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Mark Edwards v. M. Mcgrain

December 26, 2012



Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. # 9. Plaintiff, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 seeking compensatory and punitive damages for the alleged violation of his rights under the First and Eighth Amendments. Specifically, plaintiff has alleged that he was subjected to the excessive use of force in retaliation for the filing of a grievance. Currently pending before the court is the defendants' motion for summary judgment. Dkt. # 33.


Plaintiff commenced this action on June 24, 2009 with the filing of a pro se complaint pursuant to Title 42 U.S.C. § 1983. Dkt # 1. Plaintiff, at the time an inmate at Southport Correctional Facility ("SCF"), alleges that defendants Corrections Officer ("CO") Marc McGrain, Charles Swanson, and Roger Holly attacked him with excessive force in retaliation for his filing of a grievance against CO McGrain for alleged sexual harassment. Id., p. 5. In an order filed November 24, 2009, plaintiff was denied a temporary restraining order against defendants and was granted permission to proceed in forma pauperis. Dkt # 4.

Defendants filed an answer to the complaint on April 27, 2010. Dkt # 8. On February 10, 2012, defendants filed this motion for summary judgment, including a Memorandum of Law, Statement of Undisputed Facts, and Declarations of the defendants. Dkt. # 33. Plaintiff filed a Memorandum in opposition to the motion on March 13, 2012. Dkt # 35. Defendants filed a Reply on March 20, 2012. Dkt # 36. For the reasons that follow, the defendants' motion for summary judgment is denied.


In his deposition, plaintiff testified that on February 27, 2008, he was escorted to the shower by CO McGrain who told him to remove his clothing. Dkt. # 33, att. 3, pp. 36-37. Plaintiff stated that CO McGrain attempted to touch his penis, but that he stepped away. Id., p. 38. Plaintiff filed a grievance related to this incident. Id. In a letter to the Inmate Grievance Review Committee ("IGRC"), plaintiff stated that he was being sexually harassed by a CO and requested an investigation. Dkt. # 33, att. 4, p. 41. Plaintiff was interviewed on April 16, 2008, at which time he named CO McGrain as the perpetrator of the alleged harassment. Id., p. 30. CO McGrain denied the allegations in a report to the investigating sergeant on April 16, 2008. Id., p. 31.

Plaintiff further testified that on April 21, 2008, following a physical therapy appointment, he was escorted by two COs to the "day room" of his gallery and was told to stand in a corner with his face to the wall. Dkt. # 33, att. 3, pp. 17-18. He was later escorted down the gallery toward his cell. Id., p. 22. The COs removed his waist chain, but he was still handcuffed. Id. Plaintiff testified that CO McGrain began to assault him from behind with his baton and fists and shouted at him to "stop filing grievances." Id., pp. 22, 40. Plaintiff denied that he struck or attempted to strike any of the officers. Id., p. 23. He further testified that COs Holly and Swanson participated in the assault. Id., pp. 42-43. Plaintiff stated that he received injuries to his back, legs, and ankles, and that he still has pain in his back. Id., pp. 25-26. After the incident, plaintiff was seen by the medical staff, but was given no treatment. Id., pp. 44-45. He stated he was unable to walk and was removed from the area on a stretcher. Dkt. # 35, p. 8, ¶ 3. A few days later, he was transferred to the Albany Medical Center, where he was hospitalized for "a week or more." Id., ¶ 4.

Defendants' version of events differs in significant part. In his declaration, defendant McGrain stated that on April 21, 2008, plaintiff was escorted back to the gallery after physical therapy. Dkt. # 33, att. 4, ¶ 5. He was placed in a corner to wait while inmates from another gallery were returning from recreation. Id., ¶¶ 5-6. COs McGrain and Swanson then escorted plaintiff back to his cell and CO Swanson removed plaintiff's waist chain. Id, ¶¶ 7-8. Plaintiff, "in an aggressive manner" with closed fists, attempted to strike CO McGrain in the chest. Id., ¶ 9. CO McGrain stated that he and CO Swanson had to use physical force against plaintiff to regain control.

Id., ¶ 16. CO McGrain stated that he "grabbed [plaintiff's] left wrist with my left hand and his waist with my right hand and forced plaintiff back into his cell." Id., ¶ 10. Plaintiff fell face down on the floor, hitting his back and right shoulder on the bed. Id. CO McGrain held plaintiff's left side with his left hand and plaintiff's shoulder blades with his right hand. Id. at ¶ 12. Both CO McGrain and CO Swanson stated that several direct orders were given to plaintiff to stop resisting. Id., ¶ 13. Once on the ground, plaintiff continued to kick and struggle. Id. ¶ 11. After CO Swanson gained control of plaintiff by using both hands on plaintiff's middle back, CO McGrain helped plaintiff to his feet and escorted him to the shower for holding without further incident. Id. ¶¶ 14-5. CO McGrain maintained that this use of force was in response to plaintiff's actions for the purpose of maintaining order, and was not in retaliation against plaintiff for the filing of a grievance. Id., ¶¶ 20-21. CO McGrain stated that he did not act maliciously or sadistically or use excessive force. Id. ¶ 22. Finally, defendants stated that CO Holly was not involved in the use of force, but only assisted in applying a waist restraint and leg irons. Dkt. # 33, att. 6, ¶¶ 7, 10.

Following the use of force incident, plaintiff was examined by Debra Allen, RN. She noticed no swelling to his head or face. Dkt. # 33, att. 7, ¶ 5. Plaintiff complained of pain to his left shoulder and back, but Nurse Allen saw no redness or swelling on his shoulder or back and noted no tenderness upon palpation. Id. Plaintiff also complained of pain in his ankles and left knee, but Nurse Allen saw no apparent fractures. Id. No treatment was necessary. Id., ¶ 6. A review of plaintiff's medical records indicate that he was not seen by medical staff until approximately three weeks following this examination. Id., ¶ 8.

Plaintiff was served with a Misbehavior Report as a result of the incident of April 21, 2008. He was charged with an attempted assault on an officer, disobeying a direct order, and interference with an employee. Dkt. # 33, att. 4, Exh. B.

Defendant McGrain stated that he was not involved in any inmate inspections on February 27, 2008 and has never sexually harassed any inmate. Dkt. # 3, att. 4, ¶ 19. Plaintiff's grievance was found to be without merit. Id.


Summary Judgment ...

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