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Albritton v. Morris

United States District Court, S.D. New York

March 29, 2018

JEMAL ALBRITTON, Plaintiff,
v.
C.O. S. MORRIS, LT. TOKARZ, C.O. GONYO, SGT. FITZPATRICK, C.O. BLOTT, C.O. SAWYER, SUPT. WILLIAM A. LEE, VOC. SUPV. R. RYAN, SGT. O'CONNOR, and C.O. MCDONOUGH, Defendants.

          Jemal Albritton Napanoch, NY Pro Se Plaintiff

          James B. Cooney, Esq., Mary Kim, Esq., Bradley G. Wilson, Esq. New York State Office of the Attorney General New York, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge:

         Plaintiff Jemal Albritton (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 1983 against C.O. S. Morris (“Morris”), Lt. Tokarz (“Tokarz”), C.O. Gonyo (“Gonyo”), Sgt. Fitzpatrick (“Fitzpatrick”), C.O. Blott (“Blott”), C.O. Sawyer (“Sawyer”), Superintendent William Lee (“Lee”), Supervisor R. Ryan (“Ryan”), Sergeant O'Connor (“O'Connor”), and C.O.

         McDonough (“McDonough”) (collectively, “Defendants”), alleging violations of his constitutional rights stemming from a number of incidents while he was an inmate at Green Haven Correctional Facility (“Green Haven”). Before the Court is Defendants' Motion for Summary Judgment as to Plaintiff's claims against Lee, Tokarz, O'Connor, Sawyer, and Ryan. For the reasons that follow, Defendants' Motion is granted.[1]

         I. Background

         A. Factual Background

         The following facts are taken from the documents submitted on behalf of Lee, Tokarz, O'Connor, Sawyer, and Ryan, (Dkt. Nos, 120-129), Defendants' statement pursuant to Local Civil Rule 56.1, (Defs.' Rule 56.1 Statement (“Defs.' 56.1”) (Dkt. No. 122)), as well as Plaintiff's Amended Complaint, (Am. Compl. (Dkt. No. 74), and his Opposition and accompanying exhibits, (Pl.'s Resp. to Defs.' Mot. for Summ J. (“Pl.'s Opp'n”) (Dkt. No. 140)), and are recounted in the light most favorable to Plaintiff, the non-movant.[2]

         1. Plaintiff's Initial Interactions with O'Connor

         Plaintiff was well-acquainted with O'Connor during his time at Green Haven, as he was “one of the people . . . sent by Lee to investigate some of [his] complaints.” (Pl.'s Dep. 122.) While Plaintiff could not recall the exact dates that he had seen O'Connor, he stated that he met with O'Connor “frequently.” (Id. at 126.) Because Defendants do not dispute the version set forth by Plaintiff in his Amended Complaint, Plaintiff's Opposition, or the Accusatory Instrument Plaintiff filed in Dutchess County, (see Pl.'s Opp'n Ex. C (“Accusatory Instrument”)), the Court will treat the non-contradictory allegations of fact as being undisputed for purposes of this Motion. On December 17, 2009 at Green Haven, around 6:30 p.m., Plaintiff was escorted to the sergeant's lounge area of building 2, where he found O'Connor and three other sergeants seated. (See Accusatory Instrument 4; Am. Compl. 5.)[3] O'Connor told Plaintiff that he was a troublemaker who needed to “stop writing these complaints.” (Am. Compl. 5.) O'Connor further told Plaintiff that Morris had both warned O'Connor about Plaintiff and told him that Plaintiff had been writing complaints ever since he came to Green Haven. (See id.) With regard to a complaint that Plaintiff had recently filed, O'Connor said that he “interviewed the officers involved[, ] and they all denied [Plaintiff's] entire claim, ” and that, therefore, O'Connor was dismissing Plaintiff's claim without further investigation. (Id.; see also Accusatory Instrument 4.) In total, Plaintiff “endured about 20 minutes of mockery and farce investigation procedures” before O'Connor ended the investigation. (Am. Compl. 5; Accusatory Instrument 4.) Additionally, “[O'Connor] called [Plaintiff's] witness down and told him not to get involved with [Plaintiff's] problems.” (Am. Compl. 5.)

