The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court are the parties' respective motions for summary judgment (Docket Nos. 45 and 48).
Plaintiff, Freddie Harris ("Harris") brings this action under 42 U.S.C. §1983 claiming that his Eighth Amendment rights were violated based on the defendants' alleged failure to protect him from an attack by another inmate. More specifically, in his Amended Complaint Harris claims that he spent several days in the Special Housing Unit ("SHU") at the Five Points Correctional Facility ("Five Points") based upon his refusal to "lock in" with a cell-mate he "was having problems with." (Docket No. 29, Statement of Claim, ¶ 1). It appears undisputed that all cells at Five Points are double cells. Upon leaving SHU on December 5, 2002, Harris was assigned to share a cell with another inmate, Juan Yepez. On January 27, 2003, Yepez assaulted Harris with a sharp pair of altered tweezers. (Docket No. 29, Statement of Claim at ¶ 1-2). Corrections Officer J. Villeneuve (who is not a defendant here) witnessed Yepez striking Harris; ordered Yepez to stop the assault, Yepez complied; Villeneuve ordered the cell door opened and recovered the tweezers used by Yepez in the attack. (Docket No. 35 at Bates Number 001, 005). The documentary evidence in the record reflects that Harris suffered minor laceration in front of his left ear as a result of the attack. (Docket No. 35 at Bates Number 004, 0016-0018).
Harris contends that he was assigned to the cell by Deputy Superintendent of Security Aidala and that the assignment placed him in danger in violation of his Eighth Amendment rights. Further, shortly after the attack on January 27, 2003, Harris contends while he was on his way to the infirmary he overheard Correctional Lieutenant Ficchi ("Ficchi") and Correctional Sergeant Piccolo ("Piccolo") "mocking" him about the fact that Yepez had assaulted other inmates. The plaintiff contends that these unspecified comments were captured on videotape,*fn1 and constitute a violation of his rights by Ficchi and Piccolo. (Docket No. 29, Statement of Claim at ¶ 1).
Failure to Exhaust Administrative Remedy
The defendants assert that the instant complaint must be dismissed based upon the plaintiff's failure to file a timely grievance relating to the claims in this case. The plaintiff acknowledges that prior to filing any administrative grievance regarding his claims in this matter, he commenced a previous action in this Court based upon an alleged failure to protect hm regarding the assault on January 27, 2003. (Docket No. 29, Statement of Claim at ¶ 4). In that case, Harris v. Aidala, 03CV132 (W.D.N.Y.), the complaint was dismissed without prejudice based upon a failure to exhaust administrative remedies. (Id.; see also 03CV132 at Docket No. 3).
Harris further acknowledges that he first filed a grievance based upon the alleged failure to protect him from an attack by Yepez on March 5, 2003. A copy of that grievance is attached as an exhibit to the Amended Complaint (Docket No. 29). Harris' grievance was denied on March 6, 2003 based, in part, upon a finding that an "investigation did not reveal any liability for your injuries owning to negligence by any employee." The record reflects that Harris further appealed this grievance to the Central Office Review Committee ("CORC") which denied the appeal on May 22, 2003 again based, in part, upon findings by CORC that: the facility conducted a proper investigation; that Harris failed to present sufficient evidence to support claim of malfeasance by the correctional officers; that an investigation reflected that Harris gave no prior notice of any alleged problems with Yepez prior to the altercation. (Copies of the Initial Denial, and CORC denial of appeal are attached to the Amended Complaint, Docket No. 29). The documents do not reflect that the denial of the grievance was based, even in part, upon that fact that Harris' filing was untimely.
The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. section 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Second Circuit has stated that "prisoners may not circumvent the exhaustion requirement simply by waiting to bring a Section 1983 action until their administrative complaints are time-barred." Giano v. Goord, 380 F.3d 670, 677 (2d Cir.2004); Williams v. Comstock, 425 F.3d 175, 176 (2d. Cir. 2005). However, as noted above, Harris did file a grievance. The defendants do not assert that the grievance filed by Harris did not encompass the claims asserted in the Amended Complaint pending before this Court. Even though the grievance was filed outside the stated time parameters for the filing of grievances, it appears that the grievance was processed and denied based upon the merits, not upon a procedural default. Under such circumstances, it does not appear that Harris circumvented the exhaustion requirement. Inasmuch as Harris' grievance was processed and considered on the merits, the plaintiff exhausted his administrative remedies.
It is settled that, under the Eighth Amendment, "prison officials have a duty ··· to protect prisoners from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.1988)). In Farmer, the Supreme Court set out the two-pronged test that determines when a failure to protect a prison inmate from assault by other inmates rises to the level of a constitutional violation. First, the prisoner must have been "incarcerated under conditions posing a substantial risk of serious harm." Id. at 834. Second, the prison official must have shown "deliberate indifference" to the prisoner's safety. Id. Deliberate indifference exists when "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." Id. at 837; Hines v. Lacy, 189 F.3d 460 (2d Cir.1999).
It is equally well-settled that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Plaintiff must allege a "tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir.1986). The Court must determine whether a question of fact exists as to any personal ...