United States District Court, N.D. New York
STROUSE & BOND PLLC Counsel for Plaintiff, HON. ERIC T.
SCHNEIDERMAN Attorney General of the State of New York
Counsel for Defendants.
E. BOND, ESQ., C. HARRIS DAGUE, ESQ. Assistant Attorney
MEMORANDUM-DECISION AND ORDER 
THERESE WILEY DANCKS UNITED STATES MAGISTRATE JUDGE.
Aurel Smith is an inmate in the custody of the New York
Department of Corrections and Community Supervision and is
currently housed at Cayuga Correctional Facility. (Dkt. No.
39.) The allegations of Plaintiff's third amended
complaint, which is the operative pleading, relate to
Plaintiff's previous confinement at Coxsackie
Correctional Facility (“Coxsackie”). (Dkt. No.
119.) Plaintiff seeks compensatory and punitive damages
against remaining Defendants Corrections Officer
(“CO”) Michael Wildermuth
(“Wildermuth”), CO Nathan Ensel
(“Ensel”), CO Christopher Hale
(“Hale”), CO Jody Slater (“Slater”),
Corrections Sergeant (“Sgt.”) Paul Morris
(“Morris”), Sgt. James Noeth
(“Noeth”); CO James Chewens
(“Chewens”), CO Julio Saez (“Saez”),
Sgt. Charles Bailey (“Bailey”), and
Superintendent Daniel F. Martuscello
(“Martuscello”). Id. at ¶¶
247-53. Plaintiff's allegations are organized
into five causes of action:
Count One: Eighth Amendment excessive force claim against
Wildermuth, Ensel, Slater, Hale, Morris, and Noeth; Count
Two: Conspiracy claim against Wildermuth, Ensel, Slater,
Hale, Morris, and Noeth; Count
Three: First Amendment free exercise claim against
Count Four: Eighth Amendment failure to intervene claim
against Bailey, Chewens, and Saez; and Count
Five: Eighth Amendment conditions of confinement claim
Id. at ¶¶ 237-246.
have now moved for partial summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure to dismiss
Plaintiff's First Amendment free exercise claim against
Wildermuth and Eighth Amendment conditions of confinement
claim against Martuscello. (Dkt. No. 127.) Plaintiff has
opposed the motion. (Dkt. No. 128.) Defendants have filed a
reply. (Dkt. No. 129.) For the reasons discussed below,
Defendants' motion for partial summary judgment is
granted in part and denied in part. The motion is granted
with respect to Plaintiff's First Amendment free exercise
claim against Wildermuth and denied with respect to
Plaintiff's Eighth Amendment conditions of confinement
claim against Martuscello.
on the record now before the Court, the Court finds Plaintiff
has plausibly alleged a First Amendment retaliation claim
against Wildermuth. As such, the following claims will
proceed to trial: (1) Eighth Amendment excessive force claim
against Wildermuth, Ensel, Slater, Hale, Morris, and Noeth;
(2) conspiracy claim against Wildermuth, Ensel, Hale, Slater,
Morris, and Noeth; (3) First Amendment retaliation claim
against Wildermuth; (4) Eighth Amendment failure to intervene
claim against Bailey, Chewens, and Saez; and (5) Eighth
Amendment conditions of confinement claim against
times relevant to this action, Martuscello served as either
the Superintendent or Deputy Superintendent of Security at
Coxsackie. (Dkt. No. 126 at ¶ 6.) Plaintiff was housed
at Coxsackie from January 2009 to July 2010. (Dkt. No. 119 at
¶ 24.) Plaintiff alleges that throughout that period
there was a “maintained environment of staff abuse . .
. and misconduct, especially guard brutality and the
falsification of incident reports fraudulently covering up
and thus justifying such misconduct, as well as both
administrative acquiescence and administrative failure to
curb and deter such conduct.” Id. at ¶
25. Specifically, Plaintiff alleges Martuscello permitted and
maintained the “widespread and systemic conditions of
abuse and misconduct” that “ultimately led to
Plaintiff becoming a victim to such patterns of abuse on
April 20, 2010.” Id. at ¶ 75.
approximately 3:30 p.m. on April 20, 2010, Plaintiff was in
his cell located in the B-2 housing block of Coxsackie. (Dkt.
No. 127-4 at 18-20.) Plaintiff was engaged in Salaah, or
Islamic prayer, with his back to the cell gate. (Dkt. No. 119
at ¶ 95.) According to Plaintiff, Wildermuth conducted
an unannounced, unscheduled, and unexpected walk-through of
the B-2 housing block. Id. While Plaintiff was
praying, Wildermuth ordered Plaintiff to remove a coat
hanging on the bedpost of his cell. Id. at
¶¶ 97-98. Plaintiff complied by reaching over and
moving the coat while still engaged in Salaah. Id.
at ¶ 98. Plaintiff continued praying. Id.
shouted, “hey you, ” at Plaintiff. (Dkt. No.
127-4 at 8.) Because Plaintiff was praying he did not
verbally respond to Wildermuth. Id. at 9. Instead,
Plaintiff raised his right hand to shoulder level to indicate
Wildermuth should wait a moment. Id. Wildermuth
became irate, began yelling at Plaintiff, banged on
Plaintiff's cell gate with his baton, and reached his
baton into the cell and knocked some of Plaintiff's
personal items from his locker onto the floor. Id.
at ¶ 101; Dkt. No. 127-4 at 9. Plaintiff continued
praying. (Dkt. No. 127-4 at 9.) As a result, Wildermuth
informed Plaintiff that he was “burned” for the
day, which is form of informal punishment involving the
unofficial taking of inmate privileges resulting in
“informal keep lock.” (Dkt. Nos. 127-4 at 10,
128-4 at 9, and 119 at ¶ 103.)
