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Ferrer v. Racette

United States District Court, N.D. New York

December 15, 2017

RODNEY FERRER, Plaintiff,
v.
STEVEN RACETTE, Former Superintendent, [1] CHARLES KELLY, Deputy Superintendent of Security, CRAIG GOODMAN, Captain, ANDREW FRAZIER, Sergeant, SERGEANT LIVERMORE, Sergeant, BRIAN SCHLOGL, Corrections Officer, GREGORY BEECHER, Corrections Officer, ERIC MORIN, Corrections Officer, JEREMY BURCH, Corrections Officer, DANIEL MCCLENNING, Corrections Officer, N. WAITE, Corrections Officer, JOSHUA JENKINS, Corrections Officer, Defendants.

          LAW OFFICE OF JESSICA M. GORMAN, JESSICA M. GORMAN, ESQ. Counsel for Plaintiff

          HON. ERIC T. SCHNEIDERMAN LOUIS JIM, ESQ. Attorney General of the State of New York Assistant Attorney General Counsel for Defendants Kelly, Goodman

          LIPPES MATHIAS WEXLER FRIEDMAN LLP JEFFERY P. MANS, ESQ. Counsel for Defendants Beecher, Burch, and McClenning

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge.

         Currently before the Court, in this prisoner civil rights action filed by Rodney Ferrer ("Plaintiff") against the eleven above-captioned employees of Great Meadow Correctional Facility (“GMCF”) in Comstock, New York (“Defendants”), are the following three motions: (1) Plaintiff's motion for partial summary judgment against Defendants Beecher, Burch, and McClenning; (2) Defendants Goodman, Kelly, Waite, and Jenkins' motion for summary judgment; and (3) Defendants Beecher, Burch, and McClenning's motion for partial summary judgment. (Dkt. Nos. 126, 127, 128.) The Court notes that Plaintiff's claims against Defendant's Livermore, Frazier, and Morin are not at issue in the three above-referenced motions. In addition, default judgment on liability was entered against Defendant Schlogl on November 28, 2016. (Dkt. Nos. 105, 106.) For the reasons set forth below, Plaintiff's motion for partial summary judgment is denied; Defendants Goodman, Kelly, Waite, and Jenkins' motion for summary judgment is granted in part and denied in part; and Defendants Beecher, Burch, and McClenning's motion for partial summary judgment is denied.

         I. RELEVANT BACKGROUND

         A. Plaintiff's Complaint

         Generally, Plaintiff's Complaint asserts three causes of action. First, Plaintiff alleges that Defendants Frazier, Schlogl, Beecher, Morin, Burch, McClenning, Waite, Jenkins, and Livermore violated his constitutional rights under the Eighth and Fourteenth Amendment to be free from excessive force and cruel and unusual punishment. (Dkt. No. 1, at ¶¶ 83-88 [Compl.].) More specifically, Plaintiff alleges that Defendants Frazier, Scholgl, Beecher, Morin, Burch, McClenning, Waite, and Jenkins assaulted him, and that Defendant Livermore both failed to intervene and affirmatively participated in the assault. (Id.) Second, Plaintiff alleges that Defendants Frazier, Schlogl, Beecher, Morin, Burch, McClenning, Waite, Jenkins, and Livermore violated his constitutional rights under the First Amendment to be free from retaliation for practicing his religion and speaking about unconstitutional acts committed against him. (Id. at ¶¶ 89-93.) Third, Plaintiff alleges that Defendants Goodman, Kelly, and Racette violated his right under the Eighth Amendment to be free from cruel and unusual punishment by (a) failing to implement or enforce appropriate policies to stop and prevent such violations, (b) failing to adequately supervise or train subordinates, and (c) failing to take any actions to remedy reported violations. (Id. at ¶¶ 94-105.)

         B. Undisputed Material Facts on Plaintiff's Motion for Summary Judgment

         The following facts were asserted and supported with accurate record citations by Plaintiff in his Statement of Material Facts and expressly admitted by Defendants in their response thereto or denied without appropriate record citations. (Compare Dkt. No. 126, Attach. 9 [Pl.'s Rule 7.1 Statement] with Dkt. No. 131, Attach. 1 [Defs.' Rule 7.1 Resp.].)

