Drew v. City of N.Y., 16 Civ. 0594 (AJP)
| Decision Date | 29 August 2016 |
| Docket Number | 16 Civ. 0594 (AJP) |
| Parties | KEITH DREW, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Keith Drew, an inmate formerly in the custody of the New York City Department of Correction ("DOC"), brings this pro se § 1983 action, alleging violations of his constitutional rights due to his alleged assault by various DOC employees and the destruction of his personal property. Presently before the Court is defendants' summary judgment motion (Dkt. No. 27), asserting that Drew did not exhaust his administrative remedies and that his claims against defendants Deputy Warden Fadina, Warden Augustus, and the City fail as a matter of law (see generally Dkt. No. 28: Def. Br.). Drew did not respond to the motion, and the time to do so has long passed. The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 17.)
For the reasons set forth below, defendants' motion for summary judgment is DENIED as to Drew's excessive force claim against defendant C.O. Jackson, and GRANTED as to Drew's remaining claims.
On October 24, 2015, Drew was held in the upper housing area of the Anna M. Kross Center ("AMKC"). (Dkt. No. 2: Compl. ¶¶ 7, 12.) Drew was involved in a disagreement with Correction Officer Milligan-Dixon over moving a chair from the dayroom area. (Compl. ¶ 8; Ex. B: Not. of Infraction at D 1.)1 Officer Breazeale stated that Drew refused to give C.O. Milligan-Dixon the chair when ordered to do so, and bit C.O. Milligan-Dixon on the arm. (Not. of Infraction at D 1.) Officer Breazeale issued Drew an infraction for refusing orders and assaulting staff; Captain Council investigated the incident and found that charges were warranted. (Not. of Infraction at D 1; Ex. B: Investigation Report at D 2.)
Drew claims that the biting allegation was fabricated as an excuse to transfer him to another facility because, as a member of the inmate council, he cannot be transferred for an infraction unless it involves an assault. (Ex. C: Drew Dep. at 39.) Due to this incident, Drew was moved to main intake at AMKC where he awaited transfer to punitive segregation at the George R. Vierno Center ("GRVC"). (Drew Dep. at 36-37.) While waiting at main intake, Drew told Deputy Wardens Williams and Fadina that his infraction was unfounded. (Drew Dep. at 37-38.) Drew alleges that they "failed in their obligation as superior officers to correct the unlawful conduct of those in their charge." (Compl. ¶ 17.)
Three days later, on October 27, 2015 at approximately 2:51 a.m., Drew left AMKC intake with three other inmates on a bus to GRVC. (Ex. D: AMKC Main Intake Camera 30.87 at 2:51:53.) Drew alleges that three unknown correction officers punched him all over his body for five to ten minutes while still on the bus. (Drew Dep. at 40-41.) Drew then was taken into GRVC main intake, where he alleges he was assaulted by eight officers. (Drew Dep. at 42-44.) Of the eight officers, Drew only was able to identify Officer Jackson. (Drew Dep. at 42-43.) This secondassault lasted about twenty minutes and consisted of punches and kicks all over Drew's body. (Drew Dep. at 43-44.) Drew alleges that during the assault, correction officers threw his property, consisting of medications and religious articles, in the garbage, and threw his legal work all over main intake. (Drew Dep. at 44-45.) Drew alleges that the assault left him with a bloody mouth and loose teeth, but no cuts or lacerations. (Id.) Drew was removed from GRVC main intake at approximately 5:17 a.m. on October 27, 2015 (AMKC Main Intake Camera 10.75 at 5:16:52), and placed in punitive segregation for ten days after which he was moved into general population at GRVC (Drew Dep. at 47).
On December 20, 2015, Drew alleges that he spoke with Warden Augustus about the alleged false accusations and assault, and that Warden Augustus claimed that he would "check into it" and speak with Deputy Warden Blackman. (Drew Dep. at 73, 78-79.) Drew alleges that Warden Augustus failed to intervene to prevent his subordinates' behavior. (Drew Dep. at 78-79.) Drew admits that Warden Augustus caused him no physical injury, and Drew is unaware if Warden Augustus was present on the day Drew was assaulted, or the day he was transferred. (Drew Dep. at 79.)
Drew seeks damages for physical injuries and emotional distress, alleging that he suffered broken ribs, permanent numbness, and scarring on his wrists as well as anxiety attacks, intense anger and depression. (Compl. ¶ III.)
