United States District Court, N.D. New York
OFFICE OF JESSICA M. GORMAN, JESSICA M. GORMAN, ESQ. Counsel
ERIC T. SCHNEIDERMAN LOUIS JIM, ESQ. Attorney General of the
State of New York Assistant Attorney General Counsel for
Defendants Kelly, Goodman
MATHIAS WEXLER FRIEDMAN LLP JEFFERY P. MANS, ESQ. Counsel for
Defendants Beecher, Burch, and McClenning
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge.
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.
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.)
Undisputed Material Facts on Plaintiff's Motion for
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.].)
Plaintiff commenced this action under 42 U.S.C. § 1983
in the Northern District of New York on November 12, 2014.
Defendants Burch, Beecher, and McClenning answered on
September 2, 2015.
their Answer, Defendants Burch, Beecher, and McClenning
asserted counterclaims against Plaintiff for State law
assault and battery.
These counterclaims are alleged to have arisen from events
occurring in the draft process area of GMCF on November 15,
counterclaims are not alleged to have arisen from events
occurring on any date other than November 15, 2011.
Defendant Beecher claims that he has not seen Plaintiff since
November 15, 2011.
Defendant Burch claims that the only time he interacted with
Plaintiff was on November 15, 2011.
Defendant McClenning claims that the only time he saw or
interacted with Plaintiff was on November 15, 2011.
Defendants' counterclaims were brought on September 2,
2015, which is more than one year after November 15, 2011.
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.
Undisputed Material Facts on Defendants Goodman, Kelly,
Waite, and Jenkins' Motion for Summary Judgment
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.].)
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
(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
(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
(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.
Plaintiff testified at his deposition that the alleged
incident relating to Defendant Waite occurred on August 23,
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.
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
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.
Defendant Kelly also testified that the individual to which
he assigned an investigation “may send it down another
level lower” for investigation.
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.
Defendant Goodman testified at his deposition that, in
response to receiving this letter, he would have assigned a
lieutenant to investigate it.
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.
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.”
Plaintiff further testified at his deposition that the
alleged incident relating to Defendant Jenkins occurred on
September 12, 2011.
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
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
record shows that Defendant Kelly assigned Defendant Goodman
to investigate the conduct alleged in Plaintiff's
September 14th letter.
Defendant Goodman then assigned this investigation to
Sergeant T. Williams.
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.
Plaintiff cannot recall filing any grievances relating to the
alleged August 2011 incident concerning Defendant Waite.
addition, Plaintiff admitted at his deposition that he did
not file a grievance relating to the alleged September 2011
incident concerning Defendant Jenkins.
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.
Central Office Review Committee (“CORC”) staff
searched CORC's records for determinations upon grievance
appeals brought by Plaintiff.
DOCCS records reflect that Plaintiff was incarcerated at GMCF
during the time period pertaining to this action.
During that time, GMCF had a fully functioning inmate
grievance process available.
Inmates at GMCF have had full access to CORC by which to
appeal from facility-level ...