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Galberth v. Durkin

United States District Court, N.D. New York

December 8, 2014

C. DURKIN, et al., Defendants.

GREGORY GALBERTH, Plaintiff pro se.

JOSHUA E. McMAHON, Asst. Attorney General for Defendants


ANDREW T. BAXTER, Magistrate Judge.

This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. ยง 636(b) and LOCAL RULES N.D.N.Y. 72.3(c). In this civil rights complaint, plaintiff alleges that defendants used excessive force on him on three occasions in violation of his Eighth and Fourteenth Amendment rights. (Complaint ("Compl.") (Dkt. No. 1). Plaintiff requests a substantial amount of compensatory and punitive damages. (Compl. at 25).[1]

Presently before the court is the defendants' motion to dismiss the complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has filed two responses in opposition to the defendants' motion, and has requested additional time to submit a further response. (Dkt. Nos. 35, 36, 38). For the following reasons, this court will recommend denying the defendants' motion to dismiss, except as it relates to any excessive force claims based upon the Fourteenth Amendment. Because the court is recommending denial of the defendants' motion, it will also deny plaintiff's request to file an additional memorandum in opposition to the motion.


I. Facts[2]

A. "First" Incident

Plaintiff alleges that on three different occasions, while plaintiff was incarcerated at Clinton Correctional Facility ("Clinton"), the defendants used excessive force against him. Plaintiff states that he suffers from mental illness and is "in and out" of the "O.B.S. Mental Health Units" ("OBS").[3] (Compl. at 7). He states that the "first incident"[4] occurred on May 15 and 16, 2011, while plaintiff was in an OBS cell. ( Id. at 8). Plaintiff claims that on May 15th, he complained to defendant Plumbly about the quality and the amount of food that plaintiff was served. ( Id. ) As plaintiff was trying to explain his problem with the food, defendant Plumbly became "hostile, " slammed the "feed up hatch, " and then called for "a sergeant and another officer." ( Id. at 9).

Plaintiff states that as the other officers approached plaintiff's cell, defendant Plumbly opened the door of the cell and began to beat plaintiff in the rib cage and lower back. ( Id. ) Officer Plumbly then "body slammed" plaintiff onto the steel bed, got on top of him, and began to choke him, while saying: "I'm tired of your shit." ( Id. at 9-10). Plaintiff claims that his hands were being held by the "other officers, " who were also hitting plaintiff in his right leg. ( Id. at 10). The sergeant[5] was wearing a ring and hit plaintiff in the face and across the forehead, causing pain. ( Id. ) Plaintiff states that defendant Plumbly continued to choke plaintiff, and then, as plaintiff was turned to face the wall, the officers "took turns" beating him in the head, back, ribs, and right leg. ( Id. ) Plaintiff states that after the officers left his cell, two near-by inmates told plaintiff that they heard "everything, " and that plaintiff should call them as witnesses "when the time comes." ( Id. at 11).

Plaintiff alleges that on May 16th, he reported the May 15th incident to the "medication nurse" and the "medical, med nurse." Plaintiff claims that "she" reported the incident to "A L.T."[6] Plaintiff alleges that he was told by defendant Bisso that he would be taken to the Clinton Facility Clinic. (Compl. at 12). Defendant Bisso allegedly gave orders to defendant Sears and "an unknown officer" to take plaintiff out of his cell and place him in an "Interview Room, " where defendant Sears, Bisso, and the unknown officer beat plaintiff again by pushing his face into the wall and hitting him in the rib cage. ( Id. ) Defendant Bisso allegedly told the other officers not to hit plaintiff in the face because they would be taking pictures in the clinic. ( Id. )

Plaintiff was then escorted to the clinic, where he reported his injuries, but was afraid to tell Nurse Bob Fitzgerald what "really happened" because the defendants were in the examining room, and defendant Bisso told plaintiff that "we break bones you better not tell on us."[7] ( Id. at 13).

B. Second Incident

Plaintiff alleges that on November 5, 2011, he was in a Clinton "hospital Dry Cell" for inserting a tub of cream up his rectum. (Compl. at 14). Plaintiff claims he was also having thoughts of hurting himself. Plaintiff states that he recognized defendant Bisso "and became fearful." A mental health medication nurse came to take plaintiff's vital signs, but plaintiff grabbed the thermometer and tried to swallow it.[8] ( Id. ) Plaintiff then started to stab himself in the arm with the same thermometer. ( Id. at 14-15). Plaintiff states that officers opened the cell door, took the thermometer away from plaintiff and applied handcuffs. ( Id. at 15).

However, plaintiff claims that, as defendant Russell was applying the handcuffs, he "started bending [plaintiff's] ankles in a [breaking] position causing pain." Then another officer bent plaintiff's legs toward his back, also in a "breaking" position, during which plaintiff screamed in pain and begged the officers to stop hurting him. ( Id. ) Plaintiff claims that at least one near-by inmate could see what was happening. Plaintiff was then "dragged" off the hospital floor down to the emergency room clinic. ( Id. )

Plaintiff claims that defendant Bisso ordered an officer to take plaintiff out of the cell, and when plaintiff complained that he could not walk, defendant Bisso said: "When they get through with you[, ] you won't be able to walk...." ( Id. at 16). Defendants Barnes and Tuller "took control" of plaintiff and took him to the Emergency Room Clinic, where they met defendant Sergeant Durkin, who plaintiff alleges "took part in the torturing." ( Id. ) Plaintiff alleges that he was tortured with what felt like a steel hand cuff that defendants Barnes and Tuller drove into plaintiff's ankle, causing him "excruciating pain." ( Id. ) Plaintiff claims that defendant Durkin laughed and held smelling salts up to plaintiff's nose while they were torturing him so that he would not faint from the pain, while telling plaintiff that they could "do this all day." ( Id. at 17). Plaintiff claims that defendant Durkin "ordered" defendants Barnes and Tuller to "continuously drive the steel cuff into [plaintiff's] ankle as he screamed out in pain." ( Id. )

Plaintiff claims that this conduct "went on for some time, " until defendant Durkin told the officers to force plaintiff to stand. ( Id. ) When plaintiff could not do so, one of the officers twisted both of plaintiff's wrists at the same time so that he would stand for the pictures. ( Id. at 18). Plaintiff states that by this time, he could barely breathe, and his lungs felt as if they were going to collapse. ( Id. ) Plaintiff claims that Nurse Bob Fitzgerald[9] could see some of the torture because he was right outside the room, and he came into the room "at some point" before the defendants finished torturing plaintiff. ( Id. ) Plaintiff claims that Nurse ...

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