King v. PuershnerKing v. Puershner
- Reporters:
- ,
- Before:
- Kenneth M. Karas
Lionel M. King
Napanoch, NY
Pro Se Plaintiff
Janice Powers, Esq.
New York State Office of the Attorney General
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Lionel Michael King (“Plaintiff“), currently an inmate at Eastern Correctional Facility, brings this pro se Action, pursuant to
I. Background
A. Factual Background
The following facts are drawn from Defendant‘s statement pursuant to Local Civil Rule 56.1, (Defs.’ Local Rule 56.1 Statement (“Defs.’ 56.1“) (Dkt. No. 96)), Plaintiff‘s Complaint, (Compl. (Dkt. No. 1)), and the admissible evidence submitted by the Parties.1 The Court recounts only those facts necessary for consideration of the instant Motion.
On September 15, 2015, Plaintiff was an inmate at Sullivan, a prison managed by the New York State Department of Correction and Community Supervision (“DOCCS“). (Defs.’ 56.1 ¶ 1; Compl. 2.)2 At about 2:15 p.m. that day, Plaintiff was returning to his housing unit when he was stopped by Sergeant LeConey, a non-party prison official, and placed in handcuffs on the ground that a weapon — later identified as an ice pick — had been found in his cell. (Defs.’ 56.1 ¶ 4; Compl. 5; Deposition of Lionel King (“King Dep.“) 42–44 (Dkt. No. 72-5).) Plaintiff immediately believed that he “was being set-up in retaliation for numerous complaints and grievances [he] had lodged against officers assigned to the block.” (Compl. 5.) Plaintiff was escorted to the “draft room” by LeConey, Defendant Daddezio, and others. (Id.; King Dep. 45–46.) While in the draft room, Plaintiff “was made to stand facing a wall with two [unnamed] officers [on] either side threat[en]ing to harm [him] if [he] did not” stay quiet. (Compl. 5.) Plaintiff, who wears a pacemaker, “began having chest pains,” and his “knees gave out due to . . . being forced to stand facing a wall for a long period of time.” (Id.; Defs.’ 56.1 ¶ 5.)
Further, although “a plaintiff‘s pro se status does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment,” Almonte v. Florio, No. 02-CV-6722, 2004 WL 60306, at *3 n.10 (S.D.N.Y. Jan. 13, 2004) (citation and italics omitted), where a plaintiff “verifie[s] his complaint by attesting under penalty of perjury that the statements in the complaint [are] true to the best of his knowledge,” the “verified complaint is to be treated as an affidavit for summary judgment purposes,” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Here, the Complaint includes a signed and dated verification page stating that Plaintiff declares the contents of those filings to be true under the penalty of perjury. (Compl. 10.) The Court will thus consider all admissible facts set forth in the Complaint that are based on Plaintiff‘s personal knowledge and about which Plaintiff is competent to testify. See Lebron v. Mrzyglod, No. 14-CV-10290, 2019 WL 3239850, at *1 n.3 (S.D.N.Y. July 18, 2019) (collecting cases in which courts have considered admissible facts set forth in a pro se plaintiff‘s complaint in deciding a motion for summary judgment).
Plaintiff was then seen by a nurse, who did not provide him with “medical attention other than [taking his] blood pressure,” after which he was escorted to the Office of Mental Health (“OMH“) “to be placed on suicide watch,” even though Plaintiff never “indicate[d] to anyone that [he] was going to hurt [him]self.” (Id. at 6; Defs.’ 56.1 ¶ 7.) While in an elevator being escorted to OMH, Plaintiff “was hit in the back of the head” by Puershner and/or Barlow, causing him to fall to his knees. (Compl. 6; King Dep. 70–71.) He was “dragged by the legs” out of the elevator, “which caused the right side of [his] head to hit the floor.” (Compl. 6; King Dep. 71–72.) When Plaintiff was lifted up, Puershner and Barlow took him to a room used “for one-to-one [mental health] monitoring” and removed his handcuffs by “ben[ding] [his] wrist in a way to cause pain to shoot up into [his] shoulder.” (Compl. 6; King Dep. 73–76.) Puershner and Barlow then “held [Plaintiff] down” and “began ripping off [his] cloth[e]s,” including his pants and “jockstrap,” thus causing Plaintiff to “fear[] [that he] was about to be sexually assaulted.” (Compl. 6.) Yet, Plaintiff also alleges, “[h]owever, after [his] cloth[e]s were removed,” Barlow, Puershner, and Mokowksi “left the room.” (Id.)
