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Mirabella v. O'Keenan

United States District Court, W.D. New York

July 31, 2018





         Plaintiff Todd Mirabella, an inmate housed at Attica Correctional Facility (“Attica”), filed this action alleging violations of his Eighth Amendment rights under 42 U.S.C. § 1983. Presently before the Court is Defendants Correctional Officer Kiener and Sergeant Brown's Motion for Summary Judgment (Docket No. 48), seeking dismissal of the claims against them.[1] For the following reasons, the motion is denied as to the claim against Correctional Officer Kiener and granted as to the claim against Sergeant Brown.

         II. BACKGROUND[2]

         At the time of the events alleged in the Complaint, Mirabella was an inmate in the care and custody of the Department of Corrections and Community Supervision (“DOCCS”), serving time for a sex crime. In February 2014, Mirabella transferred from Elmira Correctional Facility into Attica, where he was eventually placed in D Block, 39 Company. During the relevant period, Defendant Kiener was assigned as the 3 p.m. to 11 p.m. shift officer for 39 and 40 companies, though he sometimes worked other jobs and shifts; Defendant Brown was employed as a Correction Sergeant at Attica and may have been assigned to D Block on the 3 p.m. to 1 a.m. shift, though he also worked other jobs and shifts.

         Mirabella alleges that, soon after he moved to Attica's D Block, around April 7, 2014, an inmate informed him that “Officer K” had put a “hit” out on him and showed other inmates a printed copy Mirabella's criminal charges. Mirabella further alleges that, on that same day, Kiener told Mirabella there was a “hit” on him and that he had printed out Mirabella's charges and shown them to the inmates because he thought it was important they know the nature of Mirabella's conviction. Mirabella also alleges that, on April 16, 2014, he saw Kiener whisper in to the porter's cell “When are you going to take care of this guy?” Mirabella understood this to be encouraging an attack.

         Kiener states that he recalls having a conversation with an inmate who was later slashed in the yard, who he believes to be Mirabella, but denies that it took place as Mirabella described. Kiener contends that the inmate told him the nature of the criminal charges without Kiener asking[3] and, in response, Kiener inquired why the inmate was going into the yard because it is a common location for inmate-on-inmate violence. Kiener later stated that, in his experience as a corrections officer, an inmate convicted on sex-related charges is more likely to be a victim of attacks from other inmates. Kiener also disputes having printed out any criminal charges.[4]

         Mirabella alleges that, due to his concern regarding the “hit” and other harassment by correctional officers, he wrote two letters directed to “Sergeant” and placed them into a locked mailbox in D Block into which inmates can deposit correspondence to the Block Sergeants. In the first letter, dated April 13, 2014, Mirabella stated that a correctional officer threatened to kill him, that another correctional officer put a “hit” on him, and that he had been denied certain privileges, without naming any specific officers. In the second letter, dated April 17, 2014, Mirabella specified that “Officer K, ” presumably Kiener, “has effectively put a ‘hit' on me by printing out the incidentals of my case and providing that info to several 39 company inmates for the sole reason of inciting violence.” (Docket No. 1-1 at 5.)

         Brown did not respond to Mirabella's letters nor, apparently, did any other Sergeant. On a given day, three Sergeants are assigned to D Block, one for each of the three separate shifts. In addition, other Sergeants would fill in for the scheduled Sergeants on their days off. Any one of these Sergeants, aside from Brown, could have received the Mirabella's letters. Mirabella admits that he did not send the letters to a specific sergeant and did not know which sergeant would receive them. Brown stated that he checked the Sergeant's mailbox at the start of each shift, never received either of the Mirabella's letters, and would have responded if he had.

         On April 19, 2014, two days after Mirabella sent his second letter, Mirabella was attacked in the D Block yard by another inmate. Mirabella states that he had never seen his attacker prior to the incident, does not know his name, nickname, or department identification number, and does not believe he was housed on 39 Company. Kiener and Brown were not present in the yard when Mirabella was attacked.

         Immediately after the attack, Mirabella left the yard and went inside where a group of Officers were on duty, including Kiener. Kiener asked Mirabella to remove the paper towels he had over the wound so Kiener could determine the severity of the injury and assess whether Mirabella should be taken to the infirmary. Kiener did not say anything to Mirabella when he examined at the wound. Mirabella was then escorted to the infirmary. The incident resulted in in a 7.5 inch slash to the left side of Mirabella's face that required 27 sutures and caused a permanent scar. Mirabella never saw his attacker again.

         Mirabella alleges that his cell was intentionally left open while he was being treated for his injury, which facilitated payment (e.g., the valuable items in Mirabella's cell) to the inmate or inmates involved in the attack.[5] Mirabella also cites a letter from Attica Captain Gilmore sent to Mirabella's family after the slashing, wherein Gilmore states that it was “not unusual” for inmates like Mirabella to have “problems” with other inmates “considering the nature of his crimes.” (Docket No. 56-20.)


         “A motion for summary judgment may properly be granted . . . only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law.” Kaytor v. Elec. Boat Corp.,609 F.3d 537, 545 (2d Cir. 2010). A court's function on a summary judgment motion “is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual ...

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