United States District Court, W.D. New York
June 21, 2005.
MARK A. SMITH, Plaintiff,
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
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.
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.
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.
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.
1. Summary Judgment Standard
The standard of review on a motion for summary judgment is well
established. Summary judgment will be granted if the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The burden of establishing that no genuine factual
dispute exists rests on the party seeking summary judgment. See
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994).
The movant may discharge this burden by demonstrating that there
is an absence of evidence to support the nonmoving party's case
on an issue on which the non-movant has the burden of proof. See
Celotex, 477 U.S. at 323.
If the moving party meets its burden of demonstrating the
absence of any genuine issue of material fact, the nonmoving
party must come forward with "specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e). The
function of a district court in considering a summary judgment motion is
not to resolve disputed issues of fact, but to determine whether
there is a genuine issue to be tried. Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). In
assessing the record, including any affidavits, exhibits, and
other submissions, the court is required to resolve all
ambiguities and to draw all factual inferences in favor of the
nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Rattner v. Netburn, 930 F.3d 204, 209 (2d Cir.
1991). The nonmoving party may not rest upon unsubstantiated
allegations, conclusory assertions or mere denials, but must set
forth and establish specific facts showing that there is a
genuine issue for trial. Fed.R.Civ.P. 56(e). A metaphysical or
other whimsical doubt concerning a material fact does not
establish a genuine issue requiring trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 (1986). If
there is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party, summary judgment is improper. Chambers, 43 F.3d at 37.
2. Excessive Use of Force
Defendants do not dispute that force was used against Plaintiff
during the October 9, 2002 incident, but contend that the force
used against Plaintiff was de minimis and was part of a
justified attempt to maintain discipline and security when
Plaintiff refused to obey a direct order. Plaintiff contends that
he was the victim of an unprovoked assault, and was stomped upon
and kicked. Defendants also argue that Plaintiff suffered no
injuries that would be consistent with an assault as described by Plaintiff, and thus Plaintiff has failed to raise an issue of
The Eighth Amendment protects prisoners from "cruel and unusual
punishment" based on the "unnecessary and wanton infliction of
pain" at the hands of prison officials. Romano v. Howarth,
998 F.2d 101, 104 (2d Cir. 1993). "A claim of cruel and unusual
punishment in violation of the Eighth Amendment has two
components one subjective, focusing on the defendant's motive
for his conduct, and the other objective, focusing on the
conduct's effect." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.
To meet the objective standard for an excessive force claim,
the plaintiff must establish that the deprivation alleged is
sufficiently serious or harmful enough to reach constitutional
dimensions. Romano v. Howarth, 998 F.2d at 105 (citing Wilson
v. Seiter, 501 U.S. 294, 298 (1991)). In this regard, while a
de minimis use of force will rarely suffice to state a
constitutional claim, the plaintiff is not required to show that
the application of force resulted in serious injury. Hudson v.
McMillian, 503 U.S. 1, 9 (1992). As explained by the Supreme
Court in Hudson:
That is not to say that every malevolent touch by a
prison guard gives rise to a federal cause of
action. . . . The Eighth Amendment's prohibition of
`cruel and unusual' punishments necessarily excludes
from constitutional recognition de minimis uses of
physical force, provided that the use of force is not
of a sort `repugnant to the conscience of mankind.'
Id. at 9-10 (citing Johnson v. Glick, 481 F.2d 1028
, 1033 (2d
Cir.) ("Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates a
prisoner's constitutional rights"), cert. denied sub nom. John
v. Johnson, 414 U.S. 1033
(1973); Whitley v. Albers,
475 U.S. 312
, 327 (1986)).
To meet the subjective requirement, the inmate must show that
the prison officials involved "had a `wanton' state of mind when they were
engaging in the alleged misconduct." Davidson v. Flynn,
32 F.3d 27, 30 (2d Cir. 1994) (citations omitted). "[I]n excessive force
cases, the `wantonness' inquiry turns on `whether force was
applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm.'" Blyden v.
