Ali v. Szabo, 98 Civ. 0424(WHP).

• Citation: 81 F.Supp.2d 447
• Decision Date: 13 January 2000
• Docket Number: No. 98 Civ. 0424(WHP).,98 Civ. 0424(WHP).
• Parties: Kareem ALI, Plaintiff, v. Officer SZABO, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

81 F.Supp.2d 447

Kareem ALI, Plaintiff, v. Officer SZABO, et al., Defendants.

No. 98 Civ. 0424(WHP).

United States District Court, S.D. New York.

January 13, 2000.

COPYRIGHT MATERIAL OMITTED

I.M.S., Washington, DC, for plaintiff.

Daniel A. Seymour, Bank, Sheer, Servino & Seymour, White Plains, NY, for defendant.

MEMORANDUM AND ORDER

PAULEY, District Judge.

Plaintiff Kareem Ali filed this action pursuant to 42 U.S.C. § 1983 against Putnam County Jail Corrections Officers Szabo and Dalo and the Sheriff of the Putnam County Jail alleging use of excessive force, denial of medical treatment, retaliation, and religious discrimination retaliation. Defendants moved for summary judgment on each of plaintiff's claims pursuant to Fed.R.Civ.P. 56.

This action was referred to Magistrate Judge Peck for general pretrial management, including preparation of a report and recommendation on dispositive motions. Magistrate Judge Peck recommended that defendants' summary judgment motion be granted as to the following claims: plaintiff's excessive force claims against the Sheriff; plaintiff's deprivation of medical treatment claims against each of the defendants; plaintiff's retaliation claims against each of the defendants; and plaintiff's religious discrimination retaliation claims against Corrections Officers Szabo and Dalo.

Magistrate Judge Peck recommended that defendants' summary judgment motion be denied as to the following claims: plaintiff's excessive force claims against Corrections Officers Szabo and Dalo; and plaintiff's claim of religious discrimination retaliation against the Sheriff.

Defendant Sheriff filed timely objections to the report and recommendation (the "Report"). The Sheriff objected to the Report's recommendation to deny summary judgment of plaintiff's religious discrimination retaliation claim.

This Court has reviewed the Report, and made a de novo determination, as required by 28 U.S.C. 636(b)(1), that the Report is legally correct and proper. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). In addition, this Court has considered defendant Sheriff's objections to the Report and finds them to be without merit. Viewing the evidence most favorably to plaintiff, this Court agrees with the Report that issues of fact exist as to whether the Sheriff instituted a rule banning headwear that arguably applied to kufis while plaintiff was in Putnam County jail and whether the uncertainty as to the rule's application discouraged plaintiff from wearing his kufi. The Sheriff did not deny that he instituted a ban on kufis in his Rule 56.1 Statement. Rather, he merely stated that a thorough investigation was conducted as to whether plaintiff would be allowed to wear his kufi and that the law was unclear. (Defs.' Rule 56.1 Stmt. ¶ 29) The Sheriff's reference to plaintiff's letter to Lt. LeFever and Lt. LeFever's response do not resolve all disputed issues of fact. (Obj. To Proposed Findings and Recommendations Ex. A, Ex. B) Additionally, defendant's Rule 56.1 Statement is devoid of any proffered penological reason to support the rule banning headwear. Therefore, this Court adopts the Report in its entirety.

Accordingly, for the reasons set forth in the Report, defendants' motion for summary judgment is granted in part and denied in part.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

Pro se plaintiff Kareem Ali brings this 42 U.S.C. § 1983 action against Putnam County Jail Corrections Officers Szabo and Dalo, and the Putnam Sheriff, alleging use of excessive force, denial of medical treatment, and retaliation including religious discrimination. Presently before the Court is defendants' motion to dismiss and for summary judgment.¹

For the reasons set forth below, because there are material facts in dispute as to whether Officers Szabo and Dalo used excessive force on Ali, I recommend that Officers Szabo and Dalo be denied summary judgment on Ali's excessive force claim. Because Ali does not allege that the Sheriff was personally involved in the excessive force incident or that any of the defendants were personally involved in the deprivation of medical treatment and general retaliation, I recommend that all defendants be granted summary judgment on those claims. Officers Szabo and Dalo also should be granted summary judgment on Ali's religious discrimination retaliation claim for lack of personal involvement. The Sheriff, however, should be denied summary judgment on Ali's religious discrimination retaliation claim because Ali has alleged that the Sheriff instituted a ban on kufis (religious headwear) in violation of his religious freedom, and the Sheriff has not denied that there was a ban nor offered any legitimate penological reason for the alleged ban.

FACTS

From June 10, 1997 to February 13, 1998, Ali, a federal pretrial detainee, was housed at the Putnam County Jail. (Defs.Rule 56.1 Stmt. ¶¶ 1-5; Ali Dep. at 6, 34.)² Ali has pleaded guilty to ten bank robberies, check and credit card fraud, gun running, car thefts and other robberies. (Ali Dep. at 6-7, 10-11.)

Inmates at Putnam were required to wear ID tags on their left breast pocket, but on August 6, 1997, Ali left his cell without his tag. (Defs.Rule 56.1 Stmt. ¶ 5; Ali Dep. at 50-51, 54.) Officer Dalo saw that Ali was not wearing his tag, and told Ali he would receive a two hour "lock-in" in his cell. (Defs.Rule 56.1 Stmt. ¶ 6; Ali Dep. at 51-52.) Ali, believing that normally a prisoner would receive only a one hour lock-in for not wearing his tag, told Dalo that he was discriminating against him, and that "I've stayed years in a cell at a time, there ain't no big thing, but I do not like someone to discriminate against me." (Ali Dep. at 53; see Defs.Rule 56.1 Stmt. ¶ 7.) Ali complied with Officer Dalo's order and went to his cell. (Defs.Rule 56.1 Stmt. ¶ 7; Ali Dep. at 53, 55.)

