ARNALDO MONTERO, Plaintiff, -against- C.O. CRUSIE, C.O.
MONTEGARI, C.O. O'CONNOR, C.O. JONES, C.O. DIMONDA,
Defendants.
98 Civ. 1282 (CBM)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
153 F. Supp. 2d 368
June 27, 2001, Decided
June 28, 2001, Filed
MEMORANDUM OPINION AND ORDER
Motley, J.
Arnaldo Montero, pro se plaintiff, brings this action pursuant
to 42 U.S.C. § 1983 alleging violations of his constitutional rights
under the Eighth and Fourteenth Amendments. Plaintiff seeks injunctive and
declaratory relief and compensatory and punitive damages. Defendants now move
for summary judgment. For the reasons that follow, this court GRANTS in part
and DENIES in part defendants' motion for summary judgment.
Plaintiff
is an inmate currently in the custody of the New York State Department [*372]
of Correctional Services. During the alleged events relevant to this
action, plaintiff was confined to the Special Housing Unit ("SHU") at
Green Haven Correctional Facility ("Green Haven"). Defendants, Joseph
Crusie, William O'Connor, Alfred Montegari, Michael Jones, and Scott Dimonda,
are correctional officers employed at Green Haven. Plaintiff's allegations
involve a number of different incidents at Green Haven, the facts of which are
in dispute.
Plaintiff alleges that on December 13, 1997, he was approached
by an inmate named Torres soon after he and other SHU inmates entered the Green
Haven recreation yard. Defendants Crusie and O'Connor allegedly released Torres
into the yard and told him that if he "fights [plaintiff] it would be a
good Christmas present." Pl.'s Mem. Law P 5. At the time, Torres was
prohibited from using the recreation yard at all with the other inmates.
Plaintiff states that the prison surveillance camera posted in the recreation
area recorded Torres' presence in the yard. No fight occurred between plaintiff
and Torres. Plaintiff asserts that Torres
filed a grievance with the Inmate Grievance Committee at Green Haven as a
result of this incident. Defendants deny asking Torres to fight plaintiff.
Plaintiff alleges that on December 14, 1997, as defendants Jones
and Dimonda escorted plaintiff back to his cell from the recreation yard,
plaintiff observed defendant Crusie "throwing kisses" at him. Pl.'s
Mem. Law P 11. Plaintiff became upset by Crusie's actions. Defendants deny that
Crusie threw kisses at plaintiff.
While plaintiff was being escorted by defendants Jones and
Dimonda but prior to reaching his cell, plaintiff removed his hand from his
pockets and unzipped his trousers. In the area in front of his open cell,
plaintiff turned around to face Jones and Dimonda and directed profane language
at them. Upon seeing this disturbance, Crusie approached plaintiff and pushed
him into his cell. Plaintiff alleges that as he fought for his balance in the
cell, Jones pushed him further into the cell. Plaintiff asserts that as a
result of Crusie's push, plaintiff's head hit the cell wall causing a migraine
headache that lasted four days. Defendants disagree with plaintiff's rendition
of the facts. They allege that before
they could lock plaintiff in his cell, plaintiff charged Jones who responded by
pushing plaintiff into his cell. A prison videotape surveillance camera,
submitted as defendants' exhibit C, recorded part of the incident.
C. The New Cell
Incident
On December 18, 1997, plaintiff alleges that he became upset in
the shower and started shouting because defendant Montegari ordered him to
finish showering immediately. Defendants allege that plaintiff was ordered to
exit the shower because his allotted ten-minute showering time had expired.
Plaintiff states that although he was not wearing a watch, he could sense that
his showering time had not yet expired. After becoming upset, plaintiff was
escorted to a new cell on the orders of Sgt. Tierney.
[*373] When he arrived
at the new cell, plaintiff alleges that defendants Crusie and Montegari ignored
his request to have his property brought to him there. Plaintiff responded by
flooding his cell. Plaintiff alleges that defendants Crusie and Montegari then
brought his property to him and placed the property in a puddle and threw old
papers on top of the property. Plaintiff threw the papers on the floor, and as
a result, plaintiff's property was
taken away from him for a day. Plaintiff further alleges that he did not have
bed sheets or running water during his first day in the new cell. Defendants
deny that plaintiff received his property prior to flooding his cell.
