Williams v. SalvucciWilliams v. Salvucci
- Reporters:
- ,
- Before:
- Cathy Seibel
Seibel, J.
Before the Court is Defendants’ unopposed motion for summary judgment. (ECF No. 42.) For the reasons set forth below, Defendants’ motion is GRANTED.
I. BACKGROUND
The following facts are based on Defendants’ Local Civil Rule 56.1 Statement, (ECF No. 48 (“Ds’ 56.1 Stmt.“)), and supporting materials, and are undisputed unless otherwise noted.1
Plaintiff brings this lawsuit in connection with an altercation that occurred on June 6, 2020, when he was a pretrial detainee at the Orange County Correctional Facility (“OCCF“). (Ds’ 56.1 Stmt. ¶¶ 1-2, 5-29; IC at 3; AC at 4.)2 He alleges failure-to-protect claims against Defendants Correction Officer Anthony Salvucci and Sergeant Joseph Cimorelli. (See AC at 4.)
On the date in question, Plaintiff was housed in OCCF‘s Delta 2, or “D2,” housing unit in Cell 24 on the unit‘s top tier. (ECF No. 44 (“Cimorelli Aff.“) ¶¶ 4, 7.) He had been transferred there the day before. (Id. ¶ 3.) Plaintiff alleges that that morning at approximately 8:30 a.m., he stopped Cimorelli near his cell and told him that he did not feel safe in the D2 unit because of the number of “no contact” or “keep separate” orders he had with regard to other inmates housed there, and requested to be moved. (AC at 4.) Cimorelli allegedly told Plaintiff that he could not be moved and “not to worry.” (Id.) Cimorelli denies this, stating “had [this conversation] taken plаce I would have been required [to] lock him in his cell until his safety concerns could be evaluated and a determination made as to whether a move was warranted. I would never have simply told him ‘you will be all right’ as he claims.” (Cimorelli Aff. ¶ 17.)
On June 6, 2020, non-defendant Officer Gregory Bosch was the Delta Control Officer (“DCO“), responsible for locking inmates in and out of their cells in the D1 and D2 housing units. (Ds’ 56.1 Stmt. ¶ 5; Cimorelli Aff. ¶ 7.) The DCO sits in a separate room – often referred to as “the bubble” – located between the two housing units, and is the only officer who can electronically open the doors in both units. (Ds’ 56.1 Stmt. ¶ 6; Cimorelli Aff. ¶ 8.) Salvucci was the Delta 2 housing officer, and Cimorelli was the Delta Wing sergeant. (D‘s 56.1 Stmt. ¶¶ 7-8.)
At approximately 12:30 p.m. on June 6, 2020, according to Bosch, he verified with Defendant Salvucci that Plaintiff was due to be released from the unit for recreation, so he isolated the cells of the inmates with whom Plaintiff had “keep separate” orders and then “locked the unit out for recreation.” (ECF No. 43-4 at 2; see ECF No. 43-7 at 3.) At about the same time, Melendez returned to the D2 housing unit, and Bosch unlоcked the unit door to allow Melendez back in. (Ds’ 56.1 Stmt. ¶ 11; see ECF No. 43-7 at 3.) Bosch “immediately realized [his] mistake,” (ECF No. 43-4 at 2; ECF No. 43-7 at 3): he had allowed Plaintiff out of his cell before Melendez had been locked in, (Ds’ 56.1 Stmt. ¶ 13). He then immediately alerted Salvucci by phone. (Id.)
Meanwhile, Plaintiff exited his cell facing right, but then looked over the railing, saw Melendez on the lower tier of the housing unit, and turned to the left to go down the stairs.
