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Sipe v. Harder

August 4, 2010

RICHARD SIPE, PLAINTIFF,
v.
DAVID HARDER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge

REPORT-RECOMMENDATION

This matter has been referred to me for Report and Recommendation by the Honorable Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).*fn1

In this civil rights complaint, plaintiff alleges that on October 4, 2008, while he was incarcerated in the Broome County Correctional Facility ("BCCF"), he was assaulted by another inmate, while the housing unit officer watched. (Compl. at 2)*fn2 (Dkt. No. 1). Plaintiff also alleges that he was denied his "constitutional right" to press charges against the inmate, denied his right to file a grievance against another officer, and suffered retaliation as a result of these actions. Id. Plaintiff seeks substantial monetary relief. (Compl. at 6). Presently before the court is defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 43). Plaintiff has responded in opposition to the motion,*fn3 and defendants have filed a reply. (Dkt. Nos. 47, 48).

This court agrees that defendants have met their burden on summary judgment and finds that there is no genuine issue of material fact for trial on any of plaintiff's claims. Plaintiff has failed to exhaust his administrative remedies as to all of the grounds raised in his complaint. None of the defendants were responsible for the assault on plaintiff, defendants Petryszyn*fn4 and Brown did not violate any of plaintiff's constitutional rights, and defendant Kozina did not deny plaintiff's request for medical care or retaliate against plaintiff for the assertion of his constitutional rights. Thus, the court will recommend that defendants' motion for summary judgment be granted and the complaint dismissed in its entirety.

DISCUSSION

I. Facts

A. Plaintiff's Allegations

Plaintiff alleges that on October 4, 2008, he was incarcerated in B-pod*fn5 at BCCF.*fn6 (Compl. at 2). At approximately 9:30 p.m., plaintiff was assaulted by Fruquan Mable,*fn7 another inmate at the jail. Id. Plaintiff claims that Corrections Officer, Matt Rovente*fn8 allowed the assault to continue for approximately twelve minutes. Id. Plaintiff claims that he was "badly hurt," and he was "taken to medical," where he was treated. Id. Plaintiff claims that he was later placed in punitive housing for no reason, and that there were cameras that "saw the whole thing." Id.

Plaintiff then states that on October 5th, he "stayed in medical" because he was having headaches, he could not sleep, and he was having panic attacks and bad dreams as a result of the assault. (Compl. at 4). Plaintiff alleges that he was in the medical unit for two days. Id. On October 7, 2008, defendant Sergeant Petryszyn came to speak with plaintiff about the assault, but plaintiff claims that defendant Petryszyn refused to let plaintiff file criminal charges against the inmate who assaulted him. Id. Plaintiff states that he is suing Sergeant Petryszyn because it is plaintiff's constitutional right to file criminal charges against another individual. Id.

Plaintiff states that he was moved to A-Pod on the same day that he spoke with Sergeant Petryszyn. Plaintiff claims that on October 8, 2008, he tried to file a grievance against Sergeant Petryszyn, but that defendant Officer Billy Brown would not let him do so because defendants Brown and Petryszyn were friends. Id. Plaintiff states that he is suing defendant Brown based on his failure to allow plaintiff to file a grievance. Id. Plaintiff claims that defendant Officer Larry Kozina denied plaintiff's request for medical care in retaliation for "the trouble [plaintiff] stirred up" with his grievances and due to his request to press charges against the other inmate. Id.

Very liberally interpreted, plaintiff's complaint appears to allege four claims.*fn9

(1) Defendant Harder is responsible for a "lack of security" that caused plaintiff to be assaulted by another inmate.

(2) Defendant Petryszyn failed to allow plaintiff to "press criminal charges" against the inmate who assaulted him.

(3) Defendant Brown denied plaintiff the right to file a grievance against Sergeant Petryszyn.

(4) Defendant Kozina retaliated against plaintiff by denying his request for medical care and by treating him in a harsh and racist manner.*fn10

B. Defendants' Evidence

Along with counsel's affidavit and the required statement of material facts, defendants have each filed an affidavit in support of their summary judgment motion. (Dkt. No. 43-2, 43-5-43-8). Defendants have also filed the following in support of their motion:

(1) The affidavits of Corrections Officers Joe Cornwell and Dave Creveling, two officers who responded to the October 4, 2008 incident involving plaintiff. (Dkt. Nos. 43-3, 43-4). (2) The affidavit of Mark Smolinsky, the Jail Administrator of BCCF. (Dkt. No. 43-9).