         Roughly two weeks later, on January 9, 2010, Plaintiff was called out of the yard over the P.A. system and was instructed to report back to the G-Block. (See Accusatory Instrument 3; Am. Compl. 5.) There, he was told to report to the administration building, where O'Connor ordered Plaintiff to step into the office adjacent to the package room. (See Accusatory Instrument 3; Am. Compl. 5.) O'Connor then told Plaintiff that “if [he] ke[pt] writing these B.S. grievances, [Plaintiff] [was] going to end up either in the box, hospital[, ] or[, ] better yet[, ] dead.” (Accusatory Instrument 3; Am. Compl. 5.) O'Connor then told Plaintiff that he needed to learn his place as an inmate. (See Accusatory Instrument 3; Am. Compl. 5.) Plaintiff asked what that place was, and O'Connor said that, “for one [thing], [Plaintiff] [is] a nigger, ” and, “second[, ] [he] [is] an inmate[, ] and [his] place is under [O'Connor's] corrections officers.” (Accusatory Instrument 3; Am. Compl. 5.) O'Connor further told Plaintiff that he “wouldn't care if [Plaintiff's] problem was a medical one[;] [Plaintiff] [would] have to beg [them] for anything that [he] need[ed].” (Am. Compl. 5; Accusatory Instrument 3.)

         Plaintiff said that he had a witness regarding “[his] grievance, ” which O'Connor had still yet to address, but provides no further information as to what this grievance was about. (Am. Compl. 5; Accusatory Instrument 3.) O'Connor then became irate, and said, “fuck your witness, ” before walking over to Plaintiff, poking him in the cheek three times, and asking if Plaintiff was listening. (Accusatory Instrument 3; Am. Compl. 5.) O'Connor then said that Plaintiff was “lucky that [O'Connor] [did not] just smack [Plaintiff] in the mouth.” (Accusatory Instrument 3; Am. Compl. 5.) O'Connor then warned Plaintiff that he would find himself in a “world of trouble” if he wrote up O'Connor's officers again, before adding, “[w]e know how to deal with your type around here.” (Am. Compl. 5; Accusatory Instrument 3.)

         Plaintiff also contends that on the same day, O'Connor tried to have another inmate rob and assault Plaintiff, telling him that Plaintiff is a “piece of shit.” (Am. Compl. 6; see also Pl.'s Opp'n ¶ 99; id. Ex. Q (“Middleton Aff.”).) “O'Connor told him (the other inmate) that he will take care of this his way” as well as “several other things.” (Am. Compl. 6.) Plaintiff filed an “accusatory instrument complaint” as well as a letter to the inspector general in Albany regarding the December 17, 2009 and January 9, 2010 incidents, who then forwarded both to Lee. (Id.; see generally Accusatory Instrument.) On April 1, 2010, Lee wrote to Plaintiff informing him that he was in receipt of the Accusatory Instrument and deemed the issues raised to “have been addressed and responded to through the inmate grievance process.” (Decl. of William Lee (“Lee Decl.”) Ex. A at 1 (Dkt. No. 123).) Lee indicated that he had received correspondence from Plaintiff's attorney regarding this incident, and that he had advised the attorney of the same. (Id.) Additionally, Lee stated he was “advised that [Plaintiff] met with Lt. Ward and advised [Lt. Ward] that [Plaintiff] ha[d] not had any further issues with Sgt. O'Connor.” (Id.) Accordingly, Lee deemed the matter resolved. (See id.)

