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Lainfiesta v. Livermore

United States District Court, Second Circuit

May 9, 2013

LIVERMORE, Block Sergeant, Great Meadow Correctional Facility; BERNARD WHITTIER, Correction Officer, Great Meadow Correctional Facility, Defendants

SHAWN I. LAINFIESTA, Plaintiff Pro Se, 95-A-2531, Eastern New York Correctional Facility, Napanoch, New York.

JAMES SEAMAN, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, The Capitol Albany, New York, Attorney for Defendants.


CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Shawn I. Lainfiesta ("Lainfiesta"), an inmate currently in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, two DOCCS employees, violated his constitutional rights under the Eighth and Fourteenth Amendments. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. Rule 56. Dkt. No. 28. Lainfiesta opposes the motion. Dkt. No. 33. For the reasons which follow, it is recommended that defendants' motion be granted in part and denied in part.

I. Background

The facts are related herein in the light most favorable to Lainfiesta as the non-moving party. See subsection II(A) infra. At all relevant times, Lainfiesta was an inmate at Great Meadow Correctional Facility ("Great Meadow").

A. Excessive Force

On December 5, 2010, defendant Sergeant Livermore stopped Lainfiesta for a random pat-frisk while Lainfiesta was walking to the messhall for breakfast.[3] Compl. ¶ 9; Lainfiesta Dep. (Dkt. No. 28-2) at 45:4-18, 62:8-16. Livermore then took Lainfiesta to an interview room. Compl. ¶ 9; Lainfiesta Dep. at 88:85-106:8. As soon as Lainfiesta was escorted to the interview room, Lainfiesta's face was shoved against a wall while his handcuffs were removed. Lainfiesta Dep. at 45:24-46:4. Lainfiesta's hands were dragged and placed above his head. Id. at 46:4-6. Livermore proceeded to punch Lainfiesta both in the back and the sides of the upper body, which Lainfiesta estimated to have lasted one to two minutes, consisting of eight to ten punches. Id. at 46:11-17, 88:5-89:9, 106:18-21. Lainfiesta then heard a voice ordering him to remain on the wall and another officer instructed him to remove his clothes. Id. at 46:17-25.

During this time, Livermore told Lainfiesta that he should be more cooperative or he would be regularly pat-frisked. Lainfiesta Dep. at 47:7-10. Livermore asked Lainfiesta if Lainfiesta understood what Livermore meant, to which Lainfiesta replied, "I heard what you said." Id. at 47:14-15. Livermore responded, "I said did you understand what I said?" Id. at 47:19-20. Lainfiesta repeated his previous answer. Id. at 47:21-22. After this verbal exchange, Lainfiesta felt more punches in the back and on the sides of his upper body, including the spinal column. Id. at 47:21-48:23. According to Lainfiesta, this second round of punches involved Whittier and the other correction officer, lasted slightly longer than the first round, and consisted of a dozen punches. Id. at 99:16-100:5, 105:18-24.

Lainfiesta was again told to remove his clothes and inadvertently dropped a sock on the floor. Lainfiesta Dep. at 48:24-49:3-5. A third round of punches ensued involving the two officers, which included a blow to the head. Id. at 50:2-15, 105:18-24. An officer began to choke Lainfiesta, stating, "one more act like that and [you'll] would be heading to the hospital...." Id. at 50:16-20, 106:6-8. Lainfiesta testified that the third round of punches lasted slightly longer than the second round and the overall experience was more violent. Id. at 106:3-4.

After the assault, Lainfiesta was ordered to get dressed. Lainfiesta Dep. at 50:22. Lainfiesta asked Livermore for medical attention, to which Livermore replied, "what for[?]" Id. at 50:23-51:2. Lainfiesta said that he was injured and Livermore replied that "nothing had occurred that would warrant medical attention." Id. at 51:2-6; Compl. ¶ 10. Lainfiesta testified that he did not know Livermore or Whittier prior to the December 5 assault. Lainfiesta Dep. at 62:17-23, 63:5-9.

Defendants provide a competing account of the incident. According to Whittier, he was conducting a routine random pat-frisk on Lainfiesta when he felt something in the groin area of Lainfiesta's pants. Whittier Decl. (Dkt. No. 28-11) ¶¶ 3, 5; Dkt. No. 28-12. Whittier informed Livermore of what happened and Lainfiesta was escorted to an interview room.[4] Whittier Decl. ¶¶ 5-6; Livermore Decl. (Dkt. No. 28-8) ¶ 8; Dkt. Nos. 28-9, 28-12. In the interview room, Whittier conducted a more thorough frisk of Lainfiesta with Livermore supervising and non-party Correction Officer Saunders acting as back up in the event Lainfiesta carried a concealed weapon. Livermore Decl. ¶¶ 8-9; Saunders Decl. ¶ 8. Lainfiesta was ordered to remove his pants. Livermore Decl. ¶ 10; Dkt. Nos. 28-9, 28-12. At this point, defendants discovered that Lainfiesta had sewn pockets into his thermal long johns. Livermore Decl. ¶ 10; Whittier Decl. ¶ 10; Dkt. Nos. 28-9, 28-12. Lainfiesta refused to explain to defendants why he had the sewn pockets. Dkt. No. 28-12. Lainfiesta's undershorts were not removed during the frisk but his groin and buttocks areas were scanned using a hand scanner. Livermore Decl. ¶ 11; Whittier Decl. ¶¶ 7, 9; Dkt. No. 28-9. No contraband was found on Lainfiesta. Livermore Decl. ¶ 11; Whittier Decl. ¶¶ 10-11.