D. Pat Frisking
Plaintiff
alleges that on several occasions, as defendant Crusie pat frisked plaintiff,
Crusie squeezed plaintiff's genitalia. Plaintiff also alleges that Crusie
offered plaintiff various extra privileges, including extra food and extra
shower time, in exchange for sexual favors. Plaintiff states that when he
refused the offer, Crusie made a series of death threats to him. Defendant
Crusie denies plaintiff's allegations.
E. Rumors and Comments
Concerning Plaintiff's Sexuality
Plaintiff
also claims that defendants Crusie, O'Connor, and Montegari spread rumors
throughout the Green Haven population that, among other things, plaintiff was a
"homosexual and faggot" who "loves little boys" and
"is doing time for rape." Pl.'s Mem. Law P 26. Plaintiff alleges that
defendants sometimes screamed these things out loud and sometimes said them
loudly to plaintiff irrespective of who else was listening. Plaintiff claims that as a result of these rumors and
statements, several inmates physically threatened or confronted plaintiff.
Defendants deny spreading such rumors or making such statements.
F. Misbehavior Reports and
Disciplinary Hearings
Plaintiff alleges that defendants fabricated several Misbehavior
Reports ("IMRs") about him and that two disciplinary hearings which
resulted from the IMRs were conducted by a hearing officer who deprived
plaintiff of a fair proceeding.
The principles applicable to summary judgment are familiar and
well-settled. According to the Federal Rules of Civil Procedure, summary
judgment shall be granted if "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of
law." FED. R. CIV. P. 56(c). A
dispute about a material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505
(1986).
The moving party has the burden of establishing a prima facie
case demonstrating the lack of a genuine issue of material fact. Once the moving party meets this burden,
the non-moving party has the burden of providing enough evidence to support a
jury verdict in its favor. Anderson,
477 U.S. at 249. As a general rule, all ambiguities and all inferences
drawn from the underlying facts must be resolved in favor of the party
contesting the motion, and all uncertainty as to the existence of a genuine
issue for trial must be resolved against the moving party. See LaFond v.
General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995).
"Viewing the evidence produced in the light most favorable to the
nonmovant, [*374] if a rational trier could not find for the
nonmovant, then there is no genuine issue of material fact and entry of summary
judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d
187, 191 (2d Cir. 1991).
A. The Pushing Incident
1. Plaintiff's Claims Against Crusie and Jones
To state a claim under 42 U.S.C. § 1983, a plaintiff must
establish that a defendant, acting under color of state law, deprived the
plaintiff of his constitutionally protected rights, privileges, or immunities.
See 42 U.S.C. § 1983. n2.
In § 1983 actions, "public officials are entitled to
qualified immunity from claims for damages if (1) their conduct did not violate
federal statutory or constitutional rights that were clearly established at the
time, or (2) it was objectively reasonable for them to believe their acts did
not violate those rights." Brown v. City of Oneonta, 106 F.3d 1125,
1130-31 (2d Cir. 1997); see also Anderson v. Creighton, 483 U.S. 635,
638-39, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Where prison officials
use force to resolve a prison
disturbance, the question of whether the force was excessive, in violation of
the Eighth Amendment, turns on whether it "was applied in a good faith
effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312,
320, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1986) (quoting Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir. 1973), cert. denied sub nom., John v.
Johnson, 414 U.S. 1033, 38 L. Ed. 2d 324, 94 S. Ct. 462 (1973)).
Accordingly, a defendant prison official is
entitled to summary judgment based on qualified immunity "'if he
adduces sufficient facts such that no reasonable jury, drawing all inferences
and looking at the evidence in the light most favorable to the plaintiff, could
conclude that it was objectively unreasonable for the defendant to believe'
that he was not acting maliciously and sadistically for the very purpose of
causing harm to the plaintiff." Ramsey v. Busch, 19 F. Supp. 2d 73, 80
(W.D.N.Y. 1998) (quoting Robison v. Via, 821 F.2d 913, 920-21 (2d Cir.
1987)).