         1. Plaintiff commenced this action under 42 U.S.C. § 1983 in the Northern District of New York on November 12, 2014.

         2. Defendants Burch, Beecher, and McClenning answered on September 2, 2015.

         3. In their Answer, Defendants Burch, Beecher, and McClenning asserted counterclaims against Plaintiff for State law assault and battery.

         4. These counterclaims are alleged to have arisen from events occurring in the draft process area of GMCF on November 15, 2011.

         5. The counterclaims are not alleged to have arisen from events occurring on any date other than November 15, 2011.

         6. Defendant Beecher claims that he has not seen Plaintiff since November 15, 2011.

         7. Defendant Burch claims that the only time he interacted with Plaintiff was on November 15, 2011.

         8. Defendant McClenning claims that the only time he saw or interacted with Plaintiff was on November 15, 2011.

         9. Defendants' counterclaims were brought on September 2, 2015, which is more than one year after November 15, 2011.

         10. Plaintiff answered these counterclaims on September 24, 2015, and asserted an affirmative defense that one or more of the counterclaims were barred by the statute of limitations.

         C. Undisputed Material Facts on Defendants Goodman, Kelly, Waite, and Jenkins' Motion for Summary Judgment

         Unless otherwise noted, the following facts were asserted and supported with accurate record citations by Defendants in their Statement of Material Facts and expressly admitted by Plaintiff in his response thereto or denied without appropriate record citations. (Compare Dkt. No. 127, Attach. 1 [Defs.' Rule 7.1 Statement] with Dkt. No. 132, Attach. 10 [Pl.'s Rule 7.1 Resp.].)

         1. Plaintiff commenced this action on November 12, 2014. With regard to Defendants Goodman, Kelly, Waite, and Jenkins, the Complaint alleges as follows:

(a) In June 2011, Plaintiff complained in writing to Defendant Kelly, who was the Deputy Superintendent for Security at GMCF, that corrections officers, including Defendant Waite, had been harassing him, threatening to dispose of his mail, and telling other inmates that he was a “rat.”
(b) Plaintiff believed that the officers were acting in retaliation for his earlier complaints.
(c) This complaint to Defendant Kelly was ineffective.
(d) In August 2011, staff refused to provide Plaintiff several religious meals, continued harassing him for his religious beliefs, and destroyed his copy of the Quran.
(e) Around the same time, Defendant Waite assaulted him in an elevator by punching him.
(f) In a written complaint submitted to GMCF Superintendent Racette in September 2011, Plaintiff claimed that corrections officers, including Defendant Jenkins, had threatened him, made anti-Islamic remarks, refused to provide him with his religious meals, threatened to take his mail, and assaulted him.
(g) This complaint was also ineffective.
(h) In September 2011, Defendant Jenkins again assaulted Plaintiff, shoving his face into the corner of an elevator, shoving his hands into Plaintiff's pants and grabbing his testicles, calling him a “piece of shit Muslim, ” and telling him to “go ahead and do something” so he could rip his “dick off.”
(i) Defendant Jenkins then put his finger in Plaintiff's anus, and told Plaintiff that “he better not leave his cell” or Defendant Jenkins or one of the “blue shirts” would “get” Plaintiff.
(j) Plaintiff complained in writing to Defendant Kelly about this alleged incident and sent copies of the complaint to Racette and Defendant Goodman.
(k) Shortly thereafter, Defendant Jenkins allegedly confronted Plaintiff and told him in a threatening manner that it was “not over.”
(I) Later in September 2011, Plaintiff complained in writing to Defendant Kelly about Defendant Jenkins' latest threat and sent copies of the complaint to Racette and Defendant Goodman.
(m) Defendant Goodman responded to Plaintiff's letter in October 2011, stating that the complaint had been investigated and determined to be without merit, and that Plaintiff was interviewed by a supervisor and refused medical attention after the alleged assault.
(n) In a letter to Racette, which was also sent to Defendants Kelly and Goodman, Plaintiff responded that he had neither been interviewed about the alleged assault nor called for a medical examination, and he requested that Defendant Jenkins and his associates leave him alone.

