Sloane v. Borawski
Citation | 64 F.Supp.3d 473 |
Decision Date | 04 December 2014 |
Docket Number | No. 12–CV–25Sr.,12–CV–25Sr. |
Parties | Derek SLOANE, Plaintiff, v. BORAWSKI, et al., Defendants. |
Court | U.S. District Court — Western District of New York |
Derek Sloane, Beacon, NY, pro se.
Stephanie Joy Calhoun, Office of the Attorney General, Buffalo, NY, for Defendants.
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. # 36.
Plaintiff filed this pro se action on or about January 11, 2012, seeking relief pursuant to 42 U.S.C. § 1983 and state common law. Dkt. # 1. By Decision and Order filed August 30, 2012, United States District Judge David G. Larimer ordered that several of plaintiff's claims be dismissed. Dkt. # 6. Presently pending before this Court is defendants' motion for summary judgment. Dkt. # 27.
Plaintiff claims that on March 22, 2011, while an inmate housed at the Attica Correctional Facility, defendants Correction Officers Bryniarski and Mulla used excessive force against plaintiff and filed a false misbehavior report. Plaintiff further alleges that defendant Lieutenant Borawski denied him due process in connection with a Tier III disciplinary hearing resulting from the March 22, 2011 incident. Finally, plaintiff alleges that defendant Jennings violated his rights by denying him adequate medical treatment after the alleged excessive use of force incident.
In his complaint, plaintiff alleges that on March 22, 2011, he was walking to the mess hall, when Correction Officer Mulla and Correction Officer Bryniarski told him to place his hands on the wall and then began to yell at him, slam his head into the wall and kick, punch and hit him with sticks. After a bell sounded, more unidentified correction officers came running, took him downstairs, and “jump[ed] him again.” Plaintiff claims that his “head [was] busted,” and that he suffered from cuts over his left eye and chin, broken ribs, an ankle fracture
and a back injury. Dkt. # 1, ¶¶ 8–10. Plaintiff maintains that notwithstanding the fact that he was bleeding heavily and informed Nurse Jennings of the extent of his injuries, the only treatment he received was a bandage for his head. Thereafter, plaintiff alleges, he was sent to the “box.” Id. at ¶¶ 11, 17–19.
Plaintiff further alleges defendant, Lt. Borawski denied him due process at the Superintendent's Hearing held with respect to the misbehavior report issued following the alleged excessive use of force on March 22, 2011. Dkt. # 1, ¶ 30. Specifically, plaintiff alleges that defendant Lt. Borawski “fix[ed] the hearing by denying plaintiff's [sic] his witnesses, denying his assistant, misprison of felony, conspiring to violate plaintiff's federal, statutory rights by assaulting [sic] him without cause, creating a false misbehavior report, preparing false physical evidence after the attack, [i]n addition, submitting false statements to the prison, offering a false instrument for filing. and [sic] denying him a fair and impartial hearing.” Id.
Dkt. # 27–4, ¶¶ 4–5 (internal citations omitted). Thereafter, defendant Bryniarski states that with the assistance of defendant Mulla, force was used to subdue plaintiff. Id. at ¶ 6. Specifically, defendant Bryniarski described, Id. at ¶ 7. A Use of Force Report was generated and plaintiff was issued a Misbehavior Report.
Defendant Correction Officer Joseph Mulla also submitted an affidavit in support of the instant motion for summary judgment wherein he describes that on March 22, 2011 at approximately 4:10 p.m. he “witnessed plaintiff, unprovoked, attempt to swing and punch CO Bryniarski with a closed fist.” Dkt. # 27–6, ¶ 5. Moreover, defendant Mulla states,
Defendants Bryniarski and Mulla both state that plaintiff was subsequently moved to the lobby without incident. Both defendants Bryniarski and Mulla maintain that the force used in connection with this incident was only what was necessary to regain control of plaintiff. Dkt. # 27–4, ¶ 9; Dkt. # 27–6, ¶ 6.
Dkt. # 32, ¶ 13. Plaintiff does not dispute that Dkt. # 27–2, ¶ 15.
On March 22, 2011, defendant Correction Officer Mulla completed an Inmate Misbehavior Report concerning the above-described incident. Plaintiff Sloane was charged with the following violations: 100.11 attempted assault; 104.11 violent conduct; 104.13 disturbing the order of the facility, 107.10 interference with an employee. Dkt. # 27–4, p. 5. In the Inmate Misbehavior Report, defendant Mulla described the incident as follows:
On the above date and approximate time inmate Sloane 07A1140 came down the stairs with the 22 co. inmates going to chow. He had both of his hands in his pockets and C.O. Bryniarski ordered him to step out of the line. As C.O. Bryniarski began to talk to him he swung at C.O. Bryniarski with his right hand in a closed fist. At this time it became necessary to use force. (See use of force report) Inmate Sloane was then escorted to the infirmary by uninvolved staff with no further incident.
Dkt. # 27–4, p. 5. Defendant Borawski was assigned to conduct the Tier III hearing. Dkt. # 27–3, ¶ 5. The hearing began on March 25, 2011 and concluded on March 28, 2011. Id. at ¶ 8. In an affidavit submitted in support of the instant motion, defendant Borawski states that when the hearing first began he explained to plaintiff that he could call witnesses on his behalf, that nothing he said in the hearing would be used against him and that he could submit documentary evidence. Id. at ¶ 9. After confirming that plaintiff understood these rights, defendant Borawski confirmed that plaintiff had been served with a copy of the Misbehavior Report on March 23, 2011. Id. at ¶ 10. Moreover, defendant Borawski confirmed that plaintiff had been provided with the opportunity to select an employee hearing assistant. As reflected in the Assistant Selection Form (Dkt.# 27–3, p. 10), plaintiff refused to sign the form and waived his right to an employee hearing assistant. During the hearing, plaintiff requested that Acting Attica Superintendent Bradt serve as his hearing assistant, such request was denied. Dkt. # 27–3, ¶ 10.
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