Salvucci made a radio transmission that there was a fight. (Ds’ 56.1 Stmt. ¶ 18; ECF No. 43-5 at 2; ECF No. 43-6 at 2.) Shortly after, inmate Donnell Murray joined the fight and began attacking Plaintiff, (Video 1 at 0:38-0:56; ECF No. 43-5 at 4)4; Plaintiff “[went] down,” (AC at 4; see Video 1 at 0:57; IC at 3); and Melendez stabbed Plaintiff “with something sharp in the face area,” (IC at 3; see AC at 4). Defendant Salvucci then sent a second radio transmission indicating that “the fight was now two inmates against one.” (ECF No. 43-5 at 4; see ECF No. 43-4 at 4; ECF No. 43-6 at 5.) According to the video footage, Salvucci entered the camera‘s view after Plaintiff was on the ground, about thirty seconds after the altercation began, (Video 1 at 1:02), and first unlocked a cell to let an inmate near the fight into the cell, (id. at 1:04-1:09). He appears to be about to do the same for another nearby inmate, moving toward the inmates who are fighting, and appears to remove something from his back pocket as he does so. (Id. at 1:10-1:16).
As a result of the fight, Plaintiff allegedly lost consciousness; suffered a concussion, swollen jaw, and “split/busted lip“; and had to be transported to an outside hospital. (IC at 3-4;
On June 7, 2020, Plaintiff filed Grievance No. 20-0177 (the “Grievance“) with Sgt. Torres through the OCCF‘s inmate grievance program (“IGP“), (ECF No. 43-13 at 7), allеging that Officer Salvucci and “[t]he officer working the (Bubble) at the time of the incident . . . failed to follow protocol” because they failed to keep Plaintiff and Melendez separate per the “keep separate” order, (ECF No. 43-14 at 12). The Grievance was received the same day. (Ds’ 56.1 Stmt. ¶ 41.) On June 12, 2022, the Grievance was accepted in part and denied in part by the Grievance Coordinator, as follows:
The Officer that opened your cell when your No Contact was not Secured will be handled administratively. As for your Coming out of your cell when you knowingly engaged in an altercation with your No Contact . . . [,] you could have closed your cell doоr. Your not closing your door Resulted in your injuries.
(ECF No. 43-14 at 12.)
On June 12, 2020, Sgt. DeEntremont delivered to Plaintiff copies of the decisions rendered by the Grievance Coordinator, Sgt. Kiszka, for the Grievance and two others Plaintiff had filed,7 as well as copies of the New York State Commission on Correction (“NYSCC“) Inmate Grievance Form Part II (“Part II Form“) for each of the grievances. (ECF No. 46
On June 17, 2020, Plaintiff told Sgt. Michael Schaffer that his signature had been forged on his grievance appeal paperwork and requested a grievance form. (ECF No. 43-14 at 3.) Sgt. Schaffer issued one, (id.), but Plaintiff never submitted it, (Kiszka Aff. ¶ 23).
B. Procedural History
Plaintiff filed his IC on July 2, 2020, bringing claims under
On July 21, 2021, Salvucci and Cimorelli answered the Amended Complaint. (ECF No. 28.) After discovery, they filed a pre-motion letter in anticipation of their motion for summary judgment. (ECF No. 38.) On June 1, 2022, the Court held a pre-motion conference and set a briefing schedule. (Minute Entry dated June 1, 2022.) On August 8, 2022, Cimorelli and Salvucci filed the instant motion, (ECF Nos. 42-49), and Plaintiff once again failed to oppose.
II. LEGAL STANDARD
Summary judgment is appropriate when “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.”
“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, doсuments, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials . . . .”
III. DISCUSSION
A. Exhaustion Under the PLRA
The Prison Litigation Reform Act (“PLRA“) provides that “[n]o action shall be brought with respect to prison conditions under
For inmates at OCCF, administrative exhaustion requires compliance with the Inmate Handbook, which sets forth OCCF‘s Grievance Procedure. (ECF No. 43-11); see Falls v. Campbell, No. 17-CV-35, 2022 WL 1004179, at *6 (S.D.N.Y. March 30, 2022). The Inmate Handbook states that OCCF‘s “Grievance Coordinator will administer the grievance process,” and act as liaison between the inmate, the Chief Administrative Officer, and the NYSCC. (Inmate Handbook at 33.) Paragraph 2 of the Grievance Procedure provides instructions for filing grievances:
b. . . . [Y]ou may request and will receive a grievance form by the end of the shift, but no longer than eight (8) hours of your request
c. Your grievance request must be submitted within five days of the incident.
d. You may request and will receive assistance in filling out the form.
e. The Chief Administrative Officer of his/her designee shall ensure that each grievance is investigated to the fullest extent necessary by an impartial person who was not personally involved in the circumstances giving rise to the grievance. A grievance that is too vague to understand or fails to set forth supрorting evidence or information will be returned to the inmate. Failure to supply sufficient information or evidence within two (2) days shall be cause to deny the grievance. f. If you are not satisfied with the Grievance Coordinator‘s decision, you may appeal the determination to the Corrections Administrator within two business days of receiving the decision.
g. You will receive a response within five (5) business days.
