Rickett v. Orsino

KEITH ALLEN RICKETT, Plaintiff, v. COLONEL ORSINO, et al., Defendants.

10 Civ. 5152(CS)(PED)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 20, 2013

REPORT AND RECOMMENDATION

TO: THE HONORABLE CATHY SEIBEL UNITED STATES DISTRICT JUDGE

TABLE OF CONTENTS

I. Introduction ................................................................................................................... Page 1

II. Background

A. Facts .................................................................................................................. Page 2

B. Procedural History ............................................................................................ Page 10

III. Discussion

A. Legal Standards

1. 42 U.S.C. § 1983 ................................................................................... Page 12

2. Summary Judgment ............................................................................... Page 14

3. Exhaustion Under the PLRA ................................................................. Page 16

4. OCCF Grievance Procedure .................................................................. Page 18

B. Application

1. Analysis of Plaintiff's Claims

a. Cruel and Unusual Treatment Claims ....................................... Page 19

i. Compelled Forgery Claims .......................................... Page 20

ii. Elf Costume/Holiday Party Claim ................................ Page 21

iii. Physical Assault Claims ................................................ Page 23

a) Plaintiff's evidence is not wholly inconsistent such that no reasonable jury could believe his claims .................................. Page 23

b) Plaintiff fails to allege the personal involvement of any individual apart from Smith ................................................................. Page 29

iv. Deprivation of Medical Treatment Claim ..................... Page 31 b. First Amendment Claims .......................................................... Page 35

i. Interference with Mail

a) Plaintiff establishes a triable retaliation claim against Smith only for interference with his mail ...................................................... Page 37

b) Any stand-alone First Amendment claim with respect to interference with Plaintiff's non-legal mail fails ........................................... Page 38

ii. Interference with Grievance Procedures

a) Plaintiff establishes a triable retaliation claim against Smith only for interference with grievance procedures ................................ Page 39

b) Any stand-alone First Amendment claim with respect to interference with Plaintiff's access to grievance procedures fails ................ Page 40

2. Exhaustion of Administrative Remedies ............................................... Page 41

a. Failure to exhaust may be excused where prison grievance procedures are rendered unavailable ....................... Page 41

b. There is a factual dispute concerning whether OCCF's grievance procedures were unavailable to Plaintiff because he was threatened and physically assaulted ................ Page 42

c. The factual dispute regarding Plaintiff's exhaustion excuse must be resolved at trial ................................................ Page 44

IV. Conclusion .................................................................................................................... Page 45

I. INTRODUCTION

Plaintiff Keith Allen Rickett ("Plaintiff"), proceeding pro se, brings this action claiming violations of his civil rights pursuant to 42 U.S.C. § 1983. In short, Plaintiff alleges that while he was incarcerated at the Orange County Correctional Facility ("OCCF"), he was compelled to forge educational records and was assaulted and otherwise retaliated against when he tried to complain about it. He also claims that he was forced to wear an elf costume at an OCCF holiday party. Currently before the Court are motions for summary judgment filed by all defendants. (Dkts. 76, 87.) The matter comes before me pursuant to an Order of Reference dated November 10, 2010. (Dkt. 16.)

For the reasons set forth below, I respectfully recommend that summary judgment be granted with respect to all claims against defendants Nona Cox ("Cox"), Marie Kirms ("Kirms"), Sherri Neiger ("Neiger"), Sheriff Dubois ("Dubois"), Colonel Orsino ("Orsino"), and Captain Rusneck ("Rusneck").¹ I also recommend that summary judgment be granted to defendant Sgt. Earle Smith, Jr. ("Smith") with respect to Plaintiff's document forgery claim, Plaintiff's elf costume/holiday party claim, Plaintiff's medical treatment deprivation claim, Plaintiff's mail interference claim, and Plaintiff's grievance interference claim. However, I recommend that summary judgment be denied to Smith with respect to Plaintiff's physical assault and retaliation claims.

II. BACKGROUND

A. Facts²

Plaintiff was an inmate at OCCF between July 2008 and May 2009.³ (Dubois, Orsino, Bennett, Rusneck, Dicharo, & Smith's Corrected R. 56.1(a) Statement ("Dubois's 56.1") ¶ 1 (Dkt. 103); Pl.'s Opp'n Rule 56.1(b) Statement ("Pl.'s 56.1 (Dubois)") ¶ 1 (Dkt. 110); Kirms, Cox, & Neiger's R. 56.1 Statement of Material Facts ("Kirms's 56.1") ¶ 24 (Dkt. 82); Pl.'s Opp'n R. 56.1(b) Statement ("Pl.'s 56.1 (Kirms)") ¶ 1 (Dkt. 110).⁴) He began working as an aide in OCCF's Programs Department in August 2008. (Dubois's 56.1 ¶ 10; Pl.'s 56.1 (Dubois) ¶ 10; Kirms's 56.1 ¶¶ 28, 34; Pl.'s 56.1 (Kirms) ¶ 1.) He continued to work in this position through May 2009. (Kirms's 56.1 ¶ 34; Pl.'s 56.1 (Kirms) ¶ 1.) The Programs Department contained classrooms and offices. Plaintiff's responsibilities included cleaning these rooms, "scan[ning] . . . BOCES intake ('buff') forms that [were] completed by inmates participating in the BOCES educational programs," (Dubois's 56.1 ¶ 18; see Pl.'s 56.1 (Dubois) ¶ 18), and filing, (Kirms's 56.1 ¶ 35; Pl.'s 56.1 (Kirms) ¶ 35).

