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Edney v. Kerrigan


September 21, 2004




This is a civil rights action brought pursuant to 42 U.S.C § 1983 by Herbert D. Edney, an inmate in the custody of the New York State Department of Correctional Services ("DOCS") at Groveland Correctional Facility. Mr. Edney alleges that the defendants, Sergeant Harry Kerrigan and Corrections Officer ("C.O.") Jeffrey White,*fn1 violated his rights secured by 42 U.S.C. § 1983, the Eighth and Fourteenth Amendments to the United States Constitution and the Constitution of the State of New York by failing to protect him from an attack by other inmates. Specifically, Mr. Edney alleges that the defendants: (1) allowed the assailants to pass through checkpoints without searching them for weapons; (2) knew that the area in which the plaintiff was assaulted was one where inmates had been regularly attacked in the past; (3) knew that many inmates within the correctional facility possessed knives, razors, and other weapons; (4) knew that inmates in their sixties and seventies were particularly vulnerable to being assaulted; and (5) made statements evincing an awareness of a threat to the plaintiff.

The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting that (1) they were not deliberately indifferent to a substantial threat of serious injury to the plaintiff, and (2) they are entitled to qualified immunity. For the following reasons, I recommend that defendants' motion be granted.


A. The Assault

On June 23, 1998, the plaintiff was incarcerated at the Tappan Annex of Sing Sing Correctional Facility. (First Am. Compl., ¶ 6). At the time, Tappan was a medium security facility, but it has since been closed. (Declaration of Lieutenant Harry Kerrigan dated March 9, 2004 ("Kerrigan Decl."), ¶ 2). The plaintiff was working an evening shift at the Hudson View School, which was adjacent to Tappan and served both Sing Sing and Tappan inmates. (Kerrigan Decl., ¶¶ 4, 6). Mr. Edney left the Hudson View School at approximately 6:40 p.m. and began walking back to his housing unit. (Deposition of Herbert D. Edney ("Edney Dep."), attached as Exh. B to Compendium of Exhibits Submitted in Support of Defendants' Motion for Summary Judgment ("Compendium"), at 68, 137). As Mr. Edney entered the alleyway between Buildings 9 and 11, he did not see anyone else. (Edney Dep. at 140-42; First Am. Compl., ¶ 7). However, when the plaintiff entered Building 11, he was attacked by one or more inmates. (Edney Dep. at 135, 158-59, 418). Mr. Edney did not scream for help, and his attackers only fled when they heard the jangling of a prison official's keys. (Edney Dep. at 144, 418-20). The identity of Mr. Edney's attackers remains unknown. (Kerrigan Decl., ¶ 12; Edney Dep. at 181, 188).

Mr. Edney received several puncture wounds as a result of this assault. (Edney Dep. at 135-37, 249-50). He was treated first in the Sing Sing emergency room and later in St. Agnes's Hospital, from which he was eventually released. (Edney Dep. at 249-56; First Am. Compl., ¶ 11).

At the time of the assault, both C.O. White and Sergeant Kerrigan were stationed in the Tappan control office, which does not provide a view of the area in which the plaintiff was attacked. (Kerrigan Decl., ¶¶ 7, 8; Declaration of Corrections Officer Jeffrey White dated March 12, 2004 ("White Decl."), ¶¶ 8, 9). Neither defendant was stationed at a checkpoint at which inmates would be searched for weapons. (Kerrigan Decl., ¶ 8; White Decl., ¶ 9).

B. The Defendants' Prior Knowledge

Mr. Edney claims that C.O. White told him to "watch your back." (First Am. Compl., ¶ 13). The plaintiff claims this statement was made between ten and fourteen days before the attack of June 23, 1998. (Edney Dep. at 92-93). The plaintiff does not know what this statement meant, believing it might have been a warning to behave. (Edney Dep. at 92-93). The only other time a prison official had warned the plaintiff to watch his back, the comment was made after the plaintiff had violated a prison rule regarding the maximum cigarettes allowed for an inmate. (Edney Dep. at 93-95). C.O. White states that he had no prior knowledge of any threat to Mr. Edney's safety. (White Decl., ¶¶ 11-13).

Mr. Edney also claims that Sergeant Kerrigan told him after the attack that he had been "marked" for assault. (Edney Dep. at 194). Sergeant Kerrigan has stated that he had no prior knowledge of any threat to Mr. Edney's safety. (Kerrigan Decl., ¶ 11).

C. Conditions in the Prison

According to "unusual incident reports" submitted by the defendants, no inmate-on-inmate assaults had occurred in the area in which the plaintiff was attacked between September 16, 1996 and June 23, 1998, when Mr. Edney was attacked. (Unusual Incident Reports, attached as Exh. K to Compendium ("Incident Reports"), at D108-D134). In the year before the assault, two inmate-on-inmate assaults were reported in the Tappan Annex as a whole. (Incident Reports at D126-D134).