(Id. at 33-34.) The Grievance Procedure further states that grievances can be placed in a “Grievance Box“, which is checked each business day in each housing unit. (Id. at 34.) Paragraph 4 outlines how an inmate can appeal to NYSCC:
a. If the Corrections Administratоr denies your grievance, you may appeal the decision within three business days to the State Commission on Corrections. The facility is responsible for mailing the appeal to the Commission. The Grievance Coordinator will issue a receipt indicating the date the appeal was submitted.
b. You will receive a response from the Commission within forty-five business days of their receipt of the grievance. The Chief Administrative Officer and the Grievance Coordinator will also receive a copy of the findings. If it is found in favor of the grievant, as a matter of law, the Chief Administrative Officer will provide a remedy.
(Id.)
B. Whether Plaintiff Failed to Exhaust His Administrative Remedies
Defendants аrgue that Plaintiff failed to exhaust his administrative remedies prior to filing the instant lawsuit. (Ds’ Mem. at 6-11). Specifically, they argue that at a minimum, Plaintiff failed to exhaust his claims against Defendant Cimorelli because the Grievance did not name him, generally refer to him, or mention facts relevant to the claim against him. (Id. at 10.) They further claim that Plaintiff failed to appeal the initial decision by the Grievance Coordinator. (Id. at 8-9.)
In Grievance No. 20-0177, Plaintiff wrote,
On 6-6-20, I was [l]ocked out [of] my cell for Recreation at 12:30 noon. My (No Contact) [name redacted] wasn‘t suppose to be out nor in contact with me, we start fighting[,] another inmate jumps in and I start fighting both inmates. I got stabbed in my mouth with something sharp and end up with a concussion and get[] transported to the Hospital to get my lip sealed back together.
(ECF No. 43-14 at 12.) He further stated, “The officer working the (Bubble) at the time of the incident and Officer Salvucci #531, failed to follow protocol and to keep us separate. If we w[ere] kept separate like we were supposed to[,] this altercation wouldn‘t have occurred and each officer should get written up.” (Id.)
“The officer working the (Bubble)” was not Defendant Cimorelli but was Officer Bosch. (Ds’ 56.1 Stmt. ¶ 5.) Plaintiff does not name or generally refer to Cimorelli in the Grievance. But “New York regulations relating to the filing of a grievance by a New York prison inmate do not require that an inmate identify every individual involved in the incident complained of in order to properly exhaust remedies as to those individuals.” Snyder v. Whittier, 2009 WL 691940, at *8 (N.D.N.Y. Mar. 12, 2009). Although the Grievance Procedure says that “[a] grievance that is too vague to understand or fails to set forth supporting evidence or information will be returned to the inmate,” (Inmate Handbook at 34), it contains no explicit requirement that the inmate list every responsible party. Nor does the grievance form itself instruct the inmate to name those responsible for the alleged misconduct. (See, e.g., ECF No. 43-14 at 12); see also Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009) (“[T]he complaint form does not instruct the
