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Campbell v. Pure

United States District Court, N.D. New York

July 3, 2018


          Troy Campbell 13-A-0601 Orleans Correctional Facility Plaintiff pro se

          Attorney General for the State of New York The Capitol Albany, New York 12224 Attorney for defendants KEITH J. STARLIN, ESQ. Assistant Attorney General



         Plaintiff 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, [2] and defendants filed a reply. Dkt. Nos. 51, 52. For the following reasons, it is recommended that defendants' motion be granted.

         I. Background

         A. Plaintiff's Recitation of the Facts

         The 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.

         B. Defendants' Recitation of the Facts

         In support of their Motion for Summary Judgment, defendants filed a Statement of Material Facts.[3] 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.

         After 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.

         After 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.

         Pursuant 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.

         II. Discussion[4]

         A. Legal Standards

         1. Summary Judgment Standard

         “A 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).

         To 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).

         Where, 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 stated,

[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).

         2. N.D.N.Y Local Rule 7.1(a)(3)

         Local 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 omitted).

         Defendants 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 summary judgment.”).

         B. ...

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