The opinion of the court was delivered by: Richard J. Arcara United States District Judge
Plaintiff Ronald Davidson, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brought this action in March 1995 pursuant to 42 U.S.C. § 1983 seeking damages to compensate for injuries allegedly sustained as the result of an incident at the Attica Correctional Facility. In his pro se complaint, plaintiff alleged that on February 3, 1993, Corrections Officer Nicholas Brzezniak intentionally kicked him in the back without provocation, subjecting him to excessive use of force in violation of the Eighth Amendment's prohibition against cruel and unusual punishment, the First Amendment's prohibition against retaliation for filing grievances and lawsuits, and the state law of assault and battery.
From the outset, the progress of this litigation was severely hampered by delays attributable, at least in some measure, to both parties. For example, due to plaintiff's initial mis-identification of defendant Brzezniak, and as a function of changes in staffing and reassignment of responsibility for defense of plaintiff's pending lawsuits among attorneys in the New York State Attorney General's Buffalo office, service upon defendant did not take place until April 1996, and the answer was not filed until May 1996. Once underway, discovery proceeded at an exceedingly slow pace as the result of the parties' extensive motion practice to address recurring problems with document production, scheduling and taking depositions, and other procedural matters--all compounded by plaintiff's transfer from one correctional facility to another, as well as issues relating to his allegations regarding DOCS employees' confiscation of his legal papers and indifference to his medical complaints.
In October 1998, the Court appointed James Gresens, Esq., to serve as plaintiff's counsel in this matter but, despite exemplary efforts by Mr. Gresens and his associates to expedite discovery, the deposition scheduling problems persisted. In an effort to address plaintiff's ongoing medical concerns, the Court eventually directed that plaintiff's deposition be taken by video conference from his place of incarceration. This was finally accomplished in early 2003. See Dkt. No. 272.
In early 2004, upon being notified that discovery was substantially complete, the Court granted defendant's motion for separate trials on the issues of liability and damages see Dkt. No. 283, and scheduled jury selection for the liability trial to commence in October 2005. See Dkt. No. 287. This date was subsequently adjourned several times to accommodate plaintiff's health concerns. See Dkt. Nos. 295, 315, 327, 339, 343, 347, 351. By order dated September 24, 2009, the Court memorialized plaintiff's agreement to waive his right to trial by jury in order to allow him to appear at the trial by video conference from his place of incarceration, and scheduled the trial for early May 2010. Dkt. No. 356.
Following reassignment of the matter to the undersigned, and two further adjournments, the two-day non-jury trial on liability finally took place on March 29 and 31, 2011, with plaintiff appearing by video conference from the Shawangunk Correctional Facility. The Court received the parties' post-trial written submissions, and heard closing arguments on June 21, 2011.
The following constitutes the Court's findings of fact and conclusions of law, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.*fn1
The facts relating to plaintiff's claim were developed at trial by way of the testimony of plaintiff and two witnesses called on his behalf: Henry Haas, former Investigator for the New York State Police Bureau of Criminal Investigations ("BCI"), and former DOCS Sergeant Joseph Falcone. Defendant Brzezniak testified on his own behalf, and the Court allowed plaintiff to present testimony on rebuttal. What follows is a summary of the trial testimony.
1. Plaintiff Ronald Davidson
Plaintiff testified that, on February 3, 1993, he was assigned to the general population at Attica and was housed in "A" Block, Company Number 7, Cell Number 17. He had been reassigned the previous day from the Special Housing Unit ("SHU"), where he had spent a six-month period of disciplinary segregation. Upon returning to the general population from the SHU, plaintiff was placed on "keeplock" status, which entailed twenty-three hours per day of cell confinement and one hour of recreation in the exercise yard, referred to as "keeplock rec." Dkt. No. 389 (Trial Transcript, 3/29/2011), pp. 7-8.
At approximately 7:15 a.m. on February 3, plaintiff and a few other inmates from Company 7 were being escorted from their cells to the exercise yard by a Corrections Officer. The Company 7 gallery is located on the ground floor, referred to as the "flats." The route to the exercise yard proceeds through a gate at the end of the gallery into an area where the lock boxes are located adjacent to the lobby; then into the lobby area; then through another gate to the "A" Corridor where a door leads to the "A" Yard. Plaintiff testified that on the morning of February 3, 1993, when the escort reached the doorway leading from the lock box area to the lobby, the inmates passed through a "gauntlet" of approximately six to eight prison guards. He testified that defendant Brzezniak was at the end of the gauntlet, and as plaintiff passed by him defendant kicked plaintiff in the lower back. He felt a sharp sensation, and was propelled forward a step or two. According to plaintiff, Officer Brzezniak then stated: "[W]elcome back, this is to let you know what's in store for you if you continue with your grievances and lawsuits." Plaintiff testified that it "was well-known to the jailers" at the Attica facility that he had previously availed himself of his right to file grievances and lawsuits. Id. at 9-13.
Plaintiff proceeded to the exercise yard, where he joined several other "A" Block keeplock inmates. He had a conversation with inmate Ronald Dean, who told plaintiff that he saw what happened and would be a witness for plaintiff. After returning to his cell from the exercise yard, plaintiff reported the incident both to Corrections Counselor Paula Kerwin and to Sergeant Joseph Falcone, the supervising officer in charge of "A" Block operations. Sergeant Falcone told plaintiff that he would investigate the matter. Plaintiff then reported the incident to Nurse Linda Keating during a previously scheduled in-cell sick call visit, and Nurse Keating referred plaintiff to the facility clinic where he was seen by a physicians' assistant named Bobby McGee. Polaroid photographs were taken of plaintiff's back, but he did not receive any treatment or medications from either the nurse or the physicians' assistant. Id. at 13-18.
