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Kowaleski v. Lewis

August 13, 2009

BARBARA KOWALESKI, PLAINTIFF,
v.
HAZEL V. LEWIS, SUPERINTENDENT, HALE CREEK A.S.A.C.T.C.; ROBERT FITCH, DEPUTY SUPERINTENDENT FOR SECURITY; MICHAEL RORICK, CORRECTION OFFICER; HERMAN BRUNELLE, SERGEANT; DAVID HERR, CORRECTION OFFICER; GEORGE MERTON, LIEUTENANT; JEFFREY NICHOLLS, CORRECTION OFFICER; FRANCIS O'CONNOR, SERGEANT; BELLE PERKINS; CORRECTION OFFICER; AND STEVEN PUTMAN, CORRECTION OFFICER, EACH INDIVIDUALLY, AND IN THEIR OFFICIAL CAPACITY; DEFENDANTS.



The opinion of the court was delivered by: David N. Hurd United States District Judge

MEMORANDUM - DECISION and ORDER

I. INTRODUCTION

Barbara Kowaleski ("plaintiff" or "Kowaleski") brings suit pursuant to 42 U.S.C. § 1983, alleging violations of her First Amendment right to free speech, Fourteenth Amendment rights to due process and equal protection, New York Civil Service Law section 75-b, and New York Executive Law section 296. The ten defendants are:

1. Hazel V. Lewis, Superintendent, Hale Creek A.S.A.C.T.C. ("Supt. Lewis");

2. Robert Fitch, Deputy Superintendent for Security ("Dep. Fitch");

3. Michael Rorick, Correction Officer ("CO Rorick");

4. Herman Brunelle, Sergeant ("Sgt. Brunelle");

5. David Herr, Correction Officer ("CO Herr");

6. George Merton, Lieutenant ("Lt. Merton");

7. Jeffrey Nicholls, Correction Officer ("CO Nicholls");

8. Francis O'Connor, Sergeant ("Sgt. O'Connor");

9. Belle Perkins, Correction Officer ("CO Perkins"); and

10. Steven Putman, Correction Officer ("CO Putman") (collectively "defendants"). All defendants are sued in their individual and official capacities. Plaintiff seeks compensatory and punitive damages, and injunctive relief.

Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff opposes. The motion was considered on the submissions without oral argument.

II. FACTS

As required under the summary judgment standard, the facts are set forth in a light most favorable to the non-movant plaintiff. The following is a list of nineteen nondefendants that are referred to in the facts:

1. CO Doyle 11. Sgt. Watrobsk

2. Sgt. Servello 12. CO Cristiano

3. CO Benz 13. Lt. Maxwell

4. Deputy Harding 14. Nurse MacFarland

5. Investigator Mark Miller ("Inv. Miller") 15. CO Grant

6. CO Levaille 16. CO West

7. Sgt. Seresky 17. Cook Clizbe

8. CO Bott 18. Counselor Devine

9. Brenda Cameron 19. CO Davis

10. CO Rowe

Barbara Kowaleski worked at Hale Creek Correctional Facility ("Hale Creek" or "facility") within the New York State Department of Correctional Services ("DOCS") from 1995 to 2007. She maintained a friendly work relationship with her co-workers and received positive evaluations for the time between 1995 and 2002.

While on duty on September 5, 2002, Kowaleski was assisting with inmate supervision in the mess hall. Others present were nondefendants CO Doyle, Sgt. Servello, and defendant CO Rorick. Defendant Sgt. O'Connor was the sergeant on duty, but was not present in the mess hall. Plaintiff observed inmate Baker take extra ketchup packets, in violation of Hale Creek regulations. CO Rorick observed the inmate's action and told him to put the extras back, which inmate Baker did. When the inmates began leaving the mess hall, CO Rorick told inmate Baker to remain behind. CO Rorick pushed inmate Baker face first to the wall, yelled at him, kicked his feet apart, and started searching him. When inmate Baker came away from the wall before the search was complete, CO Rorick pushed him back. Plaintiff approached CO Rorick and inmate Baker to prevent any unnecessary violence because assault against an inmate violated facility policies. CO Doyle also approached and placed inmate Baker in handcuffs. CO Rorick taunted inmate Baker and pushed him into the wall at least one additional time with plaintiff nearby. Sgt. O'Connor and non-defendant CO Benz entered the mess hall and approached the plaintiff, CO Rorick, and inmate Baker. CO Benz escorted the inmate out of the mess hall.

