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Sloane v. Borawski

United States District Court, W.D. New York

December 4, 2014

DEREK SLOANE, Plaintiff,
BORAWSKI, et al., Defendants

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Derek Sloane, Plaintiff, Pro se, Auburn, NY.

For Lieutenant Borawski, Attica C.F., Joseph Mulla, J. Bryniarski, Correction Officer Attica C.F., H. Jennings, RN Attica C.F., Defendants: Stephanie Joy Calhoun, LEAD ATTORNEY, Office of the Attorney General, Buffalo, NY.

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H. KENNETH SCHROEDER, JR., United States Magistrate Judge.

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #36.

Plaintiff filed this pro se action on or about January 11, 2012, seeking relief pursuant to 42 U.S.C. § 1983 and state common law. Dkt. #1. By Decision and Order filed August 30, 2012, United States District Judge David G. Larimer ordered that several of plaintiff's claims be dismissed. Dkt. #6. Presently pending before this Court is defendants' motion for summary judgment. Dkt. #27.

Plaintiff claims that on March 22, 2011, while an inmate housed at the Attica Correctional Facility, defendants Correction Officers Bryniarski and Mulla used excessive force against plaintiff and filed a false misbehavior report. Plaintiff further alleges that defendant Lieutenant Borawski denied him due process in connection with a Tier III disciplinary hearing resulting from the March 22, 2011 incident. Finally, plaintiff alleges that defendant Jennings violated his rights by denying him adequate medical treatment after the alleged excessive use of force incident.


In his complaint, plaintiff alleges that on March 22, 2011, he was walking to the mess hall, when Correction Officer Mulla

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and Correction Officer Bryniarski told him to place his hands on the wall and then began to yell at him, slam his head into the wall and kick, punch and hit him with sticks. After a bell sounded, more unidentified correction officers came running, took him downstairs, and " jump[ed] him again." Plaintiff claims that his " head [was] busted," and that he suffered from cuts over his left eye and chin, broken ribs, an ankle fracture and a back injury. Dkt. #1, ¶ ¶ 8-10. Plaintiff maintains that notwithstanding the fact that he was bleeding heavily and informed Nurse Jennings of the extent of his injuries, the only treatment he received was a bandage for his head. Thereafter, plaintiff alleges, he was sent to the " box." Id. at ¶ ¶ 11, 17-19.

Plaintiff further alleges defendant, Lt. Borawski denied him due process at the Superintendent's Hearing held with respect to the misbehavior report issued following the alleged excessive use of force on March 22, 2011. Dkt. #1, ¶ 30. Specifically, plaintiff alleges that defendant Lt. Borawski " fix[ed] the hearing by denying plaintiff's [sic] his witnesses, denying his assistant, misprison of felony, conspiring to violate plaintiff's federal, statutory rights by assaulting [sic] him without cause, creating a false misbehavior report, preparing false physical evidence after the attack. [i]n addition, submitting false statements to the prison, offering a false instrument for filing. and [sic] denying him a fair and impartial hearing." Id.

In support of the instant motion, defendants rely on the affidavit of defendant Correction Officer Jeffrey Bryniarski. Dkt. #27-4. As it relates to the March 22, 2011 incident alleged in the complaint, defendant Bryniarski states in his affidavit,

[o]n March 22, 2011, I was working as a CO in Attica Correctional Facility, where my duties consisted of care, custody and control of the inmates. On the above date, at approximately 4:10 pm, while inmates were lined up for chow, I ordered inmate Sloane, #07-A-1140, from 22-04-T, to step out of line, because he had both hands in his pockets. This is a security concern due to weapons and other contraband that may be kept inside of pockets and used to harm staff and other inmates. Moreover, all inmates housed at Attica are informed in the Inmate Orientation Guideline Manual that their hands " will be kept out of pockets or waistbands of pants while in formation." . . . As I began to talk to the plaintiff, he then turned, unprovoked, and swung to punch me with his closed right fist.

