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Shapard v. Attea

November 16, 2009


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



This is an action pursuant to 42 U.S.C. § 1983, in which Plaintiff, a prison inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that Defendants, all employees of DOCS, violated his federal constitutional rights. Now before the Court are two motions: 1) a motion [#9] to dismiss for failure to state a claim by defendants Al Herdzik ("Herdzik"), Robert Kirkpatrick ("Kirkpatrick"), Anthony Zon ("Zon"), and Martin Kearney ("Kearney"); and 2) a motion [#13] for summary judgment by defendants Thomas Schoellkopf ("Schoellkopf") and Donald Selsky ("Selsky"). For the reasons that follow, the motion to dismiss is granted, and the summary judgment motion is denied.


Unless otherwise noted, the following are the facts of this case, viewed in the light most-favorable to Plaintiff, the non-moving party. At all relevant times, Plaintiff was housed at Wende Correctional Facility ("Wende"). All defendants except Selsky were employed at Wende. Specifically, Zon and Kirkpatrick were Superintendents of Wende, Kearney was a Corrections Captain, Herdzik was a Corrections Lieutenant, John Attea ("Attea"), Edwin Mendez ("Mendez"), and Robert Kyle ("Kyle") were Corrections Officers, and Schoellkopf was a Hearing Officer. Selsky was DOCS Director of Special Housing.

On or about May 16, 2005, Plaintiff was housed in Wende's Special Housing Unit ("SHU"), when Kyle, Mendez, and Attea physically removed another inmate, Figueroa, from a cell adjacent to Plaintiff's cell. Plaintiff "verbally intervened" in the conflict by telling the officers that Figueroa was deaf, and that he therefore could not comprehend their verbal commands to him. The officers responded by taunting Plaintiff, and telling him that he would "be next." Additionally, Herdzik told Plaintiff that by verbally intervening in the situation with Figueroa, he was "inciting" the other inmates, and that Herdzik would "remember this," which Plaintiff characterizes as "an overt threat of retaliation." Later that day, Plaintiff filed an inmate grievance, claiming that Herdzik had threatened him. (Grievance Dated May 16, 2005).

On or about May 27, 2005, Plaintiff was released from the SHU and placed back in Wende's general population, in B Block, where Kyle, Attea, and Mendez were assigned to work. Prior to that, Plaintiff had written to Zon and Kearney, asking that he not be placed in B Block. Plaintiff also claims that sometime between May 23, 2005 and May 27, 2005, he asked Kearney not to be placed back in B Block. In a letter to Kearney, Plaintiff described their conversation as follows: "[W]e had a discussion where I requested not to be released from SHU to B Block. In turn, you walked away stating, 'Well, Shapard, you know, you have to go wherever we have room for you.' Or something to that effect." (June 13, 2005 letter to Kearney, attached to Complaint).

On or about June 7, 2005, in B Block, Plaintiff alleges that Kyle, Attea, and Mendez assaulted him without provocation, causing him lacerations, contusions, and a concussion. Plaintiff subsequently wrote a letter to Zon, complaining about the assault. However, Defendants maintain that Plaintiff attacked Attea without provocation, and that they merely used reasonable force to subdue Plaintiff. Subsequently, Kyle issued Plaintiff a misbehavior report, charging him with assault on staff and refusing a direct order.

Prior to the ensuing Tier III disciplinary hearing, Plaintiff, who was confined to the SHU pending the hearing, requested the aid of an employee assistant. However, Plaintiff objected to the employee assistant assigned to his case, because he believed that the employee was in or near B Block when the assault allegedly occurred. In that regard, Plaintiff alleges, "upon information and belief," that the assistant "was a witness and passive participant in the alleged assault on staff." (Complaint ¶ 33). In any event, Plaintiff provided the assigned employee assistant with several pages of requests, asking him to, among other things, interview witnesses and obtain videotape evidence. The employee complied with many of the requests, but not others.

