LATEE ROBINSON Dannemora, New York, Plaintiff Pro Se.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, COLLEEN D. GALLIGAN, ESQ., Assistant Attorney General, Albany, New York, Attorney for Defendants.
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff pro se Latee Robinson ("Robinson"), 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, seven named DOCCS employees and twelve "John Doe" defendants,  violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 59. Robinson opposes this motion. Dkt. No. 66. For the following reasons, it is recommended that defendants' motion be granted.
The specific facts of the case are set forth in the Report-Recommendation dated February 10, 2012, familiarity with which is assumed. See Dkt. No. 41. The Court dismissed all of Robinson's claims except for the following: (1) excessive force against defendants Bessette and Chase; (2) failure to protect against defendant Rowe; and (3) medical indifference against defendants Thompson, Garneau, Sturgen, and Atkinson. Id. at 10-15; Dkt. No. 44 (Decision & Order). The facts discussed will be those relevant to the claims herein remaining and are related in the light most favorable to Robinson as the non-moving party. See subsection II(A) infra. Those claims occurred during Robinson's incarceration at Upstate Correctional Facility ("Upstate").
A. August 1, 2008 Use of Force Incident
On August 1, 2008, correction officers ordered Robinson to voluntarily leave his cell or he would be forcibly extracted from the cell. Robinson Dep. (Dkt. No. 59-3) at 12:7-16. Robinson complied and voluntarily left his cell. Id. at 13:4-14:13. Defendant Bessette, a correction officer, authored a misbehavior report against Robinson, stating that defendant Sergeant Chase gave Robinson a direct order, Robinson failed to comply with the order, and force was employed. Dkt. No. 3-1 at 122. Specifically, after exiting the cell and pat-frisked, Robinson turned towards Bessette and non-parties Moore and Willett, also correction officers, in an aggressive manner. Dkt. No. 59-4 at 1. The officers did not give Robinson directions to turn around. Id. at 6. Moore placed her left hand on Robinson's right shoulder. Id. at 1, 7. Bessette took Robinson's left arm with both hands. Id. at 1, 9. Willett placed both his hands on Robinson's shoulders. Id. at 1, 8. All three officers together forced Robinson against the wall. Id. at 1, 7-9.
After this incident, Robinson was examined and determined to have a steady gait with no visible injuries. Dkt. No. 59-4 at 2-3, 10. Photos taken after the incident show that Robinson was standing and posing without difficulty. Id. at 12-18. A video recording of the incident shows that Robinson left a cell and was pat-frisked against a wall. Video Recording - Ex. H (Dkt. No. 65) at 19:03. Robinson was handcuffed, escorted down the prison block, and appeared to walk without difficulty. Id. at 19:06:40. There is nothing in the video indicating that Robinson was injured from the pat-frisk or handcuffing. Non-party Sheahan, deputy superintendent, reviewed the use of force reports and found that the force used was consistent with departmental rules. Id. at 19. During his deposition for this action, Robinson testified that no excessive force was used against him on August 1, 2008. Robinson Dep. at 14:14-24, 24:14-16.
B. August 4, 2008 Use of Force Incident
On August 4, 2008, Robinson was housed in the infirmary for threatening to commit suicide, a threat that Robinson later testified to be a lie. Robinson Dep. at 24:24-25:23. It was the middle of the night, Robinson was hiding from the bright light in the room when he was pulled off the bed. Robinson Dep. at 27:20-28:4; Compl. at 33. Unidentified correction officers stuffed their gloved hands in Robinson's mouth then physically and sexually assaulted Robinson while Robinson was on the floor. Robinson Dep. at 28:23-29:3, 30:23-31:2-10; Compl. at 33.
Robinson contends that defendant Rowe, a sergeant, observed these events but failed to intervene. Compl. at 33-34; Robinson Dep. at 30:7-11. Robinson charged against the officers, arrived at a window, and observed Rowe smiling and closing the door. Robinson Dep. at 30:11-15; 33:4-8, 36:1-6. Robinson did not see Rowe during the attack but argued since Rowe was a sergeant and watch commander, Rowe allowed the officers to enter the room and witnessed the assault. Id. at 36:9-14. Robinson could only name Rowe as the defendant who was present. Robinson Dep. at 46:5-15. Rowe attested he never witnessed an attack on Robinson at any time and there was never a use of force report filed documenting the alleged attack. Rowe Decl. (Dkt. No. 59-13) ¶¶ 6, 9.
An ambulatory health record entry dated August 4, 2008 and authored by defendant Sturgen, a nurse, states that Robinson was standing at a cell door, talking to an inmate in Room 10. Dkt. No. 60 at 28. Sturgen offered Robinson sick-call but Robinson refused and made no complaints. Id . Robinson contends that he never saw medical personnel after the assault. Robinson Dep. at 37:4-9. As a result, Robinson contends he bled from his anal and back areas. Id. at 36:24-37:1, 37:10-13.
