The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Reginald Hannah ("Hannah"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, four DOCS employees, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 34. Hannah opposes the motion. Dkt. No. 38. For the following reasons, it is recommended that defendants' motion be granted.
The facts herein are related in the light most favorable to Hannah as the non-moving party. See subsection II(A) infra.
On September 3, 2006, Hannah was taken from his cell for an afternoon meal and recreation. Compl. ¶ 29. Defendant Stemp initially escorted Hannah to the mess hall and "maintain[ed] supervision and control over . . . [the inmates] while they were in the mess hall" until he was relieved and his post was taken over by Defendant Cummings. Stemp Decl. (Dkt. No. 34-6) ¶¶ 5-7*fn2 ; Cummings Decl. (Dkt. No. 34-5) ¶ 5. Upon arriving at the mess hall, none of the inmates were required to pass through the metal detector located in the hallway before the entrance to the cafeteria. Hannah Dep. (Dkt. No. 34-2) at 25. Additionally, there were no officers posted at the metal detector to conduct searches of the inmates. Id. at 27.
Metal detectors are governed by DOCS Directive 4910 which "permits, but does not require facilities to use . . . metal detectors or pat frisks as a pre-condition to allowing inmates to attend recreation in areas adjacent to the interior of the facility." VanGuilder Decl. (Dkt. No. 34-3) ¶¶ 6-7; see also Dkt. No. 34-3, Ex. A(III)(2)(b) ("An inmate may be subjected to a metal detector search . . . going to and from . . . housing, and program areas . . . and as directed by staff."); Armstrong Decl. (Dkt. No. 34-4) ¶ 10. It is important to note that "[m]etal detectors and pat frisks do not detect weapons secreted in the mouth or body cavities, and officers are not authorized to conduct body cavity searches in the absence of probable cause." Armstrong Decl. ¶ 14. The metal detector was not in use on this Sunday because the jail was understaffed. Hannah Dep. at 44; see also VanGuilder Decl. ¶ 14 ("On weekends, due to limited staffing, unless staff has information that additional security protections are necessary, the [metal detectors] are not run. Staff [instead] relies upon the implementation of random pat frisks . . . ."). Armstrong "was not authorized to direct staff to implement extraordinary security procedures [i.e. the metal detectors] without the direction of superiors, and the relatively low incidence of . . . assaults was not cause for [him] to alert [his] superiors that there was a need to do so." Armstrong Decl. ¶ 20. Similarly, Cummings "had no authority or control over the determination of when the metal detector in the mess hall foyer was run . . . and [neither he nor Stemp were] . . . assigned to run the metal detector on [September 3rd] . . . ." Cummings Decl. ¶ 7; Stemp Decl. ¶ 9.
After Hannah finished his meal,*fn3 he entered the recreation yard and followed two of his friends to the basketball court in an area known as "the hole". Hannah Dep. at 28-29.*fn4 This area was difficult to observe from other areas of the yard, but "[i]nside the yard, inmates are under surveillance of five armed posts, three located in towers on the perimeter walls, and two on towers located inside the perimeter walls . . . and at least one tower has a clear view of 'the hole' . . . ." VanGuilder Decl. ¶ 11; see also Cummings Decl. ¶ 8 (stating that the hole "is observable from the tower and by officers or sergeants patrolling the yard."). Officers are also stationed in the yard in both fixed and patrol positions. VanGuilder Decl. ¶ 12.
While walking to the hole, Hannah observed Stemp inside the equipment room speaking with another officer. Hannah Dep. at 48. When Cummings returned from escorting inmates back to their cells, he reported to his station in the weight yard, an area separate from the hole. Cummings Decl. ¶ 9. Upon arrival at the hole, Hannah's friends began playing basketball while he watched. Hannah Dep. at 31. Hannah noticed a group of six individuals approach the court and begin whispering before one individual approached Hannah. Id. at 29-31. Hannah did not know the individual who approached him, later identified as inmate Andre A., and felt no fear or threat. Id. at 30-31. The two engaged in a short conversation and, when Hannah looked away, Andre "pulled [out] a metal object and slashed [Hannah]."*fn5 Id. at 31.
