Nunez v. Goord, 99 CIV. 4640(VM).
| Decision Date | 23 October 2001 |
| Docket Number | No. 99 CIV. 4640(VM).,99 CIV. 4640(VM). |
| Citation | 172 F.Supp.2d 417 |
| Parties | Marco NUNEZ, Plaintiff, v. Commissioner Glenn S. GOORD, of the New York State Department of Corrections, Superintendent C. Artuz, Deputy Superintendent Schneider, Sgt. Turso, Sgt. Schwartzman, Officer Suber, Officer Woodly, Officer Henschel, John Doe and Jane Doe, Officers in their individual and official capacities. Defendant. |
| Court | U.S. District Court — Southern District of New York |
Marco Nunez, New york City, pro se.
Ivan B. Rubin, Eliot Spitzer, Atty. Gen. of State of NY, New York City, for defendants.
DECISION AND ORDER
Marco Nunez ("Nunez"), pro se and incarcerated, brought this action under 42 U.S.C. § 1983 against defendants Commissioner Glenn S. Goord, Superintendent Artuz, Deputy Superintendent Schneider, Sergeants Turso and Schwartzman, Officers Suber, Woodly, and Henschel and two unidentified Doe Officers (collectively, "Defendants"), all of whom served at all relevant times as officials of the New York State Department of Correctional Services ("DOCS"). Nunez alleges that Defendants (1) failed to protect him from inmate assaults, (2) engaged in retaliatory harassment, (3) used excessive force, (4) failed to train and supervise prison personnel and (5) were negligent under New York law. Defendants moved for summary judgment on all claims on the grounds that Nunez failed to exhaust administrative remedies prior to filing suit and that Nunez presented insufficient evidence in support of his § 1983 claims. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
At all relevant times, Nunez was incarcerated in DOCS's Green Haven Correctional Facility ("Green Haven"). The parties agree that on April 25, 1998, Nunez was stabbed by an unidentified inmate in the Green Haven Yard. Nunez was rushed to an outside hospital for treatment. Nunez claims that Green Haven failed to adequately monitor the Yard. On this point the parties agree that approximately 20 percent of the inmates were searched prior to entering the Yard and 10 guards were assigned and present on April 25, 1998 to oversee the Yard.
Nunez claims that upon his return to Green Haven he was interviewed by Sergeants Schwartzman ("Schwartzman") and Turso ("Turso") who opined that the attack was gang-related and recommended that Nunez voluntarily enter protective custody, a form of solitary confinement. Nunez stated that he was not involved in any gang-related activity and refused to enter protective custody because the programs he needed for parole were not available there. Nunez claims he was ordered to stretch against the wall, and that when he tried to explain that his wounds prevented him from complying, Turso hit Nunez's head against the wall, causing injury to his eye. See Complaint ("Compl.") at ¶ 9. Nunez further alleged that Turso dragged Nunez down the stairs while unidentified officers, the Doe defendants, struck him. Nunez stated that he was returned to the hospital and into an isolation room for medical attention. Compl. at ¶ 9. He sustained injury to his eyebrow and cheek. Deposition of Marco Nunez ("Dep.") at 95-96.
Unhappy with his placement in protective custody after having been assaulted, Nunez alleges that he then filed a grievance regarding the assaults and that it was not answered. Compl. at ¶ 9; Dep. at 86. Nunez also appealed his involuntary protective custody hearing on procedural grounds. His appeal was granted in early July, 1998. Upon rehearing, however, his placement in involuntary protective custody was reaffirmed. Dep. at 98, 102-3.
Nunez claimed that Officer Suber ("Suber") and others conspired to retaliate against Nunez for his successful appeal. Compl. at ¶ 9(m)-(t). Nunez stated that "almost daily" during 1998 Suber would take action against him, including taking him to an "old hospital area" of the prison for beatings. Dep. at 130; Compl. at ¶ 9. In his deposition, Nunez specified that he suffered a beating in the old hospital area on July 16, 1998. Nunez claims that he was taken there from his cell by Suber, who punched Nunez in the rib cage and sides while Deputy Superintendent Schneider ("Schneider") watched. Dep. 130-35. Nunez suffered bruises as a result of Suber's blows. Dep. at 177. On that day two other inmates, known to Nunez only as "Smooth" and Perez, were also taken to the old hospital area and beaten by two unidentified officers. Id. at 131, 135, 149. None of the inmates filed grievances. Id. at 149. Nunez claims he does not know precisely what provoked Suber's actions. Dep. at 144-46, 155-56.
