United States District Court, N.D. New York
LIONKING ZULU Plaintiff, Pro Se HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York Attorney for
COUNSEL: RYAN W. HICKEY, ESQ. Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER
J. Stewart U.S. Magistrate Judge
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.
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.
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.
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.
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.
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.
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.
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).
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 ...