Fischl v. Armitage

Decision Date09 October 1997
Docket NumberNos. 1631,D,s. 1631
Citation128 F.3d 50
Parties48 Fed. R. Evid. Serv. 211 Josef FISCHL, Plaintiff-Appellant, v. David ARMITAGE, Corrections Sergeant, and S.A. Marshall, Corrections Officer, in their individual capacities, Defendants-Appellees. ocket 96-2852.
CourtU.S. Court of Appeals — Second Circuit

Michael E. Cassidy, Plattsburgh, NY (Prisoners' Legal Services of New York, Plattsburgh, NY, on the brief), for Plaintiff-Appellant.

Gina M. Ciccone, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Assistant Attorney General, Albany, NY, on the brief), for Defendants-Appellees.

Before: NEWMAN, KEARSE, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Josef Fischl, formerly an inmate in New York State's Clinton Correctional Facility ("Clinton"), appeals from a final judgment of the United States District Court for the Northern District of New York, Daniel Scanlon, Jr., Magistrate Judge, dismissing his complaint, brought under 42 U.S.C. § 1983 (1994), alleging that defendants David Armitage and S.A. Marshall, correctional officers at Clinton, violated Fischl's right under the Eighth Amendment to the Constitution by causing or allowing other inmates to enter his prison cell and assault him. The magistrate judge granted summary judgment dismissing the complaint on the ground that Fischl had not produced sufficient evidence to create an issue to be tried as to the personal involvement of Armitage and Marshall in the assault. Fischl challenges this ruling on appeal, contending that the district court did not draw reasonable inferences in his favor. We agree, and we vacate the judgment and remand for further proceedings.


The events leading to the assault of which Fischl complains began in September 1991 on Clinton's "E-Block," an enclosed section of the prison reserved for "protective custody" inmates, i.e., inmates who have been determined to need protection from other inmates. Fischl was housed on E-Block. Armitage and Marshall were corrections officials Many of the facts as to prison operations are undisputed. The description of the events, including the assault and the statements allegedly made by Armitage and an assailant, is taken from deposition testimony given by Fischl in this action.

on duty in that area on the day of the assault.

A. The Configuration and Management of E-Block

E-Block was divided into seven "companies" of cells, each company comprising a row of some 20 cells along a corridor approximately 130 feet long. At one end of each company was a secured area known as the "officer's cage." The doors of the individual cells on each company could be opened only by means of controls on a panel in the officer's cage; the panel, as secured by a heavy sliding steel door that could be locked, was called a "lockbox." The practice was for both the lockbox and the cage to be locked up when no officer was in the officer's cage and the control panel was not in use.

The day-shift staff on E-Block consisted of a block sergeant, who had overall command of E-Block, and eight corrections officers. Six of the corrections officers held positions as "company officers"; the remaining two officers were not attached to any particular company but held general supervisory positions. The lockbox keys for all of the companies were interchangeable; thus, any company officer on E-Block would have been able to open another company's lockbox with his own set of keys and thereby gain access to that company's control panel.

On September 4, 1991, Armitage was the sergeant in charge of E-Block; he had held that position for some two years. Fischl had been housed on E-Block's "Four Company" since late August 1991. His cell was the 17th away from the officer's cage. Marshall was the officer in charge of Four Company; Marshall was not regularly assigned to E-Block, and September 4 was the only day he worked there. Armitage's duties took him throughout E-Block and the remainder of the prison; roughly half of his eight-hour shift was spent on or around the seven companies of E-Block. Marshall, as a company officer, was required to spend much of his time in the officer's cage. From his position in the cage, Marshall had access to the control panel from which the Four Company cell doors could be opened.

B. The Assault on Fischl and the Ensuing Threats

According to Fischl's deposition testimony, on the night of September 3, 1991, he had arranged to trade shampoo and soda in his possession for food from the prison store possessed by an inmate who was housed on Four Company several cells away from his. However, after Fischl passed his items to the inmate in the cell adjacent to his, he received nothing in return. Fischl reacted angrily to being cheated, and the other inmates laughed and jeered. Fischl proceeded to retaliate by stuffing the toilet in his cell with rags and flushing it repeatedly, thereby causing the area surrounding his and the other inmates' cells to be flooded. The water released from the toilet, which eventually spread throughout most of the company, had to be cleaned up that night by a group of inmates known as "porters," who performed custodial and other services in the prison.

