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Case 9:24-cv-00218-BKS-MJK Document58- Filed 11/13/25 Page 1 of 484

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Larry Davis,
Plaintiff,
V. 9:24-CV-218
(BKS/MJK)
Kristen Hall, et. al.

Defendant.

Larry Davis, Plaintiff, pro se
Elizabeth Lombardi, Esq., Asst. Attorney General, for Defendants

Mitchell J. Katz, United States Magistrate Judge

To the Honorable Brenda K. Sannes, Chief U.S. District Court Judge:

ORDER & REPORT-RECOMMENDATION
Chief United States District Court Judge Brenda K. Sannes

referred Defendants’ summary judgment motion to the Court for report
and recommendation.! In this pro se civil rights action, Davis alleges
that Defendants violated his Eighth Amendment rights when the
Officer Defendants twice gang assaulted him, and the Medical Staff

Defendants failed to provide him medical services. For the following

1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).

1

2
reasons, this Court recommends granting Defendants’ summary
judgment.
I. 	BACKGROUND
A. Facts
1. Davis’s version of events.
On March 15, 2023, Davis reported suicidal ideation to an Officer
while the Officer conducted mental health rounds. (Davis SOMF, Dkt.
45, pg. 8, at ¶4).2 Because of this report and his mental health history, a
facility social worker determined that Davis should be admitted to the
Residential Crisis Treatment program. (Davis SOMF, Dkt. 45, pg. 8, at
¶5). Around 10:30am that day, Officers escorted Davis to the Mental
Health Unit. (Davis SOMF, Dkt. 45, pg. 8, at ¶7). There, Davis refused
to stand up and began arguing with an officer. (Exh. A., Dkt. 42-4, at
0:00:04-0:01:15). He eventually complied. (Id.). Once he did, two Officers
picked him up from the chair and escorted him to the strip-frisk
room.(Exh. A., Dkt. 42-4, at 0:01:15-0:01:30).
When they arrived, an Officer ordered Davis to face the wall.
(Davis SOMF, Dkt. 45, pg. 9, at ¶11). Davis complied. (Id.). Defendant
Officer Timothy Kijowski then sucker punched the handcuffed Davis in
2 All citations refer to the CM/ECF pagination.
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the right side of his face. (Id.). Immediately, Defendant Officers Robert
Burke and Sean Huff grabbed Davis and slammed him on the floor.
(Davis SOMF, Dkt. 45, pg. 9, at ¶12). Once he was on the floor,
Defendants Burke, Huff, and Kijowski punched Davis in the face, legs,
ribcage, and chest for roughly five to seven minutes. (Davis SOMF, Dkt.
45, pg. 9, at ¶13). Defendant Seargent Mark Smith watched and said he
was not satisfied with Davis’s injuries. (Davis SOMF, Dkt. 45, pg. 9, at
¶¶14, 15). Soon after this, Kijowski covered Davis’s face with a spit
mask. (Davis SOMF, Dkt. 45, pg. 11, at ¶28).
The Officers then picked Davis up, placed him on his feet, and
ordered him to comply with strip-frisk procedures. (Davis SOMF, Dkt.
45, pg. 11, at ¶30). During the incident, Burke cut off Davis’s clothing.
(Davis SOMF, Dkt. 45, pg. 11, at ¶35). Shortly after, the Officers
escorted Davis from the strip-frisk room to the observation cell. (Davis
SOMF, Dkt. 45, pg. 14, at ¶42). Once Davis and the Officers reached the
observation cell, the Officer Defendants gang assaulted Davis again.
(Complaint, Dkt. 1, at pg. 4).
After the second gang assault ended, Smith called Defendant
Nurse Leader Kristen Hall and ordered her to withhold treatment from
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Davis. (Davis SOMF, Dkt. 45, pg. 17, at ¶¶64, 65). Smith also told Hall
to falsify the unusual incident report and write that Davis refused
medical treatment. (Davis SOMF, Dkt. 45, pg. 18, at ¶66).
But Davis admits that medical staff assessed him roughly two
hours after the incident. (Davis SOMF, Dkt. 45, pg. 19, at ¶79). That
assessment revealed that Davis had red eyes but no other injuries.
(Davis SOMF, Dkt. 45, pg. 20, at ¶80). The day after the gang assault,
mental health staff assessed Davis. (Davis SOMF, Dkt. 45, pg. 20, at
¶81). And the day after that, medical staffed again assessed Davis and
identified a bruise on the left side of his face and his left foot. (Davis
SOMF, Dkt. 45, pg. 20, at ¶85). Medical staff also x-rayed Davis’s left
foot, and the x-rays did not show any injuries. (Davis SOMF, Dkt. 45,
pg. 21, at ¶86). On March 20, 2023—five days after the incident—
medical staff again assessed Davis and identified bruising on his left
foot. (Davis SOMF, Dkt. 45, pg. 21, at ¶87). About three weeks later,
Davis received x-rays which did not reveal any breaks or dislocation.
(Davis SOMF, Dkt. 45, pg. 22, at ¶¶92, 93).
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2. Defendants’ evidence.
The video barely shows an opening in the room, and for most of
the video, the view is obstructed by Officers who are not inside of the
room. See, e.g., (Exh. C., Dkt. 42-6, at 0:03:22 – 0:14:08). While the
camera does not show inside the strip-frisk room, Davis can be heard
repeating “take the cuffs off” and spewing vulgarities. (Exh. C., Dkt. 42-
6, at 0:03:16-0:03:38). The camera shows some movement and one of the
officers saying “stop” multiple times. (Exh. C., Dkt. 42-6, at 0:03:39-
0:03:45). One Officer can be seen wrestling Davis to the ground and
Davis can be heard saying “hit me.” (Exh. C., Dkt. 42-6, at 0:03:46-
0:04:00). Shortly after, an Officer inside the strip-frisk room says, “stop
fighting.” (Exh. C., Dkt. 42-6, at 0:04:01-0:04:07). This prompts another
Officer, who is outside of the strip-frisk room, to leave the camera’s
view. (Exh. C., Dkt. 42-6, at 0:04:01-0:04:07). Back inside the strip-frisk
room, an Officer orders Davis to “stop fighting” and Davis yells “I’m not
fighting.” (Exh. C., Dkt. 42-6, at 0:04:07-0:04:20). Soon after, the Officer
who left the camera’s view returns with a spit mask. (Exh. C., Dkt. 42-
6, at 0:04:29-0:04:32). As the commotion continues, Davis can be heard
saying “they just punched me in my fucking face” and then screaming
“take the cuffs off, y’all wanna beat me up, y’all wanna punch me in my
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shit, y’all wanna punch me in my face while I have the cuffs on.” (Exh.
C., Dkt. 42-6, at 0:06:30-0:07:12). Davis continues “there’s no camera’s
here, let’s get it on! Y’all sat here and punched me in my fucking face
while I got hand cuffs on.” (Exh. C., Dkt. 42-6, at 0:07:22-0:07:43). Davis
begs the officers to remove the handcuffs so they could fight. (Exh. C.,
Dkt. 42-6, at 0:07:44-0:07:57). At no time can anyone be heard saying
that they are unsatisfied with Davis’s injuries. Ultimately, the Officers
pick Davis—who is now handcuffed, naked, and his face is covered with
a spit mask—up off the floor and transfer him to the observation cell.
(Exh. C., Dkt. 42-6, at 0:14:05-0:14:20).
The Officers escorted Davis to the observation cell without
incident. (Exh. D., Dkt. 42-7, 0:14:23-0:14:31)
While in the observation cell, Davis held the restraint strap. (Exh.
F., Dkt. 42-9, at 0:00:30-38). The Officers ordered him to let it go, but he
did not. (Exh. F., Dkt. 42-9, at 0:00:40-55). Two Officers then wrestled
Davis on to the bed and another Officer struck David with a baton once.
(Exh. F., Dkt. 42-9, at 0:00:57-0:01:23). Now in control of the restraint
strap, the Officers let Davis off the bed, brought him to the door, and
put his handcuffed hands through the food hatch in the cell door. (Exh.
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F., Dkt. 42-9, at 0:01:30-0:02:07). Once the door was closed the Officers
removed the cuffs from Davis’s wrists. (Exh. F., Dkt. 42-9, at 0:02:07-
0:01:52).
B. Procedural History
Davis began this action by filing a 42 U.S.C. §1983 Complaint
alleging violations of his Eighth Amendment rights. (Complaint, Dkt.
1). Chief Judge Sannes, on her own, reviewed the Complaint and
permitted Davis’s excessive force, failure to intervene, and deliberate-
indifference-to-medical-needs claim to survive. (Dkt. 4). The case
proceeded through discovery, and now Defendants move for summary
judgment on all claims. (Dkt. 42). Davis responded and Defendants
replied. (Dkts. 45, 48).
II. 	STANDARD OF REVIEW
Summary Judgment
“Summary Judgment is appropriate only if the movant shows that
there is no genuine issue as to any material fact.” Tolan v. Cotton, 572
U.S. 650, 656-57 (2014) (cleaned up). When deciding if there is a
genuine issue of material fact, courts “must view the evidence in the
light most favorable to the” non-moving party. Id. at 656 (cleaned up).
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Likewise, courts must “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” Kessler v. Westchester County Dep’t of Social
Services, 461 F.3d 199, 206 (2d Cir. 2006). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v.
Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) “When
the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec., 475 U.S. at 586. “The
nonmoving party may not rely on mere conclusory allegations nor
speculation but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145,149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment,” judges “must ask” themselves “not whether” they “think the
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evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). “A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012). In fact, “when opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (cleaned up)
III. 	GENERALLY APPLICABLE LAW
42 U.S.C. §1983
Section 1983 establishes a cause of action for “the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws of the United States.” German v. Fed. Home Loan Mortg. Corp.,
885 F. Supp. 537, 573 (S.D.N.Y. 1995) (cleaned up). “Section 1983 itself
creates no substantive rights. It only creates a procedure for redress for
the deprivation of rights established elsewhere.” Sykes v. James, 13
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F.3d 515, 519 (2d Cir. 1993) (cleaned up). “To establish a defendant's
individual liability in a suit brought under Section 1983, a plaintiff
must show “the defendant's personal involvement in the alleged
constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133,
138 (2d Cir. 2013) (cleaned up).
IV. 	DISCUSSION
The Court recommends granting Defendants summary judgment
motion in its entirety. Defendants seek summary judgment on Davis’s
two excessive force claims (the strip-frisk room and observation cell
assaults), two failure to intervene claims, and one deliberate-
indifference-to-medical-needs claim. In Section IV.A.1, the Court finds
that Davis’s first excessive force claim cannot survive because the
subjective element cannot be met as a matter of law. In Section IV.A.2,
the Court finds that Davis’s second excessive force claim fails because
the Officer Defendants exercised reasonable force when corralling a
furious Davis. And because there is no excessive force there can be no
failure to intervene. In Section IV.B, the Court finds that Davis’s
deliberate-indifference-to-medical-needs claim fails because Davis
cannot prove he suffered a serious injury, and he admitted that the
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Medical Staff Defendants treated him soon after the purported gang
assaults.
A. Both of Davis’s excessive force and failure to intervene
claims fail.
Both of Davis’s excessive force and failure to intervene claims
should fail. For an excessive force claim to survive summary judgment,
the non-moving party must be able to show that there is genuine issue
of material fact as to the objective and subjective elements of their
excessive force claim. Davis cannot do so for either excessive force
claim. And because both excessive force claims fail, both failure to
intervene claims must fail. In other words, the District Court should
grant Defendants summary judgment as to all four claims.
Incarcerated individuals enjoy Eighth Amendment protection
against the use of excessive force and may recover damages under 42
U.S.C. § 1983 for a violation of those rights. See Hudson v. McMillian,
503 U.S. 1, 9-10 (1992). To sustain an Eighth Amendment excessive-
force claim, plaintiffs must establish both an objective and subjective
element. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); see
also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993).
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To satisfy the objective element, plaintiffs must prove that a
defendant’s conduct was “inconsistent with the contemporary standards
of decency.” Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation
omitted); Hudson, 503 U.S. at 9 (1992). “The Eighth Amendment’s
prohibition of ‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the
conscience of mankind.” Hudson, 503 U.S. at 9-10 (citations omitted).
“Not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers, violates a prisoner’s constitutional rights.”
Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (citation omitted). Claims
“of excessive force may be established even if the victim does not suffer
serious . . . or significant injury, . . . provided that the amount of force
used is more than de minimis or involves force that is repugnant to the
conscience of mankind.” Hudson, 503 U.S. at 7-10 (cleaned up).
To prove the subjective element, plaintiffs must show that the
Defendant’s actions were wanton. See Sims, 230 F.3d. at 21 (citation
omitted). The wantonness inquiry “turns on ‘whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously
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and sadistically to cause harm.’” Id. (quoting Hudson, 503 U.S. at 7).
When determining whether defendants acted in a malicious or wanton
manner, courts consider five factors: (1) the extent of the injury and the
mental state of the defendant; (2) the need for the application of force;
(3) the correlation between that need and the amount of force used; (4)
the threat reasonably perceived by the defendants; and (5) any efforts
made by the defendants to temper the severity of a forceful response.
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
1. No reasonable juror could find that the officers used
excessive force or failed to intervene in the use of
