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SMITH v. DONAHUE

June 21, 2005.

MARK A. SMITH, Plaintiff,
v.
Lieutenant R. DONAHUE, and C.O.J. RICHARDS, JR., Defendants.



The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge

DECISION and ORDER

JURISDICTION

The parties have consented to proceed before the undersigned pursuant to Title 28 U.S.C. § 636(c). The matter is before the court on the Defendant's motion for summary judgment (Docket No. 25) filed April 27, 2004.

  BACKGROUND

  Plaintiff commenced this action on April, 23, 2003 pursuant to Title 42 U.S.C. § 1983, claiming a violation of the Eighth and Fourteenth Amendments for alleged excessive use of force and a retaliatory misbehavior report (Docket No. 1). On May 22, 2003, Plaintiff was granted in forma pauperis status (Docket No. 3). On June 23, 2003, Defendants filed an Answer to the Complaint (Docket No. 4). Defendant moved for summary judgment on April 27, 2004, arguing that the force used against Plaintiff was de minimis and not excessive, that Defendant Donahue had no personal involvement in the alleged assault, and that Plaintiff's claim of retaliation is not constitutionally cognizable (Docket No. 25).

  Plaintiff filed a response to the motion on May 26, 2004 (Docket Nos. 36-38). Oral argument was deemed unnecessary. For the following reasons, Defendant's motion for summary judgment is GRANTED in part and DENIED in part.

  FACTS*fn1

  At the time of the alleged constitutional deprivations, Plaintiff was an inmate in the custody of the New York State Department of Correctional Services housed at the Southport Correctional Facility. Plaintiff alleges that on October 9, 2002 he testified at a disciplinary hearing before Lt. Donahue. Following his testimony, he was told to wait outside the hearing room for the disposition. Plaintiff alleges that, while waiting, he was grabbed from behind by Defendant Richards and pushed over a railing. Plaintiff was then stomped upon and kicked in the chest, stomach and face by Defendant Richards. Plaintiff further alleges that he filed a written complaint about the alleged assault and that, in retaliation for the complaint, Lt. Donahue filed a misbehavior report charging Plaintiff with making threats (Doc. No. 1).

  In support of the motion for summary judgment, Defendants submitted a declaration of Defendant Richards in which Richards stated that he was present at Plaintiff's Tier III disciplinary hearing on October 9, 2002, but denied threatening Plaintiff with physical harm (Docket No. 28 ¶ 4). Defendant Richards stated that, following the hearing, he escorted Plaintiff into the hallway to await the disposition. Id. ¶ 5. Richards ordered Plaintiff to stand against the wall, but Plaintiff responded with profanity and attempted to run away. Id. ¶ 6. Richards stated that he grabbed Plaintiff by his waist chain, and that Plaintiff struggled with him. Richards further averred that other corrections staff arrived and they subdued Plaintiff. Id. ¶ 7. Plaintiff refused to stand, so the staff carried him to the shower area. Id. ¶ 8. Richards denied stomping, kicking, or punching Plaintiff. Id. ¶ 9.

  In further support of the motion, Defendant submitted a declaration of Defendant Donahue (Doc. No. 29). Lt. Donahue stated that he conducted Plaintiff's disciplinary hearing on October 9, 2002. Id. ¶ 4. Following the hearing, Lt. Donahue directed Richards to escort Plaintiff to the hallway. Id. ¶ 5. Shortly thereafter, Lt. Donahue heard a commotion in the hallway, and observed Plaintiff struggling with Richards. Id. ¶ 6. Several other staff members arrived and assisted in restraining Plaintiff. Id. ¶ 7. Lt. Donahue stated that he did not fail to intervene in the alleged assault upon Plaintiff, because he witnessed no assault. Lt. Donahue stated that corrections staff used appropriate force "to quell the disturbance, to maintain discipline, to maintain order, to maintain security within the facility, and to protect themselves and others." Id. ¶ 9. Based on the incident, Plaintiff filed a grievance on October 10, 2002. Id. ¶ 11. In a letter to DOCS Commissioner Goord regarding the October 9, 2002 incident, Plaintiff stated: "Because I fear for my life and this administration has not taken my complaints seriously, I am left with no other choice but to assault whatever correction staff comes to get me out of my cell because I don't know if their intent is to hurt me." Id. Exh. A. Lt. Donahue then filed a misbehavior report against Plaintiff for his threats against staff in violation of DOCS rule 102.10. Id. ¶¶ 13, 16. Plaintiff was not disciplined for this letter, as the disciplinary hearing was not timely commenced. Id. ¶ 15.

  Defendants also submitted a declaration of Connie L. DeMerritt, a registered nurse at Southport. Ms. DeMerritt examined Plaintiff in conformance with DOCS policy following the use of force incident on October 9, 2002. Plaintiff complained of lumbar back pain, but DeMerritt observed no visible swelling, redness or eccymosis (Doc. No. 30 ¶ 5). According to DeMerritt, Plaintiff had a small abrasion on his right wrist, and she advised him to keep it clean. Id. ¶ 6. However, Ms. DeMerritt observed no injuries consistent with Plaintiff's allegations that he was stomped on and kicked. Id., ¶ 10. Finally, Defendants offered a declaration of Paul Bryington, who took photographs of Plaintiff after the use of force incident (Doc. No. 31). The photographs are filed as Docket No. 32.

  In opposition to Defendants' motion, Plaintiff stated that prior to the Tier III hearing on October 9, 2002, Defendants Richards and Donahue threatened him with physical harm (Docket No. 38 ¶ 4). Plaintiff stated that he was attacked without provocation by Defendant Richards and that Defendant Donahue observed the assault and refused to intervene. Id. ¶¶ 5-6. Plaintiff stated that he was dragged to the shower area, where defendant Richards stomped upon and kicked him. Id., ¶ 7. Finally, Plaintiff stated that neither Commissioner Goord, to whom the letter was written, nor his designee Wayne Wilhelm directed that Defendant Donahue file a misbehavior report regarding the letter. Id. ¶ 11.

  ...


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