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Orelvis v. State of New York Dep't of Correctional Services

June 12, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



Feliz Orelvis ("Plaintiff"), a prison inmate currently confined at Gowanda Correctional Facility, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, claiming that defendants violated his constitutional rights. Now before the Court is Defendants' motion for summary judgment (Docket No. [#38]). For the reasons that follow, Defendants' application is granted and this action is dismissed.


For purposes of this Decision and Order, the following are the facts viewed in the light most-favorable to Plaintiff. On March 7, 2005, Plaintiff was in the custody of the New York State Department of Correctional Services ("DOCS") and housed at Livingston Correctional Facility ("Livingston"). Plaintiff and another inmate, Gregory Peguero ("Peguero") were in the Day-room of the D-1 Dorm. Defendant Corrections Officer David Stickel ("Stickel") was sitting at a desk, reading a book, in an office outside of the day room. (Plaintiff's Deposition at 30). There was a glass window between the Day-room and the office. Plaintiff had never had any problems or confrontations with Peguero prior to that day. Id. at 28. Plaintiff returned a wet floor mop to a slop sink in which Peguero was washing dishes, and Plaintiff accidentally touched either Peguero or Peguero's dishes with the mop. The two inmates began arguing, and Peguero assaulted Plaintiff with the mop handle, causing a cut to Plaintiff's face and a scratch to Plaintiff's chest. The cut on Plaintiff's face was approximately one inch long.*fn1 The injury to Plaintiff's chest consisted of "red marks including scratches." (Inmate Grievance dated June 12, 2005, ¶ 7(B)).

Stickel told Plaintiff and Peguero to stop fighting, and they complied. At a subsequent disciplinary hearing, Plaintiff testified that Stickel responded immediately to stop the assault by Peguero. For example, Plaintiff testified that Stickel "immediately stopped" the fight between Plaintiff and Peguero. (Flagler Affidavit, Exhibit B, March 15, 2005 Disciplinary Hearing transcript at 3-4). Plaintiff further testified:

[Hearing Officer]: [Peguero] just attacked you for no reason?

[Plaintiff]: . . . So I lifted up the mop and I tried to take it off from the mop handle, so when I take 'em off, I tried to hang the mop handle on the, on the wall, and the, the dirty mop bucket touched one of his [Peguero's] dishes. So I apologized to him but he got so crazy, and pushed me, when [I was] holding the mop handle in my hand, so the mop handle hit him in the chest and then when he walked by he jumped on me, grabbed the mop handle started swinging on me. . . . So when he was swinging on me, I had some boys right behind me, I turned around, look at the Officer Stickel, coming through the door, saying something. . . . I turned and looked, I threw the mop handle and hit inmate [Peguero] right in the chest.


So when I hear that I walk right back and drop the mop. So he [Stickel] got in there, they take me to the front porch. (Docket #17-3 at 7-8). Similarly, Stickel testified at the disciplinary hearing that he "immediately responded" once he became aware of the fight. (March 15, 2005 hearing transcript at 8). At his deposition taken as part of this action, Plaintiff testified that prior to the assault, he began arguing loudly with Peguero, in order to attract Stickel's attention. (Plaintiff's Deposition at 24). Plaintiff further testified that from the office, Stickel was in a position to see Peguero with the mop handle. However, Plaintiff opined that Stickel waited to intervene until after Peguero hit Plaintiff with the mop. Id. at 24-32. Following the incident, Plaintiff informed corrections staff that he did not need protection from Peguero. Id. at 41.

After Stickel separated Plaintiff and Peguero, other Corrections Officers arrived, two of which escorted Plaintiff to the "front porch" of the dormitory, where one officer pat-frisked Plaintiff. As discussed further below, approximately thirty minutes later, Corrections Officers discovered an improvised knife, made from a utility-knife blade ("the knife"), in the porch area near where Plaintiff had been standing. (Docket # 17-3 at 17). After pat-frisking Plaintiff, Corrections Officers took Plaintiff to the facility Property Room, where they strip-searched him and found no weapons. The officers then escorted Plaintiff to the infirmary. (Docket # 17-3 at 10).

At the infirmary, Plaintiff was examined by defendant Dr. Benjamin Agustin, M.D. ("Agustin"). Agustin initially told Plaintiff that the facial wound would require stitches. After Plaintiff's wounds were cleaned by a nurse, Agustin decided not to apply stitches to Plaintiff's face. An injury report completed by a nurse Kathy Rynders ("Rynders") described the facial wound as a "11/4 " long surface laceration." (Rynders Affidavit [#42] Exhibit A). Agustin provided Plaintiff Ibuprofen for pain. However, Plaintiff contends that he experienced "severe pain" during the night, and that the following morning, his facial wound had become stuck to his bed sheet.

