Gabai v. Jacoby, 91 Civ. 2605(SWK).

• Decision Date: 06 August 1992
• Docket Number: No. 91 Civ. 2605(SWK).,91 Civ. 2605(SWK).
• Citation: 800 F. Supp. 1149
• Parties: David GABAI, Plaintiff, v. M.B. JACOBY, Raymond Sanford, "John" Kennedy, C. Artuz, Defendants.
• Court: U.S. District Court — Southern District of New York

800 F. Supp. 1149

David GABAI, Plaintiff, v. M.B. JACOBY, Raymond Sanford, "John" Kennedy, C. Artuz, Defendants.

No. 91 Civ. 2605(SWK).

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

August 6, 1992.

David Gabai, pro se.

Nancy Miller Lerner, Asst. Atty. Gen., State of N.Y., Dept. of Law, New York City, for defendants.

ORDER ACCEPTING MAGISTRATE'S REPORT AND RECOMMENDATION

KRAM, District Judge.

This Court has received and reviewed the Report and Recommendation issued by Magistrate Judge Grubin dated August 6, 1992 in the above-captioned action. No timely objections to the Report and Recommendation have been made by the parties to this action. See Fed.R.Civ.P. 72(b). The Court has considered the Report and agrees with its recommendation to grant defendants' motion for summary judgment. Accordingly, it is hereby

ORDERED that the Report and Recommendation issued by Magistrate Judge Grubin dated August 6, 1992 is accepted in accordance with 28 U.S.C. § 636(b); and it is further

ORDERED that defendants' motion for summary judgment is granted.

REPORT AND RECOMMENDATION

GRUBIN, United States Magistrate Judge:

On April 16, 1991, plaintiff, an inmate at the Green Haven Correctional Facility proceeding pro se and in forma pauperis, commenced this action pursuant to 42 U.S.C. § 1983 against the above-captioned four Green Haven officials. On October 21, 1991, defendants Matthew Jacoby and Christopher Artuz moved for dismissal of the complaint or, in the alternative, for summary judgment. The other two defendants have never been served with a summons and complaint. On October 29, 1991, I advised plaintiff of the importance of responding to the motion and the consequences of a failure to rebut material evidence on a summary judgment motion. On February 20, 1992, plaintiff submitted a response consisting of a letter with various enclosures, and on March 13, 1992 defendants replied. For the following reasons, I respectfully recommend that the motion for summary judgment be granted.

BACKGROUND

For the purposes of this motion, I have construed all facts and drawn all inferences in favor of plaintiff. According to his complaint, on September 25, 1990, at approximately 9:30 a.m., after an appointment with an optometrist at the Green Haven clinic, plaintiff asked defendant Jacoby, a correction officer assigned to the clinic, for a pass to return to his housing unit. Plaintiff alleges that he told Jacoby "he was a patient in the unit for the physically disabled ("UPD"), and that he needed to return to the block to get his medication." Jacoby told him "to step aside, and, when he tried to further explain his need to return to the block, he was forcibly placed into an adjoining room." Complaint ¶ IV. According to the complaint, "during the incident plaintiff suffered cardiac distress and difficulty breathing," and Jacoby called Nurse A.M. Kennedy to the scene. Kennedy examined plaintiff, but "rendered no medical care," informing Jacoby that plaintiff was "fine." After plaintiff returned to the UPD, he was taken to a nurse's station, where a different nurse administered oxygen and called for a physician who "tended to plaintiff for some time." Id. Plaintiff further alleges:

Later evaluation by a cardiologist revealed that plaintiff's condition had deteriorated after the incident. A medical evaluation on the following day revealed a bruise on plaintiff's arm, caused by a chair shoved at plaintiff by Jacoby after plaintiff was placed in the waiting area.

Id.

On the day of the incident, Jacoby filed an inmate misbehavior report against plaintiff charging him with violent conduct, creating a disturbance, interference with an employee, refusing a direct order, threats, and a "movement regulation violation."¹ Jacoby described the incident in the report as follows:

I explained the procedure of one way passes and instructed Gabai to go to the bullpen. Gabai immediately became loud and hostile stating that every time he comes down, I did this to him. Referring to making him wait for an escort. I ordered Gabai several times to return to the bullpen; he refused demanding to see a sergeant. I instructed Gabai to go to the bullpen and I would then get him a sergeant. Gabai refused, getting verbally loud and hostile, stating I was causing him to have a heart attack. Gabai was thrusting his arms out towards me, pointing his finger in my face and chest and creating a disturbance with his loud and boisterous manner. I ordered Gabai to keep his hands below waist level and to stop pointing his finger in my face or I would take appropriate action. Officers T. Pisco and R. Blay assisted myself in getting Gabai into the A-1 waiting room. Sgt. Beverly was notified and responded to the area to assist with the situation.... He attempted to speak with Gabai, but was unsuccessful due to Gabai's uncooperative behavior. Gabai also stated that, "he made sure he had my name and that I would be "taken care" of." Because Gabai stated he was having heart trouble due to the situation I caused, LPN Kennedy attempted to examine Gabai, but Gabai stated, "he was okay." Gabai was returned to his cell and confined. See attached To-From written by LPN Kennedy.