Dkt. #27-4, ¶ ¶ 4-5 (internal citations omitted). Thereafter, defendant Bryniarski states that with the assistance of defendant Mulla, force was used to subdue plaintiff. Id. at ¶ 6. Specifically, defendant Bryniarski described, " I assisted in subduing the inmate by grabbing his right arm and sweater with both of my hands and forced him into the wall onto the floor. I maintained control of his right arm with both of my hands while the mechanical restraints were applied." Id. at ¶ 7. A Use of Force Report was generated and plaintiff was issued a Misbehavior Report.

Defendant Correction Officer Joseph Mulla also submitted an affidavit in support of the instant motion for summary judgment wherein he describes that on March 22, 2011 at approximately 4:10 p.m. he " witnessed plaintiff, unprovoked, attempt to swing and punch CO Bryniarski with a closed fist." Dkt. #27-6, ¶ 5. Moreover, defendant Mulla states, " [t]o assist Bryniarski, I gained control of the inmate's left arm with both of my hands and forced him to the wall and then onto the floor. I applied the mechanical restraints to the non-struggling inmate."

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Defendants Bryniarski and Mulla both state that plaintiff was subsequently moved to the lobby without incident. Both defendants Bryniarski and Mulla maintain that the force used in connection with this incident was only what was necessary to regain control of plaintiff. Dkt. #27-4, ¶ 9; Dkt. #27-6, ¶ 6.

In sharp contrast, in his counter-statement filed in opposition to defendants' motion for summary judgment, plaintiff maintains,

on March 22, 2011 Plaintiff was infact assaulted by the defendants on that date and time. For no apparent reasons, or justified reason. [sic] Plaintiff was inroute to the mess-hall, as such, a you not you, the ball-head one [sic]. Step over here. Place your hands on the wall. Didn't I tell you about that shit being in your pants? I informed him that I don't [sic] have an [sic] belt? He stated in his own words: are you cazy [sic] or insane? He then placed his hands on my neck and started pushing my head against the wall by the lock-box. He looked at me with this ugly face. And stated to the other C.O., Officers. Take him down. That's when they all started all [sic] assaulting me for no reasons.

Dkt. #32, ¶ 13. Plaintiff does not dispute that " all inmates housed at Attica are informed in the Inmate Orientation Guideline Manuel that their hands 'will be kept out of pockets or waistbands of pants while in formation.' This is a security concern due to weapons and other contraband that may be kept inside of pockets and used to harm staff and other inmates." Dkt. #27-2, ¶ 15.

There is no dispute that immediately following the incident, plaintiff was taken to the Attica Emergency Room and was seen by defendant Nurse Jennings. Plaintiff claims that he was not " examined" by Nurse Jennings. Rather, plaintiff states, " the only thing that she did was put a bandage on my head and sent [sic] to the box. She did not examining [sic] me at any time that I was in the medical office or sent to the box no medical care was offered or given." Dkt. #32, ¶ ¶ 17 and 19. In her affidavit submitted in support of the instant motion for summary judgment, defendant Helen Jennings states, based on her review of the inmate injury report and the physical examination reports included with the use of force report all dated March 22, 2011,

On March 22, 2011, at approximately 4:25 PM, I examined the patient in the Attica Emergency Room. At that time, I noted a 2 1/2 inch laceration to the top of his left head, a 1/2 inch laceration to the left eye brow and a small abrasion on the left chin. I then cleaned the laceration on the top of the head and the left brow with sterile water and applied steri-strips and dermaband.

Dkt. #27-5, ¶ 5.

On March 22, 2011, defendant Correction Officer Mulla completed an Inmate Misbehavior Report concerning the above-described incident. Plaintiff Sloane was charged with the following violations: 100.11 attempted assault; 104.11 violent conduct; 104.13 disturbing the order of the facility, 107.10 interference with an employee. Dkt. #27-4, p.5. In the Inmate Misbehavior Report, defendant Mulla described the incident as follows:

On the above date and approximate time inmate Sloane 07A1140 came down the stairs with the 22 co. inmates going to chow. He had both of his hands in his pockets and C.O. Bryniarski ordered him to step out of the line. As C.O. Bryniarski began to talk to him he swung at C.O. Bryniarski with his right hand in a closed fist. At this time it became necessary to use force. (See use of force report) Inmate Sloane was

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then escorted to the infirmary by uninvolved staff with no further incident.