excessive force during the strip-frisk room incident.
Davis’s first excessive force and failure to intervene claims must
fail. First, the Court addresses Defendants argument that it should
accept their version of events. The Court declines to do so and it
recommends that the District Court do the same. Second, the Court
finds that a reasonable juror could determine that the objective element
is met considering the record as it is. Third, the Court finds that no
reasonable juror could determine that the subjective element is satisfied
as a matter of law. Fourth, because the Court finds no excessive force, it
finds that there is no failure to intervene. With those four findings, this
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Court recommends the District Court grant Defendants summary
judgment as to Davis’s first excessive force and failure to intervene
claims.
As a threshold issue, the Court addresses Defendants argument
that the District Court should adopt their version of events as true. It
should not. Defendants contend that video evidence supports their
version of events. Not so. Exhibit C, the exhibit that depicts the strip-
frisk room incident, does not show what happened in the room. See
generally (Exh. C., Dkt. 42-6). The camera shows a small portion of the
strip-frisk room, and for most of the video, the view into that small
portion is obstructed by Officers. See, e.g., (Exh. C., Dkt. 42-6, at 0:03:22
– 0:14:08). Because there is no clear view of the events within the strip-
frisk room, the District Court should decline to completely adopt
Defendants version of events.
This case is distinguishable from the case Defendants cite for the
proposition that the District Court should adopt their version of events.
(Def. Memo of Law, Dkt. 42-1, at pg. 16) citing Benitiz v. Healy, No. 15-
CV-1179 (GLS/ATB), 2017 WL 9673721, at 5 (N.D.N.Y. 2017). In
Benitiz, the video evidence captured everything that occurred in the
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strip-frisk room. See Benitiz, 2017 WL 9673721, at 5. In fact, the
evidence was so clear that the Benitiz court could recite the entire
incident. Id. at 5-6. Importantly, the Benitiz court ended its recitation
of the video by noting that “the video also contradicts almost all of
plaintiff’s description” of the defendants’ force. Id. at 7. Here, the
opposite is true. The video evidence does not show anything that
happened in the strip-frisk room. See generally (Exh. C, Dkt. 42-6). And
while there is audio that supports Defendants story, that is not enough
to wholesale adopt their version of events. See Loveall v. Walker, No.
5:23-CV-1270 (AJB/TWD), 2025 WL 2962744, at 5 (N.D.N.Y. Oct. 21,
2025) (adopting the video to the extent it depicts the relevant events).
As a result, the District Court should not adopt Defendants version of
the events as true. It should only adopt the facts that the video proves
occurred. See Scott, 550 U.S. at 380.
Turning to the objective prong, a reasonable juror can find that
the objective prong is met. Davis alleges that the Officer Defendants
gang assaulted him: Kijowski sucker punched the handcuffed Davis in
the right side of his face, Burke and Huff grabbed Davis and slammed
him on the floor, and then Burke, Huff, and Kijowski punched Davis in
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the face, legs, ribcage, and chest for roughly five to seven minutes.
(Davis SOMF, Dkt. 45, pg. 9, at ¶11-13). That is enough to establish
objective element. See Ridge v. Davis, No. 18-CV-8958, 2022 WL
357020, at 9 (S.D.N.Y. Feb. 7, 2022) (denying the defendants summary
judgment because the plaintiff alleged that the defendants
“participat[ed] in a ‘gang kind of assault’ in which [the plaintiff] was hit
and kicked both before and after being handcuffed).
Turning to the subjective prong, no reasonable juror could find
that the subjective prong is met once the five factors are considered.
Injury. While the Court’s sole focus is not injury, the absence of
injury is relevant to the inquiry. Wilkins v. Gaddy, 559 U.S. 34, 37
(2010). In fact “the extent of injury suffered may also provide some
indication of the amount of force applied.” Id. Considering his version of
events, Davis’s injuries do not make sense. Davis alleged that Kijowski
punched him in the right side of his head. (Davis SOMF, Dkt. 45, pg. 9,
at ¶11). Yet the left side of Davis’s face was bruised. (Davis SOMF, Dkt.
45, pg. 20, at ¶85). Davis also alleged that the officers repeatedly
punched him in his chest, ribs, and legs. (Davis SOMF, Dkt. 45, pg. 9, at
¶13). But the only injuries he suffered on that score was left ankle
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bruising. (Davis SOMF, Dkt. 45, pgs. 20, 22 at ¶¶85, 92, 93). Worse yet,
two x-rays showed that there were no issues with Davis’s ankles. (Davis
SOMF, Dkt. 45, pg. 21, at ¶86). One would have to suspend their
disbelief to be convinced that a near-10-minute gang assault—where
Davis was handcuffed and could not protect himself—would leave Davis
with only two bruises. See Sanders v. Torres, No. 19-CV-697
(GTS/CFH), 2021 WL 799263, at 12 (N.D.N.Y. Feb. 8, 2021) (cleaned
up) (“The absence of injury or pain indicates that the force alleged was
insufficient to sustain a claim for excessive force under the Eighth
Amendment.”). Thus, this factor weighs in favor of finding the
subjective element cannot be satisfied as a matter of law.
Need for force. The Officer Defendants needed to use some force.
Doubtless, officers are entitled to use some level of force to subdue an
incarcerated individual when the incarcerated individual is threatening
to fight them. In fact, the standard itself permits that use of force. See
Hudson, 503 U.S. at 6 (“whether force was applied in a good faith effort
to maintain or restore discipline”). Here, the video evidence’s audio
depicts Davis screaming vulgarities and repeatedly asking the Officers
to take his handcuffs off so they could fight. See, e.g., (Exh. C., Dkt. 42-
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6, at 0:07:44-0:07:57). So the Officer Defendants were allowed to use
force when corralling the furious Davis. Thus, this factor weighs against
finding the subjective element satisfied as a matter of law.
Correlation between need and force used. “The correlation between
the need for force and the amount of force used is a factor that goes to
the principle of proportionality.” Beauvoir v. Falco, 345 F. Supp. 3d 350,
370 (S.D.N.Y. 2018). “It too requires asking whether or not the measure
taken inflicted disproportionate pain and suffering, and whether the
force exposed the prisoner to a sufficiently substantial risk of serious
damage to his future health” Id. (citation omitted). Here, Davis
admitted that the only injuries he suffered were red eyes, bruising on
the left cheek (the side he was not punched on), and bruising on his left
ankle. (Davis SOMF, Dkt. 45, pg. 20, at ¶80, 81). It strains credulity to
see how a gang assault caused such little injury. It follows that the lack
of injury and Davis’s demand to fight indicates that the force used was
proportional to the need for force to be used. See, e.g., Cisse v. Annucci,
No. 22-CV-6071, 2025 WL 2532815, at 5 (W.D.N.Y. Sept. 3, 2025)
(granting summary judgment where “a reasonable fact finder would be
compelled to conclude that the amount of force actually used was
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commensurate with the need for force“). To that point, this factor
weighs in favor of finding that the subjective element cannot be
satisfied as a matter of law.
Wilkins does not compel the opposite outcome. The Wilkins court
noted that an incarcerated person “who is gratuitously beaten by
guards does not lose [their] ability pursue an excessive force claim
merely because [they had] the good fortune to escape without serious
injury.” Wilkins, 559 U.S. at 38. But that court also noted that it was
not expressing any view on the underlying merits. Id. at 40. It was only
reversing the trial court’s sua sponte dismissal of the plaintiff’s
Complaint. Id. It was still up to the plaintiff to prove that the
defendants used malicious and sadistic force. Id. So while injury and
force are imperfectly correlated, district courts can still determine that
a plaintiff’s lack of injury and aggressive posturing would compel a
reasonable juror to find that the defendant officers needed to use some
force when restraining an irate incarcerated individual. In legalese,
Wilkins permits courts to assess evidence at summary judgment (far
beyond the 28 U.S.C. §1915 stage of litigation), opine on the correlation
between injury and force used, and determine whether the subjective
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element is met. Simply put, Wilkins does prohibit the District Court
from analyzing the force used and injuries suffered.
Threat. Davis posed a threat to the Officer Defendants’ security,
but the threat was limited. An incarcerated person’s decision to ignore
orders creates a security threat. Kalwasinski v. Artuz, No. 02-CV-2582,
2003 WL 22973420, at 3 (S.D.N.Y. Dec. 18, 2003) (“The threat to
prison security would be manifest were we to allow inmates to decide
for themselves which orders to obey and which to ignore as violative of
their rights and to act accordingly.”). That threat is heightened when an
incarcerated individual is acting violently. Cf. Beauvoir, 345 F. Supp. 3d
at 371 (noting that an incarcerated individual was not a threat because
they never created chaos, they were not doing anything that could
objectively or subjectively be perceived as a threat to the officer’s safety,
and they were not behaving violently). Here, Davis requested the
Officer Defendants remove his handcuffs so he could fight them. (Exh.
C., Dkt. 42-6, at 0:07:44-0:07:57). He also created such a risk that
multiple officers responded, and Davis’s face needed to be covered with
a spit mask. See generally (Exh. C., Dkt. 42-6). That said, Davis posed a
threat. But the non-defendant officers’ presence and the fact that Davis
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was handcuffed mitigates the level of threat Davis posed to the Officer
Defendants. Compare Beauvoir, 345 F. Supp. 3d at 371 (finding that
this factor weighs in the officer defendants favor because the plaintiff
posed a modest threat of disorder) with Cissie, 2025 WL 253281, at 5
(finding that no reasonable juror would be able to conclude that plaintiff
was not a threat because he attacked the officer defendants). At bottom,
this factor weighs in favor of finding the subjective element cannot be
satisfied as a matter of law.
Effort to temper force. The Officer Defendants made a good-faith
effort to temper the severity of the situation. The Officer Defendants
calmly spoke with Davis before bringing him to the strip-frisk room.
(Exh. A., Dkt. 42-4, at 0:00:04-0:01:30); see Beauvoir, 345 F. Supp. 3d at
371 (finding that the defendants’ multiple warnings to the plaintiff
shows a good faith effort to temper the severity of the situation). Yet
Davis was belligerent. (Id.). 	Ultimately, Davis complied with the
Officers and accompanied them to the strip-frisk room. (Id.). But once
they arrived, Davis became increasingly combative. (Exh. C., Dkt. 42-6,
at 0:03:16-0:03:38). It was not until Davis’s aggression reached a fever
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22
pitch that any scuffle ensued. (Exh. C., Dkt. 42-6, at 0:03:40-0:03:50). As
a result, this factor weighs in Defendants’ favor.
Combining Davis’s version of events with the objective video
evidence, the subjective element factors lopsidedly weigh in Defendants’
favor. So this Court recommends the District Court find that the
subjective element cannot be proved as a matter of law. Taking the
natural next step, this Court also recommends the District Court grant
Defendants summary judgment on the issue of excessive force.
And because the Court recommends this, it also recommends
finding that there is no failure to intervene. See Lewis v. Mollette, 752
F. Supp. 2d 233, 244 (N.D.N.Y. 2010) (“In order to establish liability on
the part of a defendant under a failure to intervene theory, a plaintiff
must prove the use of excessive force by someone other than the
individual.”).
2. No reasonable juror could find that the Defendant
Officers used excessive force or failed to intervene in
the use of excessive force during the observation cell
incident.
Davis’s second excessive force claim must also fail. Below, the
Court details the video evidence and finds that the Officer Defendants
used reasonable force to restore order. It also finds that Davis’s failure
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23
to intervene claim fails because there was no underlying constitutional
violation to intervene in. With those two findings, the Court
recommends the District Court grant Defendants summary judgment as
to the second excessive force and failure to intervene claims.
Neither the subjective nor objective elements are met as to the
observation cell incident. While in the observation cell, Davis held the
restraint strap. Exh. F., Dkt. 42-9, at 0:00:30-38). The Officers ordered
him to let it go in response. (Exh. F., Dkt. 42-9, at 0:00:40-48). He did
not let go. (Exh. F., Dkt. 42-9, at 0:00:49-55). Two Officers then wrestled
Davis on to the bed and another Officer struck Davis with a baton once.
(Exh. F., Dkt. 42-9, at 0:00:57-0:01:23). Now in control of the restraint
strap, the Officers let Davis off the bed, brought him to the door, and
put his handcuffed hands through the food hatch in the cell door. (Exh.
F., Dkt. 42-9, at 0:01:30-0:02:07). Once the door was closed, the Officers
removed the cuffs from Davis’s wrists. (Exh. F., Dkt. 42-9, at 0:02:07-
0:01:52). Blow by blow, the evidence shows that neither excessive force
element is met. See, e.g., Lebron v. Mrzyglod, No. 14-CV-10290, 2019
WL 3239850, at 14 (S.D.N.Y. July 18, 2019) (holding that an
incarcerated person “being taken to the ground by [officers] in a forceful
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 23 of 484