On or about June 14, 2005, Schoellkopf, the designated hearing officer, commenced Plaintiff's Tier III disciplinary hearing. Plaintiff raised various objections during the course of the hearing, including that the employee assistant had not provided adequate assistance, and that Schoellkopf was biased. Plaintiff also requested that a number of documents be produced. With regard to the employee assistant, Plaintiff believed that the assistant had falsely indicated that certain inmate witnesses had declined to testify at the hearing. After hearing Plaintiff's objections, Schoellkopf obtained many of the documents that Plaintiff had requested. Schoellkopf also contacted the various inmates that Plaintiff had designated as potential witnesses, and confirmed that they either did not witness the incident or did not want to testify. Schoellkopf also questioned some of the inmates regarding their knowledge of the event and/or their willingness to testify, and their testimony was recorded and played for Plaintiff, although Plaintiff was not permitted to observe their testimony, since he was confined in the SHU, while they were housed in B Block. Plaintiff maintains, though, that by taking these steps, Schoellkopf was essentially doing the employee assistant's job, and was "no longer an impartial hearing officer." (Complaint ¶ 44).

At the completion of the hearing, Schoellkopf found Plaintiff guilty of both charges and sentenced him to, inter alia, two years in the SHU and two years loss of good time credit. Plaintiff appealed, and Zon affirmed Schoellkopf's determination. Plaintiff appealed that determination to Selsky, who affirmed the convictions but reduced the sentence to one year in the SHU and one year loss of good-time credit.

On or about November 27, 2005, Plaintiff commenced a proceeding in New York State Supreme Court, Erie County, pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR"), seeking to set aside his disciplinary conviction and sentence. In that regard, Plaintiff alleged that his due process rights were violated at the Tier III disciplinary hearing. On August 16, 2006, the Honorable Shirley Troutman, Acting Justice of Supreme Court, denied the Article 78 petition.

On or about May 1, 2006, Plaintiff spoke with Kirkpatrick, who had replaced Zon as Superintendent of Wende. Plaintiff told Kirkpatrick about the alleged assault, and stated, "'I cant' wait for round three' making reference to earlier excessive use of force incidents of November 29, 2004*fn1 and June 7, 2005." (Complaint ¶ 64).

Plaintiff was subsequently charged with Assault in the Second Degree, in violation of the New York Penal Law, § 120.05(7), in connection with his alleged assault on Attea. The relevant statute provides: "A person is guilty of assault in the second degree when: ...(7) Having been charged with or convicted of a crime and while confined in a correctional facility . . . pursuant to such charge or conviction, with intent to cause physical injury to another person, he causes such injury to such person or to a third person." New York Penal Law § 120.05(7) (McKinney 2009). On July 16, 2007, Plaintiff pleaded guilty and was sentenced to fifteen years to life as a persistent violent felon. As part of his plea, Plaintiff admitted that on June 7, 2005, he assaulted and injured Attea. (Docket No. [#16-5] at 35).

On April 2, 2008, Plaintiff commenced this action. Plaintiff maintains that: 1) Kyle, Attea, and Mendez used excessive force against him, in violation of the Eighth Amendment; 2) Herdzik, Kyle, Attea, and Mendez retaliated against him, in violation of the First Amendment; 3) Schoelkopf and Selsky deprived him of due process, in violation of the Fourteenth Amendment; and 4) Zon, Kearney, and Kirkpatrick failed to protect him from being assaulted by Attea, Mendez, and Kyle, in violation of the Eighth Amendment.

On September 11, 2008, Herdzik, Zon, Kearney, and Kirkpatrick filed the subject motion [#9] to dismiss under Federal Rule of Civil Procedure ("FRCP") 12(b)(6), seeking the dismissal of all claims against them. Zon, Kearney, and Kirkpatrick contend that the Complaint fails to state a claim against them for failing to protect Plaintiff against Attea, Kyle, and ...

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