Following the assault, Stickel issued Plaintiff a misbehavior report, charging Plaintiff with fighting and violent conduct in connection with the incident with Peguero. Defendant Corrections Lieutenant Rusty Simon ("Simon"), in his capacity as "Review Officer" pursuant to 7 NYCRR § 251-2.2, reviewed the misbehavior report and designated the charged offenses as Tier III infractions, the most serious type. Defendant Corrections Captain Bruce Flagler ("Flagler") conducted a Tier III disciplinary hearing. (Flagler Affidavit, Exhibit C, Hearing Transcript). During the hearing, Plaintiff asked to call only one witness, Stickel. Flagler permitted Plaintiff to call Stickel as a witness, and to question Stickel. In that regard, Plaintiff told Flagler the questions that he wanted to ask Stickel, and Flagler asked the questions. Several times during the hearing, Flagler refused the ask a question posed by Plaintiff, because it pertained to issues that were not relevant to the hearing. For example, Plaintiff repeatedly sought to ask Stickel questions pertaining to Plaintiff's alleged possession of the knife, which was not at issue in the hearing. Apart from his own testimony and Stickel's testimony, Plaintiff declined to present any additional evidence. Id. at 6, 18. At the conclusion of the hearing, Flagler found Plaintiff guilty of fighting and violent conduct, and sentenced him to sixty days in the Special Housing Unit ("SHU"). As to his decision, Flagler stated that, even though Stickel had not observed Plaintiff doing anything violent, the various reports and testimony, as well as the injuries to both Plaintiff and Peguero, indicated that Plaintiff and Peguero had been fighting before Stickel observed them. (Id. at 18). The sixty-day SHU sentence was designated to run from March 7, 2005 through May 6, 2005. (Dubray Affidavit ¶ 6).

On or about March 10, 2005, Corrections Officer Green ("Green"), who is not a party to this action, issued Plaintiff a second misbehavior report, accusing him of possessing the knife on March 7, 2005. On March 25, 2005*fn2 , defendant Deputy Superintendent G. Saj ("Saj") conducted a Tier III disciplinary hearing. Saj permitted Plaintiff to testify, to call witnesses, and to ask questions of the witnesses. (Saj Affidavit, Exhibit C). Green testified at the hearing that he discovered the knife near where Plaintiff had been standing. Corrections Sergeant Putney, who is not a defendant in this action, testified that during his investigation of the assault by Peguero, Peguero told him that after Peguero and Plaintiff argued at the slop sink, Plaintiff displayed the knife to Peguero in the dorm bathroom, and that Peguero grabbed the mop handle as a defensive weapon. (Docket # 17-3 at 37). Putney stated that the knife was found "within a few feet of where [Plaintiff] had been taken outside to wait" following the fight. Id. Putney further stated that, based on his investigation, Plaintiff had "five or ten seconds . . . that nobody could account for him" while on the porch, during which time he could have dropped the knife. Id. at 40. Saj also permitted Plaintiff to question Tony Baria ("Baria"), a fellow inmate who testified, contrary to what Peguero told Putney, that he did not see Plaintiff with the knife. Based on such evidence, Saj found Plaintiff guilty of possessing the knife, and imposed a sentence of six months in the SHU, with thirty days loss of good time. Id. at 67-68. Plaintiff's sentence, which was to be served consecutively to his prior sixty-day SHU sentence, was scheduled to begin on May 6, 2005 and end on November 6, 2005.

Plaintiff was transferred to the SHU at Lakeview Shock Correctional Facility ("Lakeview") to serve his SHU sentences. Plaintiff appealed both of his disciplinary convictions. On June 3, 2005, the DOCS Commissioner affirmed the conviction and sentence for the weapon charge, but reversed the convictions for fighting and violent-conduct. By June 3, 2005, Plaintiff had already served the sixty-day sentence for the reversed conviction. However, as a result of the reversal, DOCS recalculated Plaintiff's March 25, 2005 sentence, to begin on March 25th, rather than May 6th, and to end on September 25th, rather than November 6th. In so calculating the sentence, DOCS opted not to credit Plaintiff for the time that he spent in SHU between March 7th and March 25th, treating such time as pre-hearing administrative segregation. As a result of such re-calculation, Defendants maintain that Plaintiff actually served no SHU time In connection with the reversed conviction.*fn3

Plaintiff subsequently filed inmate grievances, complaining that his inmate records had not been corrected to reflect the reversal of his conviction, and that he should be released from the SHU. The grievances were granted to the extent that Plaintiff's records were corrected, however, they were denied to the extent that Plaintiff was seeking to get out of SHU. As to the latter, the Inmate Grievance Review Committee advised Plaintiff to "contact the disciplinary office with regard to his remaining time in SHU." Plaintiff appealed such determination, and the Central Office Review Committee ("CORC") eventually ...

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