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Zulu v. Seymour

United States District Court, N.D. New York

March 3, 2017

AKRIL LIONKING ZULU, Plaintiff,
v.
WENDY M. SEYMOUR and JOHN D. GRANT, Defendants.

          AKRIL LIONKING ZULU Plaintiff, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants

          OF COUNSEL: RYAN W. HICKEY, ESQ. Assistant Attorney General

          REPORT-RECOMMENDATION AND ORDER

          Daniel J. Stewart U.S. Magistrate Judge

         Pro se Plaintiff Akril LionKing Zulu brings this action, pursuant to 42 U.S.C. § 1983, asserting claims arising from when he was incarcerated at Upstate Correctional Facility (“Upstate”) while in the custody of the Department of Corrections and Community Supervision (“DOCCS”). Dkt. No. 11, Am. Compl. Plaintiff asserts an Eighth Amendment claim against Defendants Correction Officer (“C.O”) Wendy Seymour and C.O. John Grant for allegedly tampering with his food. Id. Presently before the Court is Defendants' Motion for Summary Judgment. Dkt. No. 44, Defs.' Mot. Summ. J. In their Motion, Defendants argue that: (1) Plaintiff cannot establish their personal involvement in the alleged constitutional violations; (2) there are no disputed issues of material fact precluding summary judgment on Plaintiff's Eighth Amendment claim; and (3) they are entitled to qualified immunity. Id. Plaintiff has opposed the Motion and Defendants have filed a Reply. Dkt. Nos. 57, Pl.'s Resp., & 59, Defs.' Reply. For the reasons that follow, the Court recommends that Defendants' Motion be granted.

         I. BACKGROUND[1]

         On September 27, 2012, Plaintiff was confined in the Upper B gallery of Building 8 at Upstate. Defs.' SMF at ¶ 13. At Upstate, which is a special housing unit (“SHU”) facility, meals are delivered to inmates in their cells three times per day. Id. at ¶ 2. The procedure for meal preparation and delivery at Upstate is as follows. First, all meals are prepared in the facility kitchen by civilian staff. Id. at ¶ 3. The kitchen staff portions the food onto trays and places a plastic lid on each tray, which are then placed into enclosed, insulated carts. Id. at ¶¶ 4-5. The plastic lids remain on the meal trays until they are delivered to the inmates in their cells. Id. at ¶ 11. Drinks are loaded onto separate carts. Id. at ¶ 6. Once the carts are prepared, inmate porters wheel them to each housing block. Id. at ¶ 7. Each housing block has assigned correction officers who then distribute the meal trays to each cell. Id. at ¶ 8. The meal trays are not assigned to particular inmates or cell locations and are distributed at random. Dkt. No. 44-9, Decl. of Don Haug, dated May 6, 2016, at ¶ 15. The trays are inserted into a cell through a feed-up hatch in each cell door. Id. at ¶ 9. After the inmates have finished eating, the correction officers collect the food trays. Haug Decl. at ¶ 17.

         On September 27, 2012, Defendants C.O. Grant and C.O. Seymour were assigned to the Upper B gallery during the distribution of dinner meal trays. Defs.' SMF at ¶ 15. C.O. Grant distributed the meal trays and C.O. Seymour followed behind him with the drink cart. Id. at ¶¶ 16 & 19. Plaintiff received a meal tray from C.O. Grant. Dkt. No. 44-6, Decl. of John Grant, dated May 9, 2016, at ¶ 22. C.O. Grant would check each tray as he handed them out and did not notice anything unusual about Plaintiff's tray. Id. at ¶ 23. The plastic lid was still attached to Plaintiff's meal tray when he received it. Defs.' SMF at ¶ 20.

         Upon receiving his meal, which was chicken and barbecue sauce on rice, Plaintiff began to eat. Dkt. No. 44-4, Decl. of Ryan W. Hickey, dated May 11, 2016, Ex. A, Dep. of Arkil LionKing Zulu, dated Dec. 16, 2015 (“Pl.'s Dep.”) at pp. 23 & 25. After taking his second scoop of rice, Plaintiff noticed something rubbery in his mouth, which he spit out onto his tray to examine. Id. at pp. 28-29. Plaintiff then saw that the rubbery object was a dead mouse that was fully intact. Id. at pp. 29-30. Plaintiff began yelling and kicking his cell door in order to get C.O. Grant and C.O. Seymour's attention. Id. at p. 31.

         The Defendants returned to Plaintiff's cell door and he explained what had happened. Id. The area sergeant arrived and directed C.O. Seymour to take photographs of the dead mouse, which she did using a digital camera. Dkt. No. 44-5, Decl. of Wendy Seymour, dated May 11, 2016, at ¶¶ 30-31. These photographs were not preserved. See Pl.'s Dep. at p. 49. C.O. Seymour states that after taking the photographs she returned the digital camera to the sergeant and had no further involvement with the camera or the photographs. Seymour Decl. at ¶ 31.

         Nurse Denise Reome was also summoned to assess Plaintiff's request for medical attention. Defs.' SMF at ¶ 26. Plaintiff complained that he had chewed on the dead mouse, but had not consumed any part of it. Id. at ¶ 27. Plaintiff stated that he was nauseous and had vomited a clear yellow liquid. Pl.'s Dep. at pp. 37-38. Nurse Reome contacted the on-duty physician who advised her that Plaintiff's complaints did not require treatment at that time. Id. at p. 40. Plaintiff states that his stomach continued to bother him the following day and that he again threw up a clear liquid. Id. at p. 42. He went to sick call, where the examining nurse determined that he did not require any medical attention. See Dkt. No. 44-7, Decl. of Denise Reome, dated May 5, 2016, at ¶ 18.

         Although Plaintiff did not witness C.O. Grant or C.O. Seymour tampering with his meal tray, he believes they placed the dead mouse in his food. Pl.'s Dep. at pp. 47-48. Plaintiff states that they were “smiling” when he told them about the dead mouse, which led him to believe “that there [wa]s some type of guilt.” Id. at p. 48. Plaintiff admits that he had never had any problems with C.O. Grant or C.O. Seymour before this incident. Id. at pp. 17-18. Yet Plaintiff believes they might have targeted him for harassment on account of the numerous grievances and complaints he had filed. See Id. at pp. 50-51.

         II. LEGAL STANDARD

         Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden to demonstrate through “pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, ” that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).

         To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. Fed.R.Civ.P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the ...


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