Plaintiff finished his Salaah, he sought to speak to
Wildermuth “in order to explain the matter and thus to
mitigate both the situation and Wildermuth's anger, as
well as to (more fundamentally) avoid future repetition of
that event.” (No. 119 at ¶ 105.) Wildermuth,
irate, told Plaintiff that he did not care whether Plaintiff
was praying and that Plaintiff had better acknowledge him.
Id. at ¶ 106.
Wildermuth “burned” Plaintiff for the day,
Plaintiff claims he was not released for evening recreation.
Id. at ¶ 108. At approximately 7:00 p.m.,
Wildermuth returned to Plaintiff's cell. Id. at
¶¶ 109-11. Wildermuth “began to rehash a
confrontation with Plaintiff, asking Plaintiff whether he had
learned his lesson.” Id. at ¶ 109.
Plaintiff claims the confrontation “became heated and
hostile” and ended with Wildermuth storming away.
Id. at ¶ 110.
approximately 8:00 p.m., Morris and Ensel came to
Plaintiff's cell and asked Plaintiff if he was ready to
move to the F-2 housing unit. Id. at ¶ 112.
Plaintiff told them he was not packed because he was unaware
that he was scheduled for a move. Id. at ¶ 113.
Plaintiff asked Morris and Ensel if he was “being
set-up” in retaliation for his dispute with Wildermuth.
Id. at ¶ 114. Plaintiff was instructed to do as
he was told and to pack his belongings. Id. at
¶¶ 117-118. Although he feared for his safety,
Plaintiff packed his belongings. Id. at ¶ 118.
approximately 8:40 p.m., Wildermuth, Morris, and Ensel
returned to Plaintiff's cell. Id. at
¶¶ 119-20. Plaintiff alleges that before opening
the cell door, Wildermuth stated to Plaintiff,
“We'll see how tough you are now.”
Id. at ¶ 121. Plaintiff then loaded six
property draft-bags and his mattress onto a push cart.
Id. at ¶¶ 122-24.
to Plaintiff, as he carried his last draft-bag down the
staircase to his new cell, Wildermuth punched Plaintiff.
Id. at ¶¶ 145-46. Hale, Slater, Ensel,
Morris, and Noeth joined in the attack. Id. at 148.
Plaintiff alleges Bailey, Saez, and Chewens were present
during the attack and failed to intervene. Id. at
April 21, 2010, Plaintiff received two inmate misbehavior
reports from Wildermuth and Ensel, which made “a series
of false allegations” to cover up their use of force on
April 20, 2010. Id. at ¶ 195. Plaintiff claims
Wildermuth and Ensel fraudulently reported that Plaintiff
attacked Ensel and Wildermuth. Id. At the
disciplinary hearing, Plaintiff was found guilty of several
institutional rule violations. Id. at ¶ 229.
Plaintiff was sentenced to twenty-four months in the
segregated housing unit (“SHU”), with a
corresponding loss of privileges and good-time credits.
Id. at ¶ 230. Plaintiff appealed and his
sentence was reduced to twelve months in the SHU, with a
corresponding loss of privileges and good-time credits.
Id. at ¶ 231. Plaintiff was transferred to
Upstate Correctional Facility in July of 2010. Id.
at ¶ 234.
contends that the April 20, 2010, incident was the result of
“abusive prison conditions . . . fueled and maintained
by Defendant Martuscello's deliberate indifference to the
existence of such conditions . . . as well as his abdication
of duties to monitor and supervise officers' use of
force, to act decisively and meaningfully on possible
instances of misconduct by officers in the facility/under his
supervision, and to remedy malfeasant behavior so as to
otherwise constitute an acquiescence to the existence of said
abusive conditions without deterrence. ” Id.
at ¶ 245.
APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS
judgment may be granted only if the submissions of the
parties taken together “show that there is no genuine
issue of material fact and that the moving party is entitled
to judgment as a matter of law.” Fed.R.Civ.P. 56;
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52 (1986). The party moving for summary judgment bears
the initial burden of showing, through the production of
admissible evidence that no genuine issue of material fact
exists. Salahuddin v. Goord, 467 F.3d 263, 272-73
(2d Cir. 2006). A dispute of fact is “genuine” if
“the [record] evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
after the moving party has met this burden is the nonmoving
party required to produce evidence demonstrating that genuine
issues of material fact exist. Salahuddin, 467 F.3d
at 272-73. The nonmoving party must do more than “rest
upon the mere allegations . . . of the [plaintiff's]
pleading” or “simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 585-86 (1986). “Conclusory allegations,
conjecture and speculation . . . are insufficient to create a
genuine issue of fact.” Kerzer v. Kingly Mfg.,
156 F.3d 396, 400 (2d Cir. 1998).
opposing summary judgment is required to submit admissible
evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81
(2d Cir. 2010) (“It is well established that in
determining the appropriateness of a grant of summary
judgment, [the court] . . . may rely only on admissible
evidence.”) (citation and internal quotation marks
Jeffreys v. City of New York, the Second Circuit
reminded that on summary judgment motions “[t]he mere
existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for
the plaintiff.” 426 F.3d 549, 554 (2d Cir. 2005).
“To defeat summary judgment, . . . nonmoving parties
“may not rely on conclusory allegations or
unsubstantiated speculation.” Id. (citation
and internal quotation marks omitted). Indeed, “[a]t
the summary judgment stage, a nonmoving ...