         2. Morris' August 2010 Interactions with Plaintiff

         On August 6, 2010, Plaintiff filed a grievance (“Grievance No. 70010-10”) against Morris alleging that Morris had approached Plaintiff and said, “hurry the fuck up out the cell and zip up your pants.” (Decl. of Kevin O'Connor (“O'Connor Decl.”) Ex. A at 2 (Dkt. No. 125).) According to Plaintiff, Morris' actions were in retaliation “for [Plaintiff's] previous complaints filed against [Morris] with the grievance committee.” (Id.) In Grievance No. 70010-10, Plaintiff further alleged that there was “[s]omething very disturbing mentally with C.O. Morris and something needs to be done with him before he really snaps and hurts [Plaintiff], other inmates, staff, and/or himself . . . . C.O. Morris [is] a threat to the good order of security to this facility [and] I don't want to see him hurt himself or the people around him.” (Id.) O'Connor was assigned to investigate Grievance No. 70010-10, and ultimately reported his findings to Lieutenant Deegan. (See Defs.' 56.1 ¶ 10; O'Connor Decl. Ex A at 3.) In his report, O'Connor stated that he met with both Morris and C.O. Arrick, who was allegedly at the scene of the incident, and each of them denied Plaintiff's claims. (See O'Connor Decl. Ex A at 3-4, 6.)

         Specifically, Morris informed O'Connor that he “did not make any statements to [Plaintiff] while securing the cells[, but] [he] did remove a clothes line that was affixed to [Plaintiff's] cell bars in order to bring his cell into compliance.” (Id. at 6.) O'Connor also deputized Sergeant Malark to speak with Plaintiff, and Malark reported back to O'Connor that Plaintiff “made no further statements concerning the issue . . . [and] had no other witnesses to provide to substantiate his claims.” (Id. at 5.) Ultimately, Grievance No. 70010-10 was denied, as it was found that “the allegations [could not] be substantiated.” (Id. at 7.) Plaintiff disputed and appealed this finding, claiming that neither Malark nor O'Connor spoke with him about Grievance No. 70010-10 and that he in fact had “five witnesses that [could] provide statements about [what] C.O. Morris did.” (Id. at 8.)

         Within weeks of the August 6, 2010 incident, Plaintiff and Morris had another altercation. On August 23, 2010, Lee received a letter from another inmate named Adolphus Nelson (“Nelson”) regarding an incident that took place in Plaintiff's cell block on August 21, 2010. (See Lee Decl. Ex. B at 4; Pl.'s Opp'n Ex. I (“Nelson Letter”) 1.) According to Nelson's letter, which is the version of events adopted by Plaintiff, (see, e.g., Pl's Opp'n ¶¶ 18, 35; id. Ex. A1 ¶ 4), Morris came to the cell block that Plaintiff was in and “ma[de] a very threatening statement” to a fellow inmate, (Nelson Letter 1). Specifically, Morris allegedly stated that “guys [who] write grievances that are friviolous [sic] and cry like little bitches and . . . Inmate Jemal Albritton 06A5348 will find himself [sic] in the [h]ospital.” (Id.) Lee delegated the investigation of this incident to Deputy Superintendent for Security Koskowski (“Koskowski”), who in turn dispatched O'Connor to investigate. (Defs.' 56.1 ¶¶ 15-16.) Morris informed O'Connor that he did not make “any threatening statements about [Plaintiff] to anybody while working in [Plaintiff's cell block].” (Lee Decl. Ex. B at 2.) O'Connor thereafter interviewed Nelson, during which Nelson “reiterated [his] original complaint.” (Id. at 1.) However, according to Defendants, Nelson did indicate that Morris was not speaking to Albritton in cell number 337, but rather to a different inmate in cell number 304 who did not feel that Morris had “threaten[ed] him or any other inmate.” (Id.) Moreover, according to O'Connor, Nelson also admitted that he didn't write the complaint, but merely copied it from another inmate. (See id.) Accordingly, O'Connor found that Nelson's letter regarding Morris' interaction with Albritton was meritless. (See id.) Plaintiff, however, disputes this determination made by O'Connor, noting that “Nelson's letter clearly stated [D]efendant Morris said ‘337 cell' (Jemal Albritton #06A5348) ‘will find himself [sic] in the hospital.'” (Pl.'s Opp'n ¶ 35; see also Nelson Letter 1.)

