Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marsh v. Bellinger

October 19, 2009

JAMES MARSH, PLAINTIFF,
v.
CO BELLINGER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

(CONSENT)

Order

Before the Court are (1) plaintiff's motion for partial summary judgment as to liability (Docket No. 64*fn1 ), and (2) defendants' motion for summary judgment dismissing this case (Docket No. 66*fn2 ). The parties have consented to proceed before the undersigned as Magistrate Judge (Docket No. 41). Responses to plaintiff's motion were due by September 11, 2009, with any reply by plaintiff due by October 2, 2009 (Docket No. 65), while response to the defense motion was due by September 18, 2009, and any reply was due by October 2, 2009 (Docket No. 76). Both motions were deemed submitted, without oral argument, on October 2, 2009 (Docket Nos. 65, 76).

BACKGROUND

Plaintiff is suing various New York State Department of Correctional Services ("DOCS") corrections officers and employees at the Willard Drug Treatment Campus ("Willard") for cruel and unusual punishment arising from an alleged assault upon him on September 14, 2005, and deprivation of his liberty interest in the facility for failing to protect him from an earlier assault by another patient/parolee at Willard (Docket No. 1, Compl.; see Docket No. 3, Pl. Supp. to Compl.; Docket No. 52, Pl. Affirm. ¶ 2). Remaining defendants in this action are corrections officers, an area supervision parole officer, and the superintendent at Willard (see Docket Nos. 14, 29 (Ans.)); he did not name as a defendant the Department of Correctional Services. Plaintiff amended his Complaint on August 13, 2008 (Docket No. 46), which the remaining defendants answered on August 15, 2008 (Docket No. 48). The claims against defendants Bonds and Dean were terminated by the Court in granting plaintiff leave to appear in forma pauperis (Docket No. 8).

Specifically, on September 3, 2005, plaintiff claims that he was assaulted by another parolee with staff present but not protecting him (Docket No. 46, Am. Compl. at 3). Plaintiff alleges that defendants CO Bellinger, Taft, Stermer, Chaffee, and Colombai assaulted him on September 14, 2005, and deprived him of his liberty interest in the facility for failing to protect him from an earlier assault by another patient/parolee at Willard (id.; Docket No. 1, Compl.; see Docket No. 3, Pl. Supp. to Compl.; Docket No. 52, Pl. Affirm. ¶ 2). Plaintiff contends that defendant CO Hart watched the incident, laughed, and did not intervene. He also claims that defendant Sgt. Crans also observed the incident and did not intervene to stop it. (No. 46, Am. Compl. at 3.) Plaintiff also claims that defendants searched his locker without appropriate supervision, violating plaintiff's liberty interest (id.). He seeks monetary damages of $5 million (id. at 4).

Plaintiff also contends that defendants Superintendent Melvin Williams and Area Supervision Parole Officer John Pick removed plaintiff from Willard on a parole warrant for fighting/violent conduct. Plaintiff alleges that Williams and Pick never investigated the charge. (Docket No. 1, Compl. at 5; Docket No. 46, Am. Compl. at 4.) Plaintiff contends he was wrongfully removed from the Drug Treatment program (Docket No. 46, Am. Compl. at 3, 4).

Defense Motion--Factual Allegations

Since only defendants submitted a statement of facts (Docket No. 70) and plaintiff did not file his own statement or a countering statement to defendants', cf. W.D.N.Y. Loc. Civ. R. 56.1(c), defendants' statement of facts will be deemed admitted by plaintiff.

Defendants describe the program plaintiff was admitted to at Willard as a drug treatment program for parolees and an alternative to incarceration (Docket No. 70, Defs. Statement ¶ 2). The New York State Division of Parole is responsible for treatment and monitoring of parolees' progress while DOCS is responsible for security (id. ¶¶ 4, 3), with area supervision parole officer Pick, a Division of Parole employee at Willard and the other defendants as DOCS corrections officers or officials (id. ¶¶ 5, 6-7). Parolees at Willard are required to be engaged in programs related to their treatment, evaluated weekly and their successful completion determined by an Evaluation Review Committee and confirmed by the Superintendent of Willard (Williams) and the parole area supervisor (Pick). After one month, plaintiff was given negative evaluations and was required to repeat the four-week program, also referred to as "recycling" (id. ¶ 9).

Failure to Protect Claim

Plaintiff's claims can be divided into three incidents. First, is the assault by another inmate on September 3, 2005. On that date, plaintiff claims that an inmate named "Quenoness"*fn3 assaulted him (Docket No. 70, Defs. Statement ¶ 10; Docket No. 68, Def. Atty. Decl. Ex. A, Marsh EBT Tr. at 41, 46-48 (hereinafter "Marsh EBT Tr."), but plaintiff did not inform any of the defendants before the assault that he felt threatened by Quenoness, only speaking to a non-party Corrections Officer, the regular "DI" that plaintiff should be relocated away from Quenoness because they did not see eye to eye (Marsh EBT Tr. at 44-45; Docket No. 70, Defs. Statement ¶¶ 10-11).

Excessive Force Claims

On September 14, 2005, corrections officers Chaffee and Bellinger searched plaintiff's locker and Chaffee discovered a contraband $10 bill (Docket No. 70, Defs. Statement ¶¶ 12-13). Bellinger, Hart and Taft state that plaintiff then became aggressive and attempted to hit Bellinger (id. ¶ 14; Docket No. 69, Bellinger Decl. ¶ 5; Docket No. 72, Hart Decl. ¶ 5; Docket No. 75, Taft Decl. ¶ 7). Bellinger, Taft, and Chaffee each deny punching or stomping plaintiff (Docket No. 69, Bellinger Decl. ¶ 6; Docket No. 75, Taft Decl. ¶ 8; Docket No. 80, Chaffee Decl. ¶¶ 4, 6, Ex. A (use of force report authored by Chaffee)). Bellinger grabbed one of plaintiff's arms and Taft grabbed the other, wrestling plaintiff to the ground. He continued to struggle until Crans secured plaintiff with mechanical restraints. (Docket No. 70, Defs. Statement ¶ 15.) Stermer arrived and he, Crans, and Chaffee escorted plaintiff to the infirmary (id. ¶ 16). Hart was present but did not participate in restraining plaintiff (id. ¶ 17), while Colombai did not participate in this incident and may not have been at Willard that day (Docket No. 71, Colombai Decl. ¶¶ 7-9; Docket No. 70, Defs. Statement ¶ 18). The officers maintain that they used reasonable amounts of force to control plaintiff following his attempted assault of Bellinger (Docket No. 70, Defs. Statement ¶ 19).

Plaintiff claims that, during this search, the officers accused him of theft, berating him verbally, and attacking him for no reason or justification (Marsh EBT Tr. at 91-96; Docket No. 70, Defs. Statement ΒΆ 20). He contends that Chaffee, Stermer, Taft, and Colombai stomped on his face, Bellinger held him down and punched him, and Stermer tried ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.