REPORT AND RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
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.
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).
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,*fn269 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 ...