         Throughout the period between 2009 and 2010, without specifying any dates, Plaintiff's mother called Lee “to complain about [Plaintiff] being harassed by several . . . officers . . . [including] C.O.[] Morris, and Sgt. O'Connor, [and] Lt. Tokarz.” (Pl.'s Opp'n Ex. H (“Brown-Royall Aff.”) 1.) According to Plaintiff's mother, Lee informed her that Plaintiff “was safe and nothing was going to happen to him.” (Id.) On at least one other occasion, Plaintiff's mother spoke to Lieutenant Ward, who similarly informed her that Plaintiff “would be fine.” (Id.) Defendants do not directly dispute the existence of these calls, though Lee appears to have informed Plaintiff's mother in September 2010 that Ward “denies speaking with [her] and states that he had not been given direction to do so.” (Id. at 13.) In addition to Plaintiff's mother attempting to reach out to Lee, his lawyer contacted Lee at least once prior to the September 22, 2010 assault regarding Plaintiff's prior complaints. (Lee Decl. Ex A. at 1.)[4]

         3. Plaintiff Meets with Tokarz

         On September 10, 2010, Plaintiff met with Tokarz in response to a grievance he filed regarding Morris. (Defs.' 56.1 ¶ 17; Pl.'s Dep. 94.) Plaintiff's grievance contended that Morris had been cutting his clothes line down in his cell, resulting in his things landing in the toilet and “all over the place.” (Pl.'s Dep. 95.) According to Plaintiff, Morris told him that he “need[ed] to stop writing . . . bitch grievances.” (Id.) Plaintiff informed Tokarz that he “was afraid that something was going to happen, that [he] was going to be attacked, ” by Morris or “somebody else.” (Id. at 120.) In response, Tokarz told Plaintiff, among other things, that “inmates never win grievances, ” (id. at 96), and informed Plaintiff that it was his last day of work for the week, and that, “[w]hen [he] c[a]me back, [he would] handle this, ” (id. at 97). Tokarz did not say “anything” about Plaintiff being attacked at a later date by anyone in the facility. (Id. at 99.)

         Tokarz's version is quite different, as he later informed his superiors that he “at no time . . . t[old] [Plaintiff] that he could never win a grievance.” (Lee Decl. Ex. C at 2.) There was an investigation of Plaintiff's complaint, including an October 4, 2010 letter that Plaintiff received from “Captain M. Royce, ” indicating that he “interviewed [Plaintiff] on September 29, 2010[, ] and at that time[, ] [Plaintiff] had nothing further to add” regarding Tokarz's conduct, but “stated that [his] current situation is a result of [his] interview with Lieutenant Tokarz.” (Id. at 1.) The letter further indicates that “[Plaintiff] [was] advised to make statements or supply any evidence [Plaintiff] had at [his] disciplinary hearing, for [his] current situation, ” and that Royce “spoke to and received written documentation from Lieutenant Tokarz denying the statement [Plaintiff] alleged [Tokarz] said[] about inmates never winning grievances, ” and concluded that Tokarz “acted in a professional manner.” (Id.)

