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Sowell v. Weed

United States District Court, Second Circuit

July 1, 2013



MICHAEL A. TELESCA, District Judge.

I. Introduction

Victor Sowell, an inmate in the custody of New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action pro se pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his constitutional rights in connection with (1) a disciplinary hearing finding him guilty on March 8, 2006, of impersonation, possession and distribution of a departmental document without authorization, and unauthorized correspondence with a parolee; and (2) a use-of-force ("UOF") incident on June 18, 2006, which resulted in Sowell sustaining significant injuries and being found guilty of assaulting several correction officers.

II. Background

A. The Parties

At all relevant times, Correction Officer Paul H. Weed ("CO Weed"), Timothy Harris ("CO Harris"), and Daniel Flynn ("CO Flynn") were employed at Southport and were involved in the June 18, 2006 UOF incident. Captain M. Sheahan ("Capt. Sheahan") presided over the disciplinary hearing dealing with the assault charges filed against Sowell after the UOF incident.

Civilian Hearing Officer James Esgrow ("CHO Esgrow") was assigned to Southport to conduct the disciplinary hearing involving the fraud charges. Senior Investigator Frank Bigit ("Inv. Bigit") of DOCCS' Office of the Inspector General conducted the investigation into the fraud charges.

Donald Selsky, DOCCS' Director of Inmate Discipline and Special Housing Units ("Director Selsky") reviewed both disciplinary hearings.

B. Factual Summary

The following facts-viewed in the light most favorable to Plaintiff-are gleaned from the pleadings and from the parties' submissions in conjunction with Defendants' summary judgment motion. See, e.g., Lipton v. Nature Co. , 71 F.3d 464, 471 (2d Cir. 1995) ("For the purposes of a summary judgment motion, courts are required to view the facts in the light most favorable to the parties opposing the motion and to suspend judgments on credibility.").

1. The 2006 Disciplinary Hearing on Charges of Fraud[1]

On March 24, 2003, the Inspector General's Office ("IGO") received a complaint stating that a correction officer employed at Great Meadow Correctional Facility had found an unexplained charge on one of his credit accounts. Other correction officers also began having difficulties in refinancing mortgages and obtaining loans.

Inv. Bigit was assigned to the matter on May 1, 2003, and over the course of two years, he conducted an investigation which revealed that Sowell had obtained a mistakenly unredacted UOF report through a March 2000 Freedom of Information Law request. The report pertained to a UOF incident on May 15, 1999, which Sowell was challenging, and report contained the Social Security numbers of the correction officers who had been involved. With the assistance of a confidential informant, Inv. Bigit determined that Sowell had sent this information to a parolee, Shammell Ayatollah ("Ayatollah"), [2] with instructions on how to obtain fraudulent credit cards in the names of the officers whose personal information was contained in the report. Once Inv. Bigit completed his investigation, he filed a misbehavior report on October 7, 2005, charging Sowell with violations of Rule 111.10 (Impersonation), Rule 113.26 (Possession of Employee Personal Information); Rule 116.12 (Distribution of a Facility Document); and Rule 180.11 (Corresponding with a Parolee).

A disciplinary hearing was held which resulted in a finding of guilty on all charges. However, this hearing was reversed by CHO Esgrow because CO Hibbard, the employee legal assistant assigned to Sowell, failed to provide adequate assistance. CHO Esgrow assigned Sergeant McKehan ("Sgt. McKehan"), from whom Sowell refused assistance. Nevertheless, Sgt. McKehan provided Sowell with the non-confidential information he had requested from his first legal assistant but not received. Throughout the hearing there were multiple adjournments to allow for Sowell to receive additional legal assistance.

In a disposition dated March 8, 2006, CHO Esgrow found Sowell guilty of all the charges set forth in the misbehavior report and imposed a penalty of 18 months in SHU. The violation of Rule 113.26 did not result in any additional SHU time or loss of privileges. On administrative appeal, Director Selsky modified the disposition by dismissing the conviction for Rule 113.26, because Sowell had not had adequate notice of it. The SHU sentence was undisturbed.

Sowell filed a petition pursuant to Article 78 of New York's Civil Practice Law and Rules, which was denied on the merits by the Appellate Division, Third Department, of New York State Supreme Court. Matter of Sowell v. Selsky, 43 A.D.3d 1226, 1226, 2007 N.Y. Slip. Op. 06606 (3d Dep't 2007) (citations omitted).