Mancusi, 186 F.3d 252, 262 (2d Cir. 1999) (quoting Hudson,
503 U.S. at 7). "[T]he extent of injury suffered by an inmate is one
factor that may suggest `whether the use of force could plausibly
have been thought necessary' in a particular situation, `or
instead evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness that
it occur.'" Hudson, 503 U.S. at 7 (quoting Whitley v. Albers,
475 U.S. at 321).
While plaintiff's injuries, lumbar back pain and an abrasion on
his hand, do not appear to have been serious, the court finds a
question of material fact exists regarding the circumstances
under which Plaintiff sustained these injuries. See Corselli v.
Coughlin, 842 F.2d 23, 26-27 (2d Cir. 1988) (even if injuries
suffered were not permanent or severe, plaintiff may still
recover if force used was unreasonable and excessive). As noted,
Defendants admit that Plaintiff was subjected to the use of
force, but contend that the use of force was de minimis, and
thus justified. Plaintiff states that he was the victim of an
unprovoked assault. Whether the proof will establish that
Plaintiff's injuries resulted from an unprovoked attack or the
measured and reasonable use of force presents a question of fact
as to whether, under the circumstances presented, such force "was
applied in a good-faith effort to maintain or restore prison
discipline, or maliciously and sadistically to cause harm."
Hudson, 503 U.S. at 7; see also Gibbs v. MacKay, 2005 WL 735966, *6 (W.D.N.Y. March 31,
2005) (summary judgment denied where plaintiff alleged he was
punched, kicked and rammed into the wall, while the officers
suggested plaintiff's injuries resulted from his banging his head
into the wall of his cell); Smith v. Marcellus,
917 F.Supp. 168, 173-74 (W.D.N.Y. 1995) (summary judgment denied where
officers claimed they handcuffed plaintiff and walked him to his
cell, while plaintiff claimed that the officers struck him with
batons and a walkie-talkie and pushed plaintiff's head against
the wall as they handcuffed him); see also Messina v. Mazzeo,
854 F.Supp. 116, 133-34 (E.D.N.Y. 1994) (issue of excessive force
best left for jury if plaintiff establishes that force was used
and some injury was sustained).
Additionally, Defendants contend that Defendant Donahue was not
personally involved in the alleged assault upon Plaintiff, and so
he must be dismissed from the case. It is well-settled in this
Circuit that "personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983." Hernandez v. Keane, 341 F.3d 137, 144
(2d Cir. 2003) (quoting Moffitt v. Town of Brookfield,
950 F.2d 880, 885 (2d Cir. 1991), cert. denied, 125 S.Ct. 971 (2005). An
officer is personally involved in the use of excessive force if
he either: (1) directly participates in an assault; or (2) was
present during the assault, yet failed to intercede on behalf of
the victim even though he had a reasonable opportunity to do so.
See Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129
(2d Cir. 1997); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
Here, Lt. Donahue stated that he heard a commotion in the
hallway and observed Defendant Richards involved in a struggle with
Plaintiff. Defendant Richards was then joined by other staff
members who subdued Plaintiff. If the trier of fact should credit
the Plaintiff's view of the evidence, that he was the victim of
an unprovoked attack and that the use of force was excessive,
there is also a question of fact whether Defendant Donahue had a
reasonable opportunity to intervene. Accordingly, the motion for
summary judgment as to the use of force claim is DENIED.
Plaintiff also alleges that Defendant Donahue, in retaliation
for the filing of a grievance regarding the alleged assault,
filed a misbehavior report against him. Defendants state that the
misbehavior report was filed for Plaintiff's threats against
staff in a letter to DOCS Commissioner Goord. In his letter,
plaintiff wrote: "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." (Doc. Item 29 Exh. A).
