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Martinez v. Augustine

June 23, 2009


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


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. #19.

Plaintiff filed this pro se action on or about August 13, 2002 seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that while an inmate at the Southport Correctional Facility ("Southport"), his rights pursuant to the Eighth and Fourteenth Amendments to the United States Constitution were violated.*fn1 Id. Currently before the Court is defendants' motion for summary judgment. Dkt. #44. For the following reasons, defendants' motion for summary judgment is granted in part and denied in part.


Plaintiff, proceeding pro se, filed this action on or about August 13, 2002, against defendants Glenn S. Goord, Donald Selsky, M. McGinnis, R. Hazelton, Richard Cerio, W.E. Wilcox, Brian D. Chuttey, Richard Augustine, Richard E. McLaughlin, Richard M. Siuda, Wendy McKlevis, Dennis McKernan, James O'Herron, Jodi Litwiler, Michael P. Warren, Dean MacIntyre, G. Carrigan, B. Dyer, J. Ameigh, B. Held, Rocco, Michalko and Bartsch pursuant to 42 U.S.C. § 1983, seeking a declaratory judgment, compensatory and punitive damages. Dkt. #1. By Decision and Order dated October 10, 2002, United States District Judge Richard J. Arcara dismissed the claims against defendants Glenn Goord, Donald Selsky, Michael McGinnis, R. Hazelton, Richard Cerio, W.E. Wilcox, and Brian Chuttey with prejudice. Dkt. #3; see also, footnote 1, supra. Accordingly, only plaintiff's claims of excessive use of force and failure to protect against defendants Richard Augustine, Richard E. McLaughlin, Richard M. Siuda, Wendy McKlevis, Dennis McKernan, James O'Herron, Jodi Litwiler, Michael P. Warren, Dean MacIntyre, G. Carrigan, B. Dyer, J. Ameigh, B. Held, Rocco*fn2 , Michalko and Bartsch remain. Id.

Plaintiff's Complaint

Plaintiff's claims all arise from an incident that occurred on June 24, 2000, while he was incarcerated at Southport. Dkt. #1. Plaintiff alleges that at approximately 12:30 p.m., on June 24, 2000, he was advised that he had visitors. Dkt. #1, ¶ 12. Prior to be being placed in the "caged-in area where inmates are designated to sit when in the visiting area," plaintiff was pat-frisked twice and scanned with a hand-held metal detector. Id. at ¶¶ 13-14. Plaintiff was placed in the caged-in area with approximately six other inmates and while plaintiff was visiting with his family members, "a disturbance occurred between a few inmates in the same caged-in visiting area as plaintiff." Id. at ¶ 16. Plaintiff alleges that the inmates involved in the disturbance used weapons either supplied by their visitors or smuggled into the caged-in area by the inmates. Id. at ¶ 17. Plaintiff alleges that "[d]uring the early moments of this disturbance, plaintiff received a cut to his face and began to bleed profusely." Id. at ¶ 18. Plaintiff further claims that despite his repeated requests for the officers to open the door (gate) of the caged-in area to let plaintiff out, the officers refused to open the door (gate). Id. at ¶ 20. As a result of the officers' refusal to open the door (gate), plaintiff continued to be attacked and he was stabbed and cut on his face, neck, torso and arms. Id. at ¶ 21.

Plaintiff further alleges,

24. [i]nstead of assisting plaintiff, the officers placed their batons in a horizontal position and began jabbing their batons through the holes in the cage which resulted in plaintiff being physically assaulted about his head, neck, and back.

25. One particularly forceful jab caught plaintiff in his head causing him to almost lose consciousness (including the blurring of his vision) and forcing him to fall to his knees placing his head on one of the tables in the visiting area.

26. The officers began yelling for the inmates in the caged area to lay on the floor and plaintiff attempted to comply. However, since plaintiff could not breathe in the prone position due to the numerous stab wounds and cuts sustained to his head, neck, and torso, plaintiff attempted to adjust himself into a position whereby he could breathe.

27. As plaintiff attempted to adjust his position on the floor, plaintiff was physically assaulted with batons by Defendant Augustine and others as they entered the caged-in portion of the visiting area.

28. During the course of this incident, additional officers responded to the visiting area in an effort to quell the disturbance.

29. Plaintiff was then thrown/dragged out of the caged-in area into the area just outside the caged-in area where the correctional officers are posted to observe the visiting area.