24
manner and restrained on the ground” as part of a disciplinary action
could not support an excessive force claim).
The evidence shows that the Officers used reasonable force on
Davis “in a good faith effort to . . . restore discipline.” Wilkins, 559 U.S.
at 37. The Officers’ force—wrestling Davis to the bed and hitting him
once—was proportional to the threat—Davis refused to let go of the
straps after the Officers ordered him to let go several times. See, e.g.,
Heyliger v. Krygier, 335 F. Supp. 3d 482, 493 (W.D.N.Y. 2018) (finding
the officer’s force proportional when the officer hit the plaintiff twice
after the plaintiff ignored orders to stop fighting). Viewing the recorded
observation cell incident, the Court finds that no reasonable juror could
determine that either the subjective or objective element is met. In
consequence, the Court recommends the District Court grant
Defendants summary judgment on this excessive force claim.
Davis’s counterargument on this point is unpersuasive. Davis
argues that both the subjective and objective elements are met. See
(Davis SJ. Response, Dkt. 48, at pgs. 11, 14). Specifically, Davis argues
that the Officers did not obtain authorization from the superintendent
to use force—violating 7 N.Y.C.C.R. 251-1.2—so his excessive force
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 24 of 484

25
claim should survive summary judgment. See (Davis SJ. Response, Dkt.
48, at pgs. 11, 14). But that argument is not quite right. The regulation
Davis cites allows officers to use force when there is an immediate
danger to safety, security, or property. 7 N.Y.C.C.R. 251-1.2(c). Davis’s
decision to grab hold of the restraints and his refusal to let go when
ordered made him an immediate threat to security. As a result, the
regulation Davis cites did not require the Officers to get permission
from the superintendent. Quite the opposite. The regulation Davis cites
allowed the officers to take the actions they did.
That said, the Court also recommends that the District Court
deny Davis’s failure to intervene claim as to the observation cell
incident. There can be no failure to intervene if there was no excessive
force. See Ekukpe v. Santiago, 823 F. App'x 25, 32 (2d Cir. 2020)
(summary order) (finding no liability for failure to intervene unless the
officer “had a realistic opportunity to intervene to prevent the harm
from occurring”). As a result, Davis cannot succeed on his failure to
intervene claim. See Contreras v. O’Meara, No. 9:23-CV-1120
(MAD/MJK), 2025 WL 2391606, at 7 (N.D.N.Y. May 8, 2025) (cleaned
up) (recommending the District Court grant summary judgment on the
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 25 of 484

26
plaintiff’s failure to intervene claim because there was no excessive
force for the officer Defendant to intervene in).
B. No reasonable juror could find that the Medical Staff
Defendants were indifferent to Davis’s medical needs
because he admitted that he received treatment.
The District Court should grant Defendants summary judgment
as to Davis’s deliberate-indifference-to-medical-needs claim. To state a
deliberate-indifference-to-medical-needs claim, plaintiffs must show
that they had a sufficiently serious injury. Here, Davis cannot show he
had a serious injury. In fact, medical staff treated Davis’s bruising two
hours after the alleged assaults occurred. As a result, this Court
recommends the District Court reject Davis’s deliberate-indifference-to-
medical-needs claim.
“To state a cognizable claim,” incarcerated persons “must allege
acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
106 (1976). This standard “includes both subjective and objective
components.” Mallet v. New York State Dep't of Corr. & Cmty.
Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (quotation omitted).
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 26 of 484

27
The objective prong is satisfied when an incarcerated person
proves the alleged deprivation is sufficiently serious. See Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). “There is no single metric”
to determine whether a medical condition is sufficiently serious. Mallet,
126 F.4th at 132. To be a sufficiently serious medical condition, the
condition must be one “of urgency” and one that “may result in
degeneration or extreme pain, significantly affect[] daily activities,” or
the condition “involves chronic and substantial pain.” Id. (quotations
omitted). “A serious medical need can also” exist where the “failure to
treat” an incarcerated person’s “condition” results “in further significant
injury or the unnecessary and wanton infliction of pain.” Webster v.
Fisher, 694 F. Supp. 2d 163, 191 (N.D.N.Y. 2010). But “not every lapse
in prison medical care will rise to the level of a constitutional violation.”
Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003).
To satisfy the subjective prong, an incarcerated person must show
that prison officials “acted with a sufficiently culpable mind.” Mallet,
126 F.4th at 132 (cleaned up). The act, or omission, must show that the
prison officials consciously disregarded a substantial risk of serious
harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). In simpler
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 27 of 484

28
terms, plaintiffs must show a defendant acted with a mental state like
criminal recklessness. Id at 839-40.
Davis cannot prove his deliberate-indifference-to-medical-needs
claim because he admitted that he received treatment. In his statement
of material facts Davis admitted: (1) that medical staff assessed him
roughly two hours after the incident; (2) medical staff assessed him
three days after the assault; (3) medical staff assessed him eight days
after the incidents; and (4) he received x-rays on two occasions. (Davis
SOMF, Dkt. 45, pgs. 19-22, at ¶¶79, 80, 81, 86, 87, 92). And because
Davis admitted to receiving medical treatment—and Defendants’
documentary evidence supports this—Davis cannot prove Defendants
were deliberately indifferent to his medical needs. See, e.g., Horace v.
Gibbs, 802 F. App’x 11, 14 (2d Cir. 2020) (summary order) (affirming
the District Court’s holding that the plaintiff failed to allege a
deliberate-indifference-to-medical-needs claim because the plaintiff
“admit[ed] that Defendants attended to his alleged medical
conditions.”); Boyd v. Deasis, 524 F. Supp. 3d 128, 143-44 (W.D.N.Y.
2021) (finding no genuine issue of material fact because the plaintiff
received treatment from the prison medical staff).
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 28 of 484

29
To the extent that Davis’s argument can be construed as a
deliberate-indifference-to-medical-needs claim under a delay in
treatment theory, that argument must also be rejected. “Courts have
consistently rejected deliberate indifference claims under similar
circumstances, involving relatively brief delays or interruptions in
treatment and a dearth of evidence that the plaintiff's pain or medical
condition worsened as a result.” Ridge, 2022 WL 357020, at 15
(rejecting deliberate indifference claim with a brief delay) (collecting
cases). At most, Davis is alleging a two-hour delay in treatment. And
that is insufficient to prove a deliberate-indifference-to-medical-needs
claim. See, e.g., Washington v. Artus, 708 F. App'x 705, 708-09 (2d Cir.
2017) (affirming the district court’s grant of summary judgment on a
deliberate indifference claim where the plaintiff argued that the
defendants demonstrated deliberate indifference by allowing four hours
to pass before transporting him to the emergency room); Khozouri-
Zadeh v. Cnty. of Nassau, No. 21-CV-4601, 2025 WL 343465, at 7
(E.D.N.Y. Jan. 30, 2025) (“no reasonable jury could find that the one
hour and fifty minutes that elapsed between Plaintiff’s injury and his
transportation to the emergency room was a sufficiently serious
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 29 of 484

30
deprivation of medical care”). As a result, Davis’s argument does not
pass muster —even construed as a delay in medical treatment
argument.
But even if the District Court disagrees with this finding, it should
still find that Davis cannot prove the objective prong. Compiling all of
Davis’s injuries, the alleged assault left Davis with red eyes, a bruise on
the left side of his face, and his left ankle. (Davis SOMF, Dkt. 45, pg. 20,
at ¶¶80, 85). But bruises do not constitute a medical need that creates
an unreasonable risk of serious damage to an incarcerated person’s
health. See, e.g., Lewis v. Cavanugh, 685 F. App’x 12, 13-14 (2d Cir.
2017) (summary order) (affirming the district court’s grant of summary
judgment where the plaintiff admitted that he “was treated only for
bruising and minor abrasions); Josey v. Ramos, No. 9:21-CV-637 (AMN),
2024 WL 4333185, at 4 (N.D.N.Y. Sept. 27, 2024) (rejecting deliberate
indifference to medical needs claim because the plaintiff’s bruises,
scrapes, and laceration did not satisfy the objective requirement).
The District Court should grant Defendants summary judgment
on Davis’s deliberate-indifference-to-medical-needs claim.
At the summary judgment stage, a nonmoving party must offer some
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 30 of 484

31
hard evidence showing that its version of the events is not wholly
fanciful.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005).
But here, Davis’s version of event is wholly fanciful. As a result, the
Court recommends granting Defendants summary judgment as to
Davis’s deliberate indifference to medical needs claim.
C. The Court does not address Defendants Qualified
Immunity arguments.
Defendants argue that if the Court finds their actions
unconstitutional, qualified immunity shields them from liability. (Def.
Memo of Law, Dkt. 42-1, at pgs. 14, 29-30). Because the Court is
recommending that Defendant’s summary judgment motion be granted
on other grounds, it finds it unnecessary to reach Defendants qualified
immunity argument. Cisse v. Bishop, No. 22-CV-156 (TJM/MJK), 2025
WL 935237, at 21 (N.D.N.Y. Feb. 26, 2025) (cleaned up).
V. 	CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court GRANT Defendants
summary judgment (Dkt. 42) as to both of Davis’s excessive force
claims; and it is further
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 31 of 484

32
RECOMMENDED, that the District Court GRANT Defendants
summary judgment (Dkt. 42) as to both Davis’s failure to intervene
claims; and it is further
RECOMMENDED, that the District Court GRANT Defendants
summary judgment as to Davis’s deliberate indifference to medical
needs claims (Dkt. 42); and it is
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), the parties have fourteen
days within which to file written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court. FAILURE TO
OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: November , 2025 BBBBBBBBBBBBBBBBBBBBBBBBBBBBBB
+RQ0LWFKHOO-.DW]
860DJLVWUDWH-XGJH
Digitally signed by
Mitchell J Katz
Date: 2025.11.13
13:03:22 -05'00'
Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 32 of 484

Benitez ASS, Rar R¥-00218 BES MJK,.,/pocument 58 Filed 11/13/25 Page 33 of 484

2017 WL 9673721
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Henry BENITEZ, Plaintiff,
v.
James P. HEALY, et al., Defendants.

9:15-CV-1179 (GLS/ATB)
|
Signed June 6, 2017
|
Filed 06/07/2017

Attorneys and Law Firms
HENRY BENITEZ, Plaintiff, pro se.

RYAN W. HICKEY, Asst. Attorney General for Defendants.

REPORT-RECOMMENDATION
Hon. Andrew T. Baxter, U.S. Magistrate Judge

1 This matter has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, Senior United States
District Judge. In this civil rights complaint, plaintiff alleges that multiple correctional officers violated his Eighth Amendment
rights by using excessive force against him or failing to protect him during a “strip frisk” at Upstate Correctional Facility, as
part of a conspiracy to retaliate against plaintiff for filing grievances. (Complaint (“Compl.”) (Dkt. No. 1) ).

Presently before the court is defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. Nos. 46, 47,
49). Plaintiff has filed a response in opposition to the motion. (Dkt. No. 50). For the reasons set forth below, this court will
recommend granting the motion for summary judgment as to all claims against defendants Hyde, Maynard, Richter, St. Mary,
and Truax, as well as the claims of excessive force, conspiracy, and one of the retaliation claims against defendant Healy. This
court will further recommend that defendant Healy's motion for summary judgment with regard to plaintiff's other retaliation
claim be denied, because there are unresolved material issues of fact remaining as to the allegation that defendant Healy framed
plaintiff for marijuana possession in retaliation for filing a grievance.

I. Relevant Facts and Contentions

On the morning of October 5, 2012, defendant Healy, an Upstate Correctional Officer, reported to plaintiffs cell in order

to perform a cell search. (Dkt. No. 46-1, Def.'s Statement of Material Facts (“Def.'s Statement”) at § 2) ' Defendant Healy
performed a pat frisk of plaintiff as part of the routine cell search procedure. (/d. at 3). After completing the pat frisk, defendant
Healy advised the area supervisor, defendant Sergeant Maynard, that he had detected a suspicious lump in the waistband of
plaintiff's pants. (Dkt. No. 46-3, “Healy Decl.” at §§] 7-8). Defendant Maynard ordered defendant Healy to scan plaintiff in the

Body Orifice Scanning System (“BOSS”) chair~ , and to conduct a strip frisk of plaintiff. (Def.'s Statement at § 4).

Defendants Healy and Richter escorted plaintiff to the BOSS chair and the designated strip frisk area. (/d. at § 5). The BOSS
chair scan was negative. (/d. at 7). Defendant Healy then escorted plaintiff into the strip frisk room, which is monitored by

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 42 of 484

Benitez ASS, Rar R¥-00218 BES MJK,.,/pocument 58 Filed 11/13/25 Page 43 of 484

general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.”’) (citing
Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) ) (dismissing retaliation claim against a corrections officer when
only alleged basis for retaliation was complaint about an incident involving another corrections officer); Roseboro v.
Gillespie, 791 F. Supp. 2d 353, 369 (S.D.N.Y. 2011) (plaintiff has failed to provide any basis to believe that a corrections
counselor would retaliate for a grievance that she was not personally named in).