Twenty-three inmate-on-inmates assaults were reported at the Tappan Annex from January 1, 1995 to June 22, 1998. (Declaration of James Lyons dated March 11, 2004 ("Lyons Decl."), ¶ 3). Of the victims, seven were in their twenties at the time of the assault, twelve in their thirties, three in their forties, and one in his fifties. (Lyons Decl., ¶ 3).

Procedural History

The plaintiff first filed a complaint on March 5, 1999, alleging that C.O. White and Sergeant Kerrigan had violated his rights as secured by the Eighth and Fourteenth Amendments. Edney v. Karrigan,*fn2 69 F. Supp. 2d 540, 542 (S.D.N.Y. 1999). The defendants moved to dismiss Mr. Edney's complaint, and Judge Sweet granted the motion, holding that Mr. Edney had failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997(e). Id. at 544. Judge Sweet also held that the plaintiff had not sufficiently alleged that C.O. White and Sergeant Kerrigan were deliberately indifferent to the plaintiff's safety because he failed to "particularize White and Kerrigan's awareness of the risks present at Tappan on the day Edney was actually attacked." Id. at 545-46.

To exhaust his administrative remedies, Mr. Edney brought an inmate grievance, which the DOCS' Central Office Review Committee denied in December 1999. (Plaintiff's Inmate Grievance, included within Exh. C to Compendium ("Pl. Grievance")). On January 24, 2000, plaintiff filed this action pro se. He later obtained counsel and filed his First Amended Complaint on June 22, 2001. Standard for Summary Judgment

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed. R. Civ. P. 56(c); see also Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

In assessing the record to determine whether there is a genuine issue of material fact, the court resolves all ambiguities and draws all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249, and grant summary judgment where the nonmoving party's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); see also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (non-movant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968)).

Where, as here, a litigant is pro se, his pleadings should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d. Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's "'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Gittens v. Garlocks Sealing Technologies, 19 F. Supp. 2d 104, 110 (W.D.N.Y. 1998).


The defendants move to dismiss on two grounds, claiming that (1) there is no evidence that they were deliberately indifferent to a substantial threat of serious injury to the plaintiff, and (2) they are entitled to qualified immunity.

A. Deliberate Indifference

1. Legal Standard

The Eighth Amendment to the United States Constitution "requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Department Of Corrections, 84 F.3d 614, 620 (2d Cir. 1996). While prison officials bear some responsibility for the safety of inmates, "not... every injury suffered by one prisoner at the hands of another... translates into constitutional liability for prison officials responsible for the victim's safety." Farmer v. Brennan, 511 U.S. 825, 834 (1994).

To establish an Eighth Amendment violation based upon prison officials' failure to protect, an inmate plaintiff must satisfy a two-pronged test. First, he "must show that he is incarcerated under conditions posing a substantial risk of serious harm." Id. Second, the prison officials must have been deliberately indifferent to the plaintiff's health or safety. Id. A prison official can be said to have acted with deliberate indifference when "he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm." Hayes, 84 F.3d at 620. In Farmer, the Supreme Court declared that the standard for deliberate indifference has not been satisfied unless "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 serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.

2. Failure to Maintain Checkpoints

The plaintiff claims that the defendants are liable for allowing his attackers "to pass through several secure areas, gates, or check points that were under their control and supervision without searching them for weapons." (First Am. Compl., ¶¶ 15, 29). The attack occurred in the alleyway between Buildings 9 and 11, as Mr. Edney was entering Building 11. (First Am. Compl., ¶¶ 7, 8).

Sergeant Kerrigan and C.O. White, however, were stationed in the Tappan control office, located in Building 10. (Kerrigan Decl., ¶¶ 7, 8; White Decl., ¶ 8). Someone standing in that office cannot see the alleyway in which Mr. Edney was assaulted because it is obstructed by Building 9. (Kerrigan Decl., ¶ 8). Moreover, neither defendant was stationed at any of the checkpoints described in the plaintiff's amended complaint. (Kerrigan Decl., ¶ 8; White Decl., ¶ 9). The defendants did not know that any inmates were out of place. (Kerrigan Decl., ¶ 8; White Decl., ¶ 9). In dismissing Mr. Edney's initial complaint, Judge Sweet stated that any "failure to protect claim" must be particularized. Edney, 69 F. Supp. 2d at 546. The plaintiff "must do more than simply allege that a lapse or breach of security occurred and that the Defendants were on duty at the time." Id. Because the plaintiff has been unable to demonstrate any particularized connection between these two defendants and any breach of security, this claim fails.