At about 10:00 a.m., Lieutenant Maxwell (“Maxwell“), not a party to this case, came to the infirmary and asked Plaintiff about the weapon allegedly found in his cell. (Defs.’ 56.1 ¶ 9; Compl. 6.; King Dep. 43–44, 80.) Plaintiff told Maxwell that he was being set up and that he was assaulted by prison officials. (Defs.’ 56.1 ¶ 10; Compl. 6.) Maxwell ordered a medical assessment. (Defs.’ 56.1 ¶ 10; Compl. 6.)
At about 10:30 a.m., Nurse Chiocchi conducted a medical assessment and administered Tylenol to Plaintiff. (Defs.’ 56.1 ¶¶ 11–12; Compl. 4; King Dep. 82–91; Chiocchi Decl. ¶ 5.) Plaintiff alleges that Nurse Chiocchi “knew or should have known that” he could not take Tylenol “because of the other medication [he] was taking” for his heart.” (Compl. 4.) However, according to Nurse Chiocchi, “Tylenol was prescribed because it does not interact with cardiac medications.” (Chiocchi Decl. ¶ 5.) Indeed, Plaintiff acknowledges that Tylenol was the only medication he could receive. (King Dep. 91.)
Finally, Plaintiff alleges that, at about 10:45 a.m., Defendants Beach and Stauch, along with Puershner, escorted Plaintiff to the Special Housing Unit. (Compl. 4.) Plaintiff requested a wheelchair, but they refused and “drag[ged] [Plaintiff] out of the room” and “forced [him] to walk.” (Id.)
2. Grievances
Subsequent to these events, Plaintiff filed three grievances. (Defs.’ 56.1 ¶ 14; Compl. 7; King Dep. 101.) All three grievances were assigned a “code 49,” which indicates an allegation of staff misconduct, and thus sent directly to the Sullivan superintendent for investigation. (Defs.’ 56.1 ¶ 15; Proscia Decl. ¶ 5.)
The first grievance, SUL-22176-15, dated September 29, 2015, describes many of the facts alleged above, and in particular alleges that Puershner and Stauch physically assaulted Plaintiff and that an unnamed nurse failed to treat Plaintiff‘s complaints of pain. (Defs.’ 56.1 ¶ 16; Defs.’ Mem. Ex. G, at 10–11 (first grievance) (Dkt. No. 72-7).) It also alleges that Plaintiff “t[h]ought [Puershner] was going to rape [him] because they rip[ped] off [his] un[der]wear [and] slam[med] [him] to the wall” and that he “did not ha[ve] on any cloth[e]s until [he] got up [in the morning].” (Defs.’ Mem. Ex. G, at 10.) On October 23, 2015, the Sullivan superintendent issued a decision stating:
Grievance 22716-15 was investigated by several security supervisors and medical staff and found to be without merit. Security staff have gone on written record denying any type of misconduct. Medical staff have found minor injuries on grievant which are not indicative of being assaulted but rather from continuously dropping to his knees when being restrained and ordered to walk. Grievant had to keep being assisted back to his feet.
The second grievance, SUL-22158-15, dated September 30, 2015, alleges that on September 15, 2015, Daddezio slapped Plaintiff on the face. (Defs.’ 56.1 ¶ 20; Defs.’ Mem. Ex. G, at 2–3 (second grievance).) On November 5, 2015, the Sullivan superintendent issued a decision finding that Daddezio denied the allegation and that the Plaintiff failed to provide additional information or witnesses. (Defs.’ Mem. Ex. G, at 4.) Defendants state that the decision was delivered to Plaintiff and that no appeal was taken. (Defs.’ 56.1 ¶¶ 23, 24.) According to Seguin and Proscia, there is no record that Plaintiff appealed the grievance. (Seguin Decl. ¶ 6; Proscia Decl. ¶¶ 7, 9.) The “appeal statement” portion of the superintendent‘s decision, which is blank, also indicates that Plaintiff did not file an appeal. (Defs.’ Mem. Ex. G, at 4.)
The third grievance, SUL-22190-15, dated October 5, 2015, alleges that, after Plaintiff was assaulted by Daddezio, Puershner, and Stauch, Nurse Chiocchi failed to provide Plaintiff
In his deposition, when asked whether he fully appealed his grievances, Plaintiff testified:
Q: And after you got no results, did you file a grievance or grieve to the superintendent?
