Sanders v. Torres
| Decision Date | 08 February 2021 |
| Docket Number | No. 9:19-CV-697 (GTS/CFH),9:19-CV-697 (GTS/CFH) |
| Parties | ANTHONY SANDERS, Plaintiff, v. TORRES, et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
| APPEARANCES: |
| OF COUNSEL: |
| Anthony Sanders |
| 17-A-5184 |
| Elmira Correctional Facility |
| Elmira, New York 14902 |
| Plaintiff prose |
| Attorney General for the |
| State of New York |
| Syracuse Regional Office |
| 300 South State St. |
| Syracuse, New York 13202 |
| Attorney for Defendants |
| AIMEE COWAN, ESQ. |
| Assistant Attorney General |
Plaintiff pro se Anthony Sanders ("plaintiff"), who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Correction Officer ("C.O.") W. Torres ("C.O. Torres"); C.O. E. Sadowski ("C.O.Sadowski"); C.O. N. Grzeskowiak ("C.O. Grzeskowiak"); and C.O. S. Skelly ("C.O. Skelly") (collectively, where appropriate, "defendants") —who, at all relevant times were employed at Auburn Correctional Facility ("Auburn C.F.")—violated his constitutional rights under the Eighth Amendment through the use of excessive force. See Dkt. No. 1 ("Compl.").2
Presently pending before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."). See Dkt. No. 19. Plaintiff opposed the motion, see Dkt. No. 24, and defendants filed a reply. See 25. For the reasons that follow, it is recommended that defendants' motion be granted in its entirety and that plaintiff's Complaint be dismissed with prejudice.
A. Facts
The facts are reviewed in the light most favorable to plaintiff as the non-moving party. See subsection III., infra. At all relevant times, plaintiff was an inmate incarcerated at Auburn C.F.
1. Plaintiff's Complaint
On May 12, 2019, at approximately 7:00 A.M., while C.O. Sadowski, C.O. Grzeskowiak, and C.O. Skelly were conducting a frisk of plaintiff's cell, plaintiff allegesthat C.O. Sadowski "assaulted" him by "striking [him] on the right side of [his] face for no reason which lead to these officer's [sic] using excessive force violating [his] 8th Amendment [sic]." Compl. at 4.
Plaintiff alleges that, at approximately 7:49 A.M. on May 12, 2019, while "being frisked by [C.O.] Torre" C.O. Torres asked plaintiff to "bend at the waist during a full strip frisk." Id. Plaintiff contends that, when he complied with C.O. Torres' order, C.O. Torres "put [him] in a rear naked choke hold around [his] neck for supposedly trying to swallow something (which nothing was found on contraband watch)." Id. Moreover, plaintiff alleges that he was "put to sleep by [C.O.] Torres" and that he was "woken up by officers slapping [him] to wake up." Id. Plaintiff avers that this incident was captured on camera and witnessed by other inmates. See id. at 4-5. Plaintiff alleges that, as a result of C.O. Torres' choke hold, he "sustained a 1 inch in length abrasion an [sic] another on [his] left arm," but that he does not "know how many inches in length" the abrasion on his left arm was. Id. at 5.
Defendants first contend that plaintiff's complaint must be dismissed for failure to exhaust his administrative remedies prior to commencing this action, as required by the Prison Litigation Reform Act ("PLRA"). See Dkt. No. 19-28 at 10. In support of theircontention, defendants proffer the declaration and supporting documentation of Rachael Seguin ("Seguin"), the Assistant Director of DOCCS' Inmate Grievance Program ("IGP"), whose duties include maintaining records of the Central Office Review Committee ("CORC"), "the body that renders the final administrative decision under DOCCS' [IGP] pursuant to 7 N.Y.C.R.R. § 701 et seq." Dkt. No. 19-24 at 1 ¶ 3. Seguin stated that, at all relevant times, "Auburn had a fully functioning inmate grievance process available." Id. at 3 ¶ 11. Based on her search of plaintiff's CORC records, Seguin stated that plaintiff filed two grievances relating to the alleged May 12, 2019 excessive force incidents on May 28, 2019 (Grievance #AUB-76216-19) and June 5, 2019 (Grievance #AUB-76278-19). See id. 3 ¶ 12; see also Dkt. No. 19-25 at 1 (). Seguin explained that, "[a]t the time [plaintiff] filed his Complaint with the Court, the Superintendent responses were still within the 25[-]calendar day[-]time limit outlined in 7 N.Y.C.R.R. § 701.8(f)." Id. at 3-4 ¶ 14. Further, Seguin noted that the Superintendent "denied plaintiff's grievances on July 3, 2019, after [p]laintiff filed his Complaint" in this action on June 12, 2019, and that plaintiff "submitted appeals to CORC for both grievances on July 12, 2018, which were received and processed by the IGRC office at Auburn on July 31, 2019." Id. at 4 ¶¶ 14, 15. As of the date of Seguin's declaration, February 27, 2020, "[p]laintiff's CORC appeals [we]re pending and ha[d] not yet been heard or decided by CORC." Id. at ¶ 16.
