Hosannah v. Saeed

• Decision Date: 28 December 2022
• Docket Number: 15-CV-03773 (GRB) (LGD)
• Parties: DAVID HOSANNAH, Plaintiff, v. OFFICER AMEED SAEED and NASSAU COUNTY CORRECTIONAL CENTER SHERIFF DEPARTMENT Defendants.
• Court: U.S. District Court — Eastern District of New York

DAVID HOSANNAH, Plaintiff,
v.
OFFICER AMEED SAEED and NASSAU COUNTY CORRECTIONAL CENTER SHERIFF DEPARTMENT Defendants.

No. 15-CV-03773 (GRB) (LGD)

United States District Court, E.D. New York

December 28, 2022

REPORT AND RECOMMENDATION

LEE G. DUNST, Magistrate Judge:

Pro se plaintiff David Hosannah (“Plaintiff”), an inmate currently in custody of the New York State Department Corrections and Community Supervision, commenced this action pursuant to 42 U.S.C. Section 1983 on June 18, 2015 alleging that he suffered verbal threats, sexual harassment, and sexual abuse while incarcerated at the Nassau County Correctional Center (“NCCC”) in 2014 and 2015 in violation of his rights under the First, Fifth, Eighth, Ninth, and Fourteenth Amendments. See generally Complaint, Electronic Case File Docket Number (“ECF No.”) 1 (“Complaint” or “Compl.”).^[1] Presently before the Court, pursuant to the January 19, 2022 referral from the Honorable Gary R. Brown for a Report And Recommendation, is the motion for summary judgment under Federal Rule of Civil Procedure 56 by defendants Officer Ameed Saeed (“Saeed”) and Nassau County Correctional Center Sheriff's Department (“Sherriff's Department” and together with Saeed, “Defendants”) seeking dismissal of the Complaint with prejudice. See ECF No. 69. As set forth below, the undersigned respectfully recommends that the Court GRANT IN PART and DENY IN

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PART Defendants' motion for summary judgment and that the Court DISMISS certain claims under 42 U.S.C. § 1997e(c) and 28 U.S.C. § 1915(e)(2)(B)(ii).

I. FACTUAL BACKGROUND

The facts, as recited below, are taken from the Complaint, Defendants' Local Civil Rule 56.1 Statement at ECF No. 69-1 (“Def. 56.1 Statement”),^[2] Plaintiff's opposition to the motion for summary judgment at ECF No. 72, and admissible evidence submitted by the parties.

A. Admission to the NCCC

Plaintiff was arrested on September 13, 2013 and admitted to the NCCC on September 14, 2013. See Def. 56.1 Statement ¶ 1; ECF No. 70-5 (“Plaintiff's Dep. Tr.”) at 14:7-16. The NCCC is “the County jail facility which is staffed by members of the Nassau County Sheriff's Department, Division of Corrections.” Def. 56.1 Statement ¶ 2.

B. Allegations Concerning Saeed

1. The First Grievance

On January 30, 2014, Saeed “harassed” Plaintiff by stating Plaintiff looked “big and strong” and “gentley [sic] squeezing” Plaintiff's shoulder. See Compl. at 7. The next day, on January 31, 2014, Plaintiff filed Grievance Form #014-02-14 (the “First Grievance”) with the NCCC, which reported the interaction with Saeed and requested “a full investigation ....” Id. On February 7, 2014, the Grievance Coordinator filled in the “Decision of the Grievance Coordinator” section of the First

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Grievance by noting that the grievance was “[a]ccepted” because “[a]ny information received alleging staff misconduct must be forwarded to the Sheriff's Bureau of Investigation for investigation.” Id. On February 10, 2014, Plaintiff signed his name in the “Acceptance/Appeal of Grievance Coordinator's decision” section of the form but did not check whether he accepted or appealed the Grievance Coordinator's decision. See id.

2. The Second Grievance And First Disciplinary Form

On March 28, 2014, Saeed learned that an investigation found him “not to be guilty” of the conduct alleged in the First Grievance, and he then filled out Disciplinary Form 8771 (the “First Disciplinary Form”) charging Plaintiff with filing a false report. See id. at 13.^[3] That same day, Saeed threatened to lock Plaintiff in his unit unless he signed the First Disciplinary Form. See id. at 9. On April 3, 2014, Saeed confirmed to Plaintiff that he “spoke to internal affairs” about the First Grievance. Compl. at 4.

Later on April 3, 2014, Plaintiff filed Grievance Form #033-04-14 (the “Second Grievance”) with the NCCC, which (1) reported the March 28, 2014 interaction with Saeed, (2) characterized that interaction as “retaliating against [an] inmate for grieving an officer for his misconduct” because it took place after “internal affairs spoke to” Saeed about the First Grievance, (3) stated “I refused the law library and was given [the First Disciplinary Form] from Officer Saeed,” and (4) requested that the matter be investigated and that Saeed undergo “a [psych]ological examination” Compl. at 9. On April 9, 2014, the Grievance Coordinator filled in the “Decision of the Grievance Coordinator”

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section of the form by checking that the grievance was “[a]ccepted” and noting that “[a] copy of this grievance was forwarded to the facility's investigative unit, Internal Affairs (IA).” Id. On April 14, 2014, Plaintiff signed his name in the “Acceptance/Appeal of Grievance Coordinator's decision” section of the form but did not check whether he accepted or appealed the Grievance Coordinator's decision. See id. The Second Grievance contains a handwritten “witness” note that Plaintiff “refused to check” whether he accepted or appealed the decision of the Grievance Coordinator. Id.