6 During the disciplinary hearing, the hearing officer asked “How long ago was that grievance? Can you recollect?”
Defendant Healy responded, “Eh, maybe a month or so.” (Hearing Transcript at 58). It is unclear if defendant Healy
is stating that the grievance was filed a month prior to the October 5, 2012 incident, or a month prior to the October
25, 2012 hearing.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 48 of 484

Cisse VGRSE 2:24; Cx 00218-BKS-MJK Document 58 ‘Filed 11/13/25 Page 49 of 484

Plaintiff argues that in retaliation for Plaintiff filing grievances against corrections officers, Rapini “authorized” Wilson and
Setlock to search Plaintiff's cell. ECF No. 14 at 5. After the search, Plaintiff alleges that Rapini retaliated against him again
by filing an “embellished” misbehavior report and by giving false testimony at the hearing that adjudicated the embellished
report. Jd. at 5—6.

“To sustain a claim for retaliation in violation of the First Amendment under § 1983, a prisoner must demonstrate (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.” Walker v. Senecal, 130 F.4th 291, 298 (2d Cir. 2025)
(internal quotation omitted). Here, Plaintiff claims that Rapini retaliated against him due to grievances he had previously filed.
ECF No. 14 at 5—6. Rapini does not dispute that the filing of grievances is protected speech and therefore, the first prong is
met. ECF No. 55-21 at 9. Nevertheless, Plaintiff's claim fails because even if the Court were to assume that the cell search and
allegedly embellished misbehavior report constitute adverse action, Plaintiff has proffered no evidence that there was a causal
connection between the protected speech and the adverse action.

To meet the third prong, the causal connection between the protected conduct and adverse action must support an inference
that the protected conduct was “a substantial or motivating factor for the adverse actions taken by prison officials.” Dorsey
v. Fisher, 468 F. App'x 25, 27 (2d Cir. 2012) (summary order) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)).
In this case, Rapini has testified that prior to the incident at issue, he had no knowledge of Plaintiff or that Plaintiff had filed
grievances. ECF No. 55-17 §] 6. He argues that because he had no knowledge of Plaintiff or the grievances, he could not have
retaliated against Plaintiff for filing such grievances. ECF No. 55-21 at 9. Plaintiff has provided no evidence that Rapini knew
of him prior to the incident or that Rapini was aware of the grievances. As such, there is no dispute that Rapini was unaware of
the grievances prior to the cell search and writing the misbehavior report and therefore, the grievances could not have been a
substantial or motivating factor for the cell search or report. Consequently, Plaintiff has failed to show that there was a causal
connection between the protected conduct and any adverse action, and the Court concludes that Rapini is entitled to summary
judgment on this claim.

III. Due Process Claim Against Mitchell

7 Plaintiff argues that Mitchell failed to conduct a fair and impartial hearing related to the incident at issue. ECF No. 14
at 6. Specifically, Plaintiff maintains that Mitchell was biased and failed to consider exculpatory evidence when making his
decision. /d. Plaintiff further alleges that Mitchell tampered with the tape of the hearing by recording over parts, which Plaintiff
argues impaired his rights on appeal and led to the commissioner affirming Mitchell's disposition. Jd. When this Court initially
screened Plaintiffs complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, it found that Plaintiff's due process claim
against Mitchell could proceed to service due to Plaintiff's allegation that Mitchell tampered with the hearing record, which
suggested that Mitchell was not an impartial officer. ECF No. 9 at 12.

Mitchell contends that he conducted a fair hearing and that he followed the policies and procedures as specified by DOCCS.
ECF No. 55-21 at 9-10. He also maintains that there is no evidence to support Plaintiff's allegations that he was biased. Jd. at
9. Plaintiff has provided no evidence that Mitchell was biased or that Mitchell tampered with the hearing tape, which was the
basis upon which this Court allowed the claim to proceed to service. Consequently, the Court concludes that Mitchell is entitled
to summary judgment on Plaintiff's due process claim.

IV. Conditions of Confinement Claim Against Carroll

Plaintiff argues that Carroll violated his Eighth Amendment rights when he failed to provide clean sheets to Plaintiff after
Plaintiff complained that his sheets were contaminated. ECF No. 14 at 5. Specifically, Plaintiff alleges that after he was pepper
sprayed on March 17, 2019, he was not allowed to properly decontaminate and therefore, his sheets were contaminated with
pepper spray. /d.at 4-5. Plaintiff maintains that he informed Superintendent Joseph Noeth about the issue and that Noeth
instructed Carroll to address the issue. /d. Plaintiff claims that Carroll told him that a corrections officer would come with new
sheets, but a corrections officer never came with new sheets. /d. at 5. Plaintiff further alleges that he spoke with Carroll a few

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 50 of 484

Cisse VGRSE 2:24; Cx 00218-BKS-MJK Document 58 ‘Filed 11/13/25 Page 51 of 484

VI. Remaining Claims

In addition to the claims discussed above, in its order screening Plaintiff's amended complaint under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A, this Court allowed the following claims to proceed to service: (1) the retaliation claim against Wilson and Setlock;
(2) due process claim against Rapini; and (3) the cell search claim against Rapini. ECF No. 15. While Defendants purport
to move for summary judgment on all of Plaintiffs claims, Defendants’ motion fails to provide any substantive arguments
as to why they are entitled to summary judgment on the retaliation claim against Wilson and Setlock, the due process claim
against Rapini, and the cell search claim against Rapini. Absent any substantive arguments, the Court cannot evaluate whether
Defendants are entitled to summary judgment on those claims. Consequently, to the extent Defendants’ motion seeks summary
judgment as to the retaliation claim against Wilson and Setlock, the due process claim against Rapini, and the cell search claim
against Rapini, it is denied.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (ECF No. 55) is GRANTED IN PART AND DENIED IN
PART. Plaintiff's excessive force claim against Wilson and Setlock, retaliation claim against Rapini, due process claim against
Mitchell, and conditions of confinement claim against Carroll are DISMISSED. The Clerk of Court is directed to dismiss
Assistant Commissioner Robert Mitchell and Sgt. Pungross Carroll, Jr., as Defendants in this action.

9 At this time, this case is in an unusual posture. Defendants have purported to move for summary judgment on all claims
but have failed to address three of Plaintiff's claims. Further, Plaintiff has failed to oppose or otherwise respond to Defendants’
motion. As such, the Court directs the parties to submit supplemental letters to the Court about the status of this action by
October 1, 2025. Defendants are directed to inform the Court whether they believe that they can plausibly move for summary
judgment on Plaintiff's remaining claims. Plaintiff is directed to inform the Court if he wishes to proceed with prosecuting this
action in light of this decision dismissing four of his claims. Plaintiff is warned that if he fails to submit a written response to
the Court by October 1, 2025, the Court may treat his noncompliance as a failure to prosecute and may dismiss this action
with prejudice pursuant to Rule 41(b). See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (“The district court [ ] has the
power under Fed.R.Civ.P. 41(b) to dismiss a complaint for failure to comply with a court order, treating the noncompliance
as a failure to prosecute.”).

IT IS SO ORDERED.

All Citations

Slip Copy, 2025 WL 2532815

Footnotes

1 The Court here informed Plaintiff of the deadline to file a response and that failure would result in the motion being
deemed unopposed and his complaint potentially being dismissed without trial. ECF No. 56. This order was mailed to
Plaintiff. Jd. The Court is thus satisfied that Plaintiff has received adequate notice of the consequences of non-opposition
to the motion for summary judgment. Jackson v. Jackson, No. 16-CV-08516, 2021 WL 981849, at 5 (S.D.N.Y. Mar. 16,
2021) (finding adequate notice where pro se plaintiff “was warned that failure to file an opposition would result in the
[c]ourt concluding that the motion was unopposed”’); Zaylor v. Consol. Rail Corp., 166 F. Supp. 2d 652, 654 (N.D.N.Y.
2001) (finding sufficient notice where the court “thoroughly explained both the procedures plaintiff should follow if he

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Cisse VGRSE 2:24; Cx 00218-BKS-MJK Document 58 ‘Filed 11/13/25 Page 52 of 484

wished to proceed pro se and oppose the summary judgment motion, and the consequences that would result if plaintiff
failed to timely submit opposition papers”).

2 While the video footage clearly depicts most of the incident, towards the end of video, when Plaintiff is on the ground,
the footage is not clear as to whether Plaintiff continues to defy direct orders to place his hands behind his back. Defs.
Ex. D 14:13—14:25. During this time, Wilson is seen striking Plaintiff in the upper part of his body. /d. 14:16. Because
the video footage is inconclusive as to whether Plaintiff was defying a direct order when Wilson struck him, the Court
turns to other evidence in the record. Wilson's Use of Force Report states that he struck Plaintiff in the shoulder because
he continued to resist officers’ orders to put his hands behind his back. ECF No. 55-6 at 4. Plaintiff has provided no
evidence to counter Wilson's statement as to his use of force. As such, there is no dispute of fact that Wilson struck
Plaintiff while Plaintiff was refusing to comply with a direct order.

3 While the video shows other officers striking Plaintiff with batons, neither Wilson nor Setlock used a baton to strike
Plaintiff. See Defs. Ex. D 13:02—15:16. Because the other officers are not parties to this action, the Court does not
consider their actions when determining whether Wilson and Setlock used excessive force.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 56 of 484



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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 57 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 58 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 60 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 61 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 62 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 63 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 64 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 65 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 66 of 484


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 67 of 484


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Case, 9:2 5Cui002Z18-BKS-MIK Document 58 ‘Filed 11/13/25 Page 72 of 484

Contreras V. ear py

2025 WL 2391606
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Victor CONTRERAS, Plaintiff,
v.
Derrick O'MEARA, et al., Defendant.

9:23-CV-1120 (MAD/MJK)
|
Signed May 8, 2025

Attorneys and Law Firms
VICTOR CONTRERAS, Plaintiff, pro se.

WILLIAM P. SCHMITT, ESQ., for Defendant.

REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge

1 TO THE HONORABLE MAE A. D'AGOSTINO, United States District Judge:
United States District Judge Mae D'Agostino referred this matter to the Court for Report and Recommendation under 28 U.S.C.
§ 636(b) and N.D.N.Y. Local Rule 72.3(c). In this pro se civil rights action, Plaintiff alleges that while he was incarcerated at
Oneida County Correctional Facility (“Oneida”) Defendant Ciulla: (1) used excessive force against him; (2) failed to intervene
when other officers used excessive force on him; and (3) attacked him for saying he wants to see a mental health provider.
Before this Court is Defendant's summary judgment motion. (Dkt 36). ' Plaintiff did not respond. (Dkt. 40). ? For the following
reasons, this Court recommends granting Defendant's motion in its entirety.

I. BACKGROUND

A. Facts

On August 18, 2023, Defendant Sergeant Brian Ciulla and Officer Tanner Nodine went to Plaintiff's cell to give him notice of
a disciplinary hearing. (Def. SOMF, Dkt. 36-2, at 2). At that time, Plaintiff began arguing with Defendant Ciulla and Officer
Nodine. (/d. at 2). As his hostility increased, Plaintiff said that he was feeling suicidal. (/d.). In response, Defendant ordered
Plaintiff to turn around and kneel on his bed so that he and Officer Nodine could place Plaintiff in mechanical restraints. (/d.).
Plaintiff ignored the order, assumed a fighting stance, and stepped toward the officers. (/d.). Defendant Ciulla then called a
“Code 1” and “deployed a one second burst” of pepper spray at Plaintiff. (7d. at 3). In the chaos, Plaintiff resisted the correction
officers, pushed past them, kicked Defendant Ciulla in his head, and ran out of his cell. Ud. at 3; Sgt. Ciulla Affidavit, Dkt.
36-4, at ¥ 3).

Once he was out of his cell, responding officers arrived and chased Plaintiff in the pod area. (Sgt. Ciulla Affidavit, Dkt. 36-4,
at § 3). Plaintiff ran on to the upper-level catwalk during the pursuit. (/d.). The responding officers were finally able to subdue
Plaintiff while on the catwalk. (/d). But to escape their grasps, Plaintiff tried to slide under the railing and jump down to the
lower level of the jail. (/d.). To prevent his escape, Defendant Ciulla ran down to the lower tier, and the responding officers
grabbed Plaintiff to make sure he did not fall. Ud.; Def. SOMF, Dkt. 36-2, at 4). Once he was secured, the responding officers
placed Plaintiff in a transportation chair and brought him to the medical facility for decontamination and assessment. (Def.

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 74 of 484

Case qrescws00Z 18 BKS-MIK Document 58 ‘Filed 11/13/25 Page 75 of 484

Contreras V. éara, py

circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.”
Id. at 643. First, “an administrative procedure is unavailable when (despite what regulations or guidance materials may
promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates.” /d. (citation omitted). Second, “an administrative scheme” is unavailable, when it is “so opaque that it becomes,
practically speaking, incapable of use.” /d. at 643-644. “When an administrative process is susceptible of multiple reasonable
interpretations” the incarcerated individual “should err on the side of exhaustion.” /d. at 644. “But when a remedy is ... essentially
‘unknowable’ —so that no ordinary prisoner can make sense of what it demands—then it is also unavailable.” /d. (citation
omitted). Third, an administrative procedure is unavailable when “prison administrators thwart” incarcerated persons “from
taking advantage of a grievance process through machination, misrepresentation, or intimidation.” /d.

