The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court in this pro se prisoner civil rights action, filed by Ronald Johnson ("Plaintiff") against five employees of the New York State Department of Correctional Services ("Defendants"), are the following: (1) Defendants' motion for summary judgment (Dkt. No. 34); (2) United States Magistrate Judge David E. Peebles' Report-Recommendation, recommending that Defendants' motion be granted and that Plaintiff's Complaint be dismissed in its entirety (Dkt. No. 52); and (3) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 55). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is granted; and Plaintiff's Complaint is dismissed.
Plaintiff filed his Complaint on January 5, 2009. (Dkt. No. 1.) Generally, in his Complaint, Plaintiff alleges that, on September 29, 2008, as he was returning by bus to Watertown Correctional Facility ("Watertown C.F.") from a hearing in Queens County Court, he asked a sergeant on the bus a question regarding security arrangements on the bus. (Id. at ¶ 6.) Plaintiff further alleges that, after the bus arrived back at Watertown C.F. and the sergeant reported to others that Plaintiff had been "an asshole on the bus," Plaintiff was seen by a nurse, then isolated in a cell, where he was physically assaulted and subjected to racial epithets by six corrections officers, including the named Defendants. (Id.) Finally, Plaintiff alleges that Defendants subsequently failed to provide him medical treatment for injuries sustained in the assault, threatened him with false disciplinary charges in retaliation for filing grievances regarding the assault, and wrongfully denied his request for a transfer to another correctional facility. (Id.) For a more detailed recitation of the factual allegations asserted in Plaintiff's Complaint, the Court refers the reader to that Complaint in its entirety. (See generally Dkt. No. 1.)
Construed with the utmost of special leniency, Plaintiff's Complaint attempts to assert the following claims against Defendants based on the above-described factual allegations: (1) some or all of the Defendants (including Brown) used excessive force against him in violation of the Eighth Amendment; (2) some or all of the Defendants (including Brown) verbally harassed him, in violation of the Eighth Amendment; (3) some or all of the Defendants (including Kiernan) were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment; (4) some or all of the Defendants retaliated against him in response to his filing of grievances, in violation of the First Amendment; and (5) some or all of the Defendants wrongfully denied him a prison transfer, in violation of the Fourteenth and/or First Amendments. (Id. at ¶¶ 6-7.)
B. Undisputed Material Facts
For the sake of brevity, the Court will not repeat the undisputed material facts in this Decision and Order, which is intended primarily for the review of the parties. Instead, the Court will incorporate by reference Part I of Magistrate Judge Peebles' Report-Recommendation, which accurately recites those undisputed (and disputed) material facts. The Court would add merely that, generally, unlike Plaintiff's Complaint, the record on Defendants' motion reveals which Defendants allegedly committed which of the above-described acts against Plaintiff. For example, Plaintiff asserts that (1) the sergeant on the bus was Defendant Guerin, (2) the Defendants to whom Guerin reported that Plaintiff had been an "asshole" were Kiernan and Eastern, (3) the Defendant who shouted racial epithets at Plaintiff was Brown, (4) the Defendants who used excessive force against Plaintiff were Boulter, Brown, and Eastern, (5) in addition, Defendant Kiernan failed to intervene in that excessive use of force, (6) the Defendant who was deliberately indifferent to Plaintiff's serious medical needs was Defendant Kiernan, and (7) the individual who retaliated against Plaintiff for filing grievances was Defendant Kiernan.
C. Parties' Briefing on Defendants' Motion
On December 21, 2009, Defendants filed their motion for summary judgment. (Dkt. No. 34.) Generally, in their motion, Defendants argue as follows: (1) to the extent that Plaintiff asserts claims for damages against Defendants in their official capacity, those claims are barred as a matter of law by the doctrine of sovereign immunity under the Eleventh Amendment; (2) whether viewed thorough the factual allegations of Plaintiff's Compliant, or the facts established by the record on Defendants' motion, Plaintiff's claims of verbal harassment and verbal threats by Defendants Brown, Guerin and Kiernan are not actionable under 42 U.S.C. § 1983; (3) Plaintiff has failed to adduce record evidence establishing that Defendants Boulter, Brown or Kiernan (or any Defendants) were personally involved in the alleged constitutionally inadequate medical care that Plaintiff allegedly received on September 29, 2008, at Watertown C.F.; (4) Plaintiff has failed to adduce record evidence establishing that Defendants Boulter, Brown or Kiernan caused the physical injury that Plaintiff allegedly sustained through the assault on September 29, 2008, at Watertown C.F.; (5) whether viewed thorough the factual allegations of Plaintiff's Compliant, or the facts established by the record on Defendants' motion, Plaintiff's claim of a wrongful denial of his request for a transfer to another correctional facility is not actionable under 42 U.S.C. § 1983; (6) Plaintiff has failed to allege facts plausibly suggesting, and/or adduce record evidence establishing, that he experienced adverse action sufficient to state or establish a retaliation claim against Defendant Kiernan; (7) Plaintiff has failed to adduce record evidence establishing that he was assaulted by any Defendant, because no reasonable factfinder could credit Plaintiff's self-contradictory, incomplete and totally uncorroborated deposition testimony, under Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005); and (8) based on the current record, Defendants are protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 34, Attach. 7.)
