Gibson v. Rosati

• Decision Date: 10 March 2017
• Docket Number: 9:13-cv-00503 (GLS/TWD)
• Parties: DANA GIBSON, Plaintiff, v. C. ROSATI, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

DANA GIBSON, Plaintiff, v. C. ROSATI, et al., Defendants.

9:13-cv-00503 (GLS/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 10, 2017

APPEARANCES:

DANA GIBSON

05-A-3824

Plaintiff pro se

Upstate Correctional Facility

P.O. Box 2001

Malone, New York 12953

HON. ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

Counsel for Defendants

The Capitol

Albany, New York 12224

OF COUNSEL:

JOSHUA E. McMAHON, ESQ.

Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

I. INTRODUCTION

This pro se civil rights action, commenced by Plaintiff Dana Gibson, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, has been referred for Report and Recommendation by the Honorable Gary L. Sharpe, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). In the third amended complaint, the operative pleading, Plaintiff alleges:

1. Defendants Willie J. Tabb, Jr. ("Tabb"), Theresa A. Knapp-David ("Knapp-David"), and Vernon Fonda ("Fonda") violated Plaintiff's Eighth Amendment rights by failing to prevent Plaintiff's transfer to Great Meadow Correctional Facility ("Great Meadow") in October 2011;

2. Defendants C. Rosati ("Rosati"), D. Maguire ("Maguire"), C. Burnelle ("Burnelle"), P. LaRose ("LaRose"), S. DeLong ("DeLong"), S. Shattuck ("Shattuck"), and P. McNally ("McNally") used excessive force or failed to intervene in violation of Plaintiff's Eighth Amendment rights on February 10, 2013;

3. Defendants T. Johnston ("Johnston"), R. Lowry ("Lowry"), and John Kitchner ("Kitchner") used excessive force in violation of Plaintiff's Eighth Amendment rights on February 20, 2013;

4. Defendants J. Scroggy ("Scroggy"), Birrell ("Birrell), and Albert Prack ("Prack") violated Plaintiff's Fourteenth Amendment right to due process during the disciplinary hearing stemming from the events that transpired on February 10, 2013;

5. Defendants DeLuccia ("DeLuccia"), Birrell, and Prack violated Plaintiff's Fourteenth Amendment right to due process during the disciplinary hearing stemming from the events that transpired on February 20, 2013; and

6. Defendant Donald Uhler ("Uhler") violated Plaintiff's Eighth and Fourteenth Amendment rights when he issued an indefinite restraint order and failed to provide weekly renewals.

(See generally Dkt. No. 119.¹)

Plaintiff has now moved for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on his (1) Eighth Amendment failure to protect claim against Tabb, Knapp-David, and Fonda; (2) Fourteenth Amendment due process claim against Scroggy, DeLuccia, Birrell, and Prack; and (3) Fourteenth Amendment due process claim against Uhler. (Dkt. No. 153.²) Tabb, Knapp-David, Scroggy, DeLuccia, Birrell, Prack, and Uhler have opposed Plaintiff's motion, and have cross-moved for summary judgment. (Dkt. No. 163.) Plaintiff has opposed Defendants' cross-motion, and also filed a reply. (Dkt. No. 180.) For the reasons explained below, the Court recommends denying Plaintiff's motion, and granting Defendants' cross-motion.

II. FACTUAL BACKGROUND

A. Plaintiff's Transfer from Upstate to Great Meadow

In May of 2011, Plaintiff was incarcerated at Upstate Correctional Facility ("Upstate"). (Dkt. No. 119 at ¶ 15.³) On May 16, 2011, Plaintiff wrote a letter to Tabb, his corrections counselor, and requested an "employee separation" from seven corrections officers at Great Meadow. (Dkt. No. 153-4 at 15-16.⁴) Specifically, Plaintiff requested an "employee separation" from Great Meadow corrections officers Ricky R. Therrien ("Therrien"), R. Gosselin ("Gosselin"), Leroy F. Monroe ("Monroe"), Glenn C. Warner ("Warner"), Ricky J. Hance ("Hance"), and Edmund Trombley ("Trombley"), and Sergeant Mark W. Cleveland ("Cleveland"). Id. at 15. Plaintiff stated that he had previously sued those same officers in two civil actions filed in the Northern District of New York, Gibson v. Mitchell-Oddey, No. 9:03-cv-00082, and Gibson v. Allen, No. 9:07-cv-00617. Id. at 15-16. As such, Plaintiff feared if he were transferred to Great Meadow, they would "physically harm [Plaintiff] in retaliation for [his] success in such lawsuits against them." Id. at 16.⁵

On May 19, 2011, Tabb verbally advised Plaintiff that he would not submit Plaintiff's applications for "employee separations." (Dkt. No. 153-2 at ¶ 4.) Tabb returned Plaintiff's letter, which included the hand-written notation, "I cannot provide this info," dated May 19, 2011. (Dkt. No. 153-4 at 16.)