On August 5, 2008, Robinson was seen at sick-call and provided Ibuprofen for pain relief. Dkt. No. 60 at 27. On August 6, 2008, Robinson denied sick-call by remaining in bed. Id . On August 7, 2008, defendant Atkinson, a nurse, evaluated Robinson and determined that Robinson was fully weight-bearing, upright with a normal gait, and did not exhibit distress. Id . An inmate injury report dated August 7, 2008 and authored by Atkinson indicates that Robinson had a steady gait, exhibited a range of motion and strength in all extremities, teeth as well as mucus membranes in the mouth were intact, a two-centimeter in length by point-two millimeter in width open area on his mid-back with no drainage or bleeding, and no other marks noted. Dkt. No. 59-6. Robinson was advised to keep the area clean and dry. Id.
On August 14, 2008, defendant Garneau, a nurse, discussed Robinson's allegations of sexual assault. Dkt. Nos. 3-3 at 2, 60 at 24. Robinson was brought to the holding pen to be interviewed by non-party Duval, a sergeant, about the incident. Garneau Decl. (Dkt. No. 59-12) ¶ 9. Garneau notified non-party Dr. E. Weissman about Robinson's assault allegations and did not receive any orders. Id . ¶¶ 10, 20; Dkt. Nos. 3-3 at 2, 60 at 24. Medical records also show that on August 21, 2008, Robinson again claimed that he was sexually assaulted. Dkt. Nos. 3-3 at 4, 60 at 22.
Robinson testified that he was uncertain as to which defendants actually denied him care. Robinson Dep. at 42:1-11. Robinson does not recall how he came up with named defendants Thompson, Garneau, Sturgen, and Atkinson. Id. at 44:14-45:3. Nevertheless, Robinson testified that Sturgen and Atkinson denied him medical attention and Garneau attempted to extract Robinson out of the cell and fabricated allegations against Robinson. Id. at 45:4-46:1.
Thompson attested that as a corrections officer, he is not authorized to provide medical services to inmates and has never provided any services to Robinson. Thompson Decl. (Dkt. No. 59-15) ¶ 5. Thompson was unaware that Robinson was assaulted at Upstate or in 2008 and maintains he was never aware of Robinson requiring medical care then denying such care. Id . ¶¶ 6-7. Robinson remembers the name "Thompson" but does not recall the face associated with it. Robinson Dep. at 51:24-25. Robinson is uncertain as to whether Thompson is an officer or a medical personnel. Id. at 52:1-4. Robinson contends that Thompson denied him medical care. Id. at 54:1-3.
Garneau maintains that she has no personal knowledge of Robinson being assaulted in the infirmary area and never witnessed any assault on Robinson. Garneau Decl. ¶¶ 2, 4-5. Robinson explained that Garneau was involved with the August 1 incident in attempting to extract him from his cell. Robinson Dep. at 49:5-17.
Sturgen attested that as a nurse working at Upstate in August 2008, she has no personal knowledge of Robinson being assaulted in the infirmary area at Upstate at the time. Sturgen Decl. (Dkt. No. 59-14) ¶¶ 2, 4. Sturgen never witnessed any assault on Robinson. Id . ¶ 5. Sturgen confirmed that she offered Robinson sick-call on August 4, 2008 but Robinson refused and presented no complaints. Id . ¶ 14. Robinson contends that Sturgen was a male nurse who was on duty to provide him medical care but failed to do so. Robinson Dep. at 42:12-43:1, 50:25-51:2.
Atkinson attested that she had no personal knowledge of Robinson being assaulted in the infirmary area nor did she witness any assault on Robinson. Atkinson Decl. (Dkt. No. 59-11) ¶¶ 2, 4-5. Atkinson confirmed that she saw Robinson on August 7, 2008 during emergency sick-call for the August 4, 2008 incident and Robinson complained of a headache and back pain. Id . ¶¶ 12, 15. Atkinson found Robinson to be alert and oriented without distress or nausea. Id . ¶¶ 12-13. Robinson was issued Ibuprofen for pain relief and scheduled to see a physician's assistant on August 12, 2008. Id . ¶ 14.
According to Atkinson, on August 8, 2008, Robinson requested sick-call but refused to attend as he was not at the cell door and was lying on the top bunk. Atkinson Decl. ¶ 22. On August 12, 2008, Robinson was seen at sick-call requesting a doctor evaluation for chronic aches. Id . ¶ 23. On August 14, 2008, Robinson was seen at sick-call and requested Ultram. Id . ¶ 24. On August 18, 2008, Robinson was seen at sick-call requesting a physician assistant's evaluation. Id . ¶ 25. Robinson requested Ibuprofen and did not appear to be in distress. Id . ¶ 26. According to Atkinson, Robinson's discomfort did not affect his ability to perform daily activities independently. Id . ¶ 27. Robinson was issued Ibuprofen and Ducolax for constipation and advised to return to sick-call as necessary. Id . ¶ 28.
Atkinson's last contact with Robinson was on August 22, 2008, when Atkinson carried out an outgoing draft review for Robinson's transfer to Five Points Correctional Facility ("Five Points"). Atkinson Decl. ¶ 34. Robinson testified that he was unfamiliar with Atkinson and believes that Atkinson was a nurse. Robinson Dep. at 43:17-21. Robinson named Atkinson because she was on the "roster list" on August 4, 2008. Id. at 47:6-9. Robinson ...