2. Analysis
Oneida had an administrative process to resolve an incarcerated individual's grievances. According to Oneida's inmate
handbook, the prison has a complaint process. (Oneida Handbook, Dkt. 36-13, at 36). First, the incarcerated person must
“attempt to verbally resolve the complaint with the Housing Unit Officer that was present when the situation or problem
first occurred.” (Jd). Second, if the incarcerated person is “unable to resolve the problem verbally,” they should “request an
informal complaint form from” their “Housing Unit Officer.” (/d.). In that form, they should describe their complaint. (/d.).
The incarcerated person should then return the form to their Housing Unit Officer once it is complete. (/d.). The officer
will then “research” the complaint and attempt to resolve it. (/d.). If the Housing Unit Officer cannot resolve the issue, the

incarcerated person can have a grievance form issued to them. (/d.). 4 Once the incarcerated person has completed the grievance

form, they can submit it on their tablet (Kinderman Affidavit, Dkt. 36-5, at 5). ° Next, the incarcerated person “will receive
a written determination from the Grievance Officer within five days of receipt of the grievance” (/d.). If the incarcerated
person is unsatisfied, they may appeal the decision to the Facility Administrator within two business days” (/d.). “The Facility
Administrator will issue a decision” on the appeal “within five business days” (/d.). If the incarcerated person is still unsatisfied,
they may appeal the decision to the NY State Commission of Correction. (/d.). “This must be done within three business days
of the receipt of the Facility Administrator's determination.” (/d.).

Plaintiff failed to exhaust the available administrative remedies. Here, Plaintiff neither requested a grievance form nor is there
any indication in the record that he met with his Housing Unit Officer to file an informal complaint. (Def. SOMF, Dkt. 36-2, at
q 4). Likewise, Plaintiffs Tablet Use Log does not show that Plaintiff used his tablet to submit a grievance form. (Kinderman
Affidavit, Dkt. 36-5 at 5). In other words, Plaintiff did not try to access any available administrative remedies. Thus, Plaintiff
did not exhaust the available administrative remedies. Accordingly, he “may not” pursue his claims “in federal court.” Amador,
655 F.3d at 96.

KK

5 The Court therefore recommends granting Defendant summary judgment on his failure to exhaust affirmative defense.

C. Plaintiff cannot prove that Defendant Ciulla used excessive force on him.
Even if Plaintiff exhausted his administrative remedies, this Court nevertheless, recommends granting Defendant summary
judgment as to Plaintiffs excessive force claim. To prevail on his Eighth Amendment excessive force claim, Plaintiff must
prove that the Defendant Ciulla's conduct was objectively unreasonable and subjectively wanton. Here, Defendant's conduct
—pepper spraying the hostile Plaintiff who ignored Sgt. Ciulla's orders and assumed a fighting stance—was not a wanton act.
Thus, Plaintiff cannot prevail on his excessive force claim.

1. Legal Standard

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Case qrescws00Z 18 BKS-MIK Document 58‘ Filed 11/13/25 Page 79 of 484

Contreras V. éara, py

from. It only says: “A grievance Form with a Grievance Control Number will be issued to you.” (/d.). But the Court can
infer that the tablet given to incarcerated persons have grievance forms available.

5 The Court that Plaintiff had access to a tablet because the incarcerated persons are assigned at tablet when they are
booked. (Oneida Inmate Handbook, Dkt. 36-13, at 29). More to the point, Defendant provided the Court with Plaintiff's

Table Use Log. (Dkt. 36-13).

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Horace F 2S Bbe: S05 FUSS IS BK Ss MIK Document 58 ‘Filed 11/13/25 Page 80 of 484

802 Fed.Appx. 11
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.

John L. HORACE, Plaintiff-Appellant,
Vv.
Kevin GIBBS, Field Parole Officer; Dawn Anderson, Senior Parole Officer, Defendants-Appellees,
Monalto, Parole Polygrapher, New York State Division of Parole, City of Rochester, Defendants.

19-59-pr
|
February 06, 2020.

Synopsis

Background: Arrestee brought § 1983 action against two parole officers alleging that they were deliberately indifferent to
his serious medical needs and used excessive force when they handcuffed him too tightly while arresting him for a parole
violation. The United States District Court for the Western District of New York, William M. Skretny, Senior District Judge,
2017 WL 4344435, granted officers' motion to dismiss the deliberate indifference claim. After discovery, the District Court
adopted report and recommendation of United States District Court for the Western District of New York, Hugh B. Scott, United
States Magistrate Judge, 2018 WL 4901040, and granted officers' motion for summary judgment on excessive force claim.
Arrestee appealed.

Holdings: The Court of Appeals held that:
[1] arrestee failed to allege sufficiently serious circumstances as required to state claim for deliberate indifference;
[2] arrestee failed to allege that his serious medical needs were not met, as required to state claim for deliberate indifference;

[3] genuine issue of material fact as to whether arrestee posed a safety threat necessitating tight handcuffing precluded summary
judgment; and

[4] genuine issue of material fact as to whether arrestee complained that handcuffs were too tight precluded summary judgment.

Affirmed in part, vacated in part, and remanded.

Procedural Posture(s): On Appeal; Motion to Dismiss for Failure to State a Claim; Motion for Summary Judgment.

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Horace F 2S Bbe: S05 FUSS IS BK Ss MIK Document 58 Filed 11/13/25 Page 81 of 484

West Headnotes (4)

[1]

[2]

[3]

[4]

Constitutional Law @ Conduct

Constitutional Law @ Medical treatment

Prisons @ Health and Medical Care

Search, Seizure, and Arrest ¢ Medical needs
Sentencing and Punishment @ Physical restraints

Arrestee failed to allege sufficiently serious circumstances to state a claim that two parole officers were deliberately
indifferent to arrestee's serious medical needs, under either Eighth or Fourteenth Amendment, when they handcuffed
him too tightly while arresting him for a parole violation; arrestee alleged that officers were deliberately indifferent
to arrestee's low blood sugar and/or high blood pressure, swelling and cuts arrestee experienced due to tightness of
handcuffs, and back and knee pain arrestee experienced from sitting in an uncomfortable position in parole car. U.S.
Const. Amends. 8, 14; 42 U.S.C.A. § 1983.

44 Cases that cite this headnote

Constitutional Law @ Medical treatment
Prisons @ Health and Medical Care
Sentencing and Punishment @ Medical care and treatment

Arrestee failed to allege that his serious medical needs were not met as required to state a claim under either Eighth
or Fourteenth Amendment that parole officers who arrested him were deliberately indifferent to those needs; arrestee
admitted that he was examined and treated for injuries, pain, aches, diabetes, and pain in his back and knees after his
arrest and that he was given insulin for his low blood sugar and kept in nurse's office under observation. U.S. Const.
Amends. 8, 14; 42 U.S.C.A. § 1983.

49 Cases that cite this headnote

Civil Rights @= Criminal law enforcement; prisons
Summary Judgment # Law enforcement activities

Genuine issue of material fact as to whether arrestee posed a safety threat, immediate or otherwise, to parole officers
such that tight handcuffing was necessary when officers arrested him for a parole violation precluded summary
judgment in arrestee's excessive force claim against officers.

4 Cases that cite this headnote

Civil Rights @= Criminal law enforcement; prisons
Summary Judgment # Law enforcement activities

Genuine issue of material fact as to whether arrestee complained to parole officers who handcuffed him while arresting
him for a parole violation that handcuffs were too tight precluded summary judgment in arrestee's excessive force
action against officers.

4 Cases that cite this headnote

WESTLAW


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Horace F 2S Bbe: S05 FUSS IS BK Ss MIK Document 58 Filed 11/13/25 Page 83 of 484

to this claim, however, because Horace has failed to state a claim under the standard imposed by either Eighth or Fourteenth
Amendments.

This standard requires that plaintiffs satisfy what are commonly referred to as the “objective and subjective prongs.” For both
the Eighth and Fourteenth Amendments, the objective prong poses the same standard. Darnell, 849 F.3d at 32. Under the
objective prong, the plaintiff must show that the alleged deprivation of medical care was “sufficiently serious.” Salahuddin v.
Goord, 467 F.3d 263, 279 (2d Cir. 2006) (internal quotation marks omitted). “There is no ‘static test’ to determine whether a
deprivation is sufficiently serious; instead, the conditions themselves must be evaluated in light of contemporary standards of
decency.” Darnell, 849 F.3d at 30. Relevant factors include “whether a reasonable doctor or patient would find [it] important
and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic
and substantial pain.” Salahuddin, 467 F.3d at 280 (internal quotation marks and citations omitted).

The Eighth and Fourteenth Amendments, however, embrace different definitions of the “subjective” or “mens rea prong.”
Darnell, 849 F.3d at 35. The mens rea prong under the Eighth Amendment requires that the defendant official acted or failed
to act “while actually aware of a substantial risk that serious inmate harm will result.” Salahuddin, 467 F.3d at 280. Under
the Fourteenth Amendment, an official does not act in a deliberately indifferent manner toward an arrestee unless the official
“acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that
the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition
posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35 (emphasis added).

[1] Horace alleged that Gibbs and Anderson were deliberately indifferent to: (1) his low blood sugar and/or high blood pressure;
(2) the swelling and cuts he experienced due to the tightness of the handcuffs; and (3) the back and knee pain he experienced
from sitting in an uncomfortable position in the parole car. We agree with the District Court's conclusion that these conditions
are not sufficiently serious to meet the objective prong. See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (condition
must be a “condition of urgency, one that may produce death, degeneration, or extreme pain’).

[2] Even ifthe conditions were sufficiently serious, we also agree with the District Court that Horace failed to allege that prison
officials were deliberately indifferent to his medical needs, as that prong is defined under either Amendment. To the contrary,
Horace admits that Defendants attended to his alleged medical conditions. Horace alleged that he was “examined and treated”
for “injuries, pain, aches, diabetes” and “pain in his back and knees,” Record on Appeal (“ROA”) doc. 1 at 3, and further
alleged that shortly after he was arrested he was “given insulin for his low blood sugar and kept in the Nurses’ Office under
observation.” /d. at 6. Accordingly, the District Court did not err in dismissing the deliberate indifference claim. See *15 Hill
v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011) (plaintiff's wrist was broken due to the misuse of handcuffs, but his deliberate
indifference claim failed because he received a cast, and there was “no indication ... that any medical provider recommended
treatment different from the treatment that [Plaintiff] was afforded’’).

II.

We disagree, however, with the District Court's resolution of the excessive force claim. In recommending that the District
Court grant Defendants’ motion for summary judgment, the magistrate judge identified a three-part test that was then widely
used among the district courts, under which courts would consider whether the handcuffs were unreasonably tight; whether the

defendants ignored the plaintiff's pleas that the handcuffs were too tight; and the degree of injury to the wrists. ' The magistrate
judge then recommended granting summary judgment for the defendants because there was “a consensus” among district courts
“that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort and
bruising,” ROA doc. 89 at 6-7, and Horace was “unable to establish any triable issue of fact regarding injuries stemming from
the handcuffing[.]” /d. at 9. In other words, the magistrate judge relied on one factor—the absence of injury— and did not
discuss the other factors, i.e., whether the handcuffs were unreasonably tight under the circumstances and whether the defendants

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Horace F 2S Bbe: S05 FUSS IS BK Ss MIK Document 58 ‘Filed 11/13/25 Page 84 of 484

ignored the plaintiff's complaints. The District Court then accepted the report and recommendation in its entirety, “including
the authorities cited and the reasons given therein.”” ROA doc. 95 (Text Order).

After judgment was entered and while this appeal was pending, this Court decided Cugini v. City of New York, 941 F.3d 604
(2d Cir. 2019). In that case, we discussed the very three-factor test that the magistrate judge employed here, and explained that,
although the factors may “prove useful to a district court in assessing the soundness of a handcuff-based excessive force claim,”
no one factor is dispositive, and the test is ultimately one of reasonableness that “is not limited to a factual checklist.” /d. at
613. Rather, courts must be guided by “a careful balance between the nature and quality of the intrusion and the countervailing
government interests at stake under the circumstances.” /d. (internal quotation marks and citation omitted). We continued:

The question is ... whether an officer reasonably should have known during handcuffing that his use of
force was excessive. A plaintiff satisfies this requirement if either the unreasonableness of the force used
was apparent under the circumstances, or the plaintiff signaled her distress, verbally or otherwise, such
that a reasonable officer would have been aware of her pain, or both.

Id. (emphasis added).

[3] Here, the District Court, having adopted completely the magistrate's recommendation, erred by treating one factor—the
absence of serious injury—as dispositive, without considering other factors 16 such as the reasonableness of tight handcuffs
under the circumstances, and whether the defendants ignored the plaintiff's complaints. And on those factors, there was room
for dispute. Horace was a parolee, and his underlying crimes—trape and sexual assault—were serious. The arrest that gave rise
to the current dispute, however, was for violating his parole by driving a car, having sex with women other than his wife, and
using an herbal supplement for “male enhancement,” which he was prohibited from using. There was room for doubt as to
whether Horace posed a safety threat, immediate or otherwise, to the parole officers such that tight handcuffing was necessary,
and although there was evidence that Horace once attempted to flee the country while out on bail on pending charges, there
was no indication that during the arrest giving rise to this claim he resisted arrest or attempted to evade arrest by flight. On the
contrary, there was record evidence that Horace cooperated and was compliant. See Cugini, 941 F.3d at 609 (explaining that
courts should examine “the severity of the crime” and “whether the suspect poses a safety or flight risk or resists arrest”? when
determining whether force is excessive).