Moreover, pointing to Seguin's declaration, defendants contend that no exception to the mandatary exhaustion requirements exists here, because the grievance procedure was "'available'" to plaintiff at all times. Dkt. No. 19-28 at 11 (citing Dkt. No.19-24 at 3 ¶ 11). Defendants also noted that plaintiff has not alleged that the Auburn administration "'thwarted' him from taking advantage of the grievance process in any way," Dkt. No. 19-28 at 11 (quoting Ross v. Blake, ___ U.S. ___ 136 S. Ct. 1850, 1862 (2016)), and note that plaintiff acknowledged at his deposition that he was familiar with the grievance process while incarcerated at Auburn C.F. See id. (citing Dkt. No. 19-2 at 97). In addition, defendants aver that any delay in CORC rendering a decision had no bearing on plaintiff's failure to exhaust administrative remedies "at the time he filed his suit." Id. (emphasis and citation omitted).
As an initial matter, defendants posit that, even assuming that plaintiff's allegation that C.O. Sadowski struck him once in the head causing an abrasion are true, plaintiff has alleged only de minimis force and insufficient physical injury, such that plaintiff has failed establish the objective prong for an Eighth Amendment excessive force claim. See Dkt. No. 19-28 at 15-18. Defendants further aver that, insofar as the Complaint may be construed as asserting failure to intervene claims against C.O.s Skelly and Grzekowiak, such claims must be dismissed because the underlying excessive force claim against C.O. Sadowski must fail. See id. at 19. Alternatively, defendants contend that plaintiff's failure to intervene claims fail because, accepting plaintiff's allegations concerning C.O. Sadowski as true, the purported use of force—an unexpected strike—would not have allowed C.O.s Skelly and Grzekowiak a reasonable opportunity to intervene to stop the force. See id. at 22.
In support of their arguments in this regard, defendants controvert plaintiff's recitation of the facts, and proffer the declaration of C.O. Grzeskowiak, who stated that, at approximately 7:00 a.m. on the morning of May 12, 2019, he was conducting a weekly razor inspection in the C-16 gallery at Auburn C.F. See Dkt. No. 19-9 at 1 ¶¶ 5-6. C.O. Grzeskowiak explained that the weekly razor exchange involves corrections offers ordering inmates' produce their state-issued razors for inspection, so that correctional staff may account for all state-issued razors distributed to inmates and so that inmates may exchange their old razor for a new one if they choose. See id. at 1-2 ¶ 7. However, when an inmate fails to produce his razor, a cell search is conducted. See id. at 2 ¶ 7. When C.O. Grzeskowiak instructed plaintiff to produce his razor for inspection on the morning of May 12, 2019, "[p]laintiff responded to [the] order . . . with a blank stare[,] attempted to hand [C.O. Grzeskowiak] a lighter[, and] appeared to be intoxicated." Id. at 2 ¶ 8. Plaintiff then failed to comply with "several more direct orders to provide his razor." Id. at ¶ 9. After completing the razor exchange for the rest of the area, C.O. Grzeskowiak notified the area supervisor "of [p]laintiff's behavior." Id. at ¶ 10.
C.O. Grzeskowiak further stated that, "[a]t approximately 7:30 a.m., Sgt. Cordway, the area supervisor, authorized [him] to frisk [p]laintiff's cell to search for the missing razor." Dkt. No. 19-9 at 2 ¶ 11. Plaintiff exited the cell, where he remained during the cell frisk. See id. at ¶ 12. C.O. Grzeskowiak stated that C.O.s Sadowski and Skelly assisted him during the cell frisk, with C.O. Sadowski "maintain[ing] observation of [p]laintiff." Id. at ¶ 14. While conducting the cell frisk, C.O. Grzeskowiak explained, "[p]laintiff turned in an aggressive manner and attempted to strike C.O. Sadowski." Id.at ¶ 15. C.O. Grzeskowiak "used lower body holds to assist [C.O.] Sadowski in bringing [p]laintiff to the ground [to] be handcuffed." Id. at ¶ 16. "Once on the ground," C.O. Skelly handcuffed plaintiff "and all force ended." Id. Following the incident, plaintiff was escorted out of the area by other officers and C.O. Grzeskowiak completed the cell frisk. See id. at ¶¶ 17, 18. Upon frisking plaintif's cell, C.O. Grzeskowiak stated that he "discovered [p]laintiff's razor in his locker" and "also discovered approximately 1 gallon of a possible alcohol/intoxicant." Id. C.O. Grzeskowiak notified Sgt. Cordway about the liquid. Id. at ¶ 19. C.O. Grzeskowiak further stated that, "[a]t no point did [he] witness [C.O.] Sadowski strike [p]laintiff in any way." Id. at 3 ¶ 22. C.O. Grzeskowiak issued plaintiff a misbehavior...
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