Porter v. Selsky

• Citation: 287 F.Supp.2d 180
• Decision Date: 29 August 2003
• Docket Number: No. 95-CV-598C(F).,95-CV-598C(F).
• Parties: Andre PORTER, Plaintiff, v. Mr. Donald SELSKY and Mr. Acting Captain Walter, Defendants.
• Court: U.S. District Court — Western District of New York

287 F.Supp.2d 180

Andre PORTER, Plaintiff, v. Mr. Donald SELSKY and Mr. Acting Captain Walter, Defendants.

No. 95-CV-598C(F).

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

August 29, 2003.

COPYRIGHT MATERIAL OMITTED

Hodgson Russ LLP (Patrick J. Long, Esq., of Counsel), Buffalo, NY, for Plaintiff.

Eliot Spitzer, Attorney General of the State of New York (Ann C. Williams, Esq., Assistant Attorney General, of Counsel), Buffalo, NY, for Defendants.

CURTIN, District Judge.

Presently before the court is defendants' motion for summary judgment dismissing the complaint (Item 85), plaintiff's cross-motion seeking to amend the complaint to add an additional defendant (Item 111), and plaintiff's motion for reconsideration of this court's May 7, 1997 decision and order (Item 124). Oral argument of these motions was heard on July 7, 2003. For the reasons that follow, defendants' motion for summary judgment is granted, plaintiff's cross-motion to amend the complaint is denied, and plaintiff's motion for reconsideration is denied.

BACKGROUND

Plaintiff commenced this action in July 1995, alleging violations of his civil rights. Specifically, he alleged that he was denied due process in the context of a disciplinary hearing, and that he was confined under inhumane conditions at the Wende Correctional Facility ("Wende") maintained by the New York State Department of Correctional Services ("DOCS"), in violation of the Eighth Amendment. In its May 7, 1997 decision, the court granted defendants' motion for partial summary judgment, dismissing the due process claims against all defendants and the Eighth Amendment claims as against defendants Thomas A. Coughlin, III, Frank E. Irvin and John P. Keane. The court denied the motion with respect to the Eighth Amendment claims against defendants Donald Selsky and Acting Captain Walter (Item 34). Porter v. Coughlin, 964 F.Supp. 97 (W.D.N.Y.1997).

In March 1998, in response to the defendants' request for a more definite statement, plaintiff filed an amended complaint, in which he alleged that defendants Selsky and Walter conspired to place him in a cruel and unusual environment by assigning him to a cell in Wende's Special Housing Unit ("SHU") in close proximity to feces-throwing inmates (Item 50). In August 1998, defendants moved for summary judgment (Item 56). In an order dated March 26, 1999, the court denied the motion with leave to renew, and ordered the parties to complete discovery (Item 65). Discovery proceeded, and in January 2000 the court granted plaintiff's motion for assignment of counsel (Item 76).

In January 2001, defendants again moved for summary judgment (Item 85). On May 15, 2001, after two substitutions of counsel, plaintiff filed a cross-motion for an order staying consideration of the motion for summary judgment and allowing additional discovery, including the depositions of defendant Selsky and Rickey Branning, a former Deputy Superintendent at Wende (now retired) (Item 96). The court granted plaintiff's cross-motion on January 31, 2002 (Item 101). The requested discovery was produced, and depositions were conducted in August and September 2002. At a meeting with counsel on October 9, 2002, the parties informed the court that discovery was complete, and the defendants renewed their motion for summary judgment (Item 108).

Plaintiff subsequently sought and was granted an extension of time, until January 10, 2003, to respond to the defendants' motion for summary judgment. On January 10, 2003, without responding to the motion for summary judgment, plaintiff filed a cross-motion to amend the complaint to add Rickey Branning as a defendant (Item 110). Defendants then filed a memorandum of law in opposition to the plaintiff's cross-motion and in further support of their motion for summary judgment (Item 116). In an order dated April 21, 2003, the court directed plaintiff to file a response to the motion for summary judgment by May 6, 2003 (Item 117). The plaintiff's response was filed May 7, 2003 (Items 118, 119).