A: I can‘t remember.
Q: Did you file to the CORC?
A: I believe I wr[o]te to them. I wr[o]te to Ms. Bellamy concerning the grievance. And I don‘t remember.
(King Dep. 103.) In some 48 other instances unrelated to the allegations at issue in this Action, Plaintiff successfully filed grievances and fully appealed them to the CORC. (Defs.’ 56.1 ¶¶ 32–33; Seguin Decl. ¶ 4; Defs.’ Mem. Ex. F (list of fully exhausted grievances) (Dkt. No. 72-6).)
B. Procedural History
The Complaint was filed on February 22, 2017. (Compl. (Dkt. No. 1).) The Court granted Plaintiff‘s request to proceed in forma pauperis (“IFP“) on March 1, 2017. (Dkt. No. 5.) On March 27, 2017, the Court issued an order directing service on Defendants. (Dkt. No. 7.) On July 27, 2017, Plaintiff informed the Court that while “his original [C]omplaint named a correctional officer Peach as a defendant,” he has since “determined that the name of the defendant is Beach.” (Dkt. No. 20). The Court issued a second Order directing service on Beach. (Dkt. No. 21.)
On May 1, 2019, Defendants belatedly filed the required notice for pro se litigants pursuant to Local Civil Rule 56.2, (Dkt. No. 95), and statement of material facts pursuant to Local Civil Rule 56.1, (Defs.’ 56.1 (Dkt. No. 96)). In light of this belated filing, on June 10, 2019, the Court issued an Order granting Plaintiff the opportunity to file a second response in opposition to the Motion by July 12, 2019. (Dkt. No. 102.) Plaintiff did not file a second memorandum in response. Rather, on June 25, 2019, the Court received a letter from Plaintiff, dated June 19, 2019, stating that, “when [he] file[d] the grievance” regarding Puershner, Beach, Barlow, and Nurse Chiocchi, he “never” received a “reply back from the grievance supervisor and . . . did not know what to do.” (June 19, 2019 Letter from Lionel King to Court (Dkt. No. 103).) On August 6, 2019, the Court issued an Order deeming the Motion fully submitted. (Dkt. No. 104.) On August 27, 2019, the Court received an undated letter from Plaintiff reiterating the allegations made in the Complaint and further alleging a claim of sexual assault. (Aug. 27, 2019 Letter from Lionel King to Court (“August 27, 2019 King Letter“) (Dkt. No. 105).) On August 29, 2019, Plaintiff filed a letter attaching the letter previously docketed at Dkt. No. 103. (Dkt. No. 106.)
A. Standard of Review
Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
“However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant‘s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (citation, alteration, and quotation marks omitted). Further, “[t]o survive a [summary judgment] motion,” the nonmovant must “create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial,‘” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)
“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep‘t of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (citation and quotation marks omitted). At this stage, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court‘s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)). However, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits . . . to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.‘” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting
As a general rule, “district courts may not weigh evidence or assess the credibility of witnesses at the summary judgment stage.” Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005); see also Vital v. Interfaith Med. Ctr., 168 F.3d 615, 622 (2d Cir. 1999) (“Assessments
Finally, the Second Circuit has instructed that when a court considers a motion for summary judgment, “special solicitude” should be afforded a pro se litigant, Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016), and a court “‘must . . . construe[]” the pro se litigant‘s submissions “liberally and interpret[] [them] to raise the strongest arguments that they suggest.‘” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party‘s bald assertions unsupported by evidence . . . are insufficient to overcome a motion for summary judgment.” Houston, 27 F. Supp. 3d at 351 (citations, alterations, and quotation marks omitted).
B. Analysis
Defendants seek dismissal of the Complaint in its entirety on the ground that Plaintiff has failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA“),
The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [§] 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
However, the PLRA contains a “textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. “[T]he exhaustion requirement hinges on the ‘availab[ility]’ of administrative remedies: An inmate . . . must exhaust available remedies, but need not exhaust unavailable ones.” Id. Available “grievance procedures . . . are [those] capable of use to obtain some relief for the action complained of.” Id. at 1859 (citation and quotation marks omitted). In Ross, the
2. Applicable Grievance Program
The grievance program applicable here is the DOCCS Inmate Grievance Program (“IGP“). See
However, grievances claiming harassment by prison officials “are of particular concern to the administration of [DOCCS] facilities,” and subject to an expedited procedure whereby the grievance goes directly to the facility superintendent.
