmate safety while softballs were in use. There is no evidence that any inmate at Green Haven had suffered a serious injury as a result of being struck by a softball prior to April 27, 2002. The Investigative Report offered by Slacks does not provide evidence that the conditions in the Recreational Yard produced a risk of serious injury to any inmate accidentally struck by a softball. Although Grenier was familiar with the structure of the Yard and the activities that took place there, there is no basis to infer that the softball games created an obvious risk of serious injury from which Grenier's deliberate indifference could be inferred.*fn4 Conclusion

  For the reasons stated above, Grenier's motion for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and shall close the case.


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