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Smith v. Mackay

April 24, 2009

THERNELL SMITH, PLAINTIFF,
v.
K. MACKAY AND P. WEED, DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #12.

Plaintiff filed this pro se action on or about September 11, 2003 in the Northern District of New York seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #5. Thereafter, the case was transferred to the Western District of New York. Id. Plaintiff alleges that while an inmate at the Southport Correctional Facility ("Southport"), his rights pursuant to the Eighth Amendment to the United States Constitution were violated.*fn1 Id. Currently before the Court are defendants' motion for summary judgment (Dkt. #22) and plaintiff's motion for summary judgment (Dkt. #31). For the following reasons, defendants' motion for summary judgment is denied and plaintiff's motion for summary judgment is denied.

BACKGROUND

Plaintiff, proceeding pro se, filed this action in the Northern District of New York on or about September 11, 2003 against defendants Glenn S. Goord, Michael Corcoran, Michael McGinnis, R. Hazelton, W. Wilcox, Marshall, K. Mackay, B. Potter, P. Weed, D. Flynn and Aderhold pursuant to 42 U.S.C. § 1983, seeking $5,000 in compensatory damages and $10,000 in punitive damages. Dkt. #5. Thereafter, the action was transferred to the Western District of New York. Id. By Decision and Order dated February 6, 2004, United States District Judge William M. Skretny dismissed the claims against defendants Goord, Corcoran, McGinnis, R. Hazelton, W. Wilcox, Marshall, B. Potter, D. Flynn and Aderhold with prejudice. Dkt. #6. Accordingly, only plaintiff's claims of excessive use of force against defendant Weed and the failure to protect against defendant Mackay remain. Id.

Plaintiff's Complaint

Plaintiff alleges that on December 25, 2001, he requested three large legal envelopes, two grievance forms, and three advancement forms from Officer Aderhold. Dkt. #5, ¶ 16. Plaintiff asserts that he received only one grievance form, two advancement forms and was advised that he could not have three legal envelopes. Id.

Later, on December 25, 2001, plaintiff states that he advised Officer Potter that he had three letters to be mailed, that he requested that his pen be exchanged and that he placed the items in the security cart. Id. at ¶ 17. According to plaintiff, Officer Potter then placed three small white envelopes and one pen in the security cart. Id. Thereafter, plaintiff alleges that he stuck his arms out of the door hatch and into the security cart and demanded three legal envelopes or, in the alternative, to see a Sergeant. Id. According to plaintiff, Officer Potter notified the Officer in the control booth to call the Sergeant. Id. Plaintiff further alleges that defendant Officer Weed arrived and in an effort to force plaintiff to move his hands back into his cell, defendant Weed pushed the door hatch against his forearms and then used his baton on the door hatch to exert greater force on plaintiff's forearms. Id. Specifically, as against defendant Weed, plaintiff alleges,

Officer Weed, then arrived and moved the security cart a little away from the cell door, at this time, he then forcefully pushed the door hatch against my forearms. Then in an attempt to enforce more force, Officer Weed, used his baton on the door hatch.

Id. When defendant Sergeant Mackay arrived, plaintiff alleges that Officer Weed stated "Smith tried to stick me with a pen." Id. at ¶ 18.

Thereafter, plaintiff alleges that Sergeant Mackay instructed plaintiff to pull his hands inside his cell and plaintiff replied, "I'm only requesting what I'm entitled too [sic]." Id. at ¶ 19. Plaintiff alleges that he requested to speak to a Lieutenant and Sergeant Mackay responded that the Lieutenant was not coming to speak to him, stating "'only one person is coming to talk to you' ... and if that don't [sic] work, I'm gonna have my Officer's use force." Id. As alleged in the complaint, Officer Flynn came to talk to plaintiff, took plaintiff's mail and pen out of the cart and placed his mail inside the mailbox, and plaintiff stated to Officer Flynn, "'I told him, I would listen to you, but Officer Weed, has gone to [sic] far by lying and assaulting me.'" Id. at ¶ 20. Plaintiff then alleges,

The security cart was then pulled back from the cell door hatch. Officer Weed, raised his baton above his head, and forcefully came down striking my left wrist. I then pulled my hand in, and my wrist were [sic] badly swollen.

Dkt. #5, ΒΆ 21. Finally, plaintiff alleges that Nurse Miller treated his injury and that when she left to get an ice bag, "Sgt. Mackay threatened me, stating, 'If I make one false move, his Officer's ...


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