Barnes v. Harling (368 F. Supp. 3d 573, 2019)

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Jessie James Barnes ("Plaintiff"), proceeding pro se , is an inmate currently housed at Upstate Correctional Facility. Plaintiff brings the instant action pursuant to 42 U.S.C. § 1983, alleging that defendants committed various violations of Plaintiff's state and constitutional rights while he was detained at the Monroe County Jail during 2008 and 2009.

Presently before the Court is the motion by defendants Superintendent Ronald Harling ("Harling"), Major E. Krenzer ("Krenzer"), Captain Jolly ("Jolly"), Captain Thomas ("Thomas"), Sergeant DeRosa ("DeRosa"), Sergeant McGowan ("McGowan"), Sergeant Hayes ("Hayes"), Corporal Guest ("Guest"), Corporal Knapp ("Knapp"), Corporal Cardella ("Cardella"), Corporal Amatore ("Amatore"), Corporal Kennelly ("Kennelly"), Corporal S. Peck ("Peck"), Corporal Shellard ("Shellard"), Corporal Tripoli ("Tripoli"), Deputy Scally ("Scally"), Deputy Atkins ("Atkins"), Deputy Newton ("Newton"), Deputy Willis ("Willis"), Deputy Waud ("Waud"), Deputy James Amico ("Amico"), Deputy Ellen Danehy ("Danehy"), Deputy Daly ("Daly"), Deputy Galen ("Galen"), Deputy Alberti ("Alberti"), Lipari, Horan, Kaiser, and DiMartino (collectively "Defendants") for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) (Dkt. 276), Plaintiff's motion for summary judgment pursuant to Rule 56(b) (Dkt. 306), Plaintiff's motion for recusal (Dkt. 307), and Plaintiff's motion for sanctions and request for appointment of counsel (Dkt. 320).

For the following reasons, Plaintiff's motion for recusal (Dkt. 307) is denied, Defendants' motion for summary judgment (Dkt. 276) is granted in part and denied in part, Plaintiff's motion for summary judgment (Dkt. 306) is denied, and Plaintiff's motion for sanctions and request for appointment of counsel (Dkt. 320) is denied.

BACKGROUND

I. Procedural Background

Plaintiff filed his original complaint in this matter on March 22, 2010, alleging numerous causes of action against approximately 88 Defendants, along with an application to proceed in forma pauperis . (Dkt. 1, 2). On April 1, 2010, the Court granted Plaintiff leave to proceed in forma pauperis . (Dkt. 3). In that order, the Court also dismissed Defendants Ontario County and Ontario County Attorney as parties to this action. (Id. ).

On July 6, 2010, the County Defendants filed a motion to dismiss. (Dkt. 6). On July 27, 2010, the Court added Corporal Messura as a Defendant. (Dkt. 10). Plaintiff moved to amend his complaint on August 3, 2010. (Dkt. 12). On October 6, 2010, Defendants Beilein, Harrison-Ross, and Stewart filed a motion for summary judgment. (Dkt. 18). On December 27, 2010, Plaintiff filed another motion to amend his complaint. (Dkt. 27). On July 26, 2011, Plaintiff voluntarily dismissed Defendants Beilein, Harrison-Ross, Stewart, and the Citizen's Policy and Complaint Review Council, and the Court dismissed these parties with prejudice by Court order. (Dkt. 60, 61). On January 11, 2012, the Court issued an order (Dkt. 62) granting Plaintiff's motion to amend his complaint (Dkt. 27), and dismissing as moot Plaintiff's additional motion to amend (Dkt. 12) as well as the County Defendants' motion to dismiss (Dkt. 6).

On January 25, 2012, Plaintiff filed his second amended complaint. (Dkt. 64). On March 22, 2012, the Court ordered that Plaintiff's second amended complaint be amended to insert the name of Cynthia L. Muller in place of the Jane Doe nurse. (Dkt. 78). On April 10, 2012, the County Defendants filed a motion for judgment on the pleadings. (Dkt. 82). On June 6, 2012, the Court ordered that Defendants Greg Domalski, Bradley Meister, Avis Robinson, Deputy Fitzsimmons, James Amico, and Deputy Ellen Danehy be added as Defendants in place of formerly named John Does. (Dkt. 92). Plaintiff filed a motion to amend his complaint on July 26, 2012. (Dkt. 96). On August 1, 2012, Defendants Mary Ann McQueeney and Debbie Scarpulla, two nurses employed by Correctional Medical Care, Inc. ("CMC"), filed a motion to dismiss the claims against them. (Dkt. 97).

On August 2, 2012, the Court granted Plaintiff's request to file a third amended complaint, making Plaintiff's third amended complaint the operative pleading for this matter. (Dkt. 99). The Court also dismissed Defendants McQueeney, Scarpulla, Bye, Showers, Schultz, Wheatley, Burns, Caviccholi, Harris, Knox, Lopez, Chance, Gallina, and Potocki in accordance with Plaintiff's voluntary dismissal of these Defendants. (Dkt. 100). The outstanding motion for judgment on the pleadings (Dkt. 82) and motion to dismiss (Dkt. 97) were denied as moot (Dkt. 99).

On February 4, 2013, the County Defendants filed a motion for judgment on the pleadings (Dkt. 119), and the remaining Defendants, Holman and Muller, filed a motion to dismiss for failure to state a claim (Dkt. 120).

The County Defendants filed a motion to stay discovery on March 7, 2013. (Dkt. 125). The remaining Defendants filed a declaration in support of this motion to stay discovery on March 13, 2013. (Dkt. 127).

On June 19, 2013, Plaintiff filed his response to Defendants' motions and requested that the County Defendants' motion be converted into a motion for summary judgment and be granted in his favor. (Dkt. 133).

On July 11, 2013, the Court dismissed Defendant Muller in accordance with Plaintiff's voluntary dismissal of this Defendant. (Dkt. 135).

The Court granted Defendants' motion to stay discovery (Dkt. 125) on September 19, 2013 (Dkt. 138). On February 13, 2014, the Honorable Charles J. Siragusa, United States District Judge for the Western District of New York, transferred this case to the undersigned. (Dkt. 141). On January 13, 2015, Plaintiff filed a motion for recusal of the undersigned. (Dkt. 142).

On February 10, 2015, the Court granted in part and denied in part the January 30, 2013, motion to dismiss (Dkt. 119), granted the February 4, 2013, motion to dismiss (Dkt. 120), denied Plaintiff's motion for summary judgment (Dkt. 133), and denied Plaintiff's motion for recusal (Dkt. 142). (Dkt. 148). The Court also lifted the stay of discovery, and defendants County of Monroe, Brooks, O'Flynn, Cececi, Kloner, Mooney, Kimball, Gatti, Pratt, Inipoli, Preston, T. Peck, Carlo, Messura, Kluth, Luther, Raby, Fitzsimmons, Palma, DiFlores, Jane Doe Nurse, Nurse Mary, Domalski, Meister, Robinson, Holman, Miller, Rizzo, and Thibuat were terminated as parties to the action. (Id. ).

