Gibralter v. City of New York, No. 84 CV 0436.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation612 F. Supp. 125
Decision Date18 June 1985
PartiesNeal C. GIBRALTER, Plaintiff, v. The CITY OF NEW YORK, Captain Rock, John Doe One and John Doe Two, Defendants.
Docket NumberNo. 84 CV 0436.

612 F. Supp. 125

Neal C. GIBRALTER, Plaintiff,
v.
The CITY OF NEW YORK, Captain Rock, John Doe One and John Doe Two, Defendants.

No. 84 CV 0436.

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

June 18, 1985.


612 F. Supp. 126
COPYRIGHT MATERIAL OMITTED
612 F. Supp. 127
Zuller & Bondy, New York City, for plaintiff; Thomas L. Bondy, New York City, of counsel

Frederick A.O. Schwarz, Corp. Counsel of the City of New York, New York City, for defendants; Donald J. Kravet, New York City, of counsel.

ORDER

McLAUGHLIN, District Judge.

The attached Report and Recommendation of Hon. Shira A. Scheindlin, United States Magistrate, is hereby adopted as the Opinion of this Court. No objections were filed within the time permitted.

It is hereby ORDERED that: 1) plaintiff's claim under 42 U.S.C. § 1981 is dismissed; 2) plaintiff's claim against defendant City of New York under 42 U.S.C. § 1983 is dismissed; 3) the motion of Captain Rock, John Doe I and John Doe II to dismiss claims against them under 42 U.S.C. § 1983 is denied; and 4) discovery in this action is to proceed forthwith under the guidance of Magistrate Scheindlin.

SO ORDERED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

SHIRA A. SCHEINDLIN, United States Magistrate.

Plaintiff, Neal D. Gibralter, brings this action pursuant to 42 U.S.C. §§ 1981 and 1983 seeking damages for alleged violations of his civil rights. Specifically, plaintiff alleges that the defendants failed to provide him with a safe prison environment while he was an inmate at the New York City Correctional Institution for Men on Riker's Island ("Rikers Island"). It is further alleged that there exists a de facto policy of the City of New York of failing to provide a safe environment for inmates at Riker's Island, and that defendant John Doe II is aware of this policy. Finally, plaintiff alleges that John Doe I witnessed, but did not intervene in a fight between plaintiff and another inmate in which plaintiff claims he was injured. This case was referred to me by the Honorable Joseph M. McLaughlin for a Report and Recommendation on defendants' motions for summary judgment.

I. FACTUAL BACKGROUND

On March 19, 1982, Gibralter was interned at Riker's Island. Plaintiff alleges that since his internment he has been the victim of a series of assaults and robberies. Plaintiff further asserts that many of these attacks were motivated by "racist reasons" and that prison officials purposely placed him in the particular housing area where racial attacks were likely to occur.

Riker's Island has an established grievance resolution program that is outlined in the orientation booklet that every inmate receives upon entering the prison. If an inmate complains about his living conditions or desires help in resolving a problem, "interview slips" are provided to the inmate so that he may request consultation and assistance. If an inmate breaks the

612 F. Supp. 128
rules of the prison, by fighting or taking another's property for example, a "notice of infraction" is issued by a prison official. Upon issuance of such a notice, the inmate goes before a disciplinary board that determines his punishment, if any. A Captain or supervisory officer, at his discretion, may place an inmate in administrative segregation until the hearing. It is also a policy of the prison to provide medical treatment if needed or requested.1

Plaintiff alleges that he has been the victim of a series of eight assaults, beginning with the day after his internment and culminating in the incident of November 6, 1982. Of these eight assaults, plaintiff alleges that five were reported to prison officials, although prison records indicate that only four were reported. The first incident occurred on March 20, 1982, when plaintiff was reprimanded for fighting with another inmate, named Ramirez. Plaintiff pleaded guilty at a disciplinary hearing and received medical treatment for a minor wrist injury. Plaintiff alleges that he had subsequent fights with inmates on August 15, October 1, October 10 and October 30. Although he believes he received medical treatment following the incident of October 10, the institution has no records of any treatment. Plaintiff does not allege that he reported these incidents to any prison official.2

On August 1, 1982 plaintiff alleges that he was assaulted by a prison guard when he asked permission to use the washroom. Department of Corrections records reveal that at a disciplinary hearing on July 21, 1982, plaintiff was found guilty of refusing a direct order of a prison official and was given a five day punitive segregation. Medical records reveal that plaintiff first claimed that he was pushed against a wall, and later that he was punched by the officer. Medical treatment was found not to be necessary.3

On November 6, 1982, plaintiff and Ramirez were involved in a second fight. Plaintiff asserts that other inmates held him down while Ramirez cut his face and neck with a razor blade. The weapon Ramirez used was a blade fashioned from a BIC disposable razor. Plaintiff alleges that Ramirez had concealed the blade in his toothbrush. Plaintiff sustained superficial lacerations to the left side of his face and was treated with a face suture. Captain Rock testified that it was prison policy that inmates' lockers be searched every day, although he was not certain when the last search was on or before November 6, 1982. Ramirez claimed, in a report of the incident prepared by prison authorities, that plaintiff struck him with a lock, and that he slashed plaintiff in self-defense. He claimed that he later flushed the razor down the toilet.

