United States District Court, N.D. New York
Campbell 13-A-0601 Orleans Correctional Facility Plaintiff
Attorney General for the State of New York The Capitol
Albany, New York 12224 Attorney for defendants KEITH J.
STARLIN, ESQ. Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
pro se Troy Campbell (“plaintiff”), an
inmate who was, at all relevant times, in the custody of the
New York Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42
U.S.C. § 1983, alleging that Superintendent
(“Supt.”) David Hallenbeck and Corrections
Officer (“C.O.”) Joseph Prue - who, at all
relevant times, were employed at Hale Creek Correctional
Facility (“Hale Creek”) - violated his
constitutional rights under the Eighth Amendment.
See Dkt. No. 17 (“Sec. Am. Compl.”).
Presently pending before the Court is defendants' Motion
for Summary Judgment pursuant to Rule 56 of the Federal Rules
of Civil Procedure (“Fed. R. Civ. P.”). Dkt. No.
48. Plaintiff opposed defendants' motion,  and defendants
filed a reply. Dkt. Nos. 51, 52. For the following reasons,
it is recommended that defendants' motion be granted.
Plaintiff's Recitation of the Facts
facts are related herein in the light most favorable to
plaintiff as the nonmoving party. See subsection
II.A. infra. Plaintiff alleges that Supt. Hallenbeck
and C.O. Prue were aware that non-party inmate Deandre Moore
was a “violent person and . . . affiliated with the
Bloods.” Sec. Am. Compl. at 3. Plaintiff informed Supt.
Hallenbeck and C.O. Prue “numerous times” that
inmate Moore threatened and harassed him, and that inmate
Moore stated that “he was about to cut
[plaintiff].” Id. Supt. Hallenbeck and C.O.
Prue told plaintiff that “everything [was] going to be
alright” and that nothing would happen to him.
Id. At an unspecified time, inmate Moore assaulted
plaintiff with a knife. Id. at 5. Plaintiff
sustained injuries to the left side of his neck, and received
fourteen stitches. Id.
Defendants' Recitation of the Facts
support of their Motion for Summary Judgment, defendants
filed a Statement of Material Facts. Plaintiff transferred to
Hale Creek on June 1, 2015. Dkt. No. 48-1 ¶ 70. On
September 10, 2015, inmate Moore interrupted plaintiff's
conversation with another non-party inmate in the inmate
cafeteria, and told plaintiff to “shut the F up,
” and called him a “pussy.” Id.
¶¶ 14, 16. Plaintiff called inmate Moore a
“pussy, ” and inmate Moore stated,
“we're going to see who's a pussy when we get
back to the dorm.” Id. ¶ 16. Prior to
September 10, 2015, plaintiff had not have any confrontations
or arguments with inmate Moore. Id. ¶¶ 74,
75. Plaintiff contends that on his return to the dorm, he
spoke with a non-party DOCCS official named “Soto,
” and asked him to inform Supt. Hallenbeck about his
verbal argument with inmate Moore. Id. ¶ 19. At
his deposition, plaintiff testified that he informed Sergeant
(“Sgt.”) Soto that during the verbal argument,
inmate Moore stated that “he was going to cut
[plaintiff], ” and he asked Sgt. Soto to get Supt.
Hallenbeck so that plaintiff could speak with him.
Id. ¶ 21.
leaving the inmate cafeteria, plaintiff and inmate Moore
returned to their shared housing unit. Dkt. No. 48-1 ¶
23. Although they walked within the same group of inmates,
plaintiff and inmate Moore did not interact. Id.
¶ 24. On that day, C.O. Prue was stationed at the main
door leading into the C-2 housing unit. Id. ¶
25. Plaintiff contends that he informed C.O. Prue that inmate
Moore stated that he was “going to cut [him], ”
and “about the situation” with inmate Moore.
Id. ¶ 26. Plaintiff claims that C.O. Prue told
him “don't worry about it, ”
“[a]in't nothing going to happen, ”
“these guys want to go home - do their program and go
home.” Id. ¶ 27. Plaintiff testified at
his deposition that he did not have any further conversation
with C.O. Prue. Id. ¶ 28. After plaintiff
returned to his cube, he observed C.O. Prue in the C-2
housing unit dayroom/television room looking at the
television. Id. ¶ 30. Soon after, inmate Moore
called out to plaintiff from the doorway of the housing
unit's restroom. Id. ¶ 32. Plaintiff
voluntarily left his cube, and entered the restroom with
inmate Moore. Id. ¶ 33. Plaintiff was in the
bathroom with inmate Moore for approximately three seconds
when inmate Moore cut him with a sharp object. Id.