[4] There was also a significant dispute of fact as to whether Horace complained that the handcuffs were too tight. The
Defendants submitted declarations averring that Horace never complained. But Horace testified as his deposition that he
repeatedly complained to the defendants that the handcuffs were too tight and that Defendants refused to loosen them despite
his request.

CONCLUSION

We have considered all of Horace's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the
District Court's dismissal of Horace's deliberate indifference claim, VACATE the District Court's dismissal of the excessive
force claim, and REMAND the cause to the District Court for consideration of the other factors identified in Cugini. Remand
will also provide the District Court an opportunity to determine whether the Defendants are entitled to qualified immunity. See
generally Mullenix v. Luna, —— U.S. ——, 136 S. Ct. 305, 193 L.Ed.2d 255 (2015) (discussing qualified immunity in relation
to an excessive force claim under the Fourth Amendment).

In addition, Horace's motion for “money damages” is DENIED. Each party shall bear their own costs.

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Horace F 2S Bbe: S05 FUSS IS BK Ss MIK Document 58 Filed 11/13/25 Page 85 of 484

All Citations

802 Fed.Appx. 11

Footnotes

 Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by
designation.

1 In Graham vy. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court held that “a//
claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment[.]” Soares v. State of Conn.,
8 F.3d 917, 921 (2d Cir. 1993) (citing Graham). Because Horace raised an excessive force claim against the parole
officers who arrested him while he was a “free citizen,” the District Court correctly analyzed his claim as arising under
the Fourth rather than the Eighth Amendment.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Josey Gase.9:R4:Gy.00218-BKSoMIk oo. document 58 Filed 11/13/25 Page 86 of 484

2024 WL 4333185
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Derek JOSEY, Plaintiff,
Vv.
Edwin RAMOS, et al., Defendants.

No. 9:21-cv-637 (AMN)
|
Signed September 27, 2024

Attorneys and Law Firms

AARON M. GOLDSMITH, ESQ., LAW OFFICE OF AARON M. GOLDSMITH, PC, 225 Broadway — Suite 715, New York,
New York 10007, Attorneys for Plaintiff.

MARK J. DOLAN, ESQ., NYS OFFICE OF THE ATTORNEY GENERAL, The Capitol, Albany, New York 12224, Attorneys
for Defendant.

MEMORANDUM-DECISION AND ORDER
Anne M. Nardacci, United States District Judge

I. INTRODUCTION
*1 On June 2, 2021, Plaintiff Derek Josey (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983 (“Section 1983”),
asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community

Supervision at Clinton Correctional Facility. Dkt. No. 1. ' As relevant to the present motion, Plaintiff alleges that Defendant
Andrew Burgess (“Defendant Burgess”) violated Plaintiffs Eighth Amendment rights on June 6, 2018 through deliberate
indifference to Plaintiff's medical needs. /d. at 6.

Presently before the Court is Defendant Burgess's motion for summary judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure (“Rule 56”), seeking dismissal of Plaintiff's claim against him. Dkt. No. 55 (the “Motion’”). > Plaintiff opposes
the Motion, Dkt. No. 58, and Defendant Burgess filed a Reply in support of the Motion, Dkt. No. 61. For the reasons set forth
below, the Court grants the Motion.

Il. BACKGROUND
Unless otherwise indicated, the following facts have been asserted by the parties in their statements of material facts with
accurate record citations, and expressly admitted or not denied with a supporting record citation in response.

This case concerns injuries Plaintiff suffered on June 6, 2018, while he was incarcerated at Clinton Correctional Facility in
Dannemora, New York. Dkt. No. 55-12 at ¥ 1; Dkt. No. 58-1 at 1. On that date, Plaintiff was involved in a fight with another
inmate. /d. After being given orders to stop fighting, Plaintiff and the other inmate both complied. Dkt. No. 55-12 at 4 4; Dkt.
No. 58-1 at § 4. Both were then placed in mechanical restraints and escorted to the facility hospital. Dkt. No. 55-12 at 5;
Dkt. No. 58-1 at 95.

WESTLAW



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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 89 of 484

Josey Gase.9:R4:Gy.00218-BKSoMIk oo. document 58 Filed 11/13/25 Page 90 of 484

5 Finally, Plaintiff alleges he experienced back pain resulting from the altercation, and therefore, Defendant Burgess's conduct
led to serious injury. Dkt. No. 58-2 at 6 (citing Dkt. No. 55-2 at 103). Plaintiff does not present evidence of the severity of the
issue, or how the back injury arose from the incident in question or Defendant Burgess's alleged threat, outside of his deposition
testimony. Regardless, discomfort or even chronic pain such as Plaintiff's does not implicate the Eighth Amendment. See, e.g.,
Hughes v. Butt, No. 17 cv 1151, 2019 WL 6970794, at 14 (N.D.N.Y. Sept. 17, 2019) (finding that where plaintiff claims a
prescription for a cane and a back brace was ignored, “the pain associated with [plaintiff's] lower back complaints is not the
sort of ‘extreme pain’ that renders a medical need sufficiently serious”) (collecting cases showing that discomfort and chronic

pain, without more, does not amount to a serious medical need for Eighth Amendment purposes). 3

At the core of his arguments, Plaintiff relies entirely on his own testimony to suggest the existence of medical needs sufficiently
serious to satisfy the objective prong and their connection to Defendant Burgess's conduct. Even if the identified medical needs
sufficed (they do not), “[a]t the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his]
version of the events is not wholly fanciful.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (citation omitted).
Plaintiff has therefore failed to produce evidence sufficient to satisfy the objective component of an Eighth Amendment claim
and the Court grants the motion on that basis.

ii. Subjective Component

Even if Plaintiff could satisfy the objective component, he would still need to demonstrate that Defendant “kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety[.]” Chance, 143 F.3d at 702 (quoting Farmer, 511 U.S. at 837).
Defendant Burgess contends that he cannot be liable because nothing indicated that Plaintiff was in extreme pain at the time
of their interaction. Dkt. No. 55-13 at 12. In any case, Defendant Burgess argues that since Plaintiff received medical care
within ten minutes of the incident, Defendant Burgess cannot be said to have acted with deliberate indifference. /d. In response,
Plaintiff argues that Defendant was present at the medical facility when Plaintiff showed up with injuries from the altercation,
and that he threatened Plaintiff with serious bodily harm if he sought medical care for those injuries. Dkt. No. 58-2 at 7. Plaintiff
claims that these threats caused him to stay silent, which in turn exposed him to serious medical harm. /d.

The Court finds that there is no issue of material fact regarding Defendant Burgess's alleged deliberate indifference, and that
Defendant Burgess was not deliberately indifferent as a matter of law. “Courts in this Circuit have frequently observed that to
establish a claim of deliberate indifference against non-medical personnel, ‘a plaintiff must prove that [the] nonmedical prison
personnel intentionally delayed access to medical care when the inmate was in extreme pain and has made his medical problems
known to prison personnel or that the inmate suffered a complete denial of medical treatment.’ ” Bright v. Annucci, No. 18-
ev-11111, 2021 WL 4461682, at 11 (S.D.N.Y. Sept. 28, 2021) (collecting cases). Neither situation applies here.

First, Defendant Burgess was not aware of any medical need capable of triggering his liability. Reading Plaintiff's allegations and
testimony favorably, a jury could certainly conclude that Defendant Burgess threatened Plaintiff not to complain about injuries
before he received medical care. However, the undisputed evidence also demonstrates that Plaintiff received care for all of the
injuries of which Burgess could conceivably have been aware at the time in question. Dkt. No. 55-12 at §§] 3-7; Dkt. No. 58-1 at
q§| 3-7. Nothing before this Court indicates that Plaintiff informed Burgess that he was in extreme pain or that he was suffering
from any other injuries beyond those which were obvious as a result of the altercation, including his alleged chest pains, eye
injuries, and back injuries. He may have appeared to be in pain, but the physical examination did not show severe bleeding,
broken bones, unconsciousness, or other life-threatening condition. Thus, even assuming his medical need was sufficiently

serious, Plaintiff cannot show he “made his [allegedly extreme] medical problems known.” Bright, 2021 WL 4461682, at 11. 4

6 Second, Plaintiff received medical care for all of the injuries that facility hospital staff noted upon examination and later
received surgery for his eyes. Whatever threats Burgess made, they did not prevent Plaintiff from receiving care.

As such, summary judgment is appropriate on the subjective prong, as well.

WESTLAW

Josey Gase.9:R4:Gy.00218-BKSoMIk oo. document 58 Filed 11/13/25 Page 91 of 484

The Court will therefore grant Defendant Burgess's motion. °

V. CONCLUSION
Accordingly, the Court hereby

ORDERS that Defendant Burgess's motion for summary judgment, Dkt. No. 55, is GRANTED; and the Court further

ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local
Rules.

IT IS SO ORDERED.

All Citations

Not Reported in Fed. Supp., 2024 WL 4333185

Footnotes

1 Citations to court documents utilize the pagination generated by CM/ECF, the Court's electronic filing system.
2 This case was reassigned to the undersigned on September 25, 2024. Dkt. No. 62.

3 Plaintiff is further undermined by his own deposition testimony, which acknowledged that he suffered back problems
before the altercation in question. Dkt. No. 55-2 at 105-107.

4 Courts in this circuit have also found that where a plaintiff fails to provide any evidence substantiating a causal
connection between a defendant's conduct and the alleged medical need, the plaintiffs claims must fail under the
subjective prong. See Davidson v. Desai, 817 F. Supp. 2d 166, 183 (W.D.N.Y. 2011). Here, Plaintiff provides no such
evidence.

5 Defendant Burgess also asserted qualified immunity. As the Court has found no violation of Plaintiff's constitutional
rights, the Court declines to address that issue.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW

Kalwasin®. Aitue, NoLMepaner hi Pel Sopp. DAgpment 58 Filed 11/13/25 Page 92 of 484

Pa KeyCite Yellow Flag
Distinguished by Fabrizio v. Smith, N.D.N.Y., March 10, 2021

2003 WL 22973420
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.

Mitchell KALWASINSKI, Plaintiff,
v.
E. ARTUZ, C. Cardarelli, S. Petrie, D. Lawrence, C. Centanni, S. Ranze, and B. Corey Defendants.

No. 02 CV 2582(LBS)
|
Dec. 18, 2003.

Synopsis

Background: State prisoner filed § 1983 claims against prison officials, alleging excessive use of force arising from three
different incidents. Defendants moved for summary judgment as to claims based on first two incidents and prisoner moved for
summary judgment as to claim based on third incident.

Holdings: The District Court, Sand, J., held that:

[1] prison guards did not act maliciously, as required for Eighth Amendment claim alleging excessive use of force, when they
used force against prisoner who refused order to move up in line and attacked guard;

[2] prison official did not act maliciously, as required for excessive use of force claim, when he pressed prisoner's face against
wall while conducting pat down frisk;

[3] supervisor was not grossly negligent in managing subordinates who conducted pat down search;

[4] material questions of fact regarding whether prison official punched prisoner in ribs during pat down search precluded
summary judgement for official on excessive use of force claim;

[5] prison official was not shielded by qualified immunity against excessive use of force claim arising from pat down search;
[6] officials did not deliberately and maliciously interfere with prisoner's access to courts;
[7] writ of Habeas Corpus Ad Testificandum did not create separate cause of action with respect to alleged use of force; and

[8] material questions of fact as to whether prisoner's past litigation was substantial factor underlying alleged assault by prison
officials precluded summary judgment for prisoner on § 1983 conspiracy claim.

Defendants' motion granted in part and denied in part, and plaintiff's motion denied.

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Kalwasin®. Aitue, Noi nepaner hi Pel Sopp. BAgpment 58 Filed 11/13/25 Page 93 of 484

West Headnotes (8)

[1]

[2]

[3]

[4]

[5]

Prisons ®@ Use of force
Sentencing and Punishment @ Use of force

Prison guards did not act maliciously, as required for Eighth Amendment claim of excessive force, when they allegedly
threw state prisoner, who refused direct order to move up in line and attacked guard, into another room head first;
prisoner's injuries, including bump to head and scratches, bruises and abrasions, were very minor, there existed need
for application of force, given that when guard attempted to move him out of line, prisoner attacked him in room
with about forty other prisoners, amount of force actually used was commensurate with need for force, threat was
reasonably perceived by guard whose arm had been trapped and who had been pinned to floor by prisoner, and force
was only used to extent necessary to remove threat to prison guards and prison discipline. U.S.C.A. Const.Amend.
8; 42 U.S.C.A. § 1983.

