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Michael Perkins v. David F. Napoli

December 16, 2011

MICHAEL PERKINS, PLAINTIFF
v.
DAVID F. NAPOLI, ET AL., DEFENDANTS



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Plaintiff, a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), is suing pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights. Now before the Court are three applications: 1) a motion for summary judgment (Docket No. 62) by defendant David Napoli ("Napoli"); 2) a motion for preliminary injunctive relief [#80] by Plaintiff; and 3) a motion to dismiss [#85] by all Defendants. For the reasons that follow, Napoli's motion is granted, Plaintiff's motion is denied, and Defendants' motion is granted in part and denied in part, to the extent that Plaintiff's in forma pauperis status is revoked and he must pay the filing fee within thirty days or this action will be dismissed.

BACKGROUND

At all relevant times, Plaintiff was confined at Southport Correctional Facility ("Southport"). At all relevant times, Defendants were employed by DOCCS at Southport. Specifically, Napoli was Superintendent at Southport, Daniel Chapman ("Chapman") was a Corrections Sergeant, and Michael Burgett ("Burgett"), James Cleveland ("Cleveland"), Steve Ford ("Ford"), and David Tadder ("Tadder") were Corrections Officers.

The Amended Complaint [#3] alleges the following facts. On March 9, 2009, Plaintiff was in a holding cell, handcuffed in front with a waist chain, when Tadder "pulled the plaintiff out" and punched him in the face. Plaintiff alleges that he was knocked to the floor, and that Tadder, Burgett, Cleveland, Ford, and Chapman then kicked and punched him. Plaintiff alleges that the officers put him back in the holding cell, and returned ten minutes later to "beat [him] some more." Amended Complaint p. 5.

Plaintiff alleges that the attack on March 9, 2009 was the third time that he had been assaulted by staff at Southport. In that regard, Plaintiff claims that he was assaulted on July 5, 2008 and August 20, 2008, and then again on March 9, 2009. Plaintiff is suing Napoli, on the grounds that Napoli created a policy or custom which permitted staff to assault inmates.

Other documents in the record, including Plaintiff's original Complaint, *fn1 provide some additional details to his allegations. Plaintiff maintains that on March 9, 2009, he and another inmate, Malik, were in the holding cells in Southport's dental treatment area, awaiting transport back to their cells. Plaintiff states that officers subsequently began escorting him and Malik back to their cells, when Burgett and Tadder aggressively approached Malik. Plaintiff indicates that he told the officers that they should not approach Malik in that manner, since Malik had not done anything wrong. *fn2

Plaintiff states that the escort officers took Malik back to his cell, but Tadder directed that Plaintiff be returned to the dental area holding cell. A short time later, Plaintiff contends, the officers removed him from the holding cell and assaulted him.

Defendants counter that on March 9, 2009, Plaintiff was backing out of the holding cell when he quickly moved and attempted to assault Burgett, who then, along with other officers, used appropriate force to subdue Plaintiff. They further contend that Plaintiff refused their orders to stop struggling as they were attempting to control him. Based on that version of events, Burgett issued Plaintiff a Misbehavior Report, charging him with violent conduct, assault on staff, interference with an employee, and refusing a direct order. See , Rule 26 Disclosures [#11], Ex. A. At a subsequent disciplinary hearing, Plaintiff was found guilty of all four charges. Id .
On June 12, 2009, Plaintiff commenced this action and applied for permission to proceed in forma pauperis . Consequently, the Court was required to review his pleadings pursuant to 28 U.S.C. § § 1915 & 1915A. At that time, the Court was unaware that both Plaintiff's original Complaint [#1] and his Amended Complaint [#3] misstated the number of previous prisoner lawsuits that he had filed. *fn3 Specifically, Plaintiff listed only one such lawsuit, 08-CV-6248 CJS, which was pending in this Court, while omitting several other lawsuits, which are discussed below. Plaintiff requested permission to proceed in forma pauperis because he purportedly had no funds whatsoever. Pl. Motion to Proceed In Forma Pauperis [#2]. Although the Amended Complaint alleges that Plaintiff was assaulted on three occasions at Southport, with the most recent assault having occurred three months earlier, in March 2009, it does not allege that Plaintiff is in any imminent danger of physical harm. On July 14, 2009, the Court granted Plaintiff's application to proceed in forma pauperis . See , Order (Docket No. [#6]).
Following a period of pre-trial discovery, on June 23, 2010, Napoli filed the subject motion for summary judgment [#62]. *fn4 In support of the application, Napoli maintains that he cannot be liable for the alleged assault on March 9, 2009, because he was not personally involved in the alleged assault. *fn5 Napoli states that he was not present during the alleged assault, that Plaintiff had never been threatened by any of the Defendants prior to that day, *fn6 and that Plaintiff had never claimed that he was in danger of being harmed by the Defendants. *fn7 See , Napoli Memo of Law [#66]. Napoli, therefore, contends that Plaintiff cannot show that he was deliberately indifferent to

Plaintiff's safety.

Plaintiff filed a response [#72] to Napoli's motion. The response is largely devoted to pointing out alleged inconsistencies in reports filed by the corrections officers involved in the March 9 th incident. As for Napoli, Plaintiff indicates that Napoli violated Plaintiff's constitutional rights by "allow[ing] his subordinates to assault the plaintiff on several different occasions, and then allowing additional subordinates . . . to conduct an evasive investigation into the complaint made by the plaintiff [concerning the incident on March 9, 2009]." Pl. Response [#72] at p. 15. Plaintiff indicates that inconsistencies in the reports that the corrections officers prepared following the March 9, 2009 incident should have alerted ...


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