The opinion of the court was delivered by: Hon. Hugh B. Scott
This Court*fn1 issued an Order to Show Cause (Docket No. 58) following discovery of certain admissions plaintiff made in actions in the Eastern District of New York that called into question the veracity of his allegations in this case. Counsel was to show cause why this action should not be dismissed on April 3, 2009 (id.), and the parties appeared on that date and the Court issued a further briefing schedule (Docket No. 60). Any defense motion on this issue was due by May 7, 2009, with plaintiff's response due by June 1, 2009, and any reply due by June 5, 2009, with the Court to then determine whether oral argument was required (id.).
Defendants then filed the pending motion to dismiss (Docket No. 61*fn2 ) based upon the allegations raised in the Order to Show Cause. Plaintiff, meanwhile, moved to file certain papers under seal and to proceed by pseudonym (Docket No. 65; see Docket No. 66 (plaintiff's motion for expedited hearing of motion to seal)), which was denied (Docket No. 67). As a result of plaintiff's motions, the Court extended the briefing schedule, with his response to defense motion to dismiss due by July 15, 2009, any defense reply due by July 20, 2009, and setting argument for July 29, 2009 (Docket No. 68; see Docket No. 71).
Also pending before the Court is defendants' motion for summary judgment (Docket No. 44). Responses to this motion initially were due by January 12, 2009 (Docket No. 54), but at the consented requests of appointed counsel for plaintiff (letters of Lisa Coppola, Esq., to Chambers, Jan. 8, 2009, and Feb. 2, 2009), responses were to be filed on or before April 13, 2009, and any reply was due on or before April 20, 2009 (Docket Nos. 55, 56, 57). Briefing and consideration of that motion were held in abeyance pending resolution of the issues surrounding plaintiff's prior litigation and its impact on his present case (Docket No. 58), issues raised in the Order to Show Cause and in defendants' motion to dismiss.
This case is one of a series of actions filed in this Court and in district courts across this state alleging similar (often repeated allegations of) deprivations by corrections officers after plaintiff alleged that other inmates harassed or assaulted him when they learned that plaintiff was an informant for a municipal law enforcement agency. The nature of plaintiff's repeated litigation and his handling of that litigation requires a somewhat involved discussion of these other cases as well as the present case at bar. First, the Court considers the antecedents to this present case, the facts and proceedings in that case, then it will discuss actions plaintiff commenced in other districts in this state.
Earlier Attempt at Commencing this Action
Plaintiff, an inmate then proceeding pro se, filed a Complaint in Perry v. Goord, et al., No. 06CV447E, that was dismissed (without prejudice) for plaintiff's failure to exhaust his administrative remedies (see Docket No. 47, Defs. Atty. Decl. ¶ 2, Ex. A, dismissal Order in Perry v. Goord, No. 06CV447, Docket No. 20).
On December 15, 2006, plaintiff, while still incarcerated and proceeding pro se, alleged in this civil rights action that defendants (prison employees and officials*fn3 at Elmira Correctional Facility ("Elmira")) failed to protect him while in that facility, in violation of his Eighth Amendment rights (Docket No. 1, Compl.). Plaintiff alleged that he was involved with New York City Department of Investigations in 2005 and inmates learned of this and subjected plaintiff to repeated assaults. In May 2006, plaintiff wrote to then-Commissioner Goord requesting a transfer from Elmira to another facility; that request was denied. On June 18, 2006, plaintiff claimed that inmates attempted to assault him. On June 23, 2006, plaintiff asked defendant Superintendent Burge for a transfer; Burge referred the letter to defendant Henderson. Plaintiff was offered protective custody but he refused it. Plaintiff wrote again to Goord requesting a transfer, which was denied. Plaintiff learned that inmates were planning to place a cocktail bomb in his cell and he notified Burge in July 6, 2006, of the plot. Burge referred that notice to Henderson and defendant Cronin. Plaintiff then again requested protective custody.*fn4
Plaintiff sought treatment from the facility's mental health doctor due to plaintiff's fear and mental anguish. Plaintiff alleges that the doctor said he would speak to Henderson about this and Henderson said that he would take care of the matter but did not. On July 25, 2006, plaintiff raised matter with defendant Mootz requesting protective custody and for Mootz to investigate to confirm plaintiff's story. Mootz refused and denied the protective custody request. On August 7, 2006, plaintiff claimed that he was slashed in neck and left wrist by another inmate*fn5 . On the next day, plaintiff was removed from his cell block and placed in G-Block. Plaintiff alleged that he was afraid for being placed there and raised concerns with Burge. Burge replied that a request for protective custody would take three to four days. Plaintiff remained in G-Block for 42 days. Plaintiff again requested protective custody from Mootz on Aug. 24, 2006, but Mootz was only willing to grant Involuntary Protective Custody. Plaintiff filed a grievance and signed a protective custody waiver but no involuntary protective custody report was made out. While in general population on G-Block, plaintiff again claimed that he was threatened and spat upon by other inmates, and as a result plaintiff refused to shower or eat out of fear of retribution. Plaintiff arranged to be placed in special housing unit to avoid harm. Plaintiff then was transferred to Upstate Correctional Facility but claimed to have remained in fear. (Id.)
Plaintiff sought to recover for his emotional distress from the June 18, 2006, attempted assault and from the laceration of his neck, wrist and mental anguish from the August 7, 2006, incident, seeking $500,000 in compensatory damages jointly and severally among the defendants and $100,000 punitive damages against each defendant. (Docket No. 1, Compl.) He also sought an injunction removing plaintiff from a double celling list, his transfer either to Southport or Downstate Correctional Facilities, and a Temporary Restraining Order to transfer plaintiff to a single cell (id.). Plaintiff's requests for a Temporary Restraining Order and an injunction were denied in the Order granting him in forma pauperis status (Docket No. 5). Defendants here argue that plaintiff's allegations "are very similar" to those raised in the Eastern District of New York in Boyd and Caruso (Docket No. 62, Defs. Memo. at 3, Exs. A, B).