Officer Rovente states that on October 4, 2008, he was working in B-pod, plaintiff's housing unit at BCCF. (Dkt. No. 43-8, Rovente Aff. ¶ 3). At approximately 9:35 p.m., he heard the door to cell 104 slam, and as he walked over to see what was happening, he noticed that inmate Mable was following plaintiff from the lower tier of cells. Id. ¶ 4. As Officer Rovente was watching, inmate Mable began to hit plaintiff. Id. Officer Rovente states that corrections officers are trained to handle such altercations by first notifying the control room of the fight in progress, referred to as calling a "code yellow." Id. ¶ 5 & 5(a). The "code yellow" involves informing the control room where the incident is taking place and how many inmates are involved. Id. ¶ 5(a).

Next, the officers are told to maintain unit security by ordering a "lock in" and by ordering the fighting inmates to stop. Id. ¶ 5(b). The officers are instructed not to become directly involved in the disturbance, but to remain at a "safe tactical distance."

Id. ¶ 5(c). In fact, as the pod officer, Officer Rovente was not even allowed to assist in the restraining process after the other officers arrived. Id. ¶ 7. Officer Rovente states that when he saw inmate Mable hitting plaintiff, he immediately ordered inmate Mable to stop fighting and used his shoulder radio unit to call the "code yellow." Id. ¶ 8. Officer Rovente then went back to the "bubble" and called for the rest of the unit inmates to "lock in." Id. at ¶ 9. He did not try to physically stop the fight himself because, according to his training, he was required to wait until other officers arrived to assist. Id. ¶ 8.

Officer Rovente states that at a certain point, inmate Mable stopped hitting plaintiff and returned to his cell, where he locked in. Id. ¶ 9. Officer Rovente then ordered plaintiff into the program room to wait for the other guards to arrive. When the other guards arrived, they took both inmates out of the pod. Id. ¶ 10. According to Officer Rovente, the entire incident lasted less than one minute, and although inmate Mable threw a lot of punches, it appeared that plaintiff was struck only three or four times because he was running away from inmate Mable and dodging the punches. Id. ¶ 11. Officer Rovente asserts that prior to this altercation, he was not aware of any tension or other problems between plaintiff and inmate Mable. Id. ¶ 12.

Officers Cornwell and Creveling were "rovers" on the evening of October 4, 2008. (Dkt. No. 43-3 & 43-4) (Cornwell Aff.; Creveling Aff.) A "zone rover" is an officer who monitors inmate movement through the corridors of the facility and assists and relieves housing officers when needed. (Cornwell Aff. ¶ 2; Creveling Aff. ¶ 2). Zone rovers also respond to emergency situations in the housing pods, including the "code yellow" calls. Id. Both officers state that at approximately 9:35 p.m. on October 4, 2008, a "code yellow" call was made regarding a fight in B-pod. (Cornwell Aff. ¶ 3; Creveling Aff. ¶ 3). Officer Cornwell states that he does not recall exactly how long it took him to respond, but that generally it takes him from a few seconds to about one minute, depending on where he is in the facility. (Cornwell Aff. ¶ 3). Officer Creveling also states that he does not remember how long it took him to respond, but it generally takes between one to two minutes, depending upon where he is in the facility. (Creveling Aff. ¶ 3).

Officers Cornwell and Creveling state that by the time they arrived at B-pod, both inmates had already been secured. (Cornwell Aff. ¶ 4; Creveling Aff. ¶ 4). When the officers arrived, they were directed to cell 102, where inmate Mable was already locked in. Id. Plaintiff was located in the program room. Id. Officer Cornwell secured inmate Mable, and Sergeant Jeff Katen and Officer Creveling escorted inmate Mable out of the pod. (Cornwell Aff. ¶ 5; Creveling Aff. ¶ 5). Sergeant Theresa Zenzel and Officer James McCombs took plaintiff out of B-Pod. (Cornwell Aff. ¶ 5). Officer Creveling states that he and Jeff Katan took inmate Mable to D-Pod, and while inmate Mable was being searched, he admitted to hitting plaintiff because plaintiff spit on the back of inmate Mable's head. (Creveling Aff. ¶ 6). Officers Cornwell and Creveling have attached copies of their respective incident reports as exhibits to their affidavits.*fn11 (Dkt. No. 43-15 -- Ex. C, Cornwell Report; Dkt. No. 43-16 -- Ex. D, Creveling Report). Officer Rovente's report states that plaintiff was seen by the medical staff after the incident for the injury to his mouth. (Dkt. No. 43-14, Ex. B).

In his affidavit, defendant Petryszyn states that he investigated the altercation between plaintiff and inmate Mable. (Dkt. No. 43-7, Petryszyn Aff. ¶ 2). As part of the investigation, he reviewed a videotape of the incident, taken by the cameras positioned in the pod. Id. Defendant Petryszyn states that his review of the videotape revealed that inmate Mable did strike plaintiff "a few times," but that no more than a few seconds elapsed, as opposed to the ten or twelve minutes that plaintiff claims passed. Id. ¶ 3. Because of the "de minimis" nature of the event, the videotape was not retained ...


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