The parties conducted discovery, and the remaining Defendants filed the instant motion for summary judgment on October 16, 2017. (Dkt. 276). Plaintiff filed a cross-motion for summary judgment on March 28, 2018 (Dkt. 306), and a response to Defendants' statement of material facts on April 11, 2018 (Dkt. 314). Defendants filed their response to Plaintiff's cross-motion for summary judgment on August 24, 2018 (Dkt. 335), and Plaintiff submitted a reply on September 10, 2018 (Dkt. 337).

Plaintiff filed a motion for recusal on March 29, 2018. (Dkt. 307). On April 5, 2018, Defendants filed their response to the motion for recusal. (Dkt. 313).

On May 21, 2018, Plaintiff also filed a motion for sanctions with a request for appointment of counsel. (Dkt. 320). Defendants filed their response opposing the motion for sanctions on September 10, 2018. (Dkt. 336).

II. Factual Background

The following facts are taken from Defendants' Local Rule 56 Statement of Undisputed Facts (Dkt. 276-2), Plaintiff's Local Rule 56 Statement of Undisputed Facts (Dkt. 315), and their supporting documents. Where the parties specifically controvert particular facts, the Court has noted the disagreement.

A. August 7, 2008

On August 7, 2008, Plaintiff was involved in a fight with two other inmates. (Dkt. 276-2 at ¶ 3). Before the fight, Plaintiff was playing cards with inmates Trustee Eades and Tyrone Members, and Plaintiff won the pot in Eades' possession. (Id. at ¶ 5). When Plaintiff exited his cell, Eades walked up to Plaintiff and hit him on top of his head. (Id. at ¶ 6). Plaintiff then began fighting with Eades and Members, receiving multiple blows to the face and back. (Id. at ¶ 8; Dkt. 276-6). Newton was called on his radio to check the block Plaintiff was housed in and approached, ordering all inmates into their cells. (Dkt. 276-2 at ¶ 9; Dkt. 315 at ¶ 10). All inmates complied except for Plaintiff and one of the other inmates he was fighting with. (Dkt. 276-2 at ¶ 10; Dkt. 276-6). Newton attempted to call a "Code One" on his radio, but the battery was dead. (Dkt. 315 at ¶ 10). He then immediately activated the guard alarm in the west corridor of the jail, and central control paged a "Code One." (Id. ). Deputies Amico and Danehy were assigned to central control and were monitoring the video screens. (Id. at ¶ 13). Newton did not have a direct conversation with Amico or Danehy over the radio. (Id. at ¶ 15).

Newton and several other guards entered the cellblock and ordered Plaintiff and the other inmate to stop fighting. (Dkt. 276-2 at ¶ 11; Dkt. 276-6). Although the inmates stopped hitting each other, the other inmate had Plaintiff pinned to the ground when the guards approached. (Dkt. 276-6). Newton attempted to handcuff Plaintiff after the other inmate was secured, ordering Plaintiff to remain face down and to place his hands behind his back, but Plaintiff refused and instead attempted to roll over and stand up. (Dkt. 276-2 at ¶ 12; Dkt. 276-6). Newton tried to stabilize Plaintiff on the ground, but Plaintiff continued to struggle and resist efforts to be handcuffed. (Id. at ¶¶ 13-14; Dkt. 276-6). A knee strike was applied to Plaintiff's right torso, and Plaintiff was then handcuffed and escorted out of the cell block. (Dkt. 276-2 at ¶ 15; Dkt. 276-6). The entire incident lasted less than one minute and 40 seconds. (Dkt. 276-2 at ¶ 20). Plaintiff's front tooth was knocked out during the altercation, and he had a gash in his upper lip. (Dkt. 306 at 5).

B. December 23, 2008

On December 23, 2008, Plaintiff was moved from a Special Housing Unit ("SHU") to a reception cell, where he was housed until December 26, 2008. (Dkt. 276-2 at ¶ 72). Plaintiff contends that when he was placed in this cell, it "was unconscionab[l]y filthy with walls covered with feces, urine, mucus and other crud and a toilet that [did] not function filled with excrement and spew all over it." (Dkt. 306 at 25). He claims that he complained about his cell 2 times to DeRosa, 5 times to Peck, 25 or 30 times to Cardella, 15 times to Kennelly, 6 times to Knapp, and 15 times to Tripoli, and that he also spoke to Jolly, Horan, and Kaiser about his cell conditions. (Id. at 25-28). Despite all his complaints, Plaintiff asserts, he was never given the opportunity to clean his reception cell while he was housed there. (Id. ).

Defendants assert that after an inmate exits a reception cell and before a new inmate gets placed there, inmate trustees clean the cell. (Dkt. 276-2 at ¶ 74). Defendants further contend that if any prison guard was made aware of unsanitary conditions in Plaintiff's cell, she or he would have ordered a trustee to clean the cell or given Plaintiff the opportunity to clean the cell himself. (Id. at ¶ 75). Additionally, inmates housed in reception cells are given one hour of recreation a day, and during that time they are allowed access to cleaning materials and supplies. (Id. at ¶ 76).

C. January 19, 2009

On December 26, 2008, Plaintiff was moved from the reception cell to a mainframe cell. (Dkt. 276-2 at ¶ 31). Plaintiff asserts that before he was moved to the mainframe cell, he pleaded with Tripoli to not be placed there, and that Tripoli responded by saying, "I don't give a fuck how many times you got your ass kicked on main-frame, we have decided that you will only be placed in a cell on the mainframe and no place else, either you go to [mainframe] or I am going to put you back in SHU." (Dkt. 306 at 28). Plaintiff also alleges that he spoke to DeRosa, McGowan, Cardella, Kennelly, Knapp, Jolly, Horan, and Kaiser about being scared of moving back to mainframe. (Id. at 26-28).

Defendants contend that Plaintiff underwent a classification process when he was assigned to a mainframe cell. (Dkt. 276-2 at ¶ 31). Classification is the process of assigning inmates to appropriate housing units using screening and risk assessment criteria delineated by the New York State Commission of Corrections' Minimum Standards. (Id. at ¶¶ 32-33). The following factors are taken into account when classifying an inmate: criminal history; propensity for victimization; history of medical/mental illness; history of sex offenses; history of hostile relationships with other inmates; prior attempts at self-injury or suicide; prior escapes and attempted escapes; attitude behavior during present and prior incarceration, including any history of assaultive behavior during incarceration; and any other information which may affect the safety and welfare of the inmate or facility staff. (Id. at ¶ 35). Plaintiff underwent this classification process, and it was determined that a mainframe cell was appropriate housing. (Id. at ¶¶ 36-37). Defendants assert that an inmate would not be placed in a housing unit with inmates he has a hostile history with or who present a threat to the inmate's safety. (Id. at ¶ 38).

On January 19, 2009, Plaintiff was attacked on his cellblock by three other inmates named Anthony Smith, Mark Rogers, and Anival Williams. (Dkt. 276-2 at ¶¶ 39, 41). After hearing a commotion and then seeing the inmates fighting, Willis called a "Code One" and ordered all inmates to return to their cells, which they did. (Dkt. 276-2 at ¶¶ 44-45). Waud was not on duty on January 19, 2009. (Dkt. 276-2 at ¶ 48).

Plaintiff contends that earlier that day while Smith was cutting Plaintiff's hair, Willis told Smith "none of us deputies care if [Plaintiff] gets his ass kicked ... so me like all the other sheriff deputies employed here at [the Monroe County Jail] need you to kick his ass." (Dkt. 306 at 10). Plaintiff later noticed Smith again talking to Willis, and the attack happened shortly thereafter. (Id. ).

D. February 26, 2009

On February 26, 2009, Plaintiff left his cell for a short time to brush his hair. (Dkt. 276-2 at ¶ 55). While Plaintiff was gone, several inmates took items from his cell. (Id. at ¶ 56). Plaintiff confronted the inmates, and they jumped him. (Id. at ¶ 57). Waud later noticed Plaintiff bleeding and a lump over his right eye and immediately escorted him to be evaluated by a nurse. (Id. at ¶¶ 58-59).

Defendants contend that before this incident, Plaintiff lost at cards and threatened the other inmates with a shower brush. (Id. at ¶ 60). Plaintiff contends that before the theft occurred, Waud stated, "It is no wonder why all the inmates hate you, all you do is win their commissary, just like you ... always filing grievances against us deputies and jail administration, it's not a secret why you are [the] most hated person in Monroe County Jail." (Dkt. 306 at 13). Plaintiff asserts that Waud then threatened his life and told Plaintiff he was going to "have some inmates kick [Plaintiff's] ass." (Id. ). Plaintiff alleges these statements were caught on video and that the video was preserved for a misbehavior report hearing, but Defendants are withholding it. (Id. at 14).

E. March 2009

On March 2, 2009, Plaintiff was subjected to a strip search, and he submitted a grievance about the officers' conduct during that search, including that of Scally, on March 3, 2009. (Id. at 15). On March 11, 2009, McGowan and Guest were conducting a supervisor tour and a grievance investigation in the SHU, where Plaintiff was housed. (Dkt. 276-2 at ¶ 61). Scally, Atkins, Guest, Amatore, and McGowan were at the elevator gate entry to the SHU, and Guest and Amatore entered Plaintiff's cell. (Dkt. 335-1 at ¶ 46). At that time, Scally walked by Plaintiff's cell. (Id. ). Plaintiff asserts that Scally puffed his cheeks out and imitated performing oral sex. (Dkt. 276-29 at 26). Defendants contend that Plaintiff yelled, "Scally, you can suck my dick. When I get out of this cell I'm going to knock you on your ass. I am going to fuck with Scally every day until he loses his mind and opens my cell. Then I'm going to get him fired." (Dkt. 276-2 at ¶ 62). This alleged threat towards Scally violated the jail's rules and regulations. (Id. at ¶ 65). Defendants contend that Plaintiff was accordingly infracted for his violation. (Id. at ¶ 66). That day, Scally submitted an administrative segregation request for Plaintiff. (Dkt. 335-1 at ¶ 48). Plaintiff asserts that he never made such a threat, that the misbehavior report submitted was false, and that on March 12, 2009, Thomas, Horan, and Krenzer submitted and approved harsher sanctions than asked for by Scally. (Id. at ¶¶ 47-48).

On March 17, 2019, Plaintiff submitted a written request to Shellard for assistance with investigating the incident. (Dkt. 276-2 at ¶ 67). Shellard did investigate and found that Plaintiff had made threatening statements towards Scally. (Dkt. 276-2 at ¶ 68). A disciplinary hearing was held on March 28, 2009, and Plaintiff was found guilty of violating the jail's rules. (Id. at ¶ 69; Dkt. 335-1 at ¶ 53). Plaintiff was placed on administrative segregation, was restricted to showering three days a week, and had his exercise revoked for a 20-day period. (Dkt. 276-2 at ¶¶ 70-71). Plaintiff claims that the interaction between him and Scally on March 11, 2019, was videotaped and preserved for the disciplinary hearing, but that Defendants failed to produce the tape to Plaintiff. (Dkt. 335-1 at ¶¶ 52-53).

F. May 2, 2009

On May 2, 2009, Plaintiff was housed in the SHU. (Dkt. 276-2 at ¶ 49). Willis was on duty and conducted rounds every 15 minutes. (Id. at ¶¶ 51-52). Another inmate, Jaquane Clark, was mopping the hall. (Id. at ¶ 50; Dkt. 314 at ¶ 50). Plaintiff contends that Willis approached Clark and said he would let Clark dump dirty mop water into Plaintiff's cell, and that he would write a misbehavior report saying Plaintiff flooded his cell instead. (Dkt. 306-1 at 131). When Willis left to conduct his rounds, Clark checked Willis' office to make sure he was not there and then ran and threw a cup-full of liquid into Plaintiff's cell. (Dkt. 276-19). Plaintiff contends the liquid was urine. (Dkt. 314 at ¶ 54). Willis returned from his rounds and spoke briefly with Clark and then with Plaintiff for five minutes before returning to his office. (Dkt. 276-19). Several minutes later Plaintiff began throwing papers from his cell into the hallway. (Id. ). Willis then entered Plaintiff's cell for approximately one minute, and after Willis exited, Plaintiff proceeded to throw more papers into the hall. (Id. ). Willis spoke with another officer in the SHU hall while Clark was present, and then both guards returned to their office. (Id. ). Plaintiff contends that Willis approached Clark and told him, "Don't make it look so obvious," and to wait until Willis left for his rounds to dump the mop water. (Dkt. 306-1 at 131).

Clark approached Plaintiff's cell, spoke with him for several minutes, and then threw a bucket full of mop water into Plaintiff's cell. (Dkt. 276-2 at ¶ 50; Dkt. 314 at ¶ 50). Plaintiff contends that the mop water contained other prisoners' urine. (Dkt. 276-29 at 22). Willis was in his office when this occurred (Dkt. 276-19), and Defendants assert that he had no prior knowledge of the incident. (Dkt. 276-38 at ¶ 21). Plaintiff asserts that Willis then walked by Plaintiff's cell while Plaintiff was trying to push the water out of it, made a threatening comment to Plaintiff, and then brought Plaintiff a towel purchased by Plaintiff's mother to clean up the urine-tainted water. (Dkt. 276-29 at 22; Dkt. 306-1 at 131). Willis contends he was not aware Clark threw mop water into Plaintiff's cell. (Dkt. 276-38 at ¶ 23). The New York State Commission of Correction noted in a report after the incident that Plaintiff's inventory sheet listed two towels, but that Plaintiff only had one towel in his possession, and accordingly placed a "bath towel of equal value" in his property. (Dkt. 308-2 at 126).

G. August 12, 2009

On August 12, 2009, Plaintiff was brought to the jail's visitation area for a parole hearing and placed in a no-contact room. (Dkt. 276-2 at ¶¶ 21-22; Dkt. 314 at ¶ 21). Defendants contend that Plaintiff lunged at Shellard in the no-contact room and bit him on the head, and that the only management technique used by Shellard was pushing Plaintiff on the chest, grabbing his uniform, and then stabilizing him to the ground. (Dkt. 276-2 at ¶¶ 23-24). Plaintiff contends that he was in full mechanical restraints and having a conversation with Shellard while Alberti and Daly were in the room, and then Shellard grabbed the back of Plaintiff's head and rammed his face into the glass before slamming him to the floor. (Dkt. 276-29 at 13). Plaintiff asserts that he did not lunge at Shellard or bite him. (Dkt. 314 at ¶ 23). He also contends the deputies then dragged him to the elevator by his legs, and when they got on the elevator, rammed his head into the corner. (Dkt. 276-29 at 14).

When they got off the elevator, Plaintiff grabbed the gate, and Plaintiff contends that Galen started beating his hands with an object, and that Plaintiff was then thrown to the ground and kicked by the deputies. (Id. ). Defendants assert the only subject management techniques they used were verbal commands, ground stabilization, and prying Plaintiff's hands from the elevator bars. (Dkt. 276-2 at ¶¶ 28-29).

Lipari was present when Plaintiff got off the elevator. (Dkt. 276-29 at 13). Plaintiff contends Lipari watched the other officers stomp and kick him while "shaking a cannister of mace with a devious smirk on his face." (Dkt. 306 at 8). Defendants on the other hand state Lipari at no time laughed during the incident "as it was a serious and dangerous situation." (Dkt. 276-37 at ¶ 22). Plaintiff suffered from shoulder burn, back pain, a headache, a swollen ankle, and swollen hands. (Dkt. 276-29 at 14-15).

H. SHU Lighting

The SHU cells have a light fixture that is four feet long with two bulbs, one of which points towards the ceiling and the other towards the bed. (Dkt. 335-1 at ¶¶ 73-74). Plaintiff contends these lights were never turned off and damaged his eyes, causing him to switch from reading glasses to bifocals. (Id. at ¶¶ 75, 85). Plaintiff submitted grievances about the lights on March 6, 2009, April 6, 2009, April 8, 2009, and May 11, 2009. (Id. at ¶¶ 75-76, 79, 81-82). Harling responded to the April 9, 2009, grievance, stating the lights were a "recognized sound correctional practice" (id. at ¶ 79), and Lipari and Harling investigated the May 11, 2009, grievance and issued a similar response (id. at ¶ 83).

Defendants assert that the Monroe County Jail is governed by the New York Minimum Standards and Regulations for Management of County Jails and Penitentiaries ("NYMS"), and all construction at the jail must be submitted for review and approval to the State Commission of Correction. (Dkt. 276-2 at ¶¶ 80-81). The lights in the Monroe County Jail's SHU were installed around 1992, and they were built in accordance with the NYMS. (Id. at ¶¶ 82-83). The State's assessors also visit the jail annually to ensure it continues to meet the NYMS. (Id. at ¶ 84). The facility is accredited by the New York State Sheriff's Association, which has a team of three auditors who confirm facilities comply with their 166 standards. (Id. at ¶¶ 85-86). The SHU cells are lit so that staff members can adequately confirm the health and safety of the inmates at all times. (Id. at ¶¶ 78-79). Additionally, the New York State Commission of Correction, Citizen's Policy and Complaint Review Council has reviewed and upheld the lighting conditions maintained in the SHU cells. (Id. at ¶ 87).

DISCUSSION

I. Plaintiff's Motion for Recusal

In his motion for summary judgment (Dkt. 306 at 33-38; Dkt. 320 at 43-47)

and motion for recusal (Dkt. 307), as well as in letters submitted to the Court (Dkt. 340; Dkt. 341), Plaintiff asks that the undersigned recuse herself from this matter pursuant to 28 U.S.C. § 455(a). Plaintiff alleges in a conclusory fashion that the undersigned has racial and prejudicial biases due to her decision following a bench trial in a separate matter, designated by case number 01-CV-6559, and an earlier decision in the instant matter that dismissed a number of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 148), and that therefore recusal is appropriate (see, e.g. , Dkt. 306 at 34). The recusal issue is a threshold issue that must be resolved before the Court may consider any substantive motion.

"Title 28 U.S.C. § 455(a) requires a judge to recuse [her]self 'in any proceeding in which [her] impartiality might reasonably be questioned.' " Cox v. Onondaga Cty. Sheriff's Dep't , 760 F.3d 139, 150 (2d Cir. 2014) (quoting 28 U.S.C. § 455(a) ). "Recusal motions 'are committed to the sound discretion of the district court[.]' " Abidekun v. N.Y.C. Transit Auth. , No. 93-CV-5600 (FB), 1998 WL 296372, at *2 (E.D.N.Y. June 4, 1998) (quoting United States v. Conte , 99 F.3d 60, 65 (2d Cir. 1996) ). "In cases where a judge's impartiality might reasonably be questioned, the issue for consideration is not whether the judge is in fact subjectively impartial, but whether the objective facts suggest impartiality." Williams v. LaClair , No. 9:10-CV-635 (GLS/RFT), 2013 WL 1193766, at *3 (N.D.N.Y. Jan. 29, 2013) (citing Liteky v. United States , 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ), report and recommendation adopted , No. 9:10-CV-0635, 2013 WL 1193741 (N.D.N.Y. Mar. 22, 2013).

Here, the fact that the Court reached decisions unfavorable to Plaintiff provides no basis for recusal. Liteky , 510 U.S. at 555, 114 S.Ct. 1147 ("[J]udicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion.... [T]hey require recusal only when they evidence such deep-seated favoritism or antagonism as would make fair judgment impossible."); Mills v. Poole , Nos. 1:06-cv-00842-MAT-VEB, 1:11-cv-00440-MAT, 2014 WL 4829437, at *6 (W.D.N.Y. Sept. 29, 2014) ("[Plaintiff]'s claims of bias and impartiality on the part of the undersigned ... are both conclusory and based entirely on his disagreement with the Court's decisions. This is an insufficient basis for recusal."). Put simply, there is no evidence justifying recusal nor is there any basis for recusal. Accordingly, Plaintiff's motion for recusal is denied.

II. Motion and Cross-Motion for Summary Judgment

A. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact[.]" Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F.Supp.2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown , 654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Excessive Use of Force

Plaintiff and Defendants move for summary judgment on Plaintiff's § 1983 claims of excessive use of force as to the alleged incidents of August 7, 2008, and August 12, 2009. "To state a § 1983 claim, a plaintiff must allege that defendant, while acting 'under color of state law,' deprived Plaintiff of his constitutional or statutory rights." Cunningham v. Rodriguez , No. 01 Civ. 1123(DC), 2002 WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002) (quoting 42 U.S.C. § 1983 ). "A pretrial detainee who is subjected to excessive force may bring a claim under § 1983." Id.

"While the Eighth Amendment's protection does not apply 'until after conviction and sentence,' the right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment." United States v. Walsh , 194 F.3d 37, 47 (2d Cir. 1999) (quoting Graham v. Connor , 490 U.S. 386, 392 n.6, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). To bring a claim for excessive use of force under the Fourteenth Amendment, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable." Kingsley v. Hendrickson , --- U.S. ----, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). Courts consider a number of factors when determining objective reasonableness, including:

the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.

Id.

1. August 7, 2008

Plaintiff contends that Defendant Newton used excessive force on Plaintiff on August 7, 2008, when Newton responded to a fight between Plaintiff and inmates Eades and Members. Plaintiff asserts that Newton jumped on Plaintiff's back, striking Plaintiff in the face and knocking out a tooth. (Dkt. 306 at 5-6). Defendants argue that Newton did not jump on Plaintiff's back or strike Plaintiff in the face, and that "Newton's conduct was consistent with legitimate penological objectives." (Dkt. 276-59 at 8-10). For the following reasons, the Court finds the force used by Newton does not rise to the level of a constitutional violation as a matter of law.

As far as "the relationship between the need for the use of force and the amount of force used," Kingsley , 135 S.Ct. at 2473, the surveillance footage shows that Newton used a single knee strike on Plaintiff's back in order to restore security after an inmate fight. Corrections officers receive "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Whitley v. Albers , 475 U.S. 312, 321-22, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Bell v. Wolfish , 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ). This "deference extends to a prison security measure taken in response to an actual confrontation," and "requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice." Id. at 322, 106 S.Ct. 1078 ; see also Winters v. United States , No. 10 Civ. 7571(JMF), 2013 WL 1627950, at *6 (S.D.N.Y. Apr. 16, 2013) ("As courts in this Circuit have held, corrections officers responding to prison fights act with discretion based upon their judgment and experience."); Kalwasinski v. Artuz , No. 02 CV 2582(LBS), 2003 WL 22973420, at *4 (S.D.N.Y. Dec. 18, 2003) ("[P]rison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." (quotation omitted) ).

It is beyond dispute that "attempting to stop an inmate fight ... is a legitimate governmental objective for a [Corrections] Officer." Vargas v. N.Y.C. Dep't of Corr. , No. 17 CIV. 2544 (JGK), 2018 WL 3392873, at *3 (S.D.N.Y. July 12, 2018). Here, Plaintiff was engaged in a physical altercation with another inmate and refused to obey Newton's orders. (Dkt. 276-2 at ¶¶ 8, 12-14). Newton only used force to the extent necessary to remove the threat-as soon as Plaintiff was handcuffed, no further force was used on him. (Id. at ¶ 15; Dkt. 272-6). A reasonable trier of fact could only find that Newton used a reasonable amount of force in an effort to restore institutional security. See Dobbins v. Ponte , No. 15-CV-3091 (JMF), 2017 WL 3309726, at *5 (S.D.N.Y. Aug. 2, 2017) (granting summary judgment to the defendants as to the plaintiff's Fourteenth Amendment excessive use of force claim because the plaintiff "was indisputably acting in a belligerent and defiant manner," so the court deferred "to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security" (quotations and alteration omitted) ).

Additionally, Plaintiff at most suffered a minor injury that a reasonable trier of fact could not attribute to Newton. The record shows that Plaintiff's front tooth was knocked out during the incident and that he had a gash in his upper lip. (Dkt. 306 at 5). While the injuries sustained by Plaintiff, if caused by Defendants, could be enough to sustain a § 1983 claim, see Hudson v. McMillian , 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ("[T]he blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis [.]"), the record shows that only the inmates who jumped Plaintiff made any contact with his face, not Newton. (Dkt. 276-6); see supra note 8. Additionally, the record does not show that Plaintiff suffered any injury as a result of the knee strike he received from Newton. See, e.g. , Flemming v. King , No. 14-CV-316 (DNH/CFH), 2016 WL 5219995, at *3 (N.D.N.Y. June 20, 2016) ("The Second Circuit has noted its agreement with other circuits that some degree of injury is ordinarily required to state a claim of excessive force." (alteration and quotation omitted) ), report and recommendation adopted , 2016 WL 5173282 (N.D.N.Y. Sept. 21, 2016).

Moreover, the record before the Court demonstrates that Newton made an effort to limit the amount of force used on Plaintiff. Newton ordered Plaintiff to remain face down and to place his hands behind his back, but Plaintiff refused and instead attempted to roll over and stand up. (Dkt. 276-2 at ¶ 12; Dkt. 276-6). The verbal command issued by Newton was an effort to temper the force used on Plaintiff. See Robinson v. Viscuso , No. 10-CV-326, 2013 WL 5470013, at *8 (W.D.N.Y. Sept. 30, 2013) ("[V]erbal orders demonstrate a reasonable attempt at measured response.").

Additionally, the security problem at issue was a fight between prison inmates. It is well established that an actual confrontation between prison inmates is a serious security problem that corrections officers receive "wide-ranging deference" to address. Whitley , 475 U.S. at 321-22, 106 S.Ct. 1078 (quoting Wolfish , 441 U.S. at 547, 99 S.Ct. 1861 ).

The record before the Court also demonstrates that Newton reasonably perceived a threat from Plaintiff. Plaintiff disobeyed a direct order from Newton when just moments before he had been in a fight with other inmates (Dkt. 276-2 at ¶¶ 11-12), and Plaintiff struggled and resisted efforts to be handcuffed (id. at ¶¶ 13-14).

Looking at the record before the Court, a reasonable trier of fact could only find that no excessive force was used in the August 7, 2008, incident. Therefore, the Court grants summary judgment in favor of Defendants as to Plaintiff's August 7, 2008, excessive use of force claim.

2. August 12, 2009

Plaintiff claims that Defendants Daly, Shellard, Alberti, and Galen used excessive force on him during the August 12, 2009, encounter, and he is therefore entitled to summary judgment. (Dkt. 306 at 6-8). Defendants argue they are entitled to summary judgment because the subject management techniques they used were at most de minimus uses of force conducted in a good-faith effort to maintain discipline and to secure the area. (Dkt. 276-59 at 12). The Court finds that there are genuine issues of material fact as to this claim.

Looking at the record in the light most favorable to Plaintiff, a reasonable trier of fact could find that Shellard without provocation pushed Plaintiff face-first into a glass window; Shellard, Daly, and Alberti pushed Plaintiff to the floor where they kicked, stomped, and punched him; Alberti and Daly slammed Plaintiff's head into the elevator; Galen smashed Plaintiff's fingers with a baton; and Galen, Daly, and Alberti dragged Plaintiff back to his cell. (Dkt. 276-29 at 13-15). The record shows Plaintiff suffered from shoulder burn, back pain, a headache, a swollen ankle, and swollen hands. (Id. at 14-15).

However, looking at the record in the light most favorable to Defendants, Plaintiff lunged at Shellard who then pushed Plaintiff away with both hands. (Dkt. 276-2 at ¶¶ 23-24). Plaintiff lunged at Shellard again and bit Shellard on top of his head, at which point Shellard and Daly directed Plaintiff towards the floor. (Id. ). Plaintiff struggled while ignoring Daly's orders to stop resisting. (Id. at ¶ 24). When being escorted back to his cell, Plaintiff threatened the officers, ignored their orders, and made several more attempts to bite Daly. (Id. at ¶ 27; Dkt. 276-35 at ¶ 23). Alberti had to pry Plaintiff's hands off the elevator gate, and eventually both Alberti and Daly again directed Plaintiff to the floor due to his combative behavior. (Dkt. 276-35 at ¶¶ 27, 29). Plaintiff was then escorted back to his cell. (Id. at ¶ 27). Looking at the record in this light, a reasonable trier of fact could find under the Kingsley factors that "Defendants' use of force was necessary to protect themselves from Plaintiff's violent conduct and to restore control over Plaintiff." Porter v. Goord , No. 04-CV-0485F, 2009 WL 2180580, at *11 (W.D.N.Y. July 22, 2009), aff'd , 415 F. App'x 315 (2d Cir. 2011).

The record before the Court demonstrates there are genuine issues of material fact that can only appropriately be resolved at trial. Accordingly, the motion and cross-motion for summary judgment as to Plaintiff's August 12, 2009, excessive use of force claim are both denied.

C. Conspiracy

Plaintiff and Defendants move for summary judgment as to Plaintiff's claim that Amico, Danehy, and Newton conspired against him during the events of August 7, 2008, to allow Eades and Members to attack him. (Dkt. 276-59 at 14; Dkt. 306 at 5-6). Defendants contend that Plaintiff fails to support his conspiracy claims with specifics, and therefore that he has not presented sufficient evidence to show that an improper conspiracy took place. (Dkt. 276-59 at 14). Plaintiff asserts there is evidence of a conspiracy. (Dkt. 315 at ¶¶ 3-17). For the reasons that follow, the Court grants summary judgment in favor of Defendants as to the conspiracy claim.

To state a § 1983 conspiracy claim, a plaintiff must allege: "(1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson , 200 F.3d 65, 72 (2d Cir. 1999). "[W]here a plaintiff fails to produce any specific facts whatsoever to support a conspiracy allegation, a district court may ... grant summary judgment." Eastway Const. Corp. v. City of New York , 762 F.2d 243, 251 (2d Cir. 1985) (quoting Contemporary Mission, Inc. v. U.S. Postal Serv. , 648 F.2d 97, 107 (2d Cir. 1981), superseded on other grounds by Fed. R. Civ. P. 11.

The record before the Court viewed in the light most favorable to Plaintiff sets forth no specific facts that support the conspiracy allegations. Plaintiff contends there is evidence of a conspiracy because Newton had a duty to change his radio battery before his shift began, Amico and Danehy never denied having a phone conversation with Newton before the fight broke out, and Amico and Danehy do not remember seeing the incident on their monitoring screens. (Dkt. 306 at 5-6; Dkt. 320 at 34-35). Such contentions are not specific facts but rather unsubstantiated allegations that do not even establish that Amico, Danehy, and Newton had a conversation over the radio or on the phone, let alone that they conspired to allow Eades and Members to attack Plaintiff. To the contrary, the undisputed evidence establishes that after Newton became aware of the fight, he immediately activated the guard alarm in the west corridor of the jail, and central control paged a "Code One." (Dkt. 315 at ¶ 10). See Leon v. Murphy , 988 F.2d 303, 311 (2d Cir. 1993) (holding allegations by the plaintiff were insufficient to defeat the defendants' summary judgment motion in a § 1983 conspiracy action where the "allegations are unsupported by any specifics, and many of them are flatly contradicted by the evidence proffered by defendants").

The Court finds that no reasonable trier of fact could find that Defendants conspired against Plaintiff in violation of his constitutional rights, and accordingly grants Defendants' summary judgment motion as to Plaintiff's conspiracy claim.

D. Failure to Protect/Intervene

Plaintiff and Defendants move for summary judgment on Plaintiff's § 1983 claims for failure to protect based on incidents alleged to have occurred on August 7, 2008, January 19, 2009, and May 2, 2009, and failure to intervene based on the events of August 12, 2009. (Dkt. 276-59 at 15-25; Dkt. 306 at 6-13)

"[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Anderson v. Branen , 17 F.3d 552, 557 (2d Cir. 1994). "As opposed to deliberate indifference claims brought by post-conviction prisoners-which arise under the Eighth Amendment-claims for deliberate indifference brought by state pretrial detainees arise under the Fourteenth Amendment." Blake v. Kelly , No. 12 Civ. 7245(ER), 2014 WL 4230889, at *4 (S.D.N.Y. Aug. 26, 2014).

The Second Circuit recently altered the analysis used in Fourteenth Amendment deliberate indifference cases following the Supreme Court's decision in Kingsley , 135 S.Ct. at 2466. Under current Second Circuit law, when a pretrial detainee plaintiff brings § 1983 claims alleging deliberate indifference, including claims alleging failure to protect or intervene, the plaintiff must satisfy a two-prong test by showing: (1) "he is incarcerated under conditions posing a substantial risk of serious harm," Hayes v. N. Y. C. Dep't of Corr. , 84 F.3d 614, 620 (2d Cir. 1996), and (2) "the defendant-official acted intentionally ... or recklessly failed to act with reasonable care to mitigate the risk ... even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety." Darnell v. Pineiro , 849 F.3d 17, 30, 35 (2d Cir. 2017) ; see, e.g. , Taylor v. City of New York , No. 16 Civ. 7857 (NRB), 2018 WL 1737626, at *11 (S.D.N.Y. Mar. 27, 2018) ("Although Darnell involved a Fourteenth Amendment challenge to a prisoner's conditions of confinement, its holding applies with equal measure to failure to protect claims."); Corley v. City of New York , No. 1:14-cv-3202-GHW, 2017 WL 4357662, at *12 (S.D.N.Y. Sept. 28, 2017) ("[T]he second prong of this claim is measured by an objective standard: whether Defendants 'knew or should have known' that a substantial risk [of] serious harm would result from their failure to intervene." (citing Darnell , 849 F.3d at 35 ) ); Molina v. County of Westchester , No. 16 CV 3421 (VB), 2017 WL 1609021, at *2-3 (S.D.N.Y. Apr. 28, 2017) (applying the deliberate indifference standard articulated in Darnell to a failure to protect claim).

1. August 7, 2008

Plaintiff claims that Defendants Amico, Danehy, and Newton failed to protect him when they allowed him to be attacked by the other inmates. (Dkt. 306 at 5-6). Specifically, Plaintiff alleges that Newton premeditated the attack with the other two prisoners, and then Amico and Danehy collaborated with Newton to delay calling a Code 1. (Id. ). A reasonable trier of fact looking at the record before the Court could only find that Plaintiff's failure to protect claim regarding the August 7, 2008, incident is insufficient.

The record viewed in the light most favorable to Plaintiff does not show that Amico, Danehy, or Newton knew or should have known that the two prisoners would attack Plaintiff. As previously discussed, Plaintiff's conclusory allegations do not establish that Amico, Danehy, and Newton had a conversation over the radio or on the phone, or that they conspired to allow Eades and Members to attack Plaintiff. Nor does the record show that Defendants intentionally or recklessly delayed in calling a "Code One." To the contrary, after Newton became aware of the fight, he immediately activated the guard alarm in the west corridor of the jail, and central control paged a "Code One." (Dkt. 315 at ¶ 10). The entire incident lasted less than one minute and 40 seconds. (Dkt. 276-2 at ¶ 20).

Because a reasonable trier of fact could only find for Defendants as to the August 7, 2008, failure to protect claim, the Court grants Defendants' motion related to this incident.

2. January 19, 2009

Plaintiff alleges that Tripoli, Waud, and Willis failed to protect him when he was attacked by three inmates on January 19, 2009, because they placed him in mainframe housing on December 26, 2008, despite his protests. (Dkt. 306 at 9-11). The Court grants Defendants' summary judgment as to Waud, but finds there are genuine issues of material fact as to Tripoli and Willis.

A reasonable trier of fact could not find that Waud failed to protect Plaintiff on January 19, 2009. Waud was not responsible for inmate housing assignments between December 2008 and January 2009 (Dkt. 276-39 at ¶ 11), and he was not working on January 19, 2009, when the attack on Plaintiff occurred (id. at ¶ 13). Plaintiff does not dispute these facts. (Dkt. 314 at ¶ 48). Accordingly, the Court grants Defendants' motion as to the failure to protect claim against Waud.

However, genuine issues of material fact exist as to Tripoli and Willis. Looking at the record in the light most favorable to Plaintiff, a reasonable trier of fact could find that Plaintiff was incarcerated under conditions that posed a substantial risk of serious harm when he was moved to mainframe housing on December 26, 2008. Plaintiff contends that he knew if he was placed in mainframe housing, he would face an "imminent threat of being pummeled by a violent gang attack by multiple inmates" (Dkt. 306 at 9), and it is undisputed that three inmates attacked Plaintiff in mainframe housing on January 19, 2009 (Dkt. 276-2 at ¶¶ 39, 41).

On the other hand, looking at the record in the light most favorable to Defendants, a reasonable trier of fact could find that Plaintiff did not face conditions that posed a substantial risk of serious harm when he was moved to mainframe housing. Defendants contend that "an inmate would not be placed in a housing [unit] with other inmates [with] whom he has a history of hostile relationships or which would present a threat to the inmate's safety." (Dkt. 276-59 at 19). Additionally, Plaintiff testified at his deposition that of his three attackers on January 19, 2009, he was only familiar with Smith, the jail barber. (Dkt. 276-29 at 17).

Moreover, genuine issues of material fact exist as to whether Defendants knew or should have known that Plaintiff was in danger of being attacked. Plaintiff asserts that before he was moved to the mainframe cell, he pleaded with Tripoli to not be placed there, and that Tripoli responded by saying, "I don't give a fuck how many times you got your ass kicked on main-frame, we have decided that you will only be placed in a cell on the mainframe and no place else, either you go to [mainframe] or I am going to put you back in SHU." (Dkt. 306 at 28). Plaintiff also alleges that he spoke to DeRosa, McGowan, Cardella, Kennelly, Knapp, Jolly, Horan, and Kaiser and told them he was scared of moving back to mainframe. (Id. at 26-28). A reasonable trier of fact could find that these alleged communications "were sufficient to put [Tripoli and Willis] on notice of a serious risk to his safety such that they needed to act to protect him from that risk." Morgan v. Dzurenda , No. 3:14-cv-966(VAB), 2017 WL 1217092, at *7 (D. Conn. Mar. 31, 2017) (denying summary judgment as to the failure to protect claim).

Defendants, in contrast, contend that Plaintiff did not tell Defendants that he was afraid of being transferred back to mainframe. (Dkt. 335-1 at 20-24). Therefore, Defendants argue, Tripoli and Willis "did not mistakenly fail to notice information that indicated an allegedly tenuous relationship between Plaintiff and any of the other inmates" because "there was no such information to notice." (Dkt. 276-59 at 20 (quotation omitted) ). Because there are genuine issues of material fact surrounding the January 19, 2009, incident, the Court denies both the motions for summary judgment as to this claim.

3. May 2, 2009

On May 2, 2009, Plaintiff claims that Defendant Willis not only failed to protect Plaintiff from having urine, feces, and dirty mop water thrown into Plaintiff's cell by inmate Clark, but that Defendant Willis also let inmate Clark out of his cell and directed him to throw these materials into Plaintiff's cell. (Dkt. 306 at 11-13). The Court finds there are genuine issues of material fact as to this claim.

Plaintiff contends that inmate Clark threw a cup filled with urine at him, and then dumped a mop bucket of dirty water that contained urine into his cell. Looking at the record in the light most favorable to Plaintiff, a reasonable trier of fact could find this constitutes a condition that poses a substantial risk of serious harm. See Hogan v. Fischer , 738 F.3d 509, 516 (2d Cir. 2013) (holding that spraying an inmate with vinegar, excrement, and machine oil is more than a de minimis use of force and rises to the level of an Eighth Amendment violation). In contrast, Defendants contend that Clark only threw a cup of water into Plaintiff's cell. (Dkt. 276-38 at ¶ 22).

Further, Plaintiff submitted a sworn affidavit from Clark where Clark states Willis approached him and told him he would let Clark dump dirty mop water into Plaintiff's cell, and that he would write a misbehavior report saying Plaintiff flooded his cell instead. (Dkt. 306-1 at 131). Clark also states Willis later told Clark, "Don't make it look so obvious," and to wait until Willis left for his rounds to dump the mop water. (Id. ). A reasonable trier of fact could find based on the record before the Court that Defendant Willis directed the dumping of the mop bucket to occur.

Defendants contend that Willis was unaware of any tension between Clark and Plaintiff, that Clark acted entirely on his own while Willis was making his rounds, and that Willis had no knowledge of Clark throwing a cup of urine/water or dumping dirty mop water into Plaintiff's cell. (Dkt. 276-38 at ¶¶ 21-25). Additionally, the record shows that Plaintiff threw a stack of papers into the hall while Clark was mopping (Dkt. 276-19), which could have been the reason Clark dumped the mop water into Plaintiff's cell. The surveillance footage submitted by Defendants does little to clarify these factual disputes because it contains no audio, and therefore does not indicate what Plaintiff, Clark, and Willis said to each other during the time period in question. Therefore, the Court finds there are genuine issues of material fact and denies the motion and cross-motion for summary judgment as to this claim.

4. August 12, 2009

Plaintiff contends that during the August 12, 2009, incident, Defendant Lipari failed to intervene while Defendants Galen, Daly, and Alberti beat Plaintiff. (Dkt. 306 at 8). The Court finds there are genuine issues of material fact as to this claim.

As was previously discussed in this Decision and Order, genuine issues of material fact exist as to whether Plaintiff was subject to unconstitutionally excessive force during the incident on August 12, 2009. Additionally, genuine issues of material fact exist as to whether Lipari intentionally or recklessly failed to act with reasonable care to mitigate the risk to Plaintiff. It is undisputed that Defendant Lipari was physically present when the officers attempted to remove Plaintiff from the elevator. (Dkt. 276-37 at ¶¶ 11-20). Plaintiff contends Lipari watched the other officers stomp and kick him while "shaking a cannister of mace with a devious smirk on his face." (Dkt. 306 at 8). Defendants, on the other hand, contend that Lipari was supervising the other officers' handling of Plaintiff, was not shaking a can of mace, and at no point laughed during the incident. (Dkt. 276-37 at ¶¶ 8, 22; Dkt. 335-1 at ¶ 22). The Court finds genuine issues of material fact exist as to Lipari's conduct during the August 12, 2009, incident, and therefore denies both summary judgment motions as to this claim.

E. Retaliation

Plaintiff and Defendants move for summary judgment as to Plaintiff's February 26, 2009, and March 11, 2009, retaliation claims. (Dkt. 276-59 at 25-29; Dkt. 306 at 13-22).

"Courts properly approach prisoner retaliation claims 'with skepticism and particular care,' because 'virtually any adverse action taken by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act.' " Davis v. Goord , 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker , 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds , Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ). A plaintiff asserting First Amendment retaliation claims must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Davis , 320 F.3d at 352 (quoting Dawes , 239 F.3d at 492 ). "The filing of formal prisoner grievances is protected conduct under the First Amendment." Shariff v. Poole , 689 F.Supp.2d 470, 478 (W.D.N.Y. 2010) (citing Colon v. Coughlin , 58 F.3d 865, 872 (2d Cir. 1995) ).

"Adverse action," defined objectively, is "retaliatory conduct 'that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.' "

Gill v. Pidlypchak , 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis , 320 F.3d at 353 ). "In other words, in the context of prisoner retaliation suits, a prisoner need not demonstrate 'actual chill.' The issue is whether defendants engaged in retaliatory conduct that would 'deter a similarly situated individual of ordinary firmness from exercising his constitutional rights.' " Lashley v. Wakefield , 483 F.Supp.2d 297, 300 (W.D.N.Y. 2007) (quoting Gill , 389 F.3d at 381 ). "This objective inquiry is not static across contexts, but rather must be tailored to the different circumstances in which retaliation claims arise." Dawes , 239 F.3d at 493 (internal quotation omitted). "Prisoners may be required to tolerate more ... than average citizens, before a [retaliatory] action taken against them is considered adverse." Davis , 320 F.3d at 353.

In evaluating whether a plaintiff has established the necessary causal connection of a retaliation claim, "a court may infer an improper or retaliatory motive in the adverse action from: (1) the temporal proximity of the filing to the grievance and the disciplinary action; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining the plaintiff." Shariff , 689 F.Supp.2d at 479. "The Second Circuit has held that temporal proximity between an inmate's grievance and disciplinary action may serve as circumstantial evidence of retaliation[.]" Candelaria v. Higley , No. 04-CV-0277(MAT), 2013 WL 104910, at *9 (W.D.N.Y. Jan. 8, 2013) (citing Colon , 58 F.3d at 872-73 ). Accordingly, "[a] plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action." Espinal v. Goord , 558 F.3d 119, 129 (2d Cir. 2009).

1. February 26, 2009

Plaintiff claims that on February 26, 2009, Defendant Waud permitted several inmates to steal Plaintiff's commissary and beat him up in retaliation for Plaintiff's filing of grievances. (Dkt. 306 at 13). The Court finds genuine issues of material fact exist as to this claim.

Defendants contend that before the inmates stole the commissary, Plaintiff lost at cards and threatened the other inmates with a shower brush. (Dkt. 276-2 at ¶ 60). Plaintiff contends that before the theft occurred, Waud stated, "It is no wonder why all the inmates hate you, all you do is win their commissary, just like you ... always filing grievances against us deputies and jail administration, it's not a secret why you are [the] most hated person in Monroe County Jail." (Dkt. 306 at 13). Plaintiff asserts that Waud then threatened his life and told Plaintiff he was going to "have some inmates kick [Plaintiff's] ass." (Id. ).

Plaintiff engaged in a protected activity when he filed his grievances. See Shariff , 689 F.Supp.2d at 478. Looking at the record in the light most favorable to Plaintiff, a reasonable juror could find that Waud's alleged allowance of the theft of commissary and beating of Plaintiff was an adverse action because these actions would be sufficient to chill a person of ordinary firmness from continuing to file grievances. Additionally, the record viewed in the light most favorable to Plaintiff shows that Waud did not like Plaintiff because Plaintiff filed grievances, and that Waud made statements indicating as much before the February 26, 2009, incident occurred. However, the record viewed in the light most favorable to Defendants indicates that Waud did not know about the grievances, nor did he know that Plaintiff's commissary was stolen or permit the other inmates to enter Plaintiff's cell. (Dkt. 276-39 at ¶¶ 22-27). Accordingly, the Court finds there are genuine issues of material fact and denies both motions as to Plaintiff's February 26, 2009, retaliation claim.

2. March 11, 2009

Plaintiff contends the events of March 2009, demonstrate that Atkins, Scally, Guest, Amatore, and McGowan retaliated against him. (Dkt. 306 at 15-22). The Court finds genuine issues of material fact exist as to this claim.

A reasonable trier of fact looking at the record in the light most favorabl