30. Plaintiff was pinned to the floor in the prone position with the defendant correctional officers holding plaintiff firmly to the floor by leaning on and applying pressure to plaintiff's back and neck with their feet.

31. Plaintiff was bleeding profusely from his neck and was unable to breathe due to the position he was in and the pressure being applied to his back and neck by the defendant officers.

32. While plaintiff was pinned to the floor, the defendant officers began to verbally assault and to physically assault plaintiff by yelling racial epithets and threats at plaintiff while kicking plaintiff about the ribs and back.

Id. at ¶¶ 24-32. As discussed above, only plaintiff's claims of excessive use of force and failure to protect against defendants Augustine, McLaughlin, Siuda, McKlevis Rocco, McKernan, O'Herron, Litwiler, Warren, MacIntyre, Carrigan, Dyer, Ameigh, Held, Michalko and Bartsch remain and are before this Court.

In his excessive use of force claim, plaintiff alleges not only that defendants used physical force against him without need or provocation, but that defendants' failure to intervene to prevent the misuse of force constituted cruel and unusual punishment. Dkt. #1, ¶ 65. Plaintiff's claim for failure to protect alleges that defendants' failure to provide proper security measures, "such as proper and necessary searching for weapons and the proper observation of the inmates in the highly problematic Special Housing Unit facility, which allowed other inmates to cause serious physical injury to plaintiff" constituted cruel and unusual punishment. Id. at ¶ 61. Moreover, plaintiff alleges that defendants' failure to intervene and rescue plaintiff by opening the gate and allowing plaintiff to "escape the melee" resulted in plaintiff sustaining further serious injuries and constituted cruel and unusual punishment. Id. at ¶ 62.

Defendants' Statement of Undisputed Facts

In contrast to the allegations in plaintiff's complaint, defendants maintain that only three defendants, Richard Augustine, Robert Michalko and Michael Warren, had any physical contact with plaintiff during the June 24, 2000 incident. Dkt. #46, p.5. Specifically, defendant Augustine was the first Corrections Officer to enter the Special Housing Unit ("SHU") visiting area pen to subdue the inmates and admittedly struck plaintiff across the back with his baton. Dkt. #45, ¶¶ 7-8; Dkt. #46, p.5. Defendant Warren assisted in securing plaintiff and thereafter, with the assistance of defendant Michalko, escorted plaintiff to the facility hospital. Dkt. #45, ¶¶ 41-56; Dkt. #46, p.6. Defendants argue that the amount of force used was not excessive, rather, it was "reasonably necessary to gain control of the situation, to restrain the plaintiff in order to maintain order, discipline, and security within the facility, and to protect themselves and others." Dkt. #46, p.2. Additionally, defendants claim that they did not fail to protect plaintiff from physical assault because, as defendants argue, plaintiff was "involved in the altercation at issue in this case and a participant in the physical assaults." Dkt. #46, p.2. Rather, defendants assert that they "stopped the violence and regained control of the situation as quickly as they were reasonably able." Id. As evidenced by the selected excerpts from plaintiff's complaint cited above, the allegations in plaintiff's complaint are of a general nature and do not specify which officer or officers plaintiff claims engaged in the alleged conduct. Conversely, defendants separately address each individual defendant and describe in detail what role, if any, each defendant played in connection with the June 24, 2000 incident. See Dkt. #45.

Richard Augustine

It is undisputed that defendant Augustine was on duty on June 24, 2000 and was assigned to Southport's SHU visiting room. Dkt. #45, ¶ 2. At or around 2:30 p.m., on June 24, 2000, a fight broke out in the visiting room among the inmates contained in pen number one. Id. at ¶ 3. Plaintiff was among those inmates involved in the incident. Id. Because he was assigned to the visiting room, defendant Augustine witnessed the incident and has also had the opportunity to review the videotape of the incident. Id. at ¶ 4.

After the fight commenced, defendant Augustine repeatedly gave orders to the inmates involved in the fight to stop fighting and to lie on the floor. Id. at ¶ 6. Defendant Augustine's initial recollection of the sequence of events that followed was that after initially ignoring his orders, the inmates eventually stopped fighting and complied with his orders to lie on the floor. Id. at ¶ 7. Thereafter, defendant Augustine recalled that the gate was opened and he and several other Corrections Officers entered the visiting room pen. Id. It was defendant Augustine's initial recollection that upon entering the visiting room pen, plaintiff began to get up from the floor in violation of the direct orders. Id. at ¶ 8. According to defendant Augustine's initial recollection, because of the weapons involved and in order to protect himself, defendant Augustine struck plaintiff across the back with his baton and plaintiff immediately fell to the floor. Id. Once plaintiff was subdued, defendant Augustine recalled continuing on into the visiting pen to subdue the other inmates. Id.

