The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
This action arises from personal injuries sustained by the plaintiff, Kyle Hartry ("Hartry" or "Plaintiff"), during an attack by a fellow inmate that occurred on October 24, 2007 while the Plaintiff was incarcerated at the Suffolk County Correctional Facility ("SCCF"). On September 12, 2008, the Plaintiff filed a complaint alleging that Sergeant Steven Lundquist ("Lundquist"), Detective Vince Daly, and the municipal entity of Suffolk County failed to protect him from harm, and exhibited a deliberate indifference to his health, safety and welfare in violation of his Constitutional rights. The Plaintiff voluntarily dismissed the claims against Detective Daly. The remaining defendants, Lundquist and the County of Suffolk (together the "Defendants") move for summary judgment dismissing the complaint on the following grounds:
(1) the Plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act;
(2) the complaint fails to state a claim under 42 USC § 1983;
(3) Defendant Lundquist is entitled to qualified immunity; and (4) the complaint fails to state a negligence claim under New York state law. For the reasons set forth below, the Court denies the Defendants' motion in its entirety.
The following facts are drawn from the parties' evidentiary submissions in this case. Because the Defendants' have brought this motion for summary judgment, any inferences that the Court draws from the facts as presented are viewed in the light most favorable to the Plaintiff.
In late 2006, while in the custody of the New York State Department of Corrections ("DOC"), Hartry contacted the Suffolk County Police Department and spoke with Detective Vincent Daly regarding information Hartry possessed about an open homicide case. In exchange for favorable treatment on his own pending criminal charges, Hartry agreed to testify against an inmate being held at the SCCF regarding that inmate's involvement in the open homicide case. On December 21, 2006, because the inmate's homicide prosecution was to take place in Suffolk County, Hartry was transferred from DOC to the SCCF. Hartry was housed at the SCCF for several months, during which time he prepared a statement for the prosecution. In September 2007, there was a discovery hearing in the prosecution of the inmate against whom Hartry was testifying. During that hearing, the inmate was provided with a copy of Hartry's statement implicating the inmate in the homicide.
Subsequently, on September 18, 2007, Hartry was approached by another inmate at SCCF who Hartry claims was a member of the Bloods gang, and was known as the "King of the Bloods." Hartry alleges that the "King of the Bloods" said to him, "I'm waiting for the statements. When the statements come out, you won't be able to live in this jail." (Hartry Dep. 100:17--20.) On that same day, Hartry informed a member of the SCCF Internal Security Unit (the "Security Unit") that his status as a witness had become known to other inmates in the general population, and that as a result he was being threatened. In response to that information, security immediately moved Hartry from the general population of SCCF to an area known as PODS that was located on the other side of SCCF.
The very next day, on September 19, while Hartry was outside in the recreation area of PODS, word of his status as a cooperating witness-commonly referred to in prison as a "snitch" or a "rat"-continued to spread. Although separated by a fence, the recreation area of PODS bordered the recreation area of the general population, and Hartry heard inmates from his former tier yelling about him through the fence, "Hey, he's a snitch. He's snitching." (Hartry Dep. 105:15--16, 24.) After that recreation period, while Hartry showered, another inmate stole Hartry's belongings from his cell.
Hartry again called the Security Unit and informed the officer on duty that his fellow inmates in PODS knew of his status as a witness and had taken all of his belongings. Hartry also told the security officer that a copy of the statement he had written in the homicide case was being passed around the jail. The officer brought Hartry to the Security Unit and suggested that Hartry sign himself into protective custody if he felt unsafe. Hartry immediately signed the protective custody forms, and the security officer completed the necessary paperwork, which indicated, "Inmate is to be placed in P.C. for his own safety. Inmate wrote a statement on another Inmate. A copy of the statement has been passed around the facility posing a threat to Inmate Hartry's safety." (Norinsberg Decl., Ex. E.) The security officer then arranged to have Hartry moved out of the PODS area and into protective custody, which was located in the Administrative Segregation Section of the facility.
According to the record, it is at this juncture that Defendant Lundquist became involved with Hartry. At some point in the course of jail business, the security officer who transferred Hartry to protective custody discussed Hartry's situation with Lundquist. On September 20, after Hartry's first night in protective custody, Lundquist moved Hartry into a "day area" on the other side of the protective custody unit. "Day areas" are open spaces located in front of inmate cells in which the jail has placed several bunks to address overcrowding. The inmates housed in day areas are not separated from each other by bars and have no restrictions on contact with one another, but are kept apart from the inmates housed in the cells behind the day area.
The same day he was moved to the day area, Hartry met with Detective Vince Daly, the lead detective in the homicide case in which Hartry was serving as a witness, to discuss concerns about his safety. Lundquist was also present at this meeting, and although he denies any involvement in the meeting itself, he admits that Daly did discuss concerns about Hartry's safety with him at the meeting. According to Lundquist, "[Daly] asked that we look out for [Hartry's] safety," and Lundquist responded that they would do so. (Lundquist Dep. 16:15--19.)
Approximately a week after this meeting, on September 28, 2007, Hartry became aware that inmates in the Administrative Segregation section of the jail knew he was an informant when an inmate in the cells behind his day area got his attention and yelled, "I heard about you. I know what's good with you." (Hartry Dep. 114:8--9.) According to Hartry, he understood this to mean, "I know that you [are] snitching on this woman." (Hartry Dep. 114:10--11.) The inmate allegedly showed Hartry a plastic spoon that had been sharpened into a weapon and threatened to "get at him" when the inmate got out of his cell. (Hartry Dep. 114:13). This was the last time Hartry was directly threatened (the "September 28th Threat").