Finally, where an inmate complains of sexual abuse or harassment, “the exhaustion requirement . . . is different than that for other types of complaints.” Sheffer v. Fleury, No. 18-CV-1180, 2019 WL 3891143, at *3 (N.D.N.Y. Aug. 19, 2019). DOCCS Directive 4040, revised in May 2014, provides in relevant part:
The Department has zero tolerance for sexual abuse and sexual harassment. Consistent with this policy and the Prison Rape Elimination Act (PREA) Standards (
28 C.F.R. § 115.52(a) ), an inmate is not required to file a grievance concerning an alleged incident of sexual abuse or sexual harassment to satisfy the [PLRA] exhaustion requirement . . . before bringing a lawsuit regarding an allegation of sexual abuse as long as the matter was reported as set forth below. For purposes of the [PREA] . . . and the exhaustion requirement, any allegation concerning an incident of sexual abuse or sexual harassment . . . shall be deemed exhausted if official documentation confirms that:(1) an inmate who alleges being the victim of sexual abuse or sexual harassment reported the incident to facility staff; in writing to Central Office
Staff; to any outside agency that the Department has identified as having agreed to receive and immediately forward inmate reports of sexual abuse and sexual harassment to agency officials under the PREA . . . ; or to the Department‘s Office of the Inspector General; or
(2) a third party reported that an inmate is the victim of sexual abuse and the alleged victim confirmed the allegation upon investigation.
A sexual abuse or sexual harassment complaint may be submitted at any time . . . . Acceptance of a late complaint does not waive the applicable statute of limitations with respect to any related lawsuit.
Any inmate grievance filed regarding a complaint of sexual abuse or sexual harassment shall immediately be reported by the IGP Supervisor to the Watch Commander for further handling in accordance with Departmental policies. The complaint shall be deemed exhausted upon filing for PLRA purposes. If the grievance does not set forth any additional matters that require a response, the grievance shall be closed.
3. Application
a. Claims of Physical Assault and Inadequate Medical Care
Plaintiff‘s Complaint alleges that he was repeatedly physically assaulted by Sullivan correction officers, causing him injury, and was thereafter provided with inadequate medical care by Nurse Chiocchi. (See generally Compl.) Because these claims allege staff misconduct, they are governed by the expedited exhaustion process set out in
Focusing on Plaintiff‘s claims of physical assault and inadequate medical care, the only remaining question is whether there is a genuine dispute of material fact that an exception to the exhaustion requirement applies. Here, there is no record evidence that the IGP is a “simple dead end” and “unable” to provide relief to Plaintiff, Ross, 136 S. Ct. at 1859, or that it is “so opaque that it” is “incapable of use” such that “no ordinary prisoner can discern or navigate it,” id. As Defendants point out, Plaintiff properly adhered to the IGP‘s exhaustion requirements in some 48 other instances, both before and after the grievances at issue in this Action, in which he filed grievances and fully appealed them to the CORC. (Seguin Decl. ¶ 4; Defs.’ Mem. Ex. F (list of fully exhausted grievances).) See Davis v. Grant, No. 15-CV-5359, 2019 WL 498277, at *8 (S.D.N.Y. Feb. 8, 2019) (holding that there was no dispute of fact as to whether the grievance process was “available” to the plaintiff where he “successfully used the IGP, filing eight grievances while at [the relevant facility] between 2014 and 2017, appealing 39 grievances to CORC since he has been in prison, and having served as a grievance representative himself” (citations omitted)); Mckinney v. Prack, 170 F. Supp. 3d 510, 516–17 (W.D.N.Y. 2016) (holding that there was no dispute of fact as to whether the grievance process was “available” to the plaintiff where the record showed that he “appealed and exhausted approximately 20 grievances during his 29 years of incarceration“). Plaintiff argues in response that he “never” received a “reply back from the grievance supervisor and . . . did not know what to do,” (June 19, 2019
Therefore, the Court concludes that there is no genuine dispute of material fact (1) that Plaintiff failed to fully exhaust his administrative remedies as required by the IGP and (2) that no exception to the exhaustion requirement applies. See Haywood v. Fuller, No. 18-CV-1097, 2019 WL 1639743, at *6 (N.D.N.Y. Apr. 16, 2019) (granting summary judgment based on failure to exhaust where the record showed that the “plaintiff failed to properly appeal his grievance to the CORC as required by the IGP“), adopted by 2019 WL 2442142 (N.D.N.Y. June 12, 2019); Jackson v. Downstate Corr. Fac., No. 16-CV-0267, 2018 WL 3650136, at *6 (S.D.N.Y. July 31, 2018) (holding that the “[p]laintiff‘s failure to appeal to the CORC constitutes a failure to exhaust his administrative remedies” (collecting cases)); cf. Terry, 2018 WL 4682784, at *7–10 (denying summary judgment based on failure to exhaust where, although “it [was] undisputed that [the] [p]laintiff did not complete the requisite three-step grievance process before filing his lawsuit,” there was a genuine dispute of material fact as to whether an exception to exhaustion applied).