         4. The September 22, 2010 Incident

         On the evening of September 22, 2010, at “approximately quarter to 7:00 [p.m.], 7:00 [p.m, ], ” Plaintiff was on the way to the yard, when Morris pointed him out to Gonyo. (Pl.'s Dep. 27.)[5] Gonyo came up to Plaintiff, and told him to step back inside. (See id.) Plaintiff did so, and, while waiting, saw another officer come out of the sick call room, who Plaintiff believes may or may not have been Sawyer. (See id at 36.) Gonyo then returned, told Plaintiff to step over to the wall, take everything out of his pockets, remove his jacket, and put his hands on the wall. (See Id. at 35.) Plaintiff did so, and Gonyo brought his hand up Plaintiff's legs, then around Plaintiff's waist, to the front. (See Id. at 40-41.) Plaintiff looked down, while Gonyo dropped a metal object from his hand and said “weapon, weapon.” (Id. at 41.) At the same time, Gonyo grabbed Plaintiff's belt and slammed him into the ground. (See id.) Two additional officers jumped on Plaintiff and began punching him in the back of the head. (Id. at 27.) Plaintiff was on his stomach and was turning his head around to look to see who was involved. (See Id. at 55.) One of the officers had a hold of, and was twisting, Plaintiff's arm. (Id. at 53.) McDonough then struck Plaintiff “four . . . maybe five times” in his back with his baton, while Plaintiff was pinned down with his arm behind his back, being twisted. (Id.) Blott then came and punched Plaintiff on both sides of his face, while other unnamed officers were twisting his arms and legs. (See Id. at 57.) While he was still on the floor, Plaintiff heard McDonough screaming, “we are going to break your arm, ” as well as “something about grievances.” (Id. at 58, 63.) Plaintiff felt like he could not breathe, and called out to Fitzpatrick for assistance. (See id. at 59.) In response, Fitzpatrick was “just pacing back and forth like she didn't know what to do.” (Id.)

         Once Plaintiff was brought to his feet, he was placed against the wall. (See Id. at 66.) He had difficulty breathing, and so one of the corrections officers administered his inhaler, during which McDonough came over and punched Plaintiff in the stomach. (See id.) Plaintiff fell to his knees, and Officer D'Angelo, who had come to the scene after the assault had finished, said that that was enough and stopped McDonough. (See id at 75.)

         Plaintiff appears to now believe that Sawyer was not involved in the actual assault on September 22, 2010. Plaintiff's grievance stated that Sawyer was standing in the area and then “jumped on [Plaintiff]” after Gonyo yelled about the weapon. (Wilson Decl. Ex. B (“Grievance No. 70344-10”) 2.) Sawyer was alleged to have been punching Plaintiff while he was on the ground and present for the entirety of the assault. (See id.) Plaintiff's Amended Complaint is also in line with this version of events, stating that “Sawyer was there with [Gonyo], jumped on [Plaintiff] and started punching [him] in the back of the head.” (Am. Compl. 9.) Moreover, at Plaintiff's hearing before Ryan on October 17, 2010, Sawyer testified that he was initially at E-Block, but was “supposed to be out in the yard.” (Decl. of Richard Ryan (“Ryan Decl.”) Ex. C (“Hearing Transcript”) 71 (Dkt. No. 126).) When he heard a response come over the radio, he left to go to the yard and saw Gonyo “engaged in an altercation with [Plaintiff].” (Id.) Sawyer testified that he “stepped in to assist” Gonyo, who “was on [Plaintiff's] right side and trying to secure his right arm, ” so he “grabbed [Plaintiff's] left arm . . . [and] got [Plaintiff] secured.” (Id. at 72, 74.) According to Sawyer, only Gonyo was present at first, then after Sawyer arrived, another officer showed up and Fitzpatrick then arrived with additional responders. (Id. at 76.)