On the morning of September 4, Armitage and Marshall arrived on E-Block to begin their 7:00 A.M. shift. They were informed by members of the previous shift that Fischl had flooded most of the Four Company area the night before. When Armitage went to inspect the area, which still contained debris from the flooding, inmates complained to him about the resulting water damage to their property. Armitage did not speak to Fischl, who was apparently sleeping.

Between 9:00 and 9:30 that morning, Fischl was assaulted in his cell by six inmates. He did not know the names of any of the six, but he recognized two, whom he knew by the nicknames "Motown" and "Playboy," as inmates assigned to Four Company cells near his, whose property may have been damaged as a result of Fischl's flooding maneuver. He recognized others, including one he knew by the nickname "Fuquan," as porters who performed tasks on E-Block such as cleaning up messes like the flood created by The six inmates entered through the unlocked door and beat Fischl with a broom and with their fists and kicked him in the head and body for approximately 10 minutes. Although Fischl yelled during the attack, no one came to his aid. The attack ended only after two other inmate porters came to the door of Fischl's cell and told his assailants, "That's enough. Don't hit him no more. You're going to kill him." (Id. at 24.) The attackers then departed.

Fischl the night before. Just prior to the assault, the door to Fischl's cell was opened--though from inside his cell Fischl could not see who operated the cell-door controls--and Fischl heard Fuquan say, "Sergeant says no steel. No steel. As far as weapon [sic ], no steel. He said, We got ten minutes. The sergeant said we got ten minutes. No steel." (Deposition of Josef Fischl ("Fischl Dep.") at 26.)

Following the attack, Fischl remained in his cell, bleeding profusely, for some 30-40 minutes, after which the company officer, Marshall, passed by. Fischl asked Marshall to get him medical attention. Such attention was not forthcoming until Fischl was taken to the prison hospital some two hours later. At that hospital and at a hospital outside the prison, to which Fischl was taken later, it was determined that in addition to multiple contusions and abrasions, Fischl had sustained three head-area fractures, to wit, a broken nose, a linear, nondisplaced fracture of the right zygomatic arch, and a blow-out fracture of the right eye socket.

Fischl remained in the prison hospital for two weeks. He testified that during that period, Armitage visited him twice to threaten and harass him, once accompanied by two of the inmates who had participated in the attack. During both visits, Armitage repeatedly threatened to kill Fischl, while making references to the September 4 assault, stating, inter alia, "This is Clinton. That's only the first step of the treatment. That's only the first step of the treatment, you know." (Fischl Dep. at 28.) Following Fischl's release from the hospital, the threats and harassment by Armitage allegedly continued. Fischl testified that whenever Armitage saw him when no one else was within earshot, Armitage would threaten to kill him, warning him, "Don't press charges on us." (Id. at 28-29.)

C. Defendants' Motion for Summary Judgment; The Decision Below

Fischl brought the present suit seeking compensatory and punitive damages, alleging that Armitage and Marshall had participated in or encouraged the assault by opening the door to Fischl's cell for the attacking inmates, or by permitting someone else to open it, in violation of Fischl's Eighth Amendment right to be free from cruel and unusual punishment. Armitage and Marshall filed answers denying that they had been involved in the attack in any way. By consent of the parties, the case proceeded before a magistrate judge, pursuant to 28 U.S.C. § 636(c) (1994).

Following extensive discovery, including the depositions of Fischl, Armitage, Marshall, and others, defendants moved for summary judgment, arguing that no evidence had been produced to show their personal involvement in the assault. In support of their motion, Armitage and Marshall submitted the various depositions, along with their affirmations stating, inter alia, that they did not know how Fischl had received his injuries. Marshall stated that his duties as company officer for Four Company on September 4 included letting inmates out of their cells, one at a time, to use the shower or the telephone during the morning hours. In addition, he frequently walked down the 130-foot length of the Four Company corridor to be sure that nothing was amiss. On...

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