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Malik Muhammad v. Correctional Sergeant Lowe

September 26, 2012

MALIK MUHAMMAD, PLAINTIFF,
v.
CORRECTIONAL SERGEANT LOWE, CORRECTIONAL OFFICER G. PRITCHARD, CORRECTIONAL OFFICER SCHUESSLER, AND CORRECTIONAL OFFICER KACZMAREK, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin United States District Judge

INTRODUCTION

Plaintiff brought this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages for the alleged violation of his rights under the Eighth Amendment. Currently pending before the court is the defendants' motion for summary judgment (Item 92).

BACKGROUND

Plaintiff commenced this action on August 29, 2008 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983 (Item 1). Plaintiff seeks compensatory and punitive damages for the alleged use of excessive force in violation of his rights under the Eighth Amendment to the United States Constitution. Specifically, plaintiff alleges that, in the course of a pat down search, he was subjected to excessive physical force by the defendants, resulting in a knee injury.

In an order filed November 19, 2008, plaintiff was granted permission to proceed in forma pauperis (Item 3). He filed an amended complaint on December 5, 2008 (Item 5). After plaintiff was granted an extension of time in which to serve the summons and amended complaint (Item 11), the defendants filed an answer to the amended complaint on February 17, 2010 (Item 27). On April 12, 2010, the parties consented to the referral of this matter to United States Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to 28 U.S.C. § 636 (c) for all further proceedings including the entry of judgment (Item 45). Following the parties' exchange of discovery materials, on March 18, 2011, the defendants moved for summary judgment (Item 92). As part of the motion, plaintiff was served with a "Notice to Pro Se Litigants Opposing Summary Judgment." Id. In it, plaintiff was warned that he could not oppose the summary judgment motion "simply by relying on the allegations in the complaint" and that if he did not respond to the motion "on time with affidavits or documentary evidence contradicting the facts asserted by defendant, the Court may accept defendant's factual assertions as true" and enter judgment in defendant's favor without a trial. Id.

Pursuant to a case management order, plaintiff was directed to file a response to the motion for summary judgment by April 29, 2011 (Item 101). On April 6, 2011, plaintiff sought an extension of time in which to respond (Item 104). The court granted the motion and directed that plaintiff file a response to the motion on or before July 29, 2011 (Item 105). Plaintiff declined to file a response. On September 10, 2012, the case was transferred to the docket of the undersigned (Item 109). The court has determined that oral argument is unnecessary. For the reasons that follow, the defendants' motion for summary judgment is granted, and the complaint is dismissed.

FACTS*fn1

In support of the motion, the defendants have each submitted a declaration with supporting exhibits. Defendant Douglas Lowe stated that on March 16, 2008, he was employed as a Corrections Sergeant at the Attica Correctional Facility ("ACF") (Item 94, ¶ 1). On that date, he was directed by his superiors to conduct a random pat frisk of inmates in the C-block. Id., ¶ 8. While proceeding to the yard, plaintiff was selected for the pat frisk and was told to assume the pat frisk position. Id. Defendant Lowe observed as Corrections Officer ("CO") Pritchard conducted the search and saw plaintiff become agitated and verbally confrontational. Id., ¶ 9. CO Pritchard felt a rigid object in the right front pocket area of plaintiff's sweatpants. As CO Pritchard retrieved the object, Lowe observed plaintiff "deliver a rearward blow with his right elbow to CO Pritchard's chest." Id., ¶ 10.

CO Pritchard then called for back-up to help restrain the plaintiff (Item 94, ¶ 11). CO Pritchard wrapped both arms around plaintiff's upper torso from behind and took plaintiff to the floor. Id., ¶ 12. He then placed both hands on plaintiff's left wrist and secured plaintiff's left arm behind his back. CO Kaczmarek assisted by securing plaintiff's right arm behind his back. Id. CO Schuessler assisted by placing plaintiff's legs into a "figure four lock" while plaintiff was on the floor. Id. Defendant Lowe then applied mechanical restraints to plaintiff. Id., ¶ 13. After plaintiff was restrained, the defendants recovered from the floor a "1/8" x 7 1/4" metal rod type weapon, sharpened to a point at one end, with a cloth handle on the other end." Id.

Defendant Lowe stated that he and the other defendants acted in accordance with the Department of Correctional Services ("DOCS") security procedures (Item 94, ¶ 16). The officers did not "act maliciously or sadistically to cause harm to plaintiff" but used only such force as was necessary "in response to plaintiff's unprovoked assault on CO Pritchard." Id., ¶¶ 15-16. Following the use of force, plaintiff was examined by Virginia Johnson, RN, who found no apparent injuries (Item 94, Exhs. D, E). Plaintiff was able to walk and move without difficulty. Id., Exh. D. Defendants Pritchard, Kaczmarek, and Schuessler submitted declarations that corroborate the version of events as stated by defendant Lowe (Items 95 - 97).

In his amended complaint, plaintiff alleged that he was directed to submit to a pat down search. He stated that CO Pritchard performed the search "in a very aggressive manner" and removed plaintiff's right arm "off the wall for unknown reasons." (Item 5, ¶ H). Plaintiff alleged that back-up was called and that he was forced to the floor and put in restraints. Id., ¶ I. Plaintiff acknowledged that CO Pritchard reported to his supervisors that plaintiff elbowed him in the chest and likewise acknowledged that the metal rod was found on the floor following the incident (Item 5, ¶ J). In a grievance filed following the incident, plaintiff denied that he was violent and confrontational and stated that he was "set up" by CO Pritchard, who planted the weapon on him (Item 5, Exh.). Plaintiff further alleged that he complained of knee pain after the incident. Id., ¶ K. A subsequent MRI, performed in June 2008, indicated that plaintiff suffered, at some point, a "subacute grade III sprain of the medial collateral ligament" ("MCL") (Item 1, Exh.).

DISCUSSION

1. Summary Judgment Standard

Rule 56 provides that, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Although the language of this Rule has been amended in recent years, the well-settled standards for considering a motion for summary judgment remain unchanged. See, e.g., Faulkner v. Arista Records LLC, 797 F.Supp.2d 299, 311 n. 7 (S.D.N.Y. 2011). Under those standards, the party seeking summary judgment bears the initial burden of establishing that no genuine issue of material fact exists. Rockland Exposition, Inc. v. Great American Assur. Co., 746 F. Supp. 2d 528, 532 (S.D.N.Y. 2010), aff'd, 445 Fed. Appx. 387 (2d Cir. 2011). A "genuine issue" exists "if the evidence is such that a reasonable ...


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