Meanwhile, in a letter dated May 6, 2003, plaintiff's counsel sought the court's permission to file a motion for reconsideration of plaintiff's double jeopardy cause of action, which was dismissed as a result of the May 7, 1997 decision. The court granted permission, and the motion was filed on May 30, 2003 (Item 124). Defendants responded (Item 127), and oral argument of all pending motions was heard on July 7, 2003. For the reasons that follow, defendants' motion for summary judgment is granted, plaintiff's motions to amend and for reconsideration are denied, and the complaint is dismissed.

DISCUSSION

I. Defendants' Motion for Summary Judgment

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When a motion for summary judgment is made, the adverse party may not rest upon the mere allegations in his pleadings. The response "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

In his remaining causes of action, pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, plaintiff alleges that defendants Selsky and Walter conspired to place him in the SHU in close proximity to feces-throwing inmates in violation of the Eighth Amendment prohibition against cruel and unusual punishment. As an initial matter, the doctrine of respondeat superior does not apply to § 1983 actions. Zamakshari v. Dvoskin, 899 F.Supp. 1097, 1109 (S.D.N.Y.1995). Thus, a state employee cannot be held liable under 42 U.S.C. § 1983 absent a showing that he was personally involved in the violation of the plaintiff's constitutional rights. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Id. (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).

In support of their motion for summary judgment, defendants Selsky and Walter have submitted evidence showing that neither of them had the authority or responsibility for plaintiff's cell placement, and neither defendant had any role in plaintiff's cell assignment or movements while he was housed in the SHU at Wende. Defendant Selsky, in his Declaration, stated that he has been DOCS' Director of Special Housing and Inmate Discipline since 1988 (Item 88, ¶ 1). In that capacity, he is responsible for general oversight of the inmate disciplinary system and the operation of the SHUs at the various correctional facilities statewide, and for responding to inmate appeals of disciplinary decisions (id. at ¶ 3). He has no authority to direct the cell assignment of an inmate within an SHU at a particular facility (id. at ¶ 5). Furthermore, he never directed or participated in any decision regarding the cell assignment or movement of plaintiff, or any other inmate at Wende (id. at ¶ 6). Likewise, he never discussed, conferred, or otherwise entered into an agreement with defendant Walter or any other person regarding the cell assignment or movement of plaintiff, or any other inmate at Wende, to a particular cell in the SHU (id. at ¶ 7).

Defendant Walter, in his Declaration, stated that he is designated as an "Acting Captain" when he acts as a hearing officer in inmate disciplinary proceedings (Item 90, ¶ 2). Appended to his Declaration are Watch Commander log sheets from those days in 1993 and 1994 when defendant Walter was the Watch Commander (id., Exh. A). Defendant Walter states, and the log sheets confirm, that he was not the Watch Commander on any day that plaintiff was moved from one cell to another in the SHU at Wende (id. at ¶ 14). He states that he never directed or otherwise participated in any decision regarding plaintiff's cell assignment or movement in the SHU (id. at ¶ 17). Additionally, he never discussed, conferred, or entered into an agreement with defendant Selsky or any other person regarding plaintiff's cell assignment or movement in the SHU at Wende (id. at ¶ 18).

In his Declaration, Jeffrey Skinner, Deputy Superintendent of Security at Wende, stated that he is responsible for authorizing and/or approving inmate cell assignments and movement (Item 89, ¶ 1). In case of an emergency, a "Watch Commander" can direct an inmate cell movement, which must be authorized by the Deputy Superintendent of Security by the end of the day (id. at ¶ 6). Mr. Skinner stated that defendant Walter, when designated as an "Acting Captain," had no authority to authorize or approve inmate cell placement or movement (id. at ¶ 7). Additionally, Skinner stated that defendant Selsky does not participate in any decision regarding cell assignment or movement at Wende (id. at ¶ 8).

In opposition to defendants' summary judgment motion, plaintiff argues that his confinement in the Wende SHU under inhumane and barbarous conditions, which included the throwing of feces, setting of fires, and flooding of cells by neighboring inmates, amounted to cruel and unusual punishment prohibited by the Eighth Amendment. In this regard, the courts have long recognized that the Eighth Amendment...