The Orange-Ulster County BOCES ("BOCES") contracted with OCCF to provide education programs to inmates. (See Smith's Aff. ¶¶ 4-5 (Dkt. 93).) During the period relevant to this lawsuit, Kirms was employed by BOCES and worked at OCCF as the Coordinator for Incarcerated Services. (Kirms's Aff. ¶¶ 1-2 (Dkt. 78).) Her "responsibilities included managing and overseeing the provision of adult and youth educational services to inmates at [OCCF]." (Id. ¶ 2.) Cox was employed by BOCES and worked at OCCF as a teacher. (Cox's Aff. ¶¶ 1-2 (Dkt. 79).) Neiger was employed by BOCES and worked at OCCF as an Adult Education Instructor. (Neiger's Aff. ¶¶ 1-2 (Dkt. 80).)

Plaintiff asserts that either on October 15, 2008, or during the first or second week of November 2008, Kirms (or both Kirms and Smith) asked him to forge student records. (See Dep. Tr., at 54-55, 61; 2d Am. Compl., at 5 (unpaginated) (Dkt. 33).⁵) He also claims that onOctober 25 or November 5, 2008, Smith told him "not to mention this conversation to anyone," and that if Plaintiff did, "Bad things would happen." (2d Am. Compl., at 5.) Plaintiff states that Smith and Kirms told him "they had great influence with the Judges and the district attorney," (id.; see Dep. Tr., at 60), and that Smith told him he would "make sure that there is great trouble for [him] if [he] did not do as [he] was told," (2d Am. Compl., at 5).

At some point in November 2008 and more than five days after Plaintiff was asked to forge student records, Plaintiff claims that he asked a corrections officer for a grievance form, was given one, and filled it out. (See Dep. Tr., at 57-61; see also id. at 120-21.) He testified that he complained in the grievance about "[t]he records, the forging of records, . . . the threats of using the influence with the Orange County courts and the District Attorneys, . . . [and] the threats of physical abuse." (Id. at 59.) He also testified that he placed the grievance form into an envelope, addressed the envelope as "Inmate Grievance," and placed it into the outgoing mailbox instead of the grievance box. (See id. at 56-59.) He states that he did so in order to deliberately bypass OCCF's grievance procedures. Specifically, he explained that:

I was kind of hoping that it would get-I don't know, I was hoping that-If it went straight to the grievance, I know that all the officers and the sergeants, they're all, you know, they're all one big, you know, family, so I was trying to get it past, uh-I was actually trying to divert it from the grievance and maybe up front would get it and because it was going out they would read it and see the severity of it and just bypass the whole grievance thing.

(Id. at 116-17.)

Smith and Kirms deny threatening Plaintiff or directing him to forge any documents. (Kirms's Aff. ¶¶ 7-8, 10; Smith's Aff. ¶¶ 14-15.) Defendants also state that OCCF's records indicate that Plaintiff never requested or submitted a grievance form during the relevant time period. (Dubois's 56.1 ¶¶ 5-6; Kirms's 56.1 ¶¶ 57-58.)

Next, Plaintiff claims that at some time at the "end of November 2008" or "on or about December 2008," "Cox brought in her files," which Plaintiff was directed to forge. (2d Am. Compl., at 6.) He states that he refused to comply with those orders, which prompted Cox to call Smith. Plaintiff states that Smith entered the room, Cox informed him of Plaintiff's refusal "to be helpful," and Smith told Plaintiff "that if [he] gave [Cox] any problems he would 'Beat the shit out of'" him. (Id.) Plaintiff states that at this point, he told Smith that he wanted to file a grievance. (Id.) Plaintiff states that Smith then "grabbed [him] by the throat and started to choke [him,] telling [him] that a grievance [sic] was not going to help [him,] [a]nd that if [he] tryed [sic] to complain about this they would make sure that [he] got life in prison." (Id.) Plaintiff states that at this point, he "dicided [sic] to just do as [he] was told." (Id.)

Smith and Cox deny assaulting Plaintiff, threatening Plaintiff, directing him to forge documents, or preventing him from filing a grievance. (Se...