Andre then dropped the object on the ground, and another inmate, later identified as inmate Sean A., approached Hannah and began fighting with him. Hannah Dep. at 31-32, 38-39. As Andre fled, Hannah heard someone yell "Blood up," a common slang term used by the Bloods gang. Id. at 32; Dkt. No. 34-4 at 19, 22. Hannah speculates that the attack may have been random and related to a gang initiation as Hannah "did [not] know [Andre] . . . at all [and had] never met him before . . . ." Hannah Dep. at 32; see also Hannah Dep. at 24, 35 (explaining that Hannah had ever met Andre prior to the attack and had not received any threats or felt uncomfortable during his tenure at the correctional facility); VanGuilder Decl. ¶¶ 15-16 (stating that "[s]taff . . . rely upon . . . notice . . . by inmates or staff of threats . . . and the inmate's known enemy reports," and that Hannah had neither reported any threats or indications of trouble nor any known enemies); Armstrong Decl. ¶¶ 15-16 (same); Cummings Decl. ¶ 11 (same);Stemp Decl. ¶ 11 (same); Dkt. No. 34-4 at 17, 19, 22 (reporting that according to Hannah, he was surprised by the attack as Andre "came out of nowhere and started fighting with [him].").
The altercation was seen by a corrections officer from a watch tower. Dkt. No. 34-4 at 7, 19, 22. Two officers responded to the altercation. Hannah Dep. at 39; Dkt. No. 34-4 at 7. The area was searched by corrections officers and no weapon was found. Dkt. No. 34-4 at 7. However, officers did find a t-shirt with blood on it and the message "RIP B" written on it in highlighter. Id. at 19, 22, 20, 23. Hannah was then taken to the infirmary for treatment. Hannah Dep. at 39; Dkt. No. 34-4 at 11. Due to the gravity of the laceration, Hannah was sent to Glens Falls Hospital where he received thirty-two stitches. Hannah Dep. at 39-40; Dkt. 34-4 at 7, 11.*fn6 In the month prior to the altercation, "there were seven total inmate-on-inmate assaults for the entire prison . . . [and] only two [of those] took place in the yard . . . during evening recreation periods . . . [when inmates] are required to pass through the metal detectors." Armstrong Decl. ¶¶ 18-19.
On September 5, 2006, Hannah was questioned in connection with an investigation of the event. Dkt. No. 34-4 at 24, 25. Hannah could not identify his assailant at that time, though Hannah did express an interest in pursuing outside criminal charges for the attack. Id. After Hannah was returned to general population, he was instructed to contact the investigator in the event Hannah recognized his attackers. Hannah Dep at . 40-41; Dkt. No. 34-4 at 24, 25. A few days later, Hannah saw Andre, contacted the investigator, viewed a photographic display, and positively identified Andre as his assailant. Hannah Dep. at 40-41; Dkt. No. 34-4 at 26. Hannah pressed criminal charges against Andre and testified at Andre's prison disciplinary hearing. Hannah Dep. at 41; Dkt. No. 34-4 at 26. After the disciplinary hearing, Hannah was placed into protective custody. Hannah Dep. at 41-43; Dkt. No. 34-4 at 31-32. This action followed.
In his complaint, Hannah alleges that his Eighth Amendment rights were violated when defendants failed to protect him from the random attack by not requiring inmates to go through the metal detectors and be pat frisked prior to entering the cafeteria and recreation yard. Defendants move for summary judgment on all claims asserting that Hannah cannot recover against defendants (1) in their official capacities, (2) because they were not personally involved, (3) because his constitutional claims lack merit, and (4) because they are entitled to qualified immunity.
A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. ...