¶ 35. Another inmate immediately intervened and placed
himself between plaintiff and inmate Moore, at which time
plaintiff hit inmate Moore with a garbage can lid.
Id. ¶ 36.
the altercation, plaintiff remained in the inmate restroom
and wiped the blood away from his cut. Dkt. No. 48-1 ¶
38. Plaintiff then attended his afternoon Alcohol and
Substance Abuse Treatment (“ASAT”) program class
without informing C.O. Prue or any other Hale Creek official
about the altercation, his injuries, or that he wanted
protection from inmate Moore. Id. ¶¶ 39,
41. The ASAT teacher questioned why plaintiff had band aids
on his neck, and plaintiff informed the teacher that he had
been hurt playing basketball. Id. ¶ 42.
Plaintiff did not mention the altercation with inmate Moore,
or that he had been cut by a knife. Id. Inmate Moore
attended the same ASAT class as plaintiff, and plaintiff
chose to move his seat during the class to sit with inmate
Moore. Id. ¶¶ 43, 44. Plaintiff and inmate
Moore spoke with each other without any conflict.
Id. ¶ 45. The ASAT teacher eventually separated
plaintiff and inmate Moore once she noticed that they were
not talking about school work. Id. ¶ 46.
Plaintiff then asked for permission to use the bathroom and
speak with a corrections officer. Id. ¶ 47.
Plaintiff spoke with non-party C.O. Borner, and informed him
that he had scratched himself on a locker in his dorm and did
not know he had a visible scratch until other inmates told
him. Id. ¶ 48. Plaintiff did not inform C.O.
Borner of the altercation with inmate Moore. Id.
¶ 49. C.O. Borner called a DOCCS nurse and Sgt. Soto to
report the injury, and sent plaintiff to the infirmary.
Id. ¶ 50. Plaintiff told DOCCS officials at the
infirmary that he had cut himself on a locker inside his
cube. Id. ¶ 51. Plaintiff signed an
“Inmate Injury Report, ” which stated that
“[t]he cause of my cut that my locker inside my cube
cut me when I was going for my net bag. I cut myself on the
locker inside my cube but everything good I'm
alright.” Id. ¶ 52. DOCCS officials sent
plaintiff to Albany Medical Center for further medical
treatment. Id. ¶ 53. Hale Creek began an
investigation into the source of the cut, and interviewed
plaintiff about what had happened. Id. ¶ 54.
During the interview, plaintiff maintained to Sgt. Soto that
he had cut himself opening a locker, but after further
questioning, plaintiff admitted that he had been involved in
an altercation with inmate Moore. Id. ¶ 56.
DOCCS officials also interviewed inmate Moore, and discovered
that he had sustained superficial injuries in the September
10, 2015 altercation. Id. ¶ 57.
to the investigation, plaintiff submitted a “Free Will
Statement, ” which made no mention that he had ever
requested protection from inmate Moore prior to the September
10, 2015 altercation or had informed anyone of an alleged
threat to him by inmate Moore. Dkt. No. 48-1 ¶ 59.
Plaintiff and inmate Moore were both charged with violating
DOCCS inmate rules, and plaintiff was issued a misbehavior
report charging him with fighting (100.13). Id.
¶¶ 60, 61. On September 11, 2015, plaintiff was
transferred to Marcy Correctional Facility where he remained
until February 4, 2016. Id. ¶¶ 63, 64. On
September 16, 2015, a Tier III Superintendent's hearing
was held at Marcy regarding the charges stemming from the
September 10, 2015 altercation. Id. ¶ 65.
During plaintiff's testimony, he did not mention that he
told Sgt. Soto, C.O. Prue, Supt. Hallenbeck, or any other
DOCCS official about the September 10, 2015 lunchtime verbal
argument with inmate Moore, or any alleged threats by inmate
Moore. Id. ¶ 67. He testified that he did not
expect inmate Moore to attack him on September 10, 2015, did
not mention inmate Moore's alleged threat to
“cut” or injure him, and testified that when he
entered the bathroom, he did not believe that there was going
to be any physical violence. Id. ¶ 68. At the
conclusion of the hearing, the hearing officer found
plaintiff guilty and sentenced him to seven days of
pre-hearing confinement that he had already served, as well
as mandatory counseling. Id. ¶ 69.