3. The Third Grievance

On or before April 18, 2014, an unidentified Corporal gave Plaintiff a copy of the First Disciplinary Form. See Plaintiff's Dep. Tr. at 112:24-113:14. On April 18, 2014, Saeed went to Plaintiff and threatened to “fuck [Plaintiff] up” if Plaintiff failed to give that copy of the Disciplinary Report to Saeed.^[4] Compl. at 11; see Compl. at 4. That same day, Plaintiff filed Follow Up Grievance Form #033-04-14 (the “Third Grievance”) with the NCCC, which described the April 18, 2014 interaction with Saeed and requested that the NCCC “investigate this problem.”^[5] Compl. at 11.

4. The Fourth Grievance

On July 1, 2015, Saeed told Plaintiff to “take [his] sexy ass” to the front of the law library line and made a kissing “gesture” towards Plaintiff. Hosannah II, ECF No. 1 at 10. On July 2, 2015, Plaintiff filed Grievance Form #023-07-16 (the “Fourth Grievance”, and together with the First Grievance, Second Grievance, and Third Grievance, collectively, the “Grievances”) with the NCCC, which described the July 1, 2015 interaction with Saeed and requested that the NCCC “look into this ongoing problem.” Id. On July 10, 2015, the Grievance Coordinator filled in the “Decision of the

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Grievance Coordinator” section of the form by checking that the grievance was “[a]ccepted” and noting that “[t]his office has investigated the incident . . . and was unable to substantiate” the allegations. Id. On July 14, 2015, Plaintiff signed his name in the “Acceptance/Appeal of Grievance Coordinator's decision” section of the form and checked that he “read and accepted the Grievance Coordinator's decision.” Id.

5. August 12, 2015 Incident And Second Disciplinary Form

On August 12, 2015, Plaintiff met with internal affairs “after almost 2 years of constantly writing grievance[s] and complaint[s] to every higher personnel at [the NCCC].” ECF No. 72 at 11. Saeed stopped Plaintiff's escort back from that meeting and told Plaintiff to put his hands up against the wall adjacent to the dorm entrance. See id. As Plaintiff complied with that directive, the officer already escorting Plaintiff asked “What did [Plaintiff] do?” Id. Saeed ignored that question and instead told Plaintiff “don't fucking move.” Id. Plaintiff began to state that he did not move and was complying, but “before [Plaintiff] even finish[ed his] sentence” Saeed said “shut the fuck up and face the fucking wall.” Id. at 12. Plaintiff reports that “Saeed then proceeded to pat or frisk me as he reach my lower back area he then squeeze my butt, then from behind he reach between my legs and grab my private part slowly holding it for a few seconds. Then slowly bring his hands back between my legs very slowly holding and squeezing my butt [again].” Id.; see Hosannah II, ECF No. 1 at 4, 20 (similar). During that search, the officer who was already escorting Plaintiff asked Saeed “what['s] the problem?,” asked Saeed “what did he do?,” and confirmed to Saeed “we already search[ed] him downstairs.” ECF No. 72 at 12; see Hosannah II, ECF No. 1 at 4, 20 (similar). Instead of responding to that other officer, Saeed threatened to go to Plaintiff's unit if Plaintiff said “anything” about the encounter. ECF No. 72 at 12; Hosannah II, ECF No. 1 at 4, 20.

Later on August 12, 2015, Plaintiff wrote a letter to the New York State Inspector General and the New York State Commission of Correction Internal Affairs Unit to report that day's incident with

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Saeed, and Saeed gave Plaintiff Disciplinary Form #99560 (“Second Disciplinary Form”). See ECF No. 72 at 11-12; Hosannah II, ECF No. 1 at 4, 20. The copy of the Second Disciplinary Form provided to the Court is illegible, and neither Plaintiff nor Defense counsel were able to read the Second Disciplinary Form at Plaintiff's deposition. Hosannah II, ECF No. 1 at 13; Plaintiff's Dep. Tr. 125:11-126:25. Notably, Defendants' summary judgment filings are silent on the August 12, 2015 incident.

C. Allegations Concerning Other Corrections Personnel

Plaintiff alleges that Sergeant Morrone (“Morrone”), Sergeant Krueger (“Krueger”), and Captain Rogers (“Rogers”) each “assist[ed] [Saeed] in violating [Plaintiff's] civil rights.” See Hosannah II, ECF No. 1 at 5. To that end, Plaintiff alleges that (1) an unspecified person “lock[ed him] in” at an unspecified time after Plaintiff at some point spoke to Morrone about the First Grievance, and (2) Plaintiff received a memo dated August 17, 2015, which was signed by Krueger on behalf of Rogers, that imposed a 30-day law library restriction as a result of the Second Disciplinary Form. See id. at 4, 14.

D. Impact Of These Experiences

As a result of the foregoing experiences, Plaintiff reportedly suffered from “insomnia, nightmares, and an overall fear of Officer Saeed” as well as “psychological injury, psychological trauma, and depression.” ECF No. 72 at 3.

E....