Even had Sergeant Kerrigan or C.O. White been in a position to observe that certain inmates were out of place, the defendants would still need to have drawn the inference that such inmates posed a substantial threat to Mr. Edney. The plaintiff has presented no evidence to support such a conclusion.

3. Dangerous Conditions in the Alleyway

Mr. Edney argues that Sergeant Kerrigan and C.O. White knew that the alleyways and entranceways to Buildings 9 and 11 were an area in Tappan where inmates were "regularly assaulted." (First Am. Compl., ¶ 18). He furthers claims that these defendants "were aware that several inmates had been recently attacked and robbed in the area." (First Am. Compl., ¶ 18).

To maintain a "failure to protect" claim on these grounds, the plaintiff would have to demonstrate not only that the alleyway in which he was assaulted was particularly dangerous, but also that the defendants knew of the danger to plaintiff and disregarded it. The evidence does not support these contentions. First, the unusual incident reports for inmate-on-inmate assaults at Tappan suggest that the alleyway and the entrances to Buildings 9 and 11 were not especially dangerous areas. In the three-and-a-half years before the date of the assault, only four such assaults occurred in those areas. (Incident Reports at D068-D540). Prior to June 23, 1998, when Mr. Edney was attacked, the most recent assault in those areas occurred more than twenty months before. (Incident Reports at D108-D134). Indeed, during the year before the plaintiff's assault, only two inmate-on-inmate assaults were reported for all of the Tappan Annex at Sing Sing. (Incident Reports at D0126-D134). Given the number of attacks occurring in other areas, the evidence does not show the alleyway between Buildings 9 and 11 to have been particularly dangerous. (Incident Reports at D068-D540). Furthermore, even were there evidence showing that the area where plaintiff was attacked was especially dangerous, the defendants were unaware of any such danger. (Kerrigan Decl., ¶¶ 14, 15; White Decl., ¶ 14).

4. Knowledge of Weapons

Mr. Edney further claims that Sergeant Kerrigan and C.O. White "knew that many inmates possessed knives, razors and other weapons in Tappan." (First Am. Compl., ¶ 19). This claim is not sufficiently particularized to support a finding of liability.

In Melo v. Combes, No. 97 Civ. 0204, 1998 WL 67667 (S.D.N.Y. Feb. 18, 1998), the court rejected an almost identical claim:

[T]he plaintiff is apparently relying upon dangerous conditions in the prison in general to state a claim.... [A]t yearly facility searches, bullets, and eight to ten inch store bought knives have been found repeatedly. These statements do not allege that these defendants had knowledge of the danger to the plaintiff himself as opposed to issues of prison safety in the most general sense. The allegations are thus insufficient to allege that these defendants were personally involved in a failure to protect which rose to the level of a constitutional violation.

Id. at *5 (citation omitted).

Similarly, in Edney, Judge Sweet emphasized the distinction between awareness of general prison dangers and awareness of those dangers as they related to the plaintiff on June 23, 1998. 69 F. Supp. 2d at 546. A failure to protect claim requires more than a showing that the correctional facility contains dangerous conditions. Rather, the plaintiff must demonstrate that Sergeant Kerrigan and C.O. White were deliberately indifferent to the risks those dangers posed to the plaintiff. Here, Mr. Edney has not shown anything more than that the Sing Sing Correctional Facility is a dangerous place. Accordingly, the plaintiff has failed to provide sufficient evidence of deliberate indifference by the defendants.

5. Particular Risks to Elderly Inmates

Mr. Edney contends that the defendants "knew that inmates in their sixties and seventies, like plaintiff, were particularly vulnerable to being assaulted or robbed." (Pl. Am. Complaint, ¶ 21). This claim is without merit.

First, the defendants did not know that older inmates faced a higher probability of being attacked. Sergeant Kerrigan believed that involvement in "unlawful activity" -- and not age -- is the chief factor that determines an inmate's vulnerability to assault. (Kerrigan Decl., ¶ 22). Sergeant Kerrigan was familiar with Mr. Edney's clean disciplinary record and did not believe him to be especially vulnerable to attack. (Kerrigan Decl., ¶¶ 22, 23). C.O. White believed that elderly inmates are less likely to be attacked by other inmates. (White Decl., ¶ 19). The plaintiff provides no evidence to undermine either of these assertions.

