SHAWN GREEN, 97-A-0801 Plaintiff, Pro Se. Auburn Correctional Facility Auburn, New York.
ROGER W. KINSEY, ESQ. Assistant Attorney General HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York Albany, New York, Counsel for Defendant.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this pro se prisoner civil rights action filed by Shawn Green ("Plaintiff") against Great Meadow Correctional Facility Corrections Officer Charles Blood ("Defendant") are (1) Defendant's second motion for summary judgment (Dkt. No. 161), (2) United States Magistrate Judge David E. Peebles' Report-Recommendation recommending that Defendant's motion be granted (Dkt. No. 168), and (3) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 171). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, Defendant's motion is granted, and Plaintiff's Third Amended Complaint is dismissed.
I. RELEVANT BACKGROUND
A. Relevant Procedural History and Claim
Plaintiff filed his Complaint in this action on April 2, 2007. (Dkt. No. 1.) On March 5, 2010, Plaintiff filed a Third Amended Complaint, which is the operative pleading in this action. (Dkt. No. 93.) Generally, construed with the utmost of liberality, Plaintiff's Third Amended Complaint alleges, in pertinent part, that, while he was incarcerated in keeplock confinement at Great Meadow Correctional Facility in Comstock, New York, Defendant Blood wrongfully denied him daily exercise during a third-day period between approximately October 16, 2006, and November 16, 2006, in violation of the Eighth Amendment. ( Id. ) Familiarity with the remaining procedural history of this action, and the remaining factual allegations supporting this Eighth Amendment claim, are assumed in this Decision and Order, which is intended primarily for review by the parties.
B. Parties' Briefing on Defendant's Second Motion for Summary Judgment
Generally, Defendant's second motion for summary judgment asserts the following three arguments: (1) Plaintiff has failed to adduce admissible evidence establishing, or even allege facts plausibly suggesting, the personal involvement of Defendant in the Eighth Amendment violation alleged, but rather suggests only his involvement in a denial of exercise on November 7, 2006, due to the fact that, at the time the keeplock recreation list was made on that date, Plaintiff was not inside his cell but was at the infirmary for his insulin shot; (2) Plaintiff has failed to adduce admissible evidence establishing, or even allege facts plausibly suggesting, the existence of either the objective or subjective elements of such an Eighth Amendment claim against Defendant; and (3) based on the current record, Defendant is protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 161, Attach. 2, at Points I through III.)
Generally, liberally construed, Plaintiff's opposition to Defendant's motion asserts the following three arguments: (1) a genuine dispute of material fact exists regarding whether Defendant was personally involved in the Eighth Amendment violation alleged, because the lack-of-personal-involvement doctrine relied on by Defendant applies only to supervisory officials, and Plaintiff has not alleged Defendant to be such a supervisory official; (2) a genuine dispute of material fact exists regarding whether Defendant was involved in, and/or was responsible for, Plaintiff's missing exercise during the entirety of his keeplock confinement in October and November of 2006, as evident from (a) Grievance Numbers XX-XXX-XX, XX-XXX-XX and XX-XXX-XX (which pertained to Defendant), and (b) the B-block log book entries during that period (which show that Plaintiff was not at the infirmary for his insulin shot but was inside his cell during the morning chow runs when the keeplock recreation lists were made); and (3) qualified immunity is inappropriate under the circumstances, because the right to meaningful exercise was clearly established during the time in question. (Dkt. No. 167, at Points I through III.)
C. Magistrate Judge Peebles Report-Recommendation
On February 25, 2013, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendant's motion be granted. (Dkt. No. 168.) Generally, in his Report-Recommendation, Magistrate Judge Peebles found as follows: (1) the current record shows Defendant's personal involvement in the denial of Plaintiff's recreation on, at most, one day (specifically, November 7, 2006); (2) the record contains no admissible evidence establishing the objective element of Plaintiff's Eighth Amendment claim against Defendant, because (a) the overwhelming weight of the record evidence (e.g., Grievance Nos. 41, 835-06 and XX-XXX-XX) does not support a claim that Plaintiff was denied recreation for 30 days but only for, at most, a week, which is a constitutionally insignificant period of time, (b) Defendant's justification for denying Plaintiff recreation on November 7, 2006 (i.e., that Plaintiff was at the infirmary when the recreation list was made) is supported by, and not contradicted by, the record, and (c) Plaintiff's declaration testimony that he overheard Defendant instruct another officer to deprive him of recreation is so wholly devoid of detail and uncorroborated by the record as to be incredible as a matter of law; (3) the record contains no admissible evidence establishing the subjective element of Plaintiff's Eighth Amendment claim against Defendant, because neither Plaintiff's Third Amended Complaint nor his response in opposition to Defendant's motion even alleges or argues that Plaintiff's health or safety was at risk due to the alleged deprivation or that Defendant knew of that risk; and (4) because adequate grounds existed on which to recommend the granting of Defendant's motion, no recommendation is needed regarding Defendant's qualified immunity argument. ( Id. at Part III.C.)
D. Plaintiff's Objections to the Report-Recommendation
On May 11, 2013, after being granted an extension of time in which to do so, Plaintiff submitted his Objections to the Report-Recommendation. (Dkt. No. 171.) Generally, liberally construed, Plaintiff's Objections argue that Magistrate Judge Peebles' findings are erroneous for the following five reasons: (1) Magistrate Judge Peebles incorrectly determined that Plaintiff was deprived of exercised for, at most, only one week, by (a) basing his determination on only Grievance Nos. 41, 835-06 and 41, 659-06, and Defendant's declaration, (b) failing to inspect the B-block log book entries during the 30-day period of Plaintiff's keeplock confinement, and (c) failing to acknowledge that Grievance No. 41, 500-06 (dated October 25, 2006) was in fact related to Defendant even though it did not name him; (2) Magistrate Judge Peebles incorrectly determined that the B-block log book entries do not reveal any evidence that Plaintiff was inside his cell on the morning of November 7, 2006, when in fact the entry for that date shows that Plaintiff was taken to the infirmary 13 minutes after the recreation list was made; (3) because Defendant did not adduce evidence that Plaintiff attended keeplock exercise during the 30-day period in question, or had out-of-cell or in-cell opportunities for exercise available, Magistrate Judge Peebles could not have found in Defendant's favor with regard to the objective element of an Eighth Amendment claim; (4) a genuine dispute of material fact exists with regard to the subjective element of an Eighth Amendment claim based on the evidence that Defendant (a) intentionally did not wear his name tag while on ...