But Defendants are nevertheless correct that Plaintiff failed to exhaust his claim as to Defendant Cimorelli. This is bеcause Plaintiff‘s failure-to-protect claim against Cimorelli is distinct from the claim against Salvucci and involves facts that were not outlined in the Grievance. Plaintiff does not allege that Cimorelli bears any responsibility for Plaintiff and Melendez being out of their cells at the same time. Rather, he alleges that he had a conversation with Cimorelli on the morning of June 6, 2020, in which Plaintiff said he did not feel safe in the D2 unit, but Cimorelli did nothing in response. (AC at 4.) Cimorelli‘s denial of this interaction, (Cimorelli Aff. ¶ 17), would create a fact issue, except the Grievance clearly did not detail or even refer to this alleged conversation, (see ECF No. 43-14 at 12).9 The Grievance provided no notice that Plаintiff was alleging a claim of any kind against Cimorelli based on events hours before the fight. See Percinthe v. Julien, 2008 WL 4489777, at *2 (S.D.N.Y. Oct. 4, 2008) (“The question for this Court is whether the plaintiff‘s grievance sufficiently alerted prison officials that he was alleging some wrongdoing beyond that alleged against the person or persons specifically named in the grievance.“) (cleaned up). Therefore, Plaintiff‘s claim as to Defendant Cimorelli was not properly exhausted.10 See Snyder, 2009 WL 691940, at *8 (“[Plaintiff‘s]
As outlined above, there is a dispute of fact as to whether Plaintiff signed the Part II Form accepting the Grievance Coordinator‘s decision, as Defendants contend, (DeEntremont Aff. ¶ 5; ECF No. 43-14 at 11; ECF No. 43-13 at 7), or if Plaintiff‘s signature on the Form is forged and Plaintiff actually sought to appeal, as Plaintiff contends, (P‘s Depo. at 86:11-87:11, 88:11-19), and as he reported to Sgt. Shaffer on June 17, 2020, (ECF No. 43-14 at 3). Assuming, as I must, that Plaintiff did not submit the form to which Dеfendants point and instead submitted a form that indicated he wanted to appeal, the record is unclear as to whether that appeal was timely. An appeal must be filed within three business days, (see Inmate Handbook at 34), but Plaintiff provides no facts showing he filed the appeal within this time frame.
Nevertheless, giving Plaintiff the benefit of the doubt, and “[b]earing in mind that defendants bear the burden of proof on th[e] issue” of failure to exhaust, Livingston v. Piskor, 215 F.R.D. 84, 86 (W.D.N.Y. 2003), fact issues remain as to whether Plaintiff failed to exhaust his administrative remedies as to his claim against Defendant Salvucci,11 so I turn to the merits.
Because Plaintiff was a pretrial detainee at the time of the altercation, I analyze his failure-to-protect claims under the Due Process Clause of the
The Due Process Clause imposes on jail officials “a duty to protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (cleaned up). A prison official violates this requirement when (1) the inmate is incarcerated “under conditions posing a substantial risk of serious harm“; and (2) the prison official shows “deliberate indifference to inmate health or safety.” Id. at 834 (cleaned up). “[A] prison official has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.” Hayes v. N.Y.C. Dep‘t of Corr., 84 F.3d 614, 620 (2d Cir. 1996). “[M]ere negligence will not suffice.” Id.; accord Rembert v. Cheverko, No. 12-CV-9196, 2014 WL 3384629, at *5 (S.D.N.Y. July 10, 2014).
A plaintiff mаy show that he is “incarcerated under conditions posing a substantial risk of serious harm,” Hayes, 84 F.3d at 620, either from “a specific assailant or a more general risk of harm due to the conditions at the time of the attack,” Hurst v. Perez, No. 15-CV-4703, 2017 WL 187532, at *2 (S.D.N.Y. Jan. 13, 2017), such as where “a substantial risk of inmate attacks was longstanding, pervasive, [or] well-documented,” Farmer, 511 U.S. at 842. “Courts may find a substantial risk of serious harm where there is evidence of a previous altercation between a plaintiff and his attacker, coupled with a complaint by the plaintiff regarding the altercation or a request by the plaintiff to be separated from the attacker.” Mays v. Falu, No. 18-CV-6145, 2019 WL 6619330, at *7 (S.D.N.Y. Dec. 5, 2019) (cleaned up).