In a letter dated July 29, 1998 and addressed to Superintendent Artuz ("Artuz") Nunez complained about the July 16 beating. Defendants allege that this letter never reached Artuz. See Affidavit of James Lagoi, dated August 27, 2000 ("Lagoi Aff.") at ¶ 3. Even though he received no response, Nunez did not pursue that complaint any further. Dep. at 88, 126-130. Nunez said he did not file additional grievances, claiming futility of such action. In his view, the grievance procedure, which he had utilized in the past, did not function. Compl. at ¶ 9(v); Dep. at 172-75.
In the July 29, 1998 letter Nunez also complained that a photograph of a family member was wrongly taken from him during a retaliatory search of his cell on July 28, 1998. Again, Nunez filed no grievance and pursued the matter no further. Dep. at 136-37.
Nunez alleges that Schwartzman and Officers Woodly ("Woodly"), Zito ("Zito") and Henschel ("Henschel") fabricated misbehavior reports in order to cover up their failure to protect him. Compl. at ¶ 9. In support of this claim, Nunez stated that, on November 17, 1998, another inmate bleeding from self-inflicted wounds approached and engaged Nunez in an altercation. Compl. ¶ 9(w). Woodly observed the altercation and initially filed administrative charges against him, per Schwartzman's command. After an investigation of the matter, it was found that the assailant ambushed Nunez and Nunez did not fight back. Accordingly, the fighting charges against Nunez were dismissed. Id. at ¶ 9.
The final incident Nunez describes occurred on December 1, 1998. An inmate allegedly assaulted Nunez in front of Zito. Zito observed the attack, without interfering in it, and made a report in which he charged Nunez with fighting. Compl. at ¶ 11. The charge was dismissed later by Zito's testimony. Dep. at 162. Nunez believes that Zito's conduct represents a failure to protect him. Dep. at 160.
Nunez complains that all named officers and their supervisors were acting pursuant to orders and directives from Commissioner Goord ("Goord"). Compl. at ¶ 16. Moreover, Nunez alleges that Henschel, in furtherance of a retaliatory conspiracy against him for suspected participation in gang activities, selectively enforced rules and singled out Nunez for sanctions. Compl. at ¶ 9(w); Dep. at 121-23. Nunez does not specify particular acts. According to Nunez, as a proximate result of Defendants' conduct he has suffered great bodily harm, including injuries to his arm, neck, back, head and body, and suffered emotional pain and distress. Compl. at ¶¶ 22-23.
Defendants filed a motion for summary judgment on the grounds that Nunez failed to exhaust administrative remedies or submit facts in support of his claims. See Defendants' Memorandum of Law in Support of their Motion for Summary Judgment (hereinafter "Defs. Memo") at 2. Defendants argue that the Prison Litigation Reform Act of 1996 ("PLRA"), 42 U.S.C. § 1997e(a), applies to all claims regarding conditions of confinement and requires a prisoner to follow formal grievance procedures before filing suit in federal court. Defendants assert that Nunez did not file any grievances with respect to any of his claims, including excessive force. In support of the failure-to-exhaust defense, Defendants submitted the transcript of Nunez's deposition. During that proceeding Nunez stated that he did not in fact file any grievances with respect to the conduct alleged in his complaint. Dep. at 81-84, 87-88, 127-29.
Factually, Defendants assert that Nunez presented insufficient evidence in support of his § 1983 claims. Defendants also submitted evidence in opposition to these claims. First, Defendants do not contest that Nunez was assaulted by a fellow inmate on April 25, 1998. As to subsequent events, Defendants' version of events varies from Nunez's. According to them, on May 5, 1998, Schwartzman interviewed Nunez and recommended that he voluntarily enter protective custody. Nunez refused. Defs. Memo at 3. On May 6, 1998, Schwartzman served Nunez with an involuntary protective custody recommendation. Nunez again refused to enter protective custody and "a disturbance ensued" during which time Nunez was directed to put his hands on the wall and be frisked. Faced with Nunez's refusal to comply, officers physically "placed plaintiff against the wall". Id. at 4. The following day, May 7, 1998, Nunez was placed in involuntary protective custody.
As evidence, Defendants submitted the "Report Packet of Disciplinary Hearing Disposition, Hearing date May 11, 1998" containing official memoranda, reports and findings regarding the May 6, 1998 incident. Multiple officers filed reports. According to Officer Limaye, after Nunez was served with an involuntary protective custody paper, Limaye ordered him to move to the isolation room. Nunez refused and entered the day room instead. Nunez was yelling, did not immediately obey direct orders to exit the day room and Inmate Misbehavior Report dated 6...
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