         2. Plaintiff testified at his deposition that the alleged incident relating to Defendant Waite occurred on August 23, 2011.

         3. Plaintiff wrote a letter to Racette dated September 2, 2011, in which Plaintiff, inter alia, claims that Defendant Waite had assaulted him on August 23, 2011.

         4. Plaintiff admitted at his deposition that the alleged incidents concerning Defendant Waite described in the September 2nd letter is the same incident described in the Complaint.

         5. Defendant Kelly testified at his deposition that he appears to have assigned Defendant Goodman to investigate the conduct alleged in Plaintiff's September 2nd letter.

         6. Defendant Kelly also testified that the individual to which he assigned an investigation “may send it down another level lower” for investigation.

         7. Indeed, Defendant Kelly testified that Defendant Goodman had the authority to delegate investigations to Defendant Goodman's subordinates, including Sergeants Scarlott and Williams, even though Defendant Kelly had initially assigned the investigations to Defendant Goodman.

         8. Defendant Goodman testified at his deposition that, in response to receiving this letter, he would have assigned a lieutenant to investigate it.

         9. Defendant Goodman wrote a memo to Plaintiff, dated October 14, 2011, with the subject line “your letter of complaint 9/2/11.” 10. Plaintiff admitted at his deposition that he received this memo.

         11. Defendant Goodman's October 14th memo states, in pertinent part, “Your complaint was investigated by a Security Supervisor, ” and concludes, “I find your complaint to be without merit.”

         12. Plaintiff further testified at his deposition that the alleged incident relating to Defendant Jenkins occurred on September 12, 2011.

         13. Plaintiff wrote a letter to Defendant Kelly dated September 14, 2011, in which Plaintiff, inter alia, claims that Defendant Jenkins had assaulted Plaintiff on September 12, 2011.

         14. Plaintiff admitted at his deposition that this alleged incident concerning Defendant Jenkins described in the September 14th letter is the same incident described in the Complaint.

         15. The record shows that Defendant Kelly assigned Defendant Goodman to investigate the conduct alleged in Plaintiff's September 14th letter.

         16. Defendant Goodman then assigned this investigation to Sergeant T. Williams.

         17. Defendant Goodman wrote a memo to Plaintiff, dated October 5, 2011, with the subject line “Your letter of complaint 9/14/11.” 18. Defendant Goodman's October 5th memo states, in pertinent part, “Your letter of complaint written to DSS Kelly was received and investigated by a security supervisor. . . . Because of your lack of cooperation during this investigation, your refusal to be medically examined, and the evidence obtained. The complaint is without merit and therefore denied.” 19. In his Complaint, Plaintiff does not allege that Defendants Goodman, Kelly, Waite, and Jenkins were personally involved in the November 15, 2011, incident.[2]

         20. Plaintiff cannot recall filing any grievances relating to the alleged August 2011 incident concerning Defendant Waite.

         21. In addition, Plaintiff admitted at his deposition that he did not file a grievance relating to the alleged September 2011 incident concerning Defendant Jenkins.

         22. The issues raised by Plaintiff against Defendants Goodman, Kelly, Waite, and Jenkins are proper subjects for a grievance under New York Department of Corrections and Community Supervision (“DOCCS”) grievance procedures as outlined at 7 N.Y.C.R.R. § 701.1 et seq.[3]

         23. Central Office Review Committee (“CORC”) staff searched CORC's records for determinations upon grievance appeals brought by Plaintiff.[4]

         24. DOCCS records reflect that Plaintiff was incarcerated at GMCF during the time period pertaining to this action.

         25. During that time, GMCF had a fully functioning inmate grievance process available.[5]

         26. Inmates at GMCF have had full access to CORC by which to appeal from facility-level ...


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