Defendants argue that because Plaintiff was clеarly the aggressor, he cannot establish that he faced a substantial risk of serious harm. (Ds’ Mem. at 11-13.) The Court agrees. “While courts will look to the existence of ‘no contact’ orders (or lack thereof) to determine whether a substantial risk of harm existed,” Garcia v. Westchester Cnty., No. 19-CV-2167, 2021 WL 706413, at *4 (S.D.N.Y. Feb. 22, 2021), “the existence of a no-contact order is not necessarily dispositive as to whether a substantial risk of serious harm exists,” Mays, 2019 WL 6619330, at *8 n.7. Here, although there was a “no contact” order between Plaintiff and Melendez, the harm that led to Plaintiff‘s injuries was brought on by Plaintiff‘s initiation of the altercation. “[A]n inmate‘s own violent tendencies are not the type of ‘substantial risk of serious harm’ protected by the
Even if the existence of the “no contact” order were enough to demonstrate a risk of substantial harm to Plaintiff despite Plaintiff being the aggressor, he cannot establish that any official acted with the requisite deliberate indifference. To succeed on the second prong of a failure-to-protect claim, “a pretrial detainee must prove that the defendant-official acted intentionally or recklessly failed to act with reasonable care to mitigate the risk of harm even though the defendant-official knew, or should have known, of the risk.” Grant v. Hogue, No. 17-CV-3609, 2019 WL 3066378, at *5-6 (S.D.N.Y. July 12, 2019) (cleaned up). “Thus, unlike the
Plaintiff alleges that on the day of the incident, he was let out of his cell “without knowing the where abouts” of Melendez, and Defendant Salvucci failed to inform him that Melendez was out of his cell and failed to keep him locked in until Melendez was returned to his cell. (AC at 4; see IC at 5.) He also alleges there was an “officer that stood there and did nothing at all to stop the two inmates from attacking him.” (IC at 4.)
First, Plaintiff does not provide any facts showing the Defendant Salvucci specifically was aware of the “no contact” order between Plaintiff and Melendez, or of any prior altercation or threats against Plaintiff. But even if I were to assume such knowledge, Salvucci was not the
Finally, Plaintiff‘s allegation that Salvucci “stood there and did nothing at all to stop the two inmates from attacking [him]” mischaracterizes Salvucci‘s actions. As soon as Plaintiff initiated the fight, (Video 1 at 0:31), Salvucci radioed for help, and did so again moments later when Murray joined in, (ECF No. 43-5 at 4). Salvucci then segregated other nearby inmates, (Video 1 at 1:02-1:15), before approaching the altercation and ordering those involved to stop fighting, which Melendez and Murray did moments later whеn Cimorelli approached, (id. at 1:18-1:20; ECF No. 43-5 at 4). Salvucci then attempted to isolate Melendez before Plaintiff attacked again. (Video 1 at 1:20-1:25.) A reasonable jury would have to conclude that Salvucci took reasonable measures to stop the fight. See Blaylock v. Borden, 547 F. Supp. 2d 305, 312 (S.D.N.Y. 2008) (officer “took reasonable measures” to stop altercation when “[h]e immediately ordered the men to cease fighting and promptly called for officer assistance. . . . Considering that [the officer‘s] actions – arriving promptly on the scene, calling for immediate assistance, and ordering the men to place their hands on the wall – are in line with the officers’ safety protoсol, plaintiff‘s contention that [the officer] acted with deliberate indifference fails as a matter of law.“), aff‘d 363 F. App‘x 786 (2d Cir. 2010) (summary order). That he did not physically intervene before the arrival of Cimonelli arrived does not show deliberate indifference. See Rosario v. Nolan, No. 16-CV-228, 2021 WL 2383769, at *3 (W.D.N.Y. Mar. 22, 2021) (“[I]t is well established that a failure to intervene in an inmate-on-inmate assault is not actionable if, in so doing, an officer would have subjected himself or others to harm.“), report and recommendation adopted, 2021 WL 2380818 (W.D.N.Y. June 10, 2021); Velez-Shade v. Population Mgmt., No. 18-CV-1784, 2019 WL 4674767, at *6 (D. Conn. Sept. 25, 2019)
Therefore, Salvucci is entitled to summary judgment on Plaintiff‘s failure-to-protect claim.12
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion, (ECF No. 42), enter judgment for Defendants, and close the case
SO ORDERED.
Dated: December 12, 2022
White Plains, New York
CATHY SEIBEL, U.S.D.J.