Captain Rock testified that he interviewed the two inmates after the fight of November 5 and disciplined both men by issuing infraction notices against them.4 He determined, however, that it was not necessary to order either inmate transferred to another housing area. He did offer a transfer to both men, but neither accepted.5

Captain Rock testified that he was informed of the incident on November 6, although he had heard about it earlier from his colleagues in the institution. No corrections officer witnessed the assault, although two inmates submitted written statements in which they claimed to have witnessed plaintiff strike Ramirez with a

612 F. Supp. 129
lock. Plaintiff did receive an infraction notice for the November 6 incident

The Department of Corrections has no record of a request by plaintiff for either a transfer or an opportunity to speak with any corrections officials. Plaintiff does allege in his original complaint that he had requested to be transferred prior to November 5, but that those requests were denied.

II. MOTION FOR SUMMARY JUDGMENT

To prevail on their motions, defendants must prove "that there is no genuine issue as to any material fact," and that they are "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Harlee v. Hagen, 538 F.Supp. 389, 393 (E.D.N.Y.1982). The court must "resolve all ambiguities and draw all reasonable inferences" against defendants. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir.1981). In addition, all facts asserted by the plaintiff, "if supported by affidavits or other evidentiary material, are regarded as true" for the purpose of this motion. 10A Wright & Miller & Kane, Federal Practice and Procedure § 2727 (Civil 2d 1983). Nonetheless, the party who opposes the motion cannot discharge his burden by alleging legal conclusions, nor is he entitled to a trial only on the basis of a hope that he can produce some evidence at that time. See United Transportation Union v. Long Island Railroad and Metropolitan Transportation Association, 509 F.Supp. 1300 (E.D.N.Y.) rev'd on other grounds, 634 F.2d 19 (2d Cir.1980), 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982).

A. Plaintiff's Claim under 42 U.S.C. § 1981

To sustain a claim under § 1981, plaintiff must show purposeful racial discrimination. General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). The discrimination complained of must have occurred in connection with one of several activities specified in § 1981.6

Although inartfully pleaded, plaintiff is asserting a violation of his right "to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains ... and exactions of every kind, and no other." 42 U.S.C. § 1981.

Plaintiff, though white, may sue for racial discrimination under § 1981. See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). In order to sustain his constitutional challenge, however, plaintiff must show purposeful discrimination. A showing of disparate impact to establish discriminatory intent is not sufficient. General Building Contractors Association, 458 U.S. at 390, 102 S.Ct. at 3149. In order to show purposeful intent a court may consider purposeful intent, proof of departures from the normal procedural sequence, history of discriminatory actions, and other relevant factors. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-68, 97 S.Ct. 555, 562-65, 50 L.Ed.2d 450 (1977).

Plaintiff fails to allege any facts which would tend to prove purposeful discrimination by the prison through its officials. His only allegation is his personal belief that alleged assaults by fellow inmates were motivated by racial enmity. Even assuming this to be true, it is at most evidence of disparate impact. It is therefore respectfully recommended that defendant's

612 F. Supp. 130
motion for summary judgment be granted with respect to that part of plaintiff's claim that sets forth an action under § 1981

B. Plaintiff's Claim Under 42 U.S.C. § 1983.

Attacks and physical assaults by government officials may constitute violations...

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32 practice notes
  • Scelsa v. City University of New York, No. 92 Civ. 6690 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Noviembre 1992
    ...458 U.S. 375, 390, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835, 849 (1982); Richards, 668 F.Supp. 259 at 264; Gibralter v. New York, 612 F.Supp. 125, 129 To prevail under section 1981 plaintiff need not demonstrate that discriminatory animus was the sole motivating factor in defendant's employment......
  • Union Labor Life Insurance Co. v. Olsten Corp. Health, No. 01-CV-6259 (DLI)(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 26 Marzo 2008
    ...to the jury, see Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter Page 140 v. City of New York, 612 F.Supp. 125, 133-34 (E.D.N.Y.1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the court should not ......
  • Barry v. City of N.Y., No. 11 CV 5533(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 21 Marzo 2013
    ...a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133–34 (E.D.N.Y.1985) (stating that “[s]ummary judgment is a drastic remedy and should be applied sparingly”), the Court should not grant summar......
  • Covey v. Simonton, No. 04 CV 3273 (NGG) (CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 4 Abril 2007
    ...a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133-34 (E.D.N.Y.1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the Court should hot gran......
  • Request a trial to view additional results
32 cases
  • Scelsa v. City University of New York, No. 92 Civ. 6690 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Noviembre 1992
    ...458 U.S. 375, 390, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835, 849 (1982); Richards, 668 F.Supp. 259 at 264; Gibralter v. New York, 612 F.Supp. 125, 129 To prevail under section 1981 plaintiff need not demonstrate that discriminatory animus was the sole motivating factor in defendant's employment......
  • Union Labor Life Insurance Co. v. Olsten Corp. Health, No. 01-CV-6259 (DLI)(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 26 Marzo 2008
    ...to the jury, see Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter Page 140 v. City of New York, 612 F.Supp. 125, 133-34 (E.D.N.Y.1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the court should not ......
  • Barry v. City of N.Y., No. 11 CV 5533(CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 21 Marzo 2013
    ...a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133–34 (E.D.N.Y.1985) (stating that “[s]ummary judgment is a drastic remedy and should be applied sparingly”), the Court should not grant summar......
  • Covey v. Simonton, No. 04 CV 3273 (NGG) (CLP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 4 Abril 2007
    ...a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133-34 (E.D.N.Y.1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the Court should hot gran......
  • Request a trial to view additional results

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