9 Cases that cite this headnote

Prisons @ Particular issues and applications
Sentencing and Punishment @ Use of force

Prison official did not act maliciously, as required for excessive use of force claim under Eighth Amendment, when
he allegedly pressed state prisoner's face into wall, to attempt to secure compliance of prisoner, who was arguing with
him about manner in which he was conducting pat frisk; amount of force used was not significantly disproportional
to need to conduct search, rather it was consistent with good faith attempt to maintain prison discipline and order.
U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

15 Cases that cite this headnote

Civil Rights ¢= Criminal law enforcement; prisons

Prison supervisor was not grossly negligent in managing prison officials who conducted pat down search of prisoner,
for purpose of liability on excessive force claim under § 1983; following prisoner's complaints, supervisor twice
replaced officials conducting pat down search, and he filed use of force report and took prisoner to hospital for
immediate evaluation after prisoner claimed he had been assaulted. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

Civil Rights @ Criminal law enforcement; prisons
Summary Judgment ¢ Prisons and jails

Material questions of fact regarding whether prison official punched state prisoner four to seven times in ribs during
pat down frisk and whether use of force furthered no appropriate penological interest, precluded summary judgment
for prison official on prisoner's claim of excessive use of force in violation of Eighth Amendment, notwithstanding
fact that prisoner's resulting injuries were not serious. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

11 Cases that cite this headnote

Civil Rights @ Prisons, jails, and their officers; parole and probation officers

Prison official was not shielded by qualified immunity against excessive force claim by state prisoner, arising from
incident in which official allegedly punched prisoner in ribs during pat down search; reasonable official would have
believed that punching prisoner in ribs violated prisoner's rights. U.S.C.A. Const.Amend. 8; 42 U.S.C.A. § 1983.

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caivas OSS, RRA: WAQQPIBEKEAN,.. Bagment 58 Filed 11/13/25 Page 94 of 484

[6] Constitutional Law @ Prisoners and pretrial detainees
Prisons @ Presence or appearance

State prisoner's allegations, that his beating by prison officials violated writ of Habeas Corpus Ad Testificandum to
produce prisoner in state court for trial, failed to state claim that officials denied his right to access courts, since case
had settled and accordingly, prisoner suffered no prejudice to his legal claim by officials’ alleged actions. 42 U.S.C.A.
§ 1983.

[7] Civil Rights @= Criminal law enforcement; prisons
Witnesses @ Habeas corpus ad testificandum

Writ of Habeas Corpus Ad Testificandum, in which prisoner's presence in state court was ordered under safe and
secure conditions, did not create cause of action separate from prisoner's Eighth Amendment claim for excessive use
of force allegedly used by prison officials five days prior to date he was ordered to be produced for trial. U.S.C.A.
Const.Amend. 8; 42 U.S.C.A. § 1983.

1 Case that cites this headnote

[8] Conspiracy @ Particular Subjects of Conspiracy
Summary Judgment @ Conspiracy and racketeering

Material questions of fact as to whether prisoner's past litigation was substantial factor underlying alleged assault by
prison officials precluded summary judgment for prisoner on § 1983 claim of conspiracy in retaliation for exercising
constitutional right. 42 U.S.C.A. § 1983.

MEMORANDUM AND ORDER
SAND, J.

1 Plaintiff, a State prisoner, has filed § 1983 claims for alleged violations of his constitutional rights arising from three
different incidents. Defendants have moved for summary judgment for all parties accused in the first two incidents. As to the
third incident, Defendants have acknowledged that disputed issues of material fact remain, and thus have not moved to dismiss
those claims. The Plaintiff, on the other hand, maintains that disputed issues of material fact remain for the first two incidents,
but do not exist as to the third. Accordingly, he contests the Defendants' motion for summary judgment as to claims resulting
from the first two incidents, and cross-moves for summary judgment on the claims arising from the third.

For the reasons outlined below, the Defendants' motion for summary judgment is granted with respect to Defendants Artuz,
Cardarelli, and Lawrence, and denied with respect to Defendant Petrie. The Plaintiff's motion for summary judgment as to
Defendants Centanni, Ranze, and Corey is denied.

I. Background
In his amended complaint, dated February 24, 2003, Plaintiff alleges three instances of excessive use of force. The first occurred
on or about June 2, 2000, the second on or about November 28, 2001, and the third on or about December 6, 2001. Defendants

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Kalwasin®. Aitue, NoLnepaner Pel Sopp. DAgpment 58 Filed 11/13/25 Page 97 of 484

(1) the extent of the plaintiff's injuries;

(2) the need for the application of force;

(3) the correlation between that need and the amount of force used;

(4) the threat reasonably perceived by the defendant; and

(5) any efforts made by defendants to temper the severity of the response.

“If an evaluation of these factors leads the jury to conclude that the defendants acted maliciously, wantonness has been
established....If, on the other hand, reflection upon these factors leads the jury to find that the defendants acted in a good-faith
effort to maintain and restore discipline, no constitutional violation has occurred because the subjective component of the claim
has not been satisfied.” Jd.

[1] First, the Plaintiff's injuries were very minor. In the Plaintiff's amended complaint, he lists the following injuries: “a) Bump
to head with swelling and headaches; b) Scratches, bruises and abrasions to Plaintiff's wrists, ankles, head, back, and shoulders.”
Plaintiff's Amended Complaint, February 24, 2003, { 12. The Plaintiff was examined by Nurse M. Taylor soon after the incident.
The report lists the following injuries:

1. Red areas noted on right chest

2. Scrape the size of a quarter on right shoulder

3. Right wrist open area

4. Scrape on right ankle area

5. The Plaintiff complained of pain in his right ankle, the left side of his head, and pain in both his left and right shoulders.

The Plaintiff's injuries, as reported by both parties, are at most minor and superficial. But because any injury, no matter how de
minimis, can constitute a violation of the Eighth Amendment, the lack of any serious injury here is relevant but not dispositive.
Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). See also Romaine v. Rawson, 140 F.Supp.2d
204 (N.D.N.Y.2001) (holding that even de minimis use of force i.e. three closed-fisted strikes to the head, violates the Eighth
Amendment where all parties admit that force was not necessary).

Second, there existed a need for the application of force. The Defendant told the Plaintiff to move up in line. The Plaintiff
refused. When the Defendant attempted to move him out of the line, the Plaintiff “trapped [Artuz's] hand underneath [his] left
elbow against [his] rib cage and ... drove the lieutenant into the ground and pinned him there.” Plaintiff's Deposition, p. 16. The
Plaintiff, by his own admission, attacked a prison guard. Moreover, he did so in a room with about forty other prisoners (based on
Plaintiff's own estimate—see Plaintiff's Inmate Grievance Complaint, Plaintiff's Amended Complaint Exhibit # 1). While all the
inmates were in restraints, open melee between a guard and a prisoner represents a serious threat to prison order and discipline.
Under such circumstances, a jury could not reasonably conclude that Defendant Artuz at that time lacked a good faith belief that
the application of force was necessary to restore order. This is especially true in light of the principle that prison 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.” Whitley, 475 U.S. at 321-22.

5 Third, the amount of force actually used was commensurate with the need for force. The nature and extent of the injuries

suffered by the Plaintiff were minor. The threat to both Defendant Artuz and prison security was real. Under the circumstances,
the need to secure prison order warranted the minimal amount of force used.

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Kalwasin®. Aitue, NoLnepaner NT Pel Sopp. BAgpment 58 Filed 11/13/25 Page 98 of 484

Fourth, the threat was reasonably perceived by Defendant Artuz. The Plaintiff has admitted to trapping the Defendant's arm
and attempting to pin him on the floor. The immediate threat to Defendant Artuz could not have been more obvious, and the
threat to general prison security hardly less so.

Fifth, efforts were made by the defendants to temper the severity of the forceful response. Force was used only to separate the
Plaintiff from Defendant Artuz and to remove him from the presence of the other prisoners. Force was only used to the extent
necessary to remove the threat to prison guards and prison discipline. Once he eliminated that threat, Defendant Artuz ended
the use of force against the Plaintiff, even as the Plaintiff spat provocatively at him. Indeed, the Plaintiff concedes Defendant
Artuz “has been rather kind to me since then.” Deposition, p. 30.

The Plaintiff has failed to raise any disputed issues of material fact. While he argues that he did not disobey an order, he
acknowledges behavior that amounts to just that. He fought with a Defendant Artuz after refusing to move up in line. Even if the
initial request were unreasonable, it would not excuse noncompliance. As a result, he sustained injuries that may be described,
at most, as minor. Finally, the amount and type of force used corresponds to that necessary to remove a threat to both Defendant
Artuz's person and prison security. The motion for summary judgment dismissing Plaintiff's claim of Defendant Artuz is granted

B. The November 28, 2001 Incident

1. Plaintiff's Account

The second incident occurred during a pat frisk on November 28, 2001. According to his deposition, the Plaintiff stood facing
a wall along with approximately ten other inmates. Plaintiff states that his face was very close to the wall. While standing there,
Officer Lawrence began pushing him up against the wall. He protested, turned his head to the right, and was pushed such that the
left side of his face struck the wall. He objected loudly enough that Sergeant Cardarelli entered the room, and ordered Officer
Petrie to relieve Officer Lawrence.

According to the Plaintiff, Defendant Petrie again ordered Plaintiff to face the wall. Plaintiff rested his forehead against the wall,
and Defendant Petrie started leaning into him. When the Plaintiff objected, he alleges that Defendant Petrie began punching him
in the ribs, approximately four to seven times. Plaintiff began yelling, again summoning Defendant Cardarelli into the room.
After asking what the commotion was about, all the guards left the room, leaving the Plaintiff alone. Eventually, Cardarelli and
another officer went into the room and conducted the pat frisk. The Plaintiff asserts that Defendant Cardarelli had his night stick
out and threatened the Plaintiff while the other officer completed the frisk.

6 Nurse Dubrea entered to talk with the Plaintiff, allegedly because Defendant Cardarelli had informed her that the Plaintiff
had been striking his own head against the wall. The Plaintiff told the nurse that he had just been assaulted. The Plaintiff was
then escorted to the hospital. The nursing staff filled out use of force and unusual incident reports, and took photographs of
the Plaintiff.

The Plaintiff sustained the following injuries from the alleged assault: injured ribs, sore forehead and left cheek; bruising, and
pain. No treatment was given. The Plaintiff maintains that the incident was reported to the Office of Mental Hygiene in attempt
to cover up the assault as a psychiatric problem. Nurse Dubrea noted that there was no redness around the Plaintiff's ribs, where
he asserts Defendant Petrie struck him. The Plaintiff attributes this to the fact that he was wearing several layers of clothes and
Defendant Petrie wore gloves. Plaintiff believes the nursing staff of the hospital noted red marks on his face. As a result of this
incident, Plaintiff received two Tier II misbehavior reports for failing to follow staff instructions. These reports were ultimately
dismissed. The Plaintiff filed a grievance report, which was denied.

Additionally, Plaintiff's asserts in § 19 of his complaint that the officers violated a writ of habeas corpus on December 2, 2001.

He claims his rights were violated because he was not produced as ordered by Judge Kahn's order. The case in which he was
to appear settled.

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Kalwasin®. Aitue, Noi nepaner Pel Sopp. DAgpment 58 Filed 11/13/25 Page 99 of 484

2. Eighth Amendment Liability Under Section 1983

According to the version of facts stated by the Plaintiff, the excessive force upon which his § 1983 claim rests consisted of
being pushed into the wall by Officers Lawrence and Petrie, being punched four to seven times in the ribs by Officer Petrie,
and by Sergeant Cardarelli's failure to prevent the use of excessive force against the defendant. There is no claim that Sergeant
Cardarelli himself used excessive force against the Plaintiff. In addition, Plaintiff claims that the Defendants' use of force
violated Judge Kahn's habeas writ.

3. Officer Lawrence

[2] The Plaintiff's sole claim against Officer Lawrence is that he pressed the Plaintiff's face into the wall while conducting a
pat frisk. As before, the examination of the subjective element of Plaintiff's claim turns upon whether the force used was a good-
faith attempt to maintain or restore discipline. The same Whitley considerations again govern. First, the injuries reported by the
Plaintiff that are attributable to Officer Lawrence's alleged conduct are very minor. Second, conducting pat frisks on prisoners
is a necessary procedure to insure safety and security of prisons.

Assuming the truth of Plaintiff's allegations, the minor amount of force actually used on him by Officer Lawrence was
commensurate with the need to conduct a pat frisk on the Plaintiff. The Plaintiff concedes that he was arguing with Defendant
Lawrence about the manner in which he was conducting the pat frisk. “[Defendant Lawrence] had a hold of my waist chain, to
get closer and I'm telling him if I'm getting closer to the wall, I would be kissing it ....and [Defendant Lawrence] felt that me
speaking back to him was a challenge to his authority and he got to pushing me.” Plaintiff's Deposition, p. 49. Even assuming
that the Plaintiff had not resisted, the amount of force used in the course of conducting a necessary prison procedure would not
rise to the level of a constitutional violation. In Anderson v. Sullivan, 702 F.Supp. 424, 426-27 (S.D.N.Y.1988), the plaintiff
claimed that prison guards pushed him into a bar and pulled his arms behind his back while applying handcuffs. The court
granted the defendants' motion for summary judgment dismissing the excessive force claim. “Even assuming, as [the plaintiff]
claims, he did not refuse to be placed in handcuffs, the amount of force was not significantly disproportional to the goal of
handcuffing plaintiff. Anderson acknowledges that [the defendants] did not hit him, but pulled his hands behind his back and
pushed him against a bar in the process. Such actions are reasonably related to the application of restraints.” /d.