Dkt. #27-4, p.5. Defendant Borawski was assigned to conduct the Tier III hearing. Dkt. #27-3, ¶ 5. The hearing began on March 25, 2011 and concluded on March 28, 2011. Id. at ¶ 8. In an affidavit submitted in support of the instant motion, defendant Borawski states that when the hearing first began he explained to plaintiff that he could call witnesses on his behalf, that nothing he said in the hearing would be used against him and that he could submit documentary evidence. Id. at ¶ 9. After confirming that plaintiff understood these rights, defendant Borawski confirmed that plaintiff had been served with a copy of the Misbehavior Report on March 23, 2011. Id. at ¶ 10. Moreover, defendant Borawski confirmed that plaintiff had been provided with the opportunity to select an employee hearing assistant. As reflected in the Assistant Selection Form (Dkt. #27-3, p.10), plaintiff refused to sign the form and waived his right to an employee hearing assistant. During the hearing, plaintiff requested that Acting Attica Superintendent Bradt serve as his hearing assistant, such request was denied. Dkt. #27-3, ¶ 10.

During the hearing, plaintiff indicated that he wished to call inmate Booker, RN Jennings, then Acting Superintendent Bradt, CO Mulla, five unknown inmates and an unknown officer to testify at the hearing. Id. at ¶ 11. Defendant Borawski denied plaintiff's request to call then Acting Superintendent Bradt as a witness because he did not have knowledge of the event. Id. In addition, defendant Borawski denied plaintiff's request with respect to the unknown witnesses because plaintiff was unable to provide any information to identify the individuals. Id.

Prior to hearing the testimony of the first witness, defendant Borawski read the charges and plaintiff entered a plea of not guilty to each charge. Id. at ¶ 12. Thereafter, the inmate misbehavior report was read into the record and defendant Mulla, the author of the report was called as the first witness. Id. at ¶ 13. Consistent with standard procedure at Tier hearings, defendant Borawski asked each witness some questions and then plaintiff advised defendant Borawski what questions he would like asked of the witness. Id. at ¶ 14. According to defendant Borawski, he asked every question that plaintiff asked him to ask the witnesses. Id. Following defendant Mulla's testimony, plaintiff wished to call defendant Jennings as a witness. Defendant Borawski denied the request because he " did not see how the plaintiff's physical condition after the incident would be relevant to whether or not he engaged in violent, disruptive behavior, and whether he interfered with an employee." Id. at ¶ 18. Plaintiff next requested to have inmate Luther Booker testify as a witness. Inmate Booker refused to testify stating that he did not know anything. Id. at ¶ 19.

At the continuation of the Tier III hearing on March 28, 2011, Correction Officer Bryniarski was called to testify. Dkt. #27-3, pp.24-27. At the conclusion of Correction Officer Bryniarski's testimony, plaintiff stated that he did not have any questions for him and further stated, " this is not the Officer that I swung, and he's lying, I don't know why he's lying for him, but he's covering up for the other Officer." Dkt. #27-3, p.27. Finally, the last witness to testify during the hearing was Sergeant Baker, the B block supervisor on March 22, 2011 on the 3-11 p.m. shift. According to his testimony, Sergeant Baker responded after the incident and assisted in completing the paperwork. Dkt. #27-3, pp.27-28. At the conclusion of the witness testimony, defendant Borawski

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gave plaintiff an opportunity to put any additional information on the record. At that time, plaintiff offered the following explanation as to how the incident started. Id. at pp.28-32. As a threshold matter, from the transcript of the hearing it appears that plaintiff believes that it was defendant Mulla, not defendant Bryniarski, who called him out of formation and who pushed plaintiff against the wall. Dkt. #27-3, pp.26-29. Specifically, plaintiff testified,

Inmate Sloane: Well, I'll tell you how the incident started from ...

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