Kowaleski later found defendant CO Rorick in the infirmary initiating disciplinary charges for assault against inmate Baker. She expressed her opinion that CO Rorick had assaulted inmate Baker, rather than vice versa, and refused to sign the report because of the inaccuracy. Plaintiff encountered defendant Sgt. O'Connor, and informed him that any assault during the mess hall incident had been committed by CO Rorick, not inmate Baker. Sgt. O'Connor commented that plaintiff seemed to be an "inmate lover" and "violent." (Pl.'s Dep., Ex. EE to Pl.'s Aff. in Opp'n, Doc. No. 34-32 at 30:10-18.) Plaintiff next went to the administrators at the prison. She spoke with defendant Lt. Merton, who had not been on duty when the mess hall incident occurred. She expressed her concerns that CO Rorick's report would be followed through, inmate Baker would receive additional prison time for an assault he did not commit, and CO Rorick would go unpunished for an actual assault on an inmate. Lt. Merton told plaintiff to be very careful with her accusations against employees because she could cause firings.

Within one or two days, plaintiff learned inmate Baker was being charged with assault. She went to non-defendant Deputy Harding and said she would testify on behalf of inmate Baker at any hearings. Deputy Harding ordered plaintiff to make a written report of what she witnessed in the mess hall between inmate Baker and CO Rorick. The disciplinary charges against inmate Baker were soon dropped.

Employee discipline, such as initiated because of the mess hall incident, requires the facility supervisors to send information regarding misconduct to the Bureau of Labor Relations ("Labor Relations"). That office investigates further to determine whether a Notice of Discipline is warranted. Defendants CO Rorick, Sgt. O'Connor, and Lt. Merton each received a Notice of Discipline for misconduct through this process. CO Rorick pled no contest. Sgt. O'Connor said his Notice of Discipline was not followed through. Lt. Merton was exonerated regarding the Notice of Discipline and references to it were expunged from his record.

In the days immediately following the mess hall incident with inmate Baker and CO Rorick, non-defendant Investigator Mark Miller ("Inv. Miller"), from the Inspector General's office, came to look into that incident. At the time, Kowaleski was working at a different facility for approximately two days while Inv. Miller examined the mess hall incident. While Inv. Miller worked at Hale Creek, non-defendant CO Levaille told Inv. Miller to shoot plaintiff. Defendant Hale Creek Supt. Lewis sent information to Labor Relations, which disciplined CO Levaille for the statement made to Inv. Miller.

Inv. Miller finished his investigation of the mess hall incident and returned to his home office. Because the investigation was finished, Kowaleski's temporary assignment outside Hale Creek ended and she returned to her usual assignment and responsibilities. Soon after returning, plaintiff noticed markedly different treatment towards her from other officers and superiors.

One day between September 5, and September 20, 2002, CO Rorick stood six inches from Kowaleski in the presence of non-defendant Sgt. Seresky. Plaintiff went to Sgt. Seresky and explained that she felt harassed by the event, but does not know of any steps were taken to discipline CO Rorick for his action, and she believes none were taken.

On September 20, 2002, Kowaleski left the administration building at Hale Creek. CO Rorick followed her. She returned to the building and stayed in the commander's office for five minutes. While in the office, she heard CO Rorick asking if anyone had seen her, and finally saying he had found her when he went to the office door. She talked to a sergeant and wrote a memorandum to the Deputy Council in order to express her ...


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