On May 23, 2011, Plaintiff filed a grievance (UST-46255-11) with the Inmate Grievance Resolution Committee ("IGRC") requesting "employee separation" from Therrien, Gosselin, Monroe, Warner, Hance, Trombley, and Cleveland "based upon their threats to physically harm [him] in full retaliation" for filing Gibson v. Mitchell-Oddey, No. 9:03-cv-00082, and Gibson v. Allen, No. 9:07-cv-00617. (Dkt. No. 163-3 at 6-7.) Plaintiff stated that Tabb "refused to proceed" with his request for "employee separations," and that Senior Corrections Counselor Smith was aware of Plaintiff's request but "nothing was done." Id. at 16. Plaintiff requested "that this matter be fully investigated and such documents be proceeded and forwarded to Central Office for such requested employee separations." Id.

By written notice dated May 31, 2011, Tabb advised Plaintiff that "[i]nmates cannot file separations from staff. Staff can file separation from inmates through Central Office." (Dkt. No. 153-4 at 17.)

On June 7, 2011, the IGRC denied Plaintiff's grievance because "[t]here is no provision for inmates to be separated from staff." (Dkt. No. 163-3 at 8.) Plaintiff's appeal to the Superintendent was also denied:

There is no provision for inmates to be separated from staff, as requested by [Plaintiff]. In the current matter, [Plaintiff] was advised of this fact by the assigned correctional counselor through written correspondence.

(Dkt. No. 163-3 at 4.) Plaintiff filed an appeal to the Central Office Review Committee ("CORC"), arguing:

Contrary to [the Superintendent's decision], prison officials have an inherent duty under the Eighth Amendment of the U.S. Constitution to take "reasonable measures to guarantee the safety of inmates." See Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).

Accordingly, I requested such employee separations from such employees based upon their threats to physically harm me in retaliation for my successfully suing them in Federal Court.

While such employee threats were taken lightly in the past in October, 2007, on October 11, 2007, upon being transferred to Great Meadow Correctional Facility where I was cut in my face by Correction Officer Edmund Trombley while other employees watched. Such actions resulted in my success in suing officer Trombley and others named in this grievance.

Accordingly this grievance should be granted and I should be separated from such employees as requested.

(Dkt. No. 163-3 at 4-5.)

On July 27, 2011, the Prisoners' Rights Project sent a letter to Fonda, DOCCS Acting Inspector General, requesting that Plaintiff's "concerns and his request to be housed in a facility other than Attica and Great Meadow" be investigated. (Dkt. No. 153-4 at 26.)

On August 4, 2011, Plaintiff sent correspondence to Commissioner Brian Fischer ("Fischer"), requesting that he not be transferred to Great Meadow or Attica "based upon threats made on [his] life by employees at such facilities." (Dkt. No. 153-2 at ¶ 5.) Plaintiff advised Fischer that he had successfully sued Therrien, Gosselin, Monroe, Warner, Hance, Trombley, and Cleveland, and that "all named employees of Great Meadow ha[ve] threaten[ed] to physically harm [Plaintiff] if [he] returned to Great Meadow in retaliation for suing them." (Dkt. No. 153-4 at 19-20.) Plaintiff indicated that Tabb had refused to proceed with his employee separation requests and that his grievance (UST-46255-11) was pending CORC review. Id. Plaintiff's letter was referred to Associate Commissioner Knapp-David. (See Dkt. No. 153-4 at 22.)

On August 9, 2011, Plaintiff's concern that he would be assaulted by staff at Great Meadow and Attica was assigned to non-party DOCCS Inspector General's Officer Investigator, Jon Nocera ("Nocera"). (Dkt. No. 163-4 at 1.) Nocera interviewed Plaintiff on August 17, 2011. Id. Following the investigation, Nocera determined that Plaintiff's claims were unsubstantiated, concluding that there was "no evidence to support the allegations of staff misconduct." Id.

On August 17, 2011, CORC issued the following:

Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby accepted only to the extent that CORC upholds the determination of the Superintendent for the reason stated.

CORC asserts that there is no provision in Department policy for an inmate to request a separation from staff. The grievant is advised to address specific instances of harassment by staff to the attention of a supervisor for any remedial action deemed necessary.

In regard to the grievant's appeal, CORC asserts that all relevant information must be presented at the time of filing in order for a proper investigation to be conducted at the facility level.

(Dkt. No. 163-3 at 1.)

Subsequently, by letter dated August 24, 2011, Knapp-David responded to Plaintiff's August 4, 2011, letter:

The Office of Classification and Movement reviews an offender's transfer history and the separation system prior to issuing a transfer order. Be assured this procedure will be utilized prior to your transfer being considered.

Please address any further issues regarding transfer and/or separation with your assigned Correction Counselor who is in the best position to advise you.

(Dkt. No. 153-4 at 22.)

On August 29, 2011, Plaintiff sent a second letter to Tabb and requested that he not be transferred to Great...