         However, at his deposition, Plaintiff expressed doubts regarding Sawyer's presence at the incident. Plaintiff testified that he had never met Sawyer before, could not describe what he looked like, and only named Sawyer in his grievance and Complaint “[b]ecause [Sawyer] said he was involved in the incident.” (Pl.'s Dep. 37.) Plaintiff testified that he “now . . . believe[s] Sawyer was lying, ” and that Sawyer “falsified documents . . . endorsed the ticket and said he was there and took the place of the other C.O.s.” (Id. at 37-38.) Plaintiff expressed these same doubts at his disciplinary hearing on October 17, 2010, (see Hearing Transcript 77-79), but proceeded with his excessive force claim against Sawyer as detailed in the Amended Complaint, (Am. Compl. 9). Plaintiff's new version of events appears to rest on the affidavit of an inmate named Lucien Salnave (“Salnave”). (Pl.'s Opp'n Ex. A4 ¶ 2.) According to Salnave, he witnessed the entirety of the incident on September 22, 2010, and, while walking up the stairs of E Block after the incident had ended, he overheard Sawyer “joking with another officer . . ., ‘I guess we solved that problem.'” (Pl.'s Opp'n Ex. W1 (“Salnave Aff.”) 2.) Salnave's affidavit is dated November 14, 2010, was notarized by Ryan the next day, and was in fact attached to Plaintiff's Amended Complaint. (See Am. Compl. 15-16.) On the basis of his own deposition testimony and Salnave's affidavit, Plaintiff now seeks to amend his complaint to reflect his new allegation that Sawyer did not actually assault him, but instead was a part of a “conspiracy, ” (Pl.'s Opp'n ¶ 85), to “cover up and aid [D]efendants Morris', Gonyo's, Blott's, [and] McDonough's assault . . . by . . . filing of a false use of force report, unlawfully endorsing the misbehavior report, and providing . . . false testimony at [P]laintiff's disciplinary hearing.” (Letter from Plaintiff to Court (“Request To Amend Compl.”) (Nov. 30, 2017) 2 (Dkt. No. 146).)

         5. Plaintiff is Written Up and Subsequent Proceedings

         On September 23, 2010, Plaintiff was given a ticket and charged with “Violent Conduct, Creating a Disturbance, Possession of a Weapon, Refusing a Direct Order, and Refusing a Search or Frisk.” (Ryan Decl. ¶ 4; see also Am. Compl. 9.) Five days later, on September 28, 2010, Plaintiff's disciplinary hearing began, with Ryan serving as the hearing officer. (Ryan Decl. ¶ 4.) According to Plaintiff, Ryan “violated [Plaintiff's] due process rights, ” inasmuch as he failed to call “a couple of witnesses, ” including: (1) Plaintiff's psychiatrist; (2) Sergeant Foreman, who escorted him after the incident; and (3) Investigator Smith from the Office of the Inspector General, who investigated the incident after the fact. (Pl.'s Dep. 146-152.) Plaintiff specifically believed that Investigator Smith was a critical witness, as he would have testified about what “he found out during his investigation . . . which could help [Plaintiff's] defense out.” (Id. at 149.) In all, Plaintiff called five inmate witnesses, as well as five officer witnesses that were alleged to have been involved in the incident. (Ryan Decl. ¶ 8; Hearing Transcript 2.) Additionally, Plaintiff believes that Ryan was biased based on comments that he stated off the record “before the hearing started.” (Pl.'s Dep. 158.)

         Ryan does not dispute declining to call these witnesses, but contends that doing so was within his discretion as the hearing officer. (See Ryan Decl. ¶ 6.) Specifically, Ryan declined Plaintiff's request to call Investigator Smith from the Office of the Inspector General because “that person did not witness the incident and thus could add nothing to the case about whether or not the events occurred as Plaintiff's misbehavior report alleged.” (Id. ¶ 11; see also Hearing Transcript 107 (“[Investigator] Smith was not at Green Haven at the time [of the incident].”).) Ryan similarly declined Plaintiff's request to call his psychiatrist and Sergeant Foreman because neither individual witnessed the events at issue. (See Ryan Decl. ¶¶ 12-13.) Ryan also denies making any biased comments regarding Plaintiff while off the record during the hearing, and contends that the decision was based exclusively on the record of the hearing. (See Id. ¶ 15.)

