WILLIAM ROUNDS Plaintiff pro se North Syracuse, New York,
ERIC T. SCHNEIDERMAN Attorney General for the State of New York KEVIN P. HICKEY, ESQ., Assistant Attorney General, Counsel for Defendant Fischer The Capitol Albany, New York,
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, Magistrate Judge.
This pro se civil rights action commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). Plaintiff William Rounds has asserted an Eighth Amendment claim for excessive force against Defendant Thompson, a Corrections Officer at the Oneida Correctional Facility ("Oneida") during the time period relevant to the claim. (Dkt. No. 1.) Plaintiff has alleged a claim for negligent hiring, training, discipline, and retention of Thompson against Brian Fischer ("Fischer"), Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"). Id. Defendant Fischer filed an Answer to Plaintiff's Complaint (Dkt. No. 21) and now moves for judgment on the pleadings in his favor pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 25.) Plaintiff has not filed papers opposing Fischer's motion. For the reasons that follow, I recommend that Defendant Fischer's motion be granted.
A. Defendant Thompson
In March of 2011, Plaintiff was an inmate confined at Oneida. (Dkt. No. 1 at ¶ 1.) On March 28, 2011, Plaintiff was working in Cook-Chill, a food service program owned and operated by DOCCS. Id. at ¶ 8. Defendant Corrections Officer Thompson was assigned to supervise the area in which Plaintiff was working. Id. at ¶ 9.
According to Plaintiff, while he was performing his duties, Thompson began swearing at him and ordered him into a nearby bathroom. Id. at ¶ 10. Once in the bathroom, Thompson called Plaintiff "a piece of shit" and accused him of being a lazy worker. Id. at ¶ 11. When Plaintiff denied being lazy, Thompson became infuriated and pushed Plaintiff hard against a wall, causing Plaintiff to fall to the floor in pain. Id. at ¶¶ 12-13. Thompson then grabbed Plaintiff by the throat and began choking him, continuing as Plaintiff gasped for air and neared unconsciousness. Id. at ¶¶ 14-17, 19. Thompson is alleged to have told Plaintiff while he was choking him that "this is what I used to do when I was 21 [yrs. old] working at Sing Sing." Id. at ¶ 17. Upon releasing the choke hold, Thompson forced Plaintiff to stand, grabbed the back of his neck, and smashed his face into the wall. Id. at ¶¶ 22-24.
After being taken to the Oneida infirmary where Plaintiff was treated for what he has described as injuries to his neck, face, and head, he was placed in punitive segregation pending a disciplinary proceeding on a misbehavior report filed by Thompson claiming that Plaintiff had assaulted him. Id. at ¶¶ 29-30, 36. According to Plaintiff, the charges in the misbehavior report were dismissed several days later on the grounds that they were unsubstantiated and not credible, and an internal investigation was conducted concerning the force used by Thompson. Id. at ¶¶ 31-32. Plaintiff has alleged upon information and belief that Thompson had an extensive history of assaulting inmates but was nonetheless allowed by Defendant Fischer to remain employed during the investigation. Id. at ¶ 33.
In July of 2011, Plaintiff attended an arbitration hearing held for the purpose of determining whether Thompson had used excessive force. Id. at ¶ 33. Plaintiff believes that Thompson's employment with DOCCS was terminated following the arbitration hearing. Id. at ¶ 35.
B. Defendant Fischer
Plaintiff has alleged that Defendant Fischer, as DOCCS Commissioner, is responsible for operating a number of New York correctional facilities, and through his senior officials, promulgates and implements policies, including those with respect to the use, reporting and investigation of force by uniformed staff. Id. at ¶ 7. Plaintiff claims that Fischer's senior officials at DOCCS are aware of and tolerate certain practices by subordinate employees in correctional facilities, including some which are inconsistent with formal policy. Id. Because these practices are "wide-spread, long-standing, and deeply embedded in the culture of DOCCS, " they constitute unwritten policies or customs. Id. Plaintiff has also alleged that Fischer is responsible for the "appointment, training, supervision, and conduct of all DOCCS personnel, including Thompson. Id.
Plaintiff contends that Thompson was unfit and incompetent for his position, and that Fischer knew or should have known through the exercise of reasonable diligence that Thompson was potentially dangerous. Id. at ¶¶ 44-45. Plaintiff has alleged upon information and belief that Fischer was negligent in ...