Here, it is
undisputed that plaintiff unzipped his pants as he approached his cell and then
turned around to face defendants Jones and Dimonda as he directed profanities
at them. Although plaintiff claims that he did not actually threaten
defendants, the videotape of the events is less than clear on this point. See
Defs.' Ex. C. The confrontation escalated and then ended rapidly and with some
confusion. It is clear that at some early point, despite his claim to the
contrary, plaintiff raised his fist at defendants. See id. Furthermore, it appears
that plaintiff was not pushed with a degree of force disproportional to that
necessary to compel him to enter the cell. See id. It is impossible to conclude
that defendants Jones and Crusie were objectively unreasonable to believe that
they were not acting maliciously and sadistically for the very purpose of
causing harm to plaintiff. Therefore, defendants Jones and Crusie are entitled
to qualified immunity for their actions in the pushing [*375]
incident and their motion for summary judgment as to this claim is
granted.
2. Plaintiff's Claims Against O'Connor, Montegari, and
Dimonda
As a prerequisite to a § 1983 claim, "a defendant must have
personal involvement in the alleged deprivation of the constitutional
right." Pearson v. Principe, 1999 U.S. Dist. Lexis 1294, *3, No.
97 Civ. 3746, 1999 WL 66521, at *1 (S.D.N.Y. February 9, 1999); see also Bass
v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Plaintiff neither alleges nor sets forth affirmative
facts showing that any other defendants were involved in the physical
confrontation outside of his cell. Therefore, plaintiff's claim of excessive
force with regard to the pushing incident is dismissed as to defendants
O'Connor, Montegari, and Dimonda.
B. New Cell Incident and Pat
Frisking
The Eighth Amendment prohibits "cruel and unusual
punishment" in the course of incarceration. See U.S. Const. amend. VIII.
To show a violation of the Eighth Amendment pursuant to § 1983, an inmate must establish
that the deprivation of which he is complaining is "sufficiently
serious" to constitute cruel and unusual punishment, and that a
defendant's actions in allowing the deprivation must have amounted to
deliberate indifference to inmate health or safety. See Farmer v. Brennan,
511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). The Second
Circuit has set forth the requisite showing
as follows:
First, the plaintiff must
demonstrate that he is incarcerated under conditions posing a substantial risk
of serious harm. Second, the plaintiff must demonstrate that the defendant
prison officials possessed sufficient culpable intent. The second prong of the
deliberate indifference test, culpable intent, involves a two-tier inquiry.
Specifically, a prison official has sufficient culpable intent if he has
knowledge that an inmate faces a substantial risk of serious harm and he
disregards that risk by failing to take reasonable measures to abate the harm.
Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 620
(2d Cir. 1996) (citations omitted).
None of plaintiff's allegations with respect to the new cell
incident or the pat frisking involve a harm of federal constitutional
proportions as defined by the Supreme Court. See Farmer, 511 U.S. at 833-34;
Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (finding that a
small number of incidents of alleged sexual touching and harassment was
insufficient to state a claim under the Eighth Amendment); Ramirez v.
Holmes, 921 F. Supp. 204, 208 (S.D.N.Y. 1996) (holding that denial of a shower for an inmate on three occasions
failed to state an Eighth Amendment claim). Plaintiff does not allege that his
property was damaged as a result of the new cell incident or that he was even
deprived of his property for more than a single day. Nor does he allege that he
was injured as a result of the pat frisking. Accordingly, plaintiff does not
show a sufficiently serious deprivation resulting from either incident to make
out an Eighth Amendment claim. Furthermore, these episodes do not collectively
amount to an Eighth Amendment violation, since "nothing so amorphous as
'overall conditions' can rise to the level of cruel and unusual punishment when
no specific deprivation of a single human need exists." Wilson v.
Seiter, 501 U.S. 294, 304, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991).
Therefore, plaintiff's claims with respect to the new cell incident and the pat
frisking are dismissed.