Hartry immediately reported the September 28th Threat to a corrections officer and informed Lundquist that he had been threatened. In response to that report, security searched the belongings of both Hartry and the inmate who had threatened him, but found no weapon. Despite being unable to substantiate Hartry's claim that the inmate had displayed a weapon, security officers again moved Hartry, placing him in yet another area within the Administrative Segregation section. On October 2, 2007, Hartry was moved for a fifth time, again within the Administrative Segregation section of the facility, this time for administrative reasons having nothing to do with his safety concerns.
Although not directly threatened after the September 28th Threat, Hartry claims that inmates continued to confront him about "what they were hearing around the jail." (Hartry Dep. 124:13--15.) According to Hartry, because of the constant tension after his status as a cooperating witness became known, he frequently called Lundquist asking to be moved out of SCCF because he was not safe there. Although the timing of the calls is unclear, the parties agree that Hartry placed 10 to 20 calls to Lundquist in the six weeks leading up to Hartry's attack.
However, despite agreeing on the number of calls, the parties dispute their content. Hartry claims he told Lundquist that his life was in danger, that he needed to be moved and that during the calls he asked, "what [was] going on with [him] being moved out of jail." (Hartry Dep. 145:21--24.) Hartry further alleges that during those calls Lundquist responded by saying that he would arrange for Hartry to be moved to the Nassau County Correctional Facility ("NCCF"). Specifically, Hartry asserts that Lundquist assured him, "We're going to get to Nassau." (Hartry Dep. 146:16.) Hartry claims that as a result of that assurance he did not file a grievance concerning the jail's efforts to protect him because he believed that efforts were underway to transfer him out of SCCF.
On October 24, 2007, twenty six days after the September 28th Threat, Hartry was attacked by fellow inmate Vincent Dalton while Hartry was at his bunk in the day area (the "October 24th Attack"). According to Hartry, Dalton came up behind him, made a comment about Hartry being a "snitch" and then tapped him on the shoulder. When Hartry turned around, Dalton hit him in the face with a sock stuffed with soap bars, flipped him to the ground and punched him repeatedly in the head. As a result, Hartry suffered injuries to his face and his left eye. Although the parties agree that Hartry was injured during the attack, there is a dispute as to the extent of those injuries. Hartry claims he suffered severe and permanent injuries including a left orbital fracture, double vision, permanent loss of sensation in his face and sinus area and displacement of several teeth.
After the October 24th Attack, Hartry was moved to the Observation Bay area of the jail, where inmates are under 24-hour surveillance by guards. The next day, on October 25, Lundquist prepared a Substitute Jail Order to move Hartry out of the SCCF. On the Order, Lundquist cited as the reason for the transfer that "[i]nmate Hartry wrote [a] statement against [another inmate]. Inmate Hartry will be testifying against [this other inmate] and this information [has] become well known throughout the jail. Hartry has been labeled a rat and has received threats." (Norinsberg Decl., Ex. D.) On October 26, 2007, as a result of the attack, Hartry was transferred to the NCCF.
On September 12, 2008, Hartry filed a complaint against Suffolk County, Sergeant Lundquist, Detective Daly and various unnamed employees of the SCCF asserting the following causes of action: (1) deprivation of federal rights under 42 U.S.C. § 1983; (2) deliberate indifference to the Plaintiff's constitutional rights under 42 U.S.C. § 1983 by failing to protect the Plaintiff from the October 24th Attack; (3) municipal liability of the County of Suffolk for deliberate indifference to the Plaintiff's safety, well-being, and constitutional rights; (4) negligence under New York state law for failing to exercise reasonable care in safeguarding and protecting the Plaintiff; and (5) negligence against the County of Suffolk under New York law in hiring, training, retaining and assigning officers at SCCF.
Hartry voluntarily dismissed the complaint against all of the Defendants except Suffolk County and Sergeant Lundquist. The remaining Defendants now move for summary judgment to dismiss the complaint on the following grounds: (1) the Plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e et seq. ("PLRA"); (2) the complaint fails to state a claim under 42 USC § 1983; (3) Defendant Lundquist is entitled to qualified immunity; and (4) the complaint fails to state a negligence claim under New York state law.
It is well-settled that summary judgment under Fed. R. Civ. P. 56(c) is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" within the meaning of Fed. R. Civ. P. 56 when its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir.1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).
Once the moving party has met its burden, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). However, the nonmoving party cannot survive summary judgment by casting mere "metaphysical doubt" upon the evidence produced by the moving party. Matsushita, 475 U.S. at 586. Summary judgment is appropriate when the moving party can show that "little or no evidence may be found in support of the nonmoving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted). With this standard in mind, the Court begins its analysis with the Defendants' procedural argument.
B. Whether the Plaintiff Failed to Exhaust Administrative Remedies as Required by the Prison Litigation Reform Act ("PLRA")
Congress enacted the PLRA in 1996 "in the wake of a sharp rise in prisoner litigation in the federal courts." Woodford v. Ngo, 548 U.S. 81, 83, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006) (internal citation omitted). In an effort to control the increase in such litigation, the PLRA provides that an inmate may not bring an action under federal law "with respect to prison conditions.until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007). This exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002); see also Macias, 495 F.3d at 40. Because "[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance," Woodford, 548 U.S. at 95, inmates must both substantively and procedurally exhaust their claims within the prison grievance system before filing suit. Macias, 495 F.3d at 43. This means that inmates must "compl[y] with an agency's deadlines and other critical procedural rules" before they can file a claim in federal court. Woodford, 548 U.S. at 90.
The procedures for filing a grievance at the SCCF are set forth in the Inmate Handbook, which states in relevant part as follows:
All inmates are entitled to file legitimate grievances and may do so without fear of punishment or reprisals. An inmate must file a grievance within (5) five days of the date of the ...