In order to state a prima facie claim under section 1983 for
retaliatory conduct, a plaintiff must advance non-conclusory
allegations establishing that (1) the conduct at issue was
protected, (2) the defendants took adverse action against the
plaintiff, and (3) there was a causal connection between the
protected activity and the adverse action in other words, that
the protected conduct was a "substantial or motivating factor" in
the prison officials' decision to take action against the
plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 287 (1977); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002). If the plaintiff sustains this
burden, the defendants must show by a preponderance of the
evidence that they would have taken action against the plaintiff
"even in the absence of the protected conduct." Mount Healthy,
429 U.S. at 287. If taken for both proper and improper reasons,
state action may be upheld if the action would have been taken
based on the proper reasons alone. Graham v. Henderson,
89 F.3d 75, 79 (2d Cir. 1996).
When an inmate alleges a claim of retaliation, courts are
instructed to examine the claim with care. Prisoner's retaliation
claims are "prone to abuse," and the Second Circuit insists on a
higher level of detail in pleading. See Gill v. Mooney,
824 F.2d 192, 194 (2d Cir. 1987). "Mere conclusory allegations" are
insufficient to withstand a motion for summary judgment, once the
moving party has sustained its burden. Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir. 1983).
Here, Plaintiff has failed to satisfy his burden of proving a
prima facie case of retaliation. While the filing of a
grievance is protected conduct, see Jones v. Coughlin,
45 F.3d 677, 679-80 (2d Cir. 1995) ("a prisoner has a substantive due
process right not to be subjected to false misconduct charges as
retaliation for his exercise of a constitutional right such as
petitioning the government for redress of his grievances.");
Lashley v. Wakefield, 367 F.Supp.2d 461, 466 n. 4 (W.D.N.Y.
2005), and Lt. Donahue served Plaintiff with a misbehavior
report, no disciplinary action was taken against Plaintiff, as
the Tier III hearing was not timely commenced pursuant to DOCS
regulations. Additionally, Defendants have shown an independent
reason for the misbehavior report aside from Plaintiff's grievance. Plaintiff
does not deny that he wrote the letter in question to
Commissioner Goord, and that the letter contains threats against
corrections staff in violation of DOCS rules. Thus, the issuance
of the misbehavior report would have been proper for this reason
alone, and Plaintiff's retaliation claim therefore cannot
survive. Accordingly, summary judgment is GRANTED with respect to
Plaintiff's retaliation claim.
4. Qualified Immunity
Finally, Defendants argue that they are entitled to qualified
As a general rule, law enforcement officers "are entitled to
qualified immunity if (1) their actions did not violate clearly
established law, or (2) it was objectively reasonable for them to
believe that their actions did not violate such law." Warren v.
Keane, 196 F.3d 330, 332 (2d Cir. 1999) (citing Salim v.
Proulx, 93 F.3d 86, 89 (2d Cir. 1996)); Oliveira v. Mayer,
23 F.3d 642, 648 (2d Cir. 1994), cert. denied, 513 U.S. 1076
(1995). Qualified immunity shields government officials
performing discretionary functions from liability for damages
"insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Freedom from the use of excessive force is a clearly
established constitutional right. The issue is whether it was
objectively reasonable for the Defendants to believe that their
acts did not violate Plaintiff's right to be free from the use of
Here, as discussed, there is an issue of fact surrounding the
circumstances of the alleged excessive force. Plaintiff maintains that he was the
victim of an unprovoked attack and was stomped upon and kicked,
while defendants maintain that the use of force was de minimis
and justified to maintain order. These factual issues therefore
also preclude summary judgment on the defense of qualified
The Defendants' motion for summary judgment is DENIED with
respect to the excessive force claim, and GRANTED with respect to
the retaliation claim (Docket No. 25). The parties are directed
to appear for a conference on July 27, 2005 at 10:00 a.m. to set
a schedule for trial of this matter. Plaintiff must contact the
court with a telephone number where he can be reached.