2. The June 18, 2006 Use-Of-Force Incident

On the morning of Sunday, June 18, 2006, Sowell headed out of his cell to go to recreation. As per the usual procedure, his hands were cuffed in the front of his body. When he stopped for a security wanding and pat-frisk, Sowell placed his hands on the wall to be frisked. CO Weed conducted the pat-frisk and, according to Sowell, "ran his hand over [Sowell's] private part and he squeezed[.]" See VS1.38:9-14; 40:1-8.[3] Although he knew he was not supposed to turn away from the wall or take his hands off the wall during the wanding or pat-frisk, Sowell turned to right, bringing his head and shoulder away from the wall. Sowell said, "[W]hat are you doing, man, what are you doing[?]" Id.

CO Weed "jumped back" and Sowell tried to put his hands back on the wall. However, CO Weed "rushed [him] and grabbed [him] around the waist[.]" Sowell stated that he "didn't resist at all" and "fell to the ground." Sowell related that one of the officers activated an alarm, bringing numerous other officers to the scene. Sowell testified that they were "was allover [him]" while he was face-down on the floor handcuffed. The officers "smashed [his] face to the ground" and were "doing all kinds of stuff to [him]." Sowell testified that CO Weed was "sitting on his butt" with "his legs out" and he "had [Sowell's] hand. VS1.40:16-25; 41:1-5. Sowell was "able to see [Weed] sitting there holding [his] hands, " and "breaking [his] fingers, dislocating [his] fingers[.]" CO Weed tried to stop Sowell from yelling by "smash[ing] [his] face to the ground, " almost "choking [him][.]" VS1.42:21-25; 43:1-3. Sowell explained that CO Weed was "[s]napping [his finger] one by one, pulling them, trying to close [his] hand, pulling it back and snapping." Specifically, CO Weed was "[p]ulling them backwards, almost like in an upwards and backwards direction[.]". CO Weed started with Sowell's pointer (index) finger. Throughout the whole incident, Sowell was screaming, "He is breaking my fingers." VS1.58:11-23.

Sowell stated that "[s]omebody had their knee on [his] face or elbow or arm on [his] face[.]" With regard to CO Harris, Sowell testified, "Harris hit me in the back of the head, because I seen him behind me, right, and I see he was like punching me, like this, like trying to hide himself from punching me in my face." VS1.51:4-9; 55:1-8 (testifying that CO Harris hit him in the back of the head with a baton); VS1.53:24-25; 54:1-4 ("I was hit in the back of my head. Hit in the side of my face, my ear, everywhere, kicked in the back, everywhere, ribs."). To keep Sowell from yelling and screaming, the officers "smashed [his] face down and he continued doing it while they had [his] face smashed down."

Two of Sowell's fellow inmates on the gallery, Michael Ramirez ("Ramirez") and Alexander Screahben ("Screahben"), were in cells near the location of the incident. Because he was a porter, Ramirez had a mirror, which he stuck outside his cell once he heard Sowell screaming. Ramirez testified that he only saw "glimpses of [Sowell's] body parts, because there was so many C.O.s on him." MR.32.[4] Ramirez testified that he saw the correction officer searching Sowell in the genital area and he said, "[H]ey, what are you doing?" MR.13. At that point, "the other officers just brang [sic] him down." MR.14. Ramirez could see "Sowell on the floor, and he was screaming... that his fingers was broke." MR.18. According to Ramirez, Sowell said this "quite a few times". Sowell was "[v]ery loud" and "[e]verybody heard him." MR.18, 23-24. Upon hearing Sowell crying out that his fingers were being broken, all the other inmates started screaming, "[L]eave him alone[!]" MR.19. Ramirez estimated that the incident lasted about five minutes.

Screahben did not see the incident, but was able to hear it. AS.11. He heard someone say, "What are you doing?'" This was followed by "a lot rumbling" and the person started "screaming[, ]" "Yo, you breaking my finger.'" AS.11, 13-15. Screahben said that the person was "real loud, especially because he was crying[, ].... saying, They broke my fingers. They broke my fingers.' And he was bawling." AS.14-15, 22, 23. Screahben estimated that the incident lasted about four minutes. AS.18.

After the incident, the correction officers hauled Sowell into the shower area. CO Weed issued misbehavior report with regard to the events from the pat-frisk to placing Sowell in the shower, charging him with 106.10 (refusing a direct order); 115.10 (refusing frisk or search procedures); 102.10 (threats); 107.10 (interference with employee); 104.13 (conduct which disturbs order of facility); and 100.11 (assault on staff).

Sowell stated that when he "got in the shower, all of my fingers were pointed back this way and pointing to the side[, ]" VS1.56:14-25, so he started trying to pop them back into place. CO Robinson, who was watching Sowell, observed him doing this and gave him a direct order to stop, which Sowell ignored. Sgt. McKeon then came and talked to Sowell for a few minutes. Then, according to CO Robinson's misbehavior report, threw himself to the floor, hitting the back of his head and rolling around "violently rolling back and forth banging his hands, head and feet on and against the shower floor and shower ledge." Both CO Robinson and Sgt. McKean ordered him to stop, and after about 30 seconds, Sowell complied. CO Robinson wrote up a misbehavior report charging Sowell with violating Rule 106.10 (Refusing a Direct Order) and 123.10 (An Inmate Shall Not Inflict or Attempt to Inflict Bodily Harm Upon Himself).