Id. Ex. F. On September 30 and October 4, 1990, a Tier II disciplinary hearing was held before Lieutenant Raymond Sanford. Sanford denied plaintiff's request for a Hebrew interpreter at the hearing. Complaint ¶ IV. Plaintiff, Jacoby and Sergeant Beverly testified. On October 4, 1990, plaintiff was found guilty² and sentenced to 10 days keeplock, which he had already served, and 30 days loss of privileges. Id.; see Jacoby Aff. ¶ 10-11. On the "Hearing Disposition Rendered Form," Sanford stated that Jacoby's written report and the testimony of the two officers were the "evidence relied upon," and he gave the following as his "reasons for disposition":

This is to impress on this inmate and all inmates. This type of conduct will not be tolerated at any time or place. Inmates will not display this type of conduct, towards staff, they will follow all orders, and will not create a disturbance.

Ex. H to Jacoby Aff. That same day, plaintiff appealed. On his appeal form, he requested an opportunity to review the hearing tape and to supplement his appeal after doing so. He did not receive the tape, however, until after his appeal had been decided against him. On October 15, 1990, defendant Artuz, First Deputy Superintendent at Green Haven, affirmed the disposition, finding that "the hearing was held in accordance with the rules and regulations" and there was "sufficient evidence to affirm the charge(s)." Ex. I to Jacoby Aff.

In his complaint, plaintiff describes his injuries as follows: "Bruise to arm. Exacerbation of heart condition. Surgery was recommended before, but now is imperative." Complaint ¶ IV. He seeks as relief: (1) an order barring Jacoby and Kennedy from any DOCS position involving contact with inmates; (2) reversal and expunction of the results of the hearing; (3) $10,000 in compensatory damages; and (4) $100,000 in punitive damages.

Defendants have submitted in support of their motion affidavits from (1) Jacoby; (2) Mary Indiculla, R.N., who examined plaintiff on September 25, 1990, the day of the incident, and on September 27, 1990; (3) Dr. Darly Jeanty, the Medical Director at Green Haven, who examined plaintiff on September 25 and 28, 1990; and (4) Deo Read, plaintiff's Correctional Counselor at Green Haven.

Jacoby's affidavit essentially repeats the account in his inmate misbehavior report. See Jacoby Aff. ¶¶ 2-9. Regarding plaintiff's request for a pass, Jacoby adds that he did not issue one because UPD patients were not exempt from the procedure of waiting in the "bullpen" area for a "go-back" to their units. Id. ¶ 2. Jacoby also states, "At no time did I strike the inmate or hit him with a chair or anything else; nor did I notice any physical mark on inmate Gabai." Id. ¶ 7.

Indiculla, the nurse who examined plaintiff when he returned to the UPD, states, based on her contemporaneous notes, that plaintiff referred to a "rough time" with an unnamed correction officer but did not say anything about a bruise caused by a chair. "His complaint was limited to difficulty breathing and oxygen was administered." Affidavit of Mary Indiculla, R.N., sworn to October 16, 1991 ("Indiculla Aff."), ¶¶ 4, 12. Dr. Jeanty likewise states, based on contemporaneous notes, that plaintiff told him he had an altercation with a correction officer but "did not in any way indicate that he had received any physical injury or bruise from the incident, nor did I observe any. His only complaint related to shortness of breath which was promptly treated." Affidavit of Darly Jeanty, M.D., sworn to October 16, 1991 ("Jeanty Aff."), ¶¶ 7, 13; Ex. B to Indiculla Aff. Notes made by another nurse who treated plaintiff the following day state that he "complained of a painful area on his left forearm" that was "slightly swollen with a noticeable bruise" that he claimed was "the result of the altercation.... He claims he was hit by a chair." On September 27, plaintiff made a similar remark to Indiculla, and she noted a "black & blue mark the size of a dime on the left posterior part of the forearm" and no swelling. Indiculla states, "These notes indicate that I saw a small, superficial bruise. In my judgment, it was not a serious injury and did not require any immediate action." Indiculla Aff. ¶¶ 6-8 and Ex. B thereto. Further notes state that plaintiff claimed he was being "picked on" by some of the officers and talked of "several pains possibly caused by the altercation with the officer." On September 28, Jeanty's notes state that plaintiff complained that one of the correction officers "pushed a chair at him when he went to the treating room. The chair struck him to the left forearm and a small 1 cm contusion resulted." Jeanty concludes from the notes that the bruise was not a serious injury: there was no swelling, no...