Moreover, the unusual incident reports support the defendants' beliefs. From January 1, 1995 to June 22, 1998, twenty-three inmate-on-inmates assaults were reported at the Tappan Annex. (See Lyons Decl., ¶ 3). Of those twenty-three victims, only one was older than fifty and none was sixty or older. (Lyons Decl., ¶ 3). Of course, in order to fully assess the contention that elderly inmates are particularly vulnerable to attack, it is necessary to know not only how many of them were attacked, but also what fraction of the total inmate population they comprise. Nonetheless, the fact that none of the inmates in their sixties or seventies was a victim of an assault during the three-and-a-half years prior to Mr. Edney's attack certainly weakens his assertion. Thus, this claim is also without merit.

6. Knowledge of Threat to the Plaintiff

Mr. Edney also argues that the defendants made statements to him evincing an awareness of a threat to his safety. Specifically, the plaintiff claims that Sergeant Kerrigan told him that he had heard the plaintiff was "marked" for assault, and that about ten days before the attack, C.O. White warned the plaintiff to "watch his back." (Edney Dep. at 92-93, 194). None of these statements, even if they were made, is enough to support a claim for failure to protect.

In the case of Sergeant Kerrigan, Mr. Edney says that Sergeant Kerrigan told him only after the attack that he was "marked." (Edney Dep. at 194). The plaintiff does not know whether Sergeant Kerrigan gained this information before or after the assault on June 23, 1998. (Edney Dep. at 194). Sergeant Kerrigan states that, before the assault, he was never informed that the plaintiff was a potential target for an attack. (Kerrigan Decl., ¶ 23). The plaintiff presents no evidence to challenge Sergeant Kerrigan's declaration. The claim against Sergeant Kerrigan therefore fails.

The plaintiff also alleges that, before the June 23, 1998 assault, C.O. White was aware of a threat to his safety. This claim is based entirely on a statement made by C.O. White to Mr. Edney approximately ten days before the attack. (Edney Dep. at 92-93). According to the plaintiff, C.O. White told him, "watch your back." Plaintiff admits that he does not know what C.O. White meant by this statement, and speculates that it might simply have been a warning to behave properly. (Edney Dep. at 92-93). In fact, the only other time a prison official urged plaintiff to "watch his back," the statement was made as a warning to follow prison rules. (Edney Dep. at 92-93). Such an interpretation is consistent with C.O. White's declaration that he had no prior knowledge of any threat to the plaintiff. (White Decl., ¶¶ 11-13). In sum, the plaintiff has not presented adequate evidence to infer that C.O. White knew of a threat to the plaintiff's safety.

The plaintiff's allegations, even if true, do not rise to the level of deliberate indifference. In Desulma v. City of New York, No. 98 Civ. 2078, 2001 WL 798002, at *7 (S.D.N.Y. July 6, 2001), a prison official knew that the inmate plaintiff feared certain other inmates; knew that the plaintiff had requested protective custody; and even personally observed a verbal altercation between the plaintiff and his attackers. Nonetheless, the court granted summary judgment for the defendant prison official, reasoning that there was "no reason to infer the existence of a threat of harm," "given the lack of a prior history of violence between Desulma and [the inmates who attacked Desulma]." Id. Similarly, where an inmate plaintiff had insisted to defendant corrections officers that he be removed from his cell because he feared an attack at the hands of his cellmate, the court dismissed plaintiff's suit even though he specifically told one of the officers that "something bad might happen to him." Lyncee v. Jenks, No. 98 Civ. 3638, 2000 WL 343893, at *1 (S.D.N.Y. March 31, 2000). Mr. Edney's evidence regarding Sergeant Kerrigan's and C.O. White's awareness of a threat is far less persuasive than that of the plaintiffs in Desulma and Lyncee. Accordingly, this claim fails.

B. Qualified Immunity

The defendants also assert that they are entitled to qualified immunity. Qualified immunity "is an immunity from suit rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In evaluating a claim of qualified immunity, a court must determine as a threshold matter whether the facts, when viewed in the light most favorable to the party professing an injury, "show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, a court must then examine whether "that right was clearly established." Id. "This inquiry... must be undertaken in light of the specific context of the case, not as a broad general proposition." Id. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Here, the defendants' claim of qualified immunity satisfies this two-part test. As discussed above, the undisputed evidence indicates: (1) that before the attack on June 23, 1998, neither Sergeant Kerrigan nor C.O. White knew of a substantial threat to Mr. Edney's safety; (2) that the alleyway between Buildings 9 and 11 was not especially dangerous; and (3) that older inmates were not particularly vulnerable to attack. Thus, it was reasonable not to offer Mr. Edney special protective measures. Since the defendants' conduct was objectively reasonable, they are entitled both to qualified immunity and summary judgment.


For the reasons set forth above, I recommend that the defendants' motion for summary judgment be granted. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable George B. Daniels, Room 410, 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully submitted,


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