Facility nurse Karen Weaver ("Nurse Weaver") examined Sowell in the shower and saw that his second through fifth fingers (index through pinkie) were "grossly deformed" and he had a quarter-sized hematoma (black and blue mark) on the back of his head, which grew to three and one-half inches in size. KW.23-24. His left pupil was sluggish, and the right pupil was within normal limits. KW.25.

Plaintiff was transported to the Arnot-Ogden Medical Center ("AOMC") where he was treated by orthopedic surgeon, Mark Gibson, M.D. ("Dr. Gibson"). Sowell had "pretty significant swelling" around the fingers of his left hand, consistent with dislocations of those digits. X-rays confirmed that he had a small avulsion fracture on his fourth (ring) finger along with a dislocation of that finger. The main injury appeared to have been sustained by the third and fourth digits. Because of the difficult nature of the reduction, Dr. Gibson injected an anesthetic before moving the joint back into place. Following the reduction, Dr. Gibson "buddytaped" the third and fourth fingers together and instructed Plaintiff on the importance of beginning a passive and active range of motion program so that he would not lose motion at the proximal interphalangeal joints of the affected fingers. Plaintiff was discharged from AOMC and was seen in follow-up by Dr. Gibson on several occasions.[5]

Captain Michael Sheahan ("Capt. Sheahan") presided over a Tier III hearing on July 4-5, 2006, based on CO Weed's misbehavior report. Sowell was found guilty of all charges, although on the disposition sheet, Capt. Sheahan indicated that he found Sowell guilty of violating Rule 104.11 (Violent Conduct) instead of Rule 104.13, which had been charged in the misbehavior report. Sowell was sentenced to 12 months (6 months suspended and 6 months deferred) in the Special Housing Unit, to begin on April 27, 2007.

On August 25, 2006, Director Selsky modified the hearing disposition to the extent that the conviction of Rule 104.11 was dismissed because that charge had not been listed on the misbehavior report. There was no change in penalties. See Defs' Ex. W.

A Tier II hearing was held on July 17, 2006, based upon CO Robinson's misbehavior report charging Sowell with refusing a direct order while he was waiting in the shower area after the UOF incident, and with inflicting bodily harm upon himself. Lieutenant Donahue, the hearing officer, found Sowell guilty of refusing a direct order and not guilty of self-inflicted bodily harm, and sentenced him to 25 days of keeplock. On administrative appeal, Captain Sullivan reversed the decision in a memorandum dated July 20, 2006. This disciplinary hearing is not at issue in the present lawsuit.

Sowell commenced an Article 78 proceeding in New York Supreme Court, Albany County on October 3, 2006, challenging both hearings stemming from the UOF incident. In a Decision and Order dated April 21, 2008, Associate Justice Judith A. Hard denied Sowell's petition on the merits.

This timely § 1983 action followed. Pro bono counsel was appointed to assist Sowell, and extensive discovery was conducted. Presently before the Court is a Motion for Summary Judgment (Dkt #169) pursuant to Federal Rule of Civil Procedure ("F.R.C.P.") 56(c) by defendants Timothy Harris, Daniel Flynn, James Esgrow, Donald Selsky, Michael Sheahan, and Frank Bigit seeking to dismiss a number of claims in Plaintiff's Second Amended Complaint (Dkt #167). Defendant Paul Weed has not joined in the Motion for Summary Judgment. Plaintiff's pro bono counsel has opposed the motion (Dkt #192).

III. General Legal Principles

A. Section 1983

Section 1983 authorizes an individual who has been deprived of a federal right under the color of state law to seek relief through "an action at law, suit in equity, or other proper proceeding for redress." City of Monterey v. Del Monte Dunes at Monterey, Ltd. , 526 U.S. 687, 707 (1999). Two essential elements comprise a Section 1983 claim: (1) the defendant acted under color of state law; and (2) as a result of the defendant's actions, the plaintiff suffered a denial of his federal statutory rights, or his constitutional rights or privileges. Annis v. County of Westchester , 136 F.3d 239, 245 (2d Cir. 1998) (citation omitted).

To bring a § 1983 claim against a prison official, a plaintiff must allege that individual's personal involvement; it is not enough to simply assert that the defendant is a "link in the prison chain of command." McKenna v. Wright , 386 F.3d 432, 437 (2d Cir. 2004) (quotation omitted). "[S]upervisor liability in a § 1983 action depends on a showing of some personal responsibility, and cannot rest on respondeat superior." Hernandez v. Keane , 34 ...

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