Whittier completed the frisk, confiscated the thermal underwear, and ordered Lainfiesta to get dressed. Livermore Decl. ¶ 11. Whittier authored a misbehavior report, charging Lainfiesta with altering an item and altering personal property without authorization. Id . ¶ 11; Whittier Decl. ¶ 16. By a grievance dated December 6, 2010, Lainfiesta complained about the excessive force incident. Dkt. No. 33 at 24. Non-party Lieutenant Goodman investigated and interviewed Lainfiesta about the grievance. Dkt. No. 28-10. Goodman concluded that the grievance was filed in retaliation for a misbehavior report submitted by Whittier against Lainfiesta and that the staff acted within the scope of their responsibilities. Id . According to Livermore and Whittier, they did not know Lainfiesta prior to December 5, 2010. Livermore Decl. (Dkt. No. 28-8) ¶ 2; Whittier Decl. ¶ 4.

B. Medical Indifference

After the assault, Lainfiesta requested medical attention. Compl. ¶ 10. Based on his research using books available in prison, Lainfiesta believes that the assault caused him to suffer from a bruised kidney, a bruised lower spinal column, a fractured or broken rib, a sore throat from being choked, back pain, and a headache. Id . ¶ 10; Lainfiesta Dep. at 89:20-90:7, 155:6-158:7. Lainfiesta believed that he had a kidney injury because at the time, his feces were slightly green in color. Lainfiesta Dep. at 155:6-13.

Lainfiesta claims that Livermore instructed officers who worked on Lainfiesta's cell-block to prevent Lainfiesta from going to sick-call. Compl. ¶ 10. Lainfiesta repeatedly filled out sick call request slips and submitted them in a drop box or asked other people to submit them for him when he was in keeplock. Lainfiesta Dep. at 53:5-10. Around a week after the assault incident, on December 13, 2010, Goodman interviewed and sent Lainfiesta to see medical personnel for medical care.[5] Id. at 54:5-55:4. Lainfiesta heard medical personnel advising an unnamed sergeant, who escorted Lainfiesta to the clinic, that "[Lainfiesta] is injured." Compl. ¶ 11. Despite that statement, Lainfiesta was neither treated for his injuries nor permitted to visit medical personnel through the sick-call request procedure. Id . Lainfiesta maintains the only time he visited medical personnel to treat his assault-related injuries was on December 13, 2010. Lainfiesta Resp. to Defs.' Statement of Material Facts (Dkt. No. 33) ¶ 4.

Non-party Nesmith, a physician's assistant at Great Meadow, authored an inmate injury report on December 13, 2010, which notes Lainfiesta's use of force allegations and claimed injury to the right side of the torso. Dkt. No. 29; Nesmith Decl. (Dkt. No. 28-7) ¶ 1. Nesmith attested that Lainfiesta did not have ecchymosis, [6] erythema, [7] any tenderness to the tissue upon palpation, [8] or positive findings indicating an injury. Nesmith Decl. ¶¶ 13-15. As a precaution, Nesmith ordered an X-ray to be conducted. Id . ¶16. Nesmith conducted a "wet read" of the X-ray to determine if there were any medical issues he could promptly address.[9] Id . ¶ 17. Nesmith concluded that the X-ray was negative for any fracture, which was confirmed by the radiologist's reading.[10] Lainfiesta's Eastern New York Correctional Facility ("Eastern N.Y.") medical records show no other evidence relating to the December 5 assault incident. See Dkt. No. 29-1.

Because Nesmith did not find that Lainfiesta suffered any injuries, Nesmith did not prescribe any treatment. Nesmith Decl. ¶ 19. Had Lainfiesta been hit in his lower back and kidney area approximately ten times during each of three rounds of punches, Nesmith would have seen ecchymosis or redness eight days after the assault. Id . ¶¶ 20-21.

According to Livermore, security staff do not carry keys to medical drop boxes. Livermore Decl. ¶ 19. Instead, the midnight nursing staff unlock and open the boxes and retrieve sick-call slips at that time. Id .; Nesmith Decl. ¶ 24. Inmates are typically seen by a nurse the following day. Nesmith Decl. ¶ 24. Inmates can tell officers on their housing units about their medical problems if they need to be seen more quickly. Id . ¶ 25. Further, there are nurses on each housing block several times a day and inmates routinely tell those nurses about their medical problems. Livermore Decl. ¶ 18.

By a grievance dated December 10, 2010, Lainfiesta complained of denied medical care for assault-related injuries. Dkt. No. 33 at 25. Lainfiesta again complained of denied medical care by a grievance dated December 27, 2010. Id. at 26.

C. Keep-Lock Confinement

Livermore instructed Whittier to place Lainfiesta in keeplock confinement.[11] Compl. ¶ 10. Lainfiesta claims the pretext for placing him in keeplock was that Lainfiesta wore thermal long johns. Id . Lainfiesta explained he had patches in the knee areas of his long johns because there were holes there, which made it difficult to keep warm during the winter. Lainfiesta Dep. at 51:10-13, 121:21-122:6. Defendants explained that Lainfiesta was ordered to be placed under keeplock supervision because Lainfiesta violated prison rules against altering items and tampering with property as a way to conceal contraband. Livermore Decl. ¶ 13; Whittier Decl. ¶¶ 12, 14.

Lainfiesta testified that he did not attend the hearing related to his keeplock confinement because he thought his presence would not make a difference to the outcome. Lainfiesta Dep. at 136:12-22. ...

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