In his affidavit submitted in support of defendants' motion for summary judgment, defendant Augustine stated,

Upon a subsequent review of the videotape on a large screen, it appears that Inmate Martinez eventually complied with the direct orders to lie on the floor, however, he got back up again and began fighting. When I came through the door, Inmate Martinez had gotten up and was standing and fighting with the other inmates; therefore, I struck him with my baton across his back ...

Dkt. #52, ¶ 10. Accordingly, it is undisputed that defendant Augustine struck plaintiff across the back with his baton. Dkt. #45, ¶ 12. However, contrary to plaintiff's allegations, defendant Augustine states that "at no time did he strike Inmate Martinez in the head area, nor is he aware of any other officer doing so." Id.

An investigation into the June 24, 2000 incident revealed that two weapons, a razor blade and a plexiglass shank, were smuggled into the visiting area by inmate Matos' mother who hid the weapons in a potato chip bag. Id. at ¶ 13. According to defendant Augustine, inmate Matos' mother gave the razor blade to her son and gave the plexiglass shank to inmate Lugo. Id. In addition, it was later discovered that inmate Richardson had smuggled a weapon into the visiting area in his rectum and retrieved the concealed weapon prior to the incident. Id. at ¶ 14. As described by defendant Augustine, all inmates were pat-frisked and scanned with a hand wand prior to entering the visiting room area, however, a hand wand cannot detect a weapon that is concealed in an anal cavity. Id. at ¶ 15. Defendant Augustine further states, "[t]oday, the State of New York has provided us with what is called a 'boss chair' which all inmates are required to slide their bottom across, prior to entering and leaving the Visiting Room, which can detect weapons being concealed in an anal cavity or rectum. At the time of the incident, we did not have such a device (i.e. "Boss chair")." Dkt. #52, ¶ 16.

Consistent with New York State Department of Correctional Services' policy, following the incident, defendant Augustine filed a Use of Force Report describing the incident. Dkt. #45, ¶ 17. According to Superintendent McGinnis who signed the Use of Force Report, the amount of force used was appropriate for the incident. Id. at ¶ 18. In addition, on August 22, 2000, after reviewing the visiting room surveillance video, Sergeant Marker prepared a written statement stating that the video did not reveal a baton striking the back of plaintiff's head. Id. at ¶ 19. Sergeant Marker states that he did, however, observe defendant Augustine "utilizing his baton in a manner consistent with defending himself and the other officers." Id. Moreover, Sergeant Marker determined that the Use of Force medical examination revealed no evidence of plaintiff's head being struck by a baton, nor did plaintiff verbalize such a complaint to the medical staff. Id.

The gate to the visiting room is electronically controlled and only supervisors have the ability to authorize when the gate may be opened. Id. at ¶ 21. Accordingly, at no point did defendant Augustine or any of the other named defendants have the authority and/or ability to open the gate. Id. Here, once it was determined that sufficient staff were present, the supervisor issued an order directing that the gate to the visiting pen be opened. Id. at ¶ 22.

Erich Bartsch

On June 24, 2000, defendant Bartsch was assigned to the control room for the Southport visiting pens and the visiting area. Dkt. #45, ¶ 25. Specifically, defendant Bartsch was responsible for operating the gates from the main gallery to the visiting area and from the visiting area to the visiting pens. Id. Defendant Bartsch did not, however, have any contact with inmates nor was he responsible for frisking or searching inmates. Id. at ¶ 26. In support of defendants' motion for summary judgment, defendant Bartsch states,

[w]hile in the control room, my job is to properly identify the inmate being processed into the visiting room and to operate certain gates. To maintain the safety and security of the facility, I am absolutely prohibited from opening the gates to the visiting pens if an incident occurs, unless ordered to do so by the area supervisor.

Dkt. #47, ¶ 5. After the fight broke out, the Sergeant ordered defendant Bartsch to open the gate to the visiting pens to allow the Corrections Officers who responded to the incident to enter the area. Id. at ¶ 6. Defendant Bartsch complied with the ...

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