After two hours, Ali's cell door opened, and Ali went to the day room to heat up a slice of pizza and a cup of coffee in a microwave. (Defs.Rule 56.1 Stmt. ¶ 8; Ali Dep. at 55.) As Ali walked toward the microwave, Officer Dalo approached and told Ali that he was supposed to be locked-in. (Defs.Rule 56.1 Stmt. ¶ 9; Ali Dep. at 55, 57.) Ali said he thought he was given a two-hour lock-in, and Officer Dalo replied, "No, I gave you 23 hours, you said you could do more." (Ali Dep. at 55, 57.) Ali said, "Well, I'm going to heat up my pizza and my coffee." (Ali Dep. at 56.) According to Ali, Officer Dalo told Ali to go back to his cell as soon as he was through heating his food. (Ali Rule 56.1 Stmt. ¶¶ 10, 11; Ali Dep. at 57.) While the food was heating, Ali and Dalo spoke about what Ali meant by being discriminated against. (Ali Rule 56.1 Stmt. ¶¶ 11, 14; Ali Dep. at 58-59.) Officer Dalo told Ali to hurry up, at which point Officer Szabo walked over. (Defs.Rule 56.1 Stmt. ¶ 12; Ali Rule 56.1 Stmt. ¶¶ 12, 14; Ali Dep. at 59, 68-69.) Ali took his pizza out of the microwave and put his coffee in to heat it up. (Defs.Rule 56.1 Stmt. ¶ 13; Ali Rule 56.1 Stmt. ¶ 12; Ali Dep. at 59.) Officer Szabo "screamed, [']Take it out and go to your cell right now.[']" (Ali Dep. at 59; Defs.Rule 56.1 Stmt. ¶ 14.) Ali immediately took the cold coffee out of the microwave and said to Szabo, "You don't got to be screaming on nobody." (Ali Dep. at 59-60; Ali Rule 56.1 Stmt. ¶¶ 13, 14.) Officer Szabo replied, "You just do it." (Ali Dep. at 59.) As Ali walked toward his cell, he yelled at Szabo, "You don't have to be screaming on anybody." (Ali Dep. at 59-60; Defs.Rule 56.1 Stmt. ¶¶ 15, 16; Ali Rule 56.1 Stmt. ¶¶ 14, 16.) According to Ali, as Ali passed Szabo, Szabo bumped into Ali's arm and again told Ali to lock-in to his cell. (Ali Rule 56.1 Stmt. ¶ 16; Ali Dep. at 60-61.) Ali told Szabo that he was on his way to lock-in, and added, "Ain't nobody scared of you, so I don't know what you're screaming for. Ain't nobody scared of you.... You can't intimidate me. You don't scare me." (Ali Dep. at 61, 65-66; Ali Rule 56.1 Stmt. ¶ 16.)

According to Ali, when he reached the staircase, Officer Szabo "attacked" him, hitting Ali in the chest and grabbing his left arm. (Ali Rule 56.1 Stmt. ¶¶ 16, 17, 19; Ali Dep. at 62, 64, 66.) Officer Dalo joined Szabo and banged Ali's back and right hand against the wall. (Ali Dep. at 62, 81.) Ali "grabbed Szabo's neck and threw him off," and broke loose of Dalo. (Ali & Defs. Rule 56.1 Stmts. ¶ 17; Ali Dep. at 62-63, 65.) Officer Szabo again slammed Ali against the wall and Ali "took [Szabo] by the neck and threw ... off [Szabo]." (Ali & Defs.Rule 56.1 Stmts. ¶ 18; Ali Dep. at 63.) The incident ended before other officers arrived. (Ali Rule 56.1 Stmt. ¶ 19; Ali Dep. at 63.)³

After the incident, Ali complained of pain in his right hand and his lower back. (Ali Dep. at 69, 81-82.) The next day, Ali went to the Putnam Hospital Center where x-rays of his right hand revealed no broken bones, but an examination showed that Ali had a contusion, with redness and swelling. (Ali & Defs.Rule 56.1 Stmts. ¶ 20; Ali Dep. at 74, 76, 89-90; Seymour Aff.Ex. C: Putnam Progress Notes; Report of Injury; 8/7/97 Report of Consultation; 8/7/97 Putnam Hosp. Ctr. Emergency Rm. Report.) Ali was advised to keep his hand elevated and was given Ibuprofen and an ice pack. (Ali & Defs.Rule 56.1 Stmts. ¶ 22; Seymour Aff.Ex. C: Putnam Progress Notes.)

Subsequently, Putnam's Medical Director Dr. Eric Teitel referred Ali to neurologist Dr. Rothman, who saw Ali in November 1997. (Defs.Rule 56.1 Stmt. ¶ 21; Seymour Aff.Ex. C: 11/25/97 Dr. Rothman Report.) Dr. Rothman found that Ali's third metacarpel was swollen and that Ali had cervical strain. (Seymour Aff.Ex. C: 11/25/97 Dr. Rothman Report.) Dr. Rothman prescribed Advil and muscle relaxants. (Id.) Ali thereafter repeatedly sought and received medical treatment for numbness in his back and hand. (Ali Rule 56.1 Stmt. ¶ 22; Defs.Rule 56.1 Stmt. ¶ 24; Ali Dep. at 72-73; Seymour Aff.Ex....