On March 31, 2010, after being granted an extension of time in which to do so, Plaintiff filed a response to Defendants' motion. (Dkt. No. 48.) Generally, in his response, Plaintiff argues as follows: (1) while the Eleventh Amendment may bar his claims for damages against Defendants in their official capacity, it does not bar his claims for damages against Defendants in the individual capacity; (2) claims of verbal harassment and verbal threats are actionable under 42 U.S.C. § 1983 where, as here, the harassment and threats were preceded by the use of physical force; (3) Plaintiff has adduced record evidence establishing Defendants Boulter, Brown or Kiernan were personally involved in the alleged constitutionally inadequate medical care that Plaintiff allegedly received on September 29, 2008, at Watertown C.F., especially Kiernan, who asked Plaintiff how he was after the assault, and saw him bleeding, yet did not bring him to the prison's infirmary; (4) Plaintiff has adduced record evidence establishing that all five Defendants caused the physical injury that Plaintiff allegedly sustained through an assault on September 29, 2008, at Watertown C.F.--Boulter's, Brown's and Eastern's involvement being direct, Kiernan's involvement being as a supervisor who knew of the constitutional violation yet failed to stop it, and Guerin's involvement being the instigator of the assault; (5) contrary to Defendants' interpretation of Plaintiff's wrongful-transfer claim, that claim is based not on a request to be moved to a specific facility but a request simply to be removed from Watertown C.F., where he was in danger; (6) Plaintiff has adduced record evidence establishing that he experienced adverse action sufficient to establish a retaliation claim against Defendant Kiernan, because he has adduced evidence that (a) Kiernan's threats dissuaded Plaintiff from "fil[ing] grievances on Lt. Ladue" regarding Kiernan's threats, and (b) Kiernan's threats, which were intended to inflict psychological harm, caused Plaintiff "to sink into a deep depression" and lose sleep; (7) grounds do not exist for the Court to make an exception to rule against making credibility determinations, under Jeffreys, because Plaintiff's deposition testimony is not self-contradictory, incomplete, or uncorroborated by the record (which includes medical records showing the use of force, and a memorandum from Defendant Guerin admitting that, before the assault, he told Defendant Kiernan and draft room officers that he had a problem with Plaintiff); and (8) based on the current record, Defendants are not protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 48, at 1-23.)
On April 21, 2010, Defendants filed a reply to Plaintiff's response. (Dkt. No. 50.) Generally, in their reply, Defendants argue as follows: (1) because Plaintiff willfully failed to comply with Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court by not responding to Defendants' Statement of Material Facts, the Court must accept as true all facts asserted in Defendants' Statement of Material Facts; (2) Defendants Guerin and Boulter are entitled to summary judgment because (a) no admissible record evidence supports a causal connection between Defendant Guerin's report to the draft room officers and the assault that Plaintiff alleges he subsequently experienced, (b) the record evidence undisputably demonstrates that Defendant Boulter was not physically present at Watertown C.F. on September 29, 2008; (3) Plaintiff has failed to establish a claim for retaliation against Defendant Kiernan because (a) the record belies Plaintiff's claim that he was dissuaded from filing any grievances, and (b) the threat was de minimis under the circumstances; (4) Plaintiff's failure-to-intervene claim against Defendant Kiernan should be dismissed because (a) it was not asserted in Plaintiff's Complaint but was asserted for the first time in his response papers, (b) Defendants have adduced uncontroverted record evidence that there was no assault that any Defendant could have intervened, and (c) Plaintiff admitted in his deposition Defendant Kiernan first came onto the scene after the assault was over; and (5) Plaintiff has failed to establish that Defendant Brown was personally involved in the alleged constitutional violations because Plaintiff's self-serving deposition testimony regarding Brown can be discredited as a matter of law under Jeffreys. (Id.)
D. Magistrate Judge Peebles' Report-Recommendation
On September 3, 2010, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendants' motion be granted and Plaintiff's Complaint be dismissed in its entirety. (Dkt. No. 52.) More ...