C. Misbehavior Reports and Disciplinary Hearings
Plaintiff claims that his due process rights were violated when
defendants [*376] Montegari and Crusie
submitted three false IMRs that resulted in plaintiff being disciplined. It is
well-settled that in the absence of retaliation or a constitutionally defective
hearing, an "inmate has no constitutionally guaranteed immunity from being
falsely or wrongly accused of conduct which may result in the deprivation of a
protected liberty interest." Freeman v. Rideout, 808 F.2d 949, 951 (2d
Cir. 1986); see also Greaves v. New York, 958 F. Supp. 142, 144
(S.D.N.Y. 1997) ("the failure to conduct a constitutionally adequate
disciplinary hearing may give rise to a Section 1983 action, but the mere
filing of a false misbehavior report against an inmate does not."). n3
Plaintiff further claims that the two disciplinary hearings that resulted from these reports
were constitutionally defective because they violated his due process rights.
Although plaintiff asserts that the hearing officer who conducted both
proceedings was "unfair, partial, and biased," and that "he
deprived [plaintiff] of a proper hearing," (Pl.'s Mem. Law P 10), plaintiff
neither alleges nor sets forth affirmative facts showing that defendants in
this case were personally involved in the alleged deprivation of his rights at
the disciplinary hearings. See Bass, 790 F.2d at 263. Accordingly, this claim is dismissed.
D. Death Threats Associated
with Pat Frisking and Other Verbal Harassment
Plaintiff claims that defendants occasionally harassed and
threatened him during his incarceration at Green Haven, including Crusie's
alleged sexual solicitations and alleged death threats. Verbal threats or
harassment, unless accompanied by physical force or the present ability to
effectuate the threat, are not actionable under § 1983. See Purcell v.
Coughlin, 790 F.2d 263, 265 (2d Cir. 1986); Amaker v. Goord, 1999 U.S.
Dist. Lexis 10905, *32, No. 98 Civ. 3634, 1999 WL 511990, at *10
(S.D.N.Y. July 20, 1999) ("such
verbal harassment 'unaccompanied by any injury no matter how inappropriate,
unprofessional, or reprehensible it might seem does not constitute the
violation of any federally protected right and is therefore not actionable
under 42 U.S.C. § 1983.'") (quoting Shabazz v. Pico, 994 F.
Supp. 460, 474 (S.D.N.Y. 1998).
Because
plaintiff has alleged only verbal abuse without any physical injury or damage,
summary judgment on this claim is granted.
E. Plaintiff's Claims for
Declaratory and Injunctive Relief for Defendants' Attempted Incitement of
Physical Confrontation Between Inmates
1. The Torres Incident
Plaintiff claims that on December 13, 1997, defendants Crusie
and O'Connor released inmate Torres into the recreation yard with plaintiff and
tried to incite Torres to fight plaintiff. Defendants deny asking Torres to
fight plaintiff.
Prison officials have a duty, under the Eighth Amendment, "'to
protect inmates from violence at the hands of
[*377] other inmates.'" Fischl
v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (quoting Farmer, 511 U.S. at
833). Prison officials who fail to act
reasonably to ensure a safe environment for a prisoner, when they are aware
that there is a significant risk of injury to that prisoner, violate that
prisoner's rights whether or not an attack actually occurs. Heisler v. Kralik, 981 F. Supp. 830, 837
(S.D.N.Y. 1997). Furthermore, where, as here, no legitimate law enforcement
or penological purpose can be inferred from the defendant's alleged conduct,
the harassment itself may also be sufficient evidence of a malicious and
sadistic state of mind. See Hudson v. McMillian, 503 U.S. 1, 6-7, 117 L. Ed.
2d 156, 112 S. Ct. 995 (1992).
Because
genuine issues of material fact exist concerning defendants' role in attempting
to incite a fight between plaintiff and Torres, summary judgment on plaintiff's
claim for declaratory and injunctive relief is denied as to defendants Crusie
and O'Connor.
However, because plaintiff does not allege or set forth any
facts showing that defendants Jones, Dimonda, or Montegari played any role in
attempting to incite a fight between inmate Torres and plaintiff, summary judgment
on plaintiff's claim for declaratory and injunctive relief based upon the Torres
incident is granted as to defendants
Jones, Dimonda, and Montegari. See Bass, 790 F.2d at 263.
2. Rumors and Comments Concerning Plaintiff's Sexuality
"In
the prison context in which [plaintiff] was required to live, one can think of
few acts that could be more likely to lead to physical injury than spreading
rumors of homosexuality." Thomas v. District of Columbia, 887 F. Supp.