Summary Judgment Standard
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party has the burden of
showing the absence of disputed material facts by providing
the Court with portions of “pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, ” which support the
motion. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is material if
it may affect the outcome of the case as determined by
substantive law, such that “a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“In determining whether summary judgment is
appropriate, [the Court will] resolve all ambiguities and
draw all reasonable inferences against the moving
party.” Skubel v. Fuoroli, 113 F.3d 330, 334
(2d Cir. 1997).
avoid summary judgment, a non-moving party “must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Carey v. Crescenzi,
923 F.2d 18, 19 (2d Cir. 1991) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)) (internal quotation marks omitted). A non-moving
party must support such assertions by evidence showing the
existence of a genuine issue of material fact. See
id. “When no rational jury could find in favor of
the non-moving party because the evidence to support is so
slight, there is no genuine issue of material fact and a
grant of summary judgment is proper.” Gallo v.
Prudential Services, Ltd. P'ship, 22 F.3d 1219, 1224
(2d Cir. 1994).
as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special
solicitude. See Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has
[t]here are many cases in which we have said that a pro
se litigant is entitled to “special solicitude,
” . . . that a pro se litigant's
submissions must be construed “liberally, ” . . .
and that such submissions must be read to raise the strongest
arguments that they “suggest, ” . . . . At the
same time, our cases have also indicated that we cannot read
into pro se submissions claims that are not
“consistent” with the pro se
litigant's allegations, . . . or arguments that the
submissions themselves do not “suggest, ” . . .
that we should not “excuse frivolous or vexatious
filings by pro se litigants, ” . . . and that
pro se status “does not exempt a party from
compliance with relevant rules of procedural and substantive
law . . . .
Id. (citations and footnote omitted); see also
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191-92 (2d Cir. 2008).
N.D.N.Y Local Rule 7.1(a)(3)
Rule 7.1(a)(3) requires a party moving for summary judgment
to file and serve a Statement of Material Facts. See
N.D.N.Y. L.R. 7.1(a)(3). “The Statement of Material
Facts shall set forth, in numbered paragraphs, each material
fact about which the moving party contends there exists no
genuine issue.” Id. The opposing party is
required to file a response to the Statement of Material
facts “admitting and/or denying each of the
movant's assertions in matching numbered
paragraphs.” Id. “The Court shall deem
admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not
specifically controvert.” Id. (emphasis
argue that because plaintiff has failed to file a response to
their Statement of Material Facts, the facts set forth
therein must be deemed admitted. See Dkt. No. 52
(“Def. Reply”) at 4-5. Thus, defendants contend
that “[g]iven the dispositive nature of those facts,
plaintiff has clearly failed to raise any genuine, triable
question of relevant fact as to the claims covered by
defendants' motion . . . and those claims should be
dismissed.” Id. at 5. The undersigned is not
required to “perform an independent review of the
record to find proof of a factual dispute.”
Prestopnik v. Whelan, 253 F.Supp.2d 369, 371
(N.D.N.Y. 2003) (concluding that the “plaintiff's
suggestion that the transcript and videotape of the
[incident] be reviewed to identify support for her Statement
of Material Facts Not in Dispute does not cure her failure to
comply with Rule 7.1(a)(3).”). Although the defendant
argues, and the Local Rules provide, that the Court shall
deem admitted any facts the nonmoving party fails to
“specifically controvert, ” pro se
plaintiffs are afforded special solicitude in this District
and within the Second Circuit. N.D.N.Y. L.R. 7.1(a)(3); Def.
Reply at 4-5; see subsection II.A. supra.
Accordingly, in deference to plaintiff's pro se
status, the Court will independently review the record when
evaluating defendants' Motion for Summary Judgment, and
“treat plaintiff's opposition as a response
to” defendants' Statement of Material Facts.
Johnson v. Lew, No. 1:13-CV-1072 (GTS/CFH), 2017 WL
3822047, at *2 (N.D.N.Y. Aug. 30, 2017) (“Out of
special solicitude to Plaintiff as a pro se civil
rights litigant, however, the Court will treat his opposition
as a response to Defendant's Rule 7.1 Statement,
carefully reviewing it for any record-supported disputation
of Defendant's Rule 7.1 Statement.”); see Perry
v. Ogdensburg Corr. Facility, No. 9:10-CV-1033
(LEK/TWD), 2016 WL 3004658, at *1 (N.D.N.Y. May 24, 2016)
(determining that “although [p]laintiff failed to
respond to the statement of material facts filed by
[d]efendants as required under Local Rule 7.1(a)(3), the
Court would invoke its discretion to review the entire record
when evaluating the parties' respective Motions for