Plaintiff testified that Sergeant Falcone returned to plaintiff's cell on the afternoon February 3, 1993, after speaking to Officer Brzezniak. According to plaintiff, Sergeant Falcone told him that defendant admitted kicking plaintiff, but "he didn't mean to kick you. He was just showing off. He meant to kick the air, but he made contact with you. He connected." Id. at 34.
Plaintiff's ambulatory health records reflect that he was seen by the sick call nurse on February 2, 1993--the day before the incident at issue--to follow up on his complaints of back pain. Plaintiff's Exh. 1, p. 1. Plaintiff testified that his back pain was long-standing, and was greatly exacerbated by the incident on February 3, 1993. He was seen again by the sick call nurse on February 4 and 9, and made repeated requests for an appointment with the facility's physician, Dr. O'Connell, to have an MRI done. Id. at 6. Dr. O'Connell saw plaintiff on February 10, and again on February 18, and on both occasions denied plaintiff's request for an MRI citing medical risk due to complaints of physical discomfort during a previously scheduled MRI procedure. Id. at 4-5; Dkt. No. 389, at 25-33.
On February 22, 1993, plaintiff wrote a letter to the Superintendent of the New York State Police advising that he wanted to press charges against Officer Brzezniak, and requesting an investigation of the incident. Plaintiff's Exh. 4. On March 2, 1993, plaintiff was interviewed by Investigator Henry Haas of the New York State Police Bureau of Criminal Investigations, and signed a "Supporting Deposition" (Plaintiff's Exh. 2A, at 6) containing his written statement of the incident. Dkt. No. 389, at 34-38.
On cross-examination, plaintiff testified that he had filed several grievances against defendant Brzezniak both before and after the incident at issue in this case complaining about various verbal insults or threats. He did not file a grievance about the incident at issue, and has not filed any lawsuits against defendant other than the present action. He testified that he filed at least 40 grievances about his treatment by various officers at Attica prior to February 3, 1993, and at least 40 or 50 grievances about his treatment at Attica after the incident at issue. He was transferred out of the Attica facility in the spring of 1994. Dkt. No. 389, at 44-48.
Plaintiff testified that on the day of the incident, as he was passing through the gauntlet of officers leading to the "A" Block lobby, he noticed somebody on the staircase leading down from the galleries on the floors above the flats who would have witnessed the kick. He thought it might be an inmate he knew named Ronald Dean, who at the time was assigned to Company 10 on the third floor of the block. When he got to the exercise yard, he spoke with inmate Dean, who confirmed that he had witnessed the incident and would provide a written statement to that effect. Id. at 50-52.
Plaintiff testified that there were no marks on his back immediately after he was kicked, but a red mark developed later that evening, and bruising developed within a day or two. He could not tell if there was any swelling, but the area of the kick was tender. Polaroid photographs of plaintiff's back taken approximately two hours after the incident did not show bruising, redness, or swelling. There was pain on movement, coughing, and deep breathing. Id. at 63-64.
On redirect examination, plaintiff testified that the grievances he filed against defendant Brzezniak both before and after the incident at issue were often processed by a procedure known as "buck-slipping," whereby the grievance ends up being investigated by the very person it was filed against. When defendant investigated the buck-slipped grievances filed by plaintiff, he made threatening remarks toward plaintiff. With regard to the incident at issue, plaintiff testified that he did not see defendant kick him in the back, but he turned around immediately after feeling the force of the kick, and defendant was the only officer standing there. Defendant then made the statement welcoming plaintiff back to the block. Id. at 67-70.
2. BCI Investigator Henry Haas
At the time of the events at issue, Henry Haas was an investigator with the New York State Police BCI, assigned out of Troop A in Warsaw, New York. In early March 1993 he was contacted by Gerald Stout, the Wyoming County District Attorney, who requested that Mr. Haas conduct an investigation of a matter brought to his attention by a letter from an inmate at the Attica Correctional Facility. After reading the letter, Mr. Haas and Investigator Martin Hockey went to the Attica facility and interviewed plaintiff, Officer Brzezniak, inmate Ronald Dean, and Deputy Superintendent Edward Donnelly. Mr. Haas prepared a written report in the regular course of his duties as a BCI investigator (Plaintiff's Exh. 2). The report is date-stamped as received by BCI on June 9, 1993. It contains a two-page narrative of the investigation, along with the supporting depositions of plaintiff (Plaintiff's Exh. 2A) and inmate Dean (Plaintiff's Exh. 2B). Dkt. No. 389, at 71-76.
Mr. Haas testified that, as reflected in the narrative section of his BCI report, plaintiff advised him during the interview on March 3, 1993, that the incident involving Officer Brzezniak had been observed by another inmate, identified as Ronald Dean. Mr. Haas interviewed Mr. Dean, who told him that he saw a heavy-set corrections officer kick Mr. Davidson in the back of his lower leg. Mr. Haas also interviewed Deputy Superintendent Donnelly, who stated that he had interviewed Officer Brzezniak and was advised that he did not have any involvement with Mr. Davidson on the date of the incident alleged, or at any other time. Id. at 77-79.
On cross-examination, Mr. Haas testified that his investigation of the incident did not result in prosecution, and the ...