1, 4 (D.D.C. 1995).
Plaintiff claims that
defendants Crusie, O'Connor, and Montegari spread rumors throughout the Green
Haven population indicating that plaintiff was gay, was a child molester, and
was a rapist. Plaintiff claims that as a result of these rumors, he was twice
confronted by inmates and once threatened with bodily harm. Defendants deny
spreading these rumors.
In light of
the genuine issues of material fact concerning defendants' role in spreading
the rumors, summary judgment on plaintiff's claim for declaratory and
injunctive relief is denied as to defendants Crusie, O'Connor, and
Montegari.
However, because plaintiff
does not allege or set forth any facts showing that defendants Jones or Dimonda
played any role in spreading the alleged rumors, summary judgment on
plaintiff's claim for declaratory and injunctive relief based upon the
spreading of rumors is granted as to defendants Jones and Dimonda. See Bass,
790 F.2d at 263.
F. Plaintiff's Claims for
Compensatory and Punitive Damages for Defendants' Attempted Incitement of
Physical Confrontation Between Inmates
Defendants
argue that plaintiff's claims for compensatory and punitive damages should be
dismissed under the Prison Litigation Reform Act ("PLRA"), 42
U.S.C. § 1997e(e). Section 1997e(e) provides that "no Federal civil
action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury." x
Plaintiff claims that he
suffers from severe stress and depression as a result of defendants' alleged
spreading of rumors about him. In addition, plaintiff claims that he has
suffered psychological pain as [*378] a result of Crusie's and O'Connor's attempt
to instigate a physical confrontation with Torres.
Because plaintiff has failed
to allege a palpable physical injury in conjunction with his claims for mental
and emotional suffering, plaintiff's
claims for damages are barred under § 1997e(e). Summary judgment is therefore
granted with regard to plaintiff's claims for compensatory and punitive
damages. n4
For the foregoing reasons, summary judgment is hereby DENIED on
plaintiff's claims for declaratory and injunctive relief based upon (1) his
Eighth Amendment claim concerning the alleged attempt of defendants Crusie and
O'Connor to incite a physical confrontation between Torres and plaintiff and
(2) his Eighth Amendment claim concerning the alleged attempt by defendants
Crusie, O'Connor, and Montegari to incite physical confrontation between inmates
by spreading rumors about plaintiff's sexuality. Summary judgment is hereby
GRANTED as to the rest of plaintiff's claims.
Dated: June 27, 2001
New York, New York
CONSTANCE BAKER MOTLEY
United States District Judge
FOOTNOTES:
n1 The following facts
concerning this case are taken from the parties' moving papers. Although
plaintiff has not submitted a Local Rule 56.1 Statement, he has submitted, in
response to defendants' motion for summary judgment, a carefully drafted Answer
to Defendants' Motion for Summary Judgment.
Plaintiff's answer to defendants' motion contains a statement of
allegedly material facts as to which plaintiff contends genuine issues exist.
The court construes plaintiff's statements to be the equivalent of a Local Rule
56.1 Statement. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652,
92 S. Ct. 594 (1972) (stating that plaintiffs who proceed pro se are
entitled to have their pleadings held to "less stringent standards than
formal pleadings drafted by lawyers."); see also Soto v. Walker, 44
F.3d 169, 173 (2d Cir. 1995).
n2 Section 1983 of Title 42 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom or usage, of any State . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the deprivation of
any rights, privileges, or immunities secured by the Constitution and Laws,
shall be liable to the party injured in an action at law, suit in equity or
other proper proceeding for redress
n3 However, a § 1983 claim based upon a
false misbehavior report survives dismissal when the disciplinary hearing that
results is not constitutionally sufficient and the false report is alleged to
be retaliation for the inmate's exercise of other constitutional rights. See Jones
v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995). Plaintiff does not allege
retaliation in this case.
n4 Plaintiff may nevertheless seek
declaratory and injunctive relief for his two Eighth Amendment claims regarding
defendants' alleged attempts to incite a physical confrontation between other
inmates and himself. See Amaker, 1999 WL 511990, at *5 ("§ 1997e(e)
does not bar a plaintiff from seeking injunctive or declaratory relief.").