Accordingly, Defendants’ Motion for Summary Judgment is granted.
b. Newly Raised Claim of Sexual Assault
As noted, in his memorandum in opposition to Defendants’ Motion, Plaintiff states that he was sexually assaulted. In particular, Plaintiff that the “conduct described” in the Complaint “was not limited to Defendants ‘ripping’ off [his] underwear,” (Pl.‘s Mem. 1–2); that unnamed Defendants “stripped [him] and spread his legs with Defendant[s] on either side of him,” (id. at 2); and that “additional Defendants sp[a]t on [his] private parts before touching his anus with
As an initial matter, these allegations are, as Defendants point out, (Defs.’ Reply 2–3), somewhat thin. Plaintiff does not identify the individuals allegedly responsible for the alleged sexual assault, nor does he indicate when or where the alleged sexual assault took place. More importantly, these allegations were, as Plaintiff admits, (Pl.‘s Mem. 1–2), not raised in the Complaint. The Complaint alleges, as relevant here, only Plaintiff was taken to a room — later clarified as a room used “for one-to-one [mental health] monitoring” (King Dep. 73) — in which Puershner and Barlow “held [Plaintiff] down” and “began ripping off [his] cloth[e]s,” including his pants and “jockstrap,” thus causing Plaintiff to “fear[] [that he] was about to be sexually assaulted.” (Compl. 6.) Yet, Plaintiff then alleges, “[h]owever, after [his] cloth[e]s were removed,” Barlow, Puershner, and Mokowksi “left the room.” (Id.)
“A party generally may not assert a cause of action for the first time in response to a summary judgment motion.” Simpson v. Town of Warwick Police Dep‘t, 159 F. Supp. 3d 419, 440 (S.D.N.Y. 2016) (citations and quotation marks omitted) (collecting cases); see also Lyman v. CSX Transp., Inc., 364 F. App‘x 699, 701 (2d Cir. 2010) (finding that the district court did not abuse its discretion in declining to consider “new theories of liability” raised for the first time in opposition to summary judgment); Mediavilla v. City of New York, 259 F. Supp. 3d 82, 106 (S.D.N.Y. 2016) (“Because this theory of excessive force is raised for the first time in [the]
Here, the Court concludes that the Complaint, even when “construed liberally and interpreted to raise the strongest arguments that [it] suggest[s],” Sykes, 723 F.3d at 403 (citation and quotation marks omitted), does not plausibly allege a claim of sexual assault. Indeed, the Complaint indicates that a sexual assault did not occur. (See Compl. 6 (“I feared I was about to be sexually assaulted . . . . However, after my cloth[e]s were removed the[y] . . . left the room.“).) Nor does the Complaint contain any of the factual detail included in Plaintiff‘s later submissions, such as the allegation that individuals touched and spat on his genitals. Indeed,
Accordingly, the Court will not consider Plaintiff‘s belatedly raised sexual assault claim at this time, as it “would open up an extensive area of factual inquiry that until now had been beyond the scope of his current claims and thus beyond the area in which [D]efendants had any reason to seek discovery.” Wesley v. Muhammad, No. 05-CV-5833, 2010 WL 1541536, at *3 (S.D.N.Y. Apr. 13, 2010); see Green v. Schmelzle, No. 11-CV-6063, 2019 WL 4276994, at *6
III. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted. The Court dismisses Plaintiff‘s claims of physical assault and inadequate medical care. Dismissal is with prejudice.
The Clerk of the Court is respectfully requested to terminate the pending Motion, (Dkt. No. 71), and to mail a copy of this Opinion to Plaintiff.
SO ORDERED.
DATED: September 18, 2019
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE