Ben-Israel v. Diaz

          MEMORANDUM OF DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          Vanessa L. Bryant United States District Judge

         The plaintiff, Shemayah Ben-Israel, commenced this civil rights action asserting claims for use of excessive force and deliberate indifference to safety. The remaining claim is for use of excessive force against Lieutenant Diaz. The parties have filed cross-motions for summary judgment. For the following reasons, plaintiff’s motion is denied and Diaz’s motion is granted.

         I. Standard of Review

         A motion for summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed. R. Civ. P.; see also Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113-14 (2d Cir. 2017). “A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Nick’s Garage, 875 F.3d at 113-14 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Which facts are material is determined by the substantive law. Anderson, 477 U.S. at 248. “The same standard applies whether summary judgment is granted on the merits or on an affirmative defense ….” Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010).

         The moving party bears the initial burden of informing the court of the basis for its motion and identifying the admissible evidence it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He cannot “‘rely on conclusory allegations or unsubstantiated speculation’ but ‘must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.’” Robinson v. Concentra Health Servs., 781 F.3d 42, 34 (2d Cir. 2015) (citation omitted). To defeat a motion for summary judgment, the nonmoving party must present such evidence as would allow a jury to find in his favor. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).

         Although the court is required to read a self-represented “party’s papers liberally and interpret them to raise the strongest arguments that they suggest, ” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015), “unsupported allegations do not create a material issue of fact” and do not overcome a properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

         II. Facts^[1]

         Plaintiff was confined at MacDougall-Walker Correctional Institution (“MacDougall”) in early August 2016, at the time of the incident underlying this action. Def.’s Local Rule 56(a)1 Statement, Doc. #27-5 ¶ 2. In August 2016, Lieutenant Diaz was assigned to MacDougall as the 89 east sector supervisor. Id. ¶¶ 3-4. She was responsible for overseeing housing units N, O, P, Q, and R. Id. ¶ 4.

         On August 1, 2016, the unit manager of the N housing unit told Lieutenant Diaz that two inmates needed to be escorted to the restrictive housing unit (“RHU”) because of safety and security concerns. Id. ¶ 5. Lieutenant Diaz oversaw the escorts. The first inmate was placed in RHU cell 19 without incident. Id. ¶ 6.

         Lieutenant Diaz was temporarily relieved of duty during both escorts while the inmates were being strip-searched before placement in an RHU cell as departmental directives prohibit cross-gender strip searched absent extenuating circumstances. Id. ¶ 7.

         The only cell available for the second inmate was RHU cell 3, the cell in which plaintiff was confined without a cellmate. Id. ¶ 8. The two inmates did not have an active separation profile and neither was classified as a Security Risk Group member. Thus, there was no reason for Lieutenant Diaz to believe that housing the two inmates together would pose a security risk for either inmate. Id. ¶ 9. Plaintiff admitted at his deposition that he did not know the other inmate and had no knowledge suggesting that the inmate posed a danger to him. Id. ¶ 10. The plaintiff has never been assaulted by another inmate while confined in a Connecticut correctional facility. Id. ¶ 11.

         Plaintiff refused to accept a cellmate. Id. ¶ 12. Plaintiff did not tell staff that he had safety concerns about being housed with this inmate. Id. ¶ 13. Instead, he based his refusal on a threatening note he had received from an SRG member a week earlier. Pl.’s Decl., Doc. #22-1 at 2 ¶ 2. Lieutenant Wiggins told plaintiff that he would be placed on in-cell restraints if he refused a cellmate. Doc. #27-5 ¶ 14. Lieutenant Diaz agreed with this decision. Id. ¶ 15. Plaintiff continued to refuse a cellmate and was placed on in-cell restraints. Lieutenant Diaz oversaw the placement. Id. ¶ 16.

         Department of Correction Administrative Directive 6.5 permits the use of in-cell restraints to ensure compliance with an order and to maintain order, safety, and security in the correctional facility. Id. ¶¶ 17, 20. The primary reason for plaintiff’s placement on in-cell restraints was that he was being acutely disruptive and interfered with order, safety, and security by disrupting the operation of the RHU. Id. ¶ 18.

         At that time, the addition of the two inmates made the RHU full. Id. ¶ 19. Because plaintiff refused to accept a cellmate, staff had to move him to RHU cell 9, a cell that is intended for use only by mental health patients on mental health or behavioral observation. The cell is supposed to remain empty if not used for this purpose. If a mental health inmate had been sent to RHU, another inmate would have to be released from RHU to accommodate the mental health inmate. As the RHU is intended to house inmates whose continued presence in general population poses a ...