         The hearing ended on October 20, 2010, with Ryan ultimately finding Plaintiff guilty of all five charges. (Ryan Decl. Ex. A (“Hearing Disposition”).) As a penalty, Plaintiff was given 12 months in the Special Housing Unit (“SHU”). (See id.) The Hearing Record Sheet indicates that Koskowski reviewed Ryan's disposition on October 29, 2010, and noted that the hearing was held in compliance with Department of Corrections and Community Supervision (“DOCCS”) regulations. (See Lee Decl. ¶ 15; id. Ex. E at 2.) The grievance was then appealed directly to the Commissioner of DOCCS, and the disposition was affirmed by the Commissioner's designee, Assistant Director D. Venettozzi, on December 30, 2010. (Id. Ex. F. at 1.) After receiving his sentence, but on an unspecified date, Plaintiff spoke to Lee about the incident and his punishment while Lee was making his rounds in SHU. (Pl.'s Opp'n Ex. A1 ¶ 3.) Plaintiff followed up on October 31, 2010, after Koskowski had already reviewed the hearing, by writing to Lee and informing him that he was denied certain witnesses “that w[ere] relevant for [Plaintiff] to prove [his] innocen[ce].” (Pl.'s Opp'n Ex. B (“Oct. 31 Letter from Pl. to Lee”) 1.)

         6. Plaintiff's October 7, 2010 Grievance

         On October 7, 2010, Plaintiff filed a grievance related to the September 22, 2010 incident. In his grievance, Plaintiff recounts the version of events that he relayed in his Amended Complaint and at his deposition. (See Grievance No. 70344-10 at 2.) Plaintiff describes the pat-frisk conducted by Gonyo and subsequent use of force. (See id.) He states that Gonyo “slammed [Plaintiff] to the ground” after yelling about a weapon, and that Sawyer was the first to arrive at the scene. (Id.) McDonough and Blott showed up shortly thereafter, holding Plaintiff down on his stomach, punching him in his face, and twisting his arms and legs. (See id.) Plaintiff was then brought to his feet and punched by McDonough in his stomach, after which Sergeant Foreman took Plaintiff to SHU. (See id.) Plaintiff claimed that this assault stemmed from complaints that he had previously filed against Morris, Tokarz, and “several other staff members.” (Id. at 3.) Plaintiff does not specifically mention O'Connor or Lee in Grievance No. 70344-10, nor does he state that any individual was aware of a pending assault. However, Plaintiff states that he “exhausted the administrative remedies provided for by [DOCCS'] three tier grievance procedures, ” (Pl.'s Opp'n ¶ 87), and Defendants agree that Plaintiff “undisputedly filed and appealed” Grievance No. 70344-10 after the September 22, 2010 incident, (Defs.' Reply in Supp. of Mot. for Summ. J. (“Defs.' Reply”) 1 (Dkt. No. 143)).

         Plaintiff also provides details as to a visit that O'Connor paid to his cell while in SHU. According to Plaintiff, O'Connor and another corrections officer came to SHU, and told Plaintiff to come out of his cell. (Pl.'s Opp'n Ex. A1 ¶ 3.) Plaintiff asked who wanted to speak with him, and was told that it was O'Connor. (Id. Ex. A3 at 2.) Plaintiff asked what O'Connor wanted to see him about, and O'Connor subsequently arrived at Plaintiff's cell, which he asked Plaintiff to exit. (Id.) Plaintiff asked why, and O'Connor said that he would tell Plaintiff once he exited the cell. (Id.) Plaintiff told O'Connor that Plaintiff feared for his safety, and that O'Connor was part of the basis for that fear. (Id.) O'Connor did not indicate that he was at Plaintiff's cell to discuss any grievance filed by Plaintiff, and never actually told Plaintiff what he was there to discuss. (Id.) Afterward, Plaintiff filed a complaint, stating that Sgt. O'Connor falsely told the investigator, Lieutenant LaPorte, that Plaintiff “refused to participate in the investigation.” (Id.) LaPorte investigated Plaintiff's complaint regarding O'Connor, and ultimately determined that it lacked merit. (Id. Ex. R (“LaPorte Letter”) at 1.)

         B. ...


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