As noted by defendants in their motion to dismiss (see id. at unnumbered first page and at 1, 2), plaintiff listed other federal actions he commenced, including Perry v. Boyd, No. 06CV3958 (E.D.N.Y.), and may have misrepresented the litigation history in three actions in other districts (id. at 2, citing Perry v. Caruso, No. 07CV1115 (E.D.N.Y.), Perry v. James, No. 07CV3722 (S.D.N.Y.), Perry v. Burns, No. 08CV5272 (E.D.N.Y.), Exs. B-D).
Plaintiff was granted in forma pauperis status (Docket No. 5; see Docket No. 2, plaintiff's motion). Goord did not answer; the remaining defendants answered on August 14, 2007 (Docket No. 8*fn6 ), and that Answer noted that plaintiff voluntarily discontinued his claim against defendant Goord (id. at 1 n.1; Docket Nos. 3, 45, Defs. Statement ¶ 2).
Later, upon plaintiff's application (see Docket No. 33), the Court (on June 30, 2008) appointed counsel to represent him in this action (Docket No. 37).
Defense Motion for Summary Judgment
Defendants filed their motion for summary judgment (Docket No. 44). There, they argue that they did not violate plaintiff's Eighth Amendment rights (Docket No. 46, Defs. Memo. at 2-7). They contend that they were not deliberately indifferent to plaintiff's requests for placement in protective custody (id. at 3-4). Plaintiff applied for protective custody in July 2006 and was denied and he applied in August 2006 but then changed his mind and signed a protection waiver (id. at 4). Defendants note the absence of medical documentation to support plaintiff's claim (id. at 4, 6-7). They argue that plaintiff's mere fear for his safety (absent proof of actual injuries) is not sufficient to state a claim for failure to protect in violation of plaintiff's right not to endure cruel and unusual punishment (id. at 5). Defendants further contend that Goord, Burge, Henderson, Cronin, and Mootz lack the requisite personal involvement to hold any of them liable (id. at 7-10). They next argue that plaintiff failed to exhaust his administrative remedies and is thus barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (id. at 10-12). Finally, defendants claim entitlement to qualified immunity (id. at 12-14).
Plaintiff's Prior Actions in this Circuit
The Court has taken judicial notice of the filings by plaintiff in other federal districts in this state, see Fed. R. Evid. 201. This review of the PACER electronic database, U.S. Party/Case Index (https://pacer.uspi.uscourts.gov/cgi-bin/dquery.pl), initially was undertaken because plaintiff filed a new action, Perry v. Napoli, No. 09CV12S, and sought in forma pauperis status. The PACER report reveals that plaintiff has filed over thirty cases in the last twelve years in the United States District Courts in this state, including six cases in the Western District excluding the instant case*fn7 . Excluding two habeas corpus proceedings*fn8 , plaintiff has filed twenty-nine civil rights cases, most arising from a fact pattern similar to the one alleged in this case. Of those twenty-nine civil rights actions*fn9 commenced by plaintiff, only eight currently are active, the twenty-one others were closed. Where the dockets in these cases disclose a reason, of the sixteen*fn10 terminated actions, eight were voluntarily withdrawn, while four were settled, and four were dismissed by Order. As noted by Judge Brian Cogan of the Eastern District of New York (in dismissing another case for failure to state a claim), plaintiff had voluntarily withdrawn a number of cases or had been dismissed on defense motions. SeePerry v. Burns, No. 08CV5272 (E.D.N.Y., Jan. 9, 2009), Docket No. 5, Order at n.1 (dismissing Complaint there pursuant to 28 U.S.C. § 1915(e)(2)(B)).
Admitted "Fraud upon the Court"
Moreover, a review of these cases discloses that plaintiff has admitted to having committed "fraud upon the court" in one or more of his previous actions. By Order dated January 15, 2008, and entered in two actions plaintiff had commenced in the Eastern District of New York, Judge Cogan ordered plaintiff to show cause why sanctions should not be imposed upon him as a result of statements he had made in letters to the defendants in those actions admitting that he had filed complaints which had no basis in fact. Perry v. Boyd, No. 06CV3958 (Docket No. 31); Perry v. Caruso, No. 07CV1115 (Docket No. 26). Boyd and the Caruso action commenced in the Southern District of New York (and later transferred to the Eastern District of New York) were cited in plaintiff's Complaint in this Action (Docket No. 1, Compl. at 8 to 9 of 43 pages). The letters, which were attached to a letter from the Law Department of the City of New York seeking to inform the Court of plaintiff's fraudulent allegations, stated, in part, that plaintiff had "filed a number of manufactured lawsuits and complaints." Caruso, supra, No. 07CV1115 (Docket No. 25). In a subsequent letter, informing the Court that the plaintiff had agreed to return the settlement which he had obtained in both Eastern District cases, defendants reported that plaintiff stated that he had agreed to withdraw another Eastern District action (Perry v. James, No. 07CV3722) and to sign a stipulation that he would bring no further suits against certain defendants. The City of New York Law Department further represented that plaintiff had requested that the following statement be included in any documents submitted to the Court:
"I, Kareem Perry, committed a fraud upon the Court and that I was never subject to inmate or staff abuse, and I did not work for the Department of Investigation." Caruso, supra, No. 07CV1115 (Docket No. 32). The district court declined to consider sanctioning plaintiff in Caruso, supra, No. 07CV1115, given the defendants' decision not to take further action to vacate the settlement ...