On October 28, 2015, Drew reported to LMSW Nina Mazurenko that he was (Ex. D: Closing Report at D 584.) Mazurenko notified the medical staff and made Drew an appointment. (Id.) Later that day, PA Sheila Criss-Horlback examined Drew. (Closing Report at D 590-92.) She noted that Drew stated he was injured by GRVC staff upon arrival at GRVC on October 27, 2015, and reported that Drew had mild tenderness to the left orbital and a small contusion, dry blood from the nostrils, swollen lips, tenderness and mild stiffness on the right side of his neck, and strong tenderness on the left middle rib region. (Closing Report at D 590-91.) PA Criss-Horlback referred Drew for X-rays. (Closing Report at D 591-92.)
Later on October 28, 2015, Drew saw RN Jean-Charles and Dr. Frank Flores. (Closing Report at D 593-94.) Drew alternatively stated that he was jumped or involved in a fight with eight inmates. (Closing Report at D 593.)2 Drew complained of pain and injury in his neck, nose and ribs. (Closing Report at D 593.) X-rays revealed that Drew had a closed fracture of his fourth rib. (Closing Report at D 594.) During his deposition, Drew admitted that he sustained a prior rib injury in June 2015 that was never treated, and conceded the possibility that his rib injury could be attributable to the prior incident rather than the October 27, 2015 assault. (Drew Dep. at 55-57; see also Closing Report at D 582-83.)
On November 8, 2015, Dr. Mauricio Silva examined Drew. (Closing Report at D 595-97.) Drew told Dr. Silva "that he was involved in a DOC use of force on" October 27, 2015. (Closing Report at D 595.) Drew stated he had pain to his thoracic wall, an abrasion on his left wrist from handcuffs, and a toothache. (Id.) Dr. Silva reported that Drew had a "closed fracture of fourribs,"3 a "[s]mall superficial excoriation to distal forearm" and "proximal dorsal numbness on radial distribution on left hand." (Closing Report at D 596.)
On November 3, 2015, Drew told the Legal Aid Society "that he was beaten up by multiple officers in GRVC on October 27." (See Ex. D: Closing Report at D 532.) The Legal Aid Society reported this allegation to the DOC Investigation Division the same day. (Closing Report at D 532.) The Investigation Division investigated the alleged staff-on-inmate assault and issued a report recommending that the because "the investigation found that Drew's allegation that DOC staff assaulted him in the GRVC Main Intake [to be] unfounded." (Closing Report at D 533.)
On November 25, 2015, Drew filed an Inmate Grievance and Request Program ("IGRP") Statement Form. (Ex. E: IGRP Statement at D 512.) Drew alleged that his "personal property including medications and legal work and radio were removed from [him] during an incident in Main Intake that included Staff on Inmate Assault." (Id.)4 Drew requested that staff"check with Capt. Farrow of 13B to find property or to be reimbursed for lost property." (Id.) An informal resolution to Drew's destruction of property complaint was reached, wherein the "IGRP assured that the grievant received clothes from the clothbox because his property was unable to be located and he was advised of his right to file a claim with the New York City Comptroller's for lost/stolen property . . . ." (Ex. E: IGRP Disposition Form at D 511.) Drew signed the IGRP Disposition Form, checking the box indicating his acceptance of the resolution. (Id.; see Drew Dep. at 69-70.) Drew stated in his deposition that although he was satisfied at the time with the informal resolution and did not appeal it, he has since become unsatisfied with the resolution. (Drew Dep. at 71-72.)
Drew alleges that on November 27, 2015, he filed a separate grievance about the alleged assault. (Drew Dep. at 69-70.) Drew stated that as with his destruction of property claim, he accepted the resolution of his use of force grievance. (Drew Dep. at 70-72.) There are no copies of the separate grievance or Disposition Form in the record.
Rule 56 of the Federal Rules of Civil Procedure provides that the "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); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Humphreys v. Cablevision Sys. Corp., 553 F. App'x 13, 14 (2d Cir. 2014); Connolly v. Calvanese, 515 F. App'x 62, 62 (2d Cir. 2013); Lang v. Ret. Living Publ'g Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Alzawahra v. Albany Med. Ctr., 546 F. App'x 53, 54 (2d Cir. 2013); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (...
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