7 Here, the minor force Plaintiff claims Defendant Lawrence used to attempt to secure Plaintiff's compliance with the pat frisk
was not “significantly disproportional to” the need to conduct the search. The use of force alleged used by Officer Lawrence is
consistent with a good faith attempt to maintain prison discipline and order. No jury could reasonably conclude that Defendant
Lawrence acted maliciously. Accordingly, the Defendant Lawrence's motion for summary judgment is granted.

4. Sergeant Cardarelli

According to the Plaintiff's description of the facts, Sergeant Cardarelli never actually used force against the Plaintiff. Therefore,
Plaintiff's excessive force claim against Cardarelli must be understood in terms of the latter's liability as a supervisor. Section
1983 imposes liability only upon those actually causing a deprivation of another's rights. Consequently, “personal involvement
of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith,
F.3d 496, 501 (2d Cir.1994). Thus, “the doctrine of respondeat superior cannot be used to establish liability under Section
1983.” Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir.1999); see also Monell v. Department of Soc. Servs., 436 U.S. 658, 692—
94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). However, under certain circumstances, supervisors may be found liable not only
for their own actions, but for the actions of their subordinates. A supervisor may be personally involved in the deprivation of
rights where the supervisor:

1. directly participates in the infraction, or
2. learns of the violation but fails to remedy it, or

3. creates (a suffers to continue) a policy, custom or environment in which unconstitutional practices occur, or

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KalwaSitePyAndz Not Reaeried MA Sipp. BeEYMeNt 58 Filed 11/13/25 — Page 100 of 484

4. is grossly negligent in managing the subordinates causing the violation.

See Wright, 21 F.3d at 501; Blyden, 186 F.3d at 264; Spencer v. Doe, 139 F.3d 107, 112 (2d Cir.1998).

“With respect to the subjective element, the definition of ‘wantonness' varies according to the circumstances alleged.” Blyden,
186 F.3d at 262. Supervisor liability for excessive force in violation of the Eighth Amendment is analyzed under a different
standard. “The deliberate indifference test is ... appropriate in cases where the constitutional deprivation results from inaction
in the face of depraved conditions.” Jd. at 263. In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811
(1994), the Supreme Court held “that a prison official may be held liable under the Eighth Amendment for denying humane
conditions of confinement” but “only if he knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Prison officials may be liable for ignoring the risk of harm arising from other
inmates, and liable “for their deliberate indifference to violence by their subordinates.” Blyden, 186 F.3d at 265.

8 [3] According to the Plaintiff's account, in response to the Plaintiff's complaints about Defendant Lawrence, Defendant
Cardarelli removed Lawrence from the task of pat frisking the Plaintiff and replaced him with Defendant Petrie. When Plaintiff
complained further, Defendant Cardarelli replaced Defendant Petrie with yet another official and observed the subsequent pat
frisk himself. After the Plaintiff claimed to have been assaulted, Defendant Cardarelli filed a use of force report and had the
Plaintiff taken to the hospital for an immediate medical evaluation. In short, when Defendant Cardarelli learned of the alleged
use of force against the Plaintiff, he took reasonable steps to protect the Plaintiff and document the alleged abuse. He did what
was necessary to prevent risks of harm to the Plaintiff's safety. Defendant Cardarelli replaced the guard conducting the pat frisk
not once but twice in response to Plaintiff's complaints. This hardly constitute “grossly negligent” behavior. Finally, the Plaintiff
does not allege that Defendant Cardarelli has created an environment in which excessive force is tolerated. Summary judgment
for Defendant Cardarelli is accordingly granted.

5. Officer Petrie

The analysis of Plaintiff's claims against Officer Petrie, with one exception, parallels that of Plaintiff's claims against Officer
Lawrence. Here, as with Defendant Lawrence, the minor force Plaintiff asserts Defendant Petrie used to carry out the pat frisk
was not “significantly disproportional to” the need to conduct the search. The use of force alleged is consistent with a good
faith attempt to maintain prison discipline and order. If Plaintiff's claims against Officer Petrie consisted of this alone, summary
judgment for the Defendant would be appropriate.

[4] However, the Plaintiff additionally alleges that Defendant Petrie punched him four to seven times in the ribs. At the outset,
it bears noting that the evidence supporting the Plaintiff's contention is extremely weak. In the medical examination conducted
immediately after Plaintiff was allegedly assaulted, he bore no injuries consistent with such an attack. The skin around his ribs
evidenced no sign of having been struck. Defendant Petrie denies ever having struck the Plaintiff, creating a disputed issue
of fact.

Moreover, the disputed issue is material. In Romaine v. Rawson, 140 F.Supp.2d 204 (N.D.N.Y.2001), the plaintiff (a prison
inmate) testified that the defendant (a corrections officer) struck him three times across the face. The defendant denied this,
and agreed that “because [the plaintiff] presented no threat to him, utilization of any force against [the plaintiff] would have
been inappropriate.” /d. at 208. The court, sitting in a bench trial, found that by preponderance of the credible evidence that
the defendant had in fact struck the plaintiff. The court also found that the blows resulted in no serious injury. The issue, as
articulated by the court, was whether the plaintiff's constitutional rights were violated by an unnecessary attack that resulted
in only de minimis harm to the plaintiff. The court found that it did. “When prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency are violated ... whether or not significant injury is evident.” Hudson,
503 U.S. at 9. The defendant's actions were found to be wanton because the plaintiff presented “absolutely no threat” and the
defendant failed to make “a good-faith effort to temper his response and utilize the host of administrative and non-forcible

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KalwaSitePy Andz Not Reporied MEAL Sipp. BEEYMeNt 58 Filed 11/13/25 Page 101 of 484

remedies available to him” to punish the plaintiff for his alleged misbehavior. Romaine, 140 F.Supp.2d at 211. Thus, when use of
force furthers no penological interest, even a de minimis use of force is wanton and so violates Eighth Amendment protections.

Q In the instant case, it is clear that the Plaintiff's injuries resulting from the November 28, 2001 incident were not serious.
But if they were inflicted in a wanton manner, the fact that they may be de minimis does not matter. Unlike forcibly pushing
the Plaintiff into the wall in order to complete the pat frisk, punching the Plaintiff in the ribs served no appropriate penological
function under the circumstances. If the Defendant did in fact punch the Plaintiff as alleged, it would strongly, though not
irrefutably, suggest that the Defendant's use of force was not solely limited to a good-faith effort to maintain or restore prison
discipline. Thus, it could constitute a violation of the Plaintiff's constitutional rights.

Here, the Defendant denies having struck the Plaintiff. Neither party has set forth evidence in support of their allegation. Rather,
both parties have simply asserted their version of events without further corroboration. Ordinarily, since the Plaintiff bears the
burden of proof, his unsupported allegations would not suffice to survive summary judgment. “[T]he plaintiff cannot meet this
burden through reliance on unsupported assertions. Once the moving party has made a properly supported showing sufficient to
suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must
come forward with evidence that would be sufficient to support a jury verdict in his favor.” Goenaga v. March of Dimes Birth
Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995). However, where both parties rely solely on conclusory assertions, this Court
must accept the version offered by the non-moving party. “Where the parties have relied solely on assertions made in affidavits
or sworn statements to demonstrate the presence or lack of genuine issues of material fact, the nonmoving party ‘will have his
[or her] allegations taken as true, and will receive the benefit of the doubt when his [or her] assertions conflict with those of the
movant.” Brown v. Busch, 954 F.Supp. 588, 593 (W.D.N.Y.1997) (citing Samuels v. Mockry, 77 F.3d 34, 36 (2d Cir.1996)).

In Griffin v. Crippen, 193 F.3d 89, 91-92 (1999) supports this view. There, despite very weak evidence, the court found summary
judgment inappropriate where genuine issues of material fact remain. “Although appellant's excessive force claim is weak
and his evidence extremely thin, dismissal of the excessive force claim was inappropriate because there are genuine issues of
material fact concerning what transpired after appellant was handcuffed and whether the guards used force against him.” /d. at
91. The plaintiff “need not prove ‘significant injury’ to make out an excessive force claim and, thus, the fact that the suffered
only minor injuries does not warrant dismissal.” /d. at 92. While here the Plaintiff's claim is supported by little more than his
allegation, the Defendant has not introduced evidence to support his allegation. Summary judgment is thus inappropriate at this
stage, and Defendant Petrie's motion is accordingly denied.

6. Qualified Immunity

10 [5] The Supreme Court has held that “government officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). The Plaintiff has accused Defendant Petrie of punching him in the ribs. Crediting the non-moving party's account, as we
must on a motion for summary judgment, this Court concludes that a reasonable officer in the Defendant's position would have
believed that punching the Plaintiff in the ribs violated the Plaintiff's rights. Consequently, summary judgment for Defendant
Petrie based upon qualified immunity is denied.

7. Violation of Judge Lawrence E. Kahn's Order

In ¥ 19 of his complaint, the Plaintiff writes: “The malicious and sadistic beating of Plaintiff as stated [above] violated judge
Lawrence E. Kahn's writ of Habeas Corpus Ad Testificandum dated October 2, 2001, in Kalwasinski v. Graham, et al., 98-CV—
1909 (LEK/DEP) to produce Plaintiff for a December 3, 2001, trial in Judge Kahn's court “Under safe and secure conduct.”

When asked to explain this in his subsequent deposition, the following exchange ensued: “A: I was ordered to be produced
for the court for that trial. When the Judge ordered my presence, he ordered my presence to be there under safe and secure

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KalwaSitePyAndz Nor Repdried MEAL Sipp. BEEYMeNt 58 Filed 11/13/25 — Page 102 of 484

conditions. Q: ... Do you believe that this order was violated ... ? A: Absolutely. Q: Did you get to court on December 3rd,
2001? A: No, that was a settled case. Q: It was settled? A: That's true.” Plaintiff's Deposition, p. 64.

[6] This gloss suggests two possible intended legal claims. Neither avails the Plaintiff. First, that the Defendants violated
the Plaintiff's right of access to the courts. “ ‘It is now established beyond doubt that prisoners have a constitutional right’
to adequate, effective, and meaningful access to the courts.” Smith v. O'Connor, 901 F.Supp. 644, 648-49 (S.D.N.Y.1995)
(citing Bounds v. Smith, 430 U.S. 817, 821, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). However, “[t]o state a claim that his
constitutional right to access the court was violated, plaintiff must allege facts demonstrating that defendants deliberately and
maliciously interfered with his access to the courts, and that such conduct materially prejudiced a legal action he sought to
pursue.” /d. (citing Morello v. James, 810 F.2d 344, 347 (2d Cir.1987); Herrera v. Scully, 815 F.Supp. 713, 725 (S.D.N.Y.1993);
Duff v. Coughlin, 794 F.Supp. 521, 524 (S.D.N.Y.1992)). The Plaintiff has acknowledged that he did not go to court on the
date specified because the case had settled. Accordingly, he suffered no prejudice to his legal claim as a result of Defendants'
alleged actions.

[7] Second, the Plaintiffs deposition suggests that he understood the writ issued by Judge Kahn to have created additional
duties on the part of prison officials to insure his safety. In this he is mistaken. The writ was directed to the Superintendent of
the Upstate Correctional Facility to produce the Plaintiff so that he could testify. It does not create a separate cause of action
with respect to the use of force that allegedly occurred on November 28, 2001.

C. Plaintiff's Motion for Summary Judgment as to the December 6, 2001 Incident

1. Plaintiff's Account

11 According to the Plaintiff, he was transported to the Greenhaven Correctional Facility on December 6, 2001. As he was
lined up with other inmates, Officer Ranze began threatening the Plaintiff. Along with roughly half a dozen other men, the
Plaintiff claims they treated him roughly. Plaintiff's Depostion, p. 72. As he continue to walk down the corridor with the guards,
Officer Ranze raised the handcuffs Plaintiff was wearing up by his neck, causing unbearable pain. Officer Ranze then walked the
Plaintiff into a wall. Thereafter, the Officers Ranze and Corey began kicking the Plaintiff's thighs and buttocks, until Sergeant
Centanni told them to stop. The Plaintiff maintains that the reason for this assault was a conspiracy to punish him for his
problems with the staff. Afterwards, he was moved and placed in a side room. The Plaintiff was searched and his restraints
removed. The Plaintiff was then seen by a nurse, and informed the nurse that he had just been assaulted. The Plaintiff asked to
speak to the nurse privately. The nurse, however, left to report the assault, then returned to conduct the strip search. Defendants
Centanni denied the Plaintiff's request to have the strip search conducted in private. After the nurse examined the Plaintiff, the
Plaintiff put his clothes back on. The Plaintiff feels that owing to possible language barriers, the nurse did not fully understand
that the Plaintiff's injuries were on his back. The Plaintiff claims that pictures taken at that time reveal marks all over his body.

2. Plaintiff's Motion for Summary Judgment
[8] In his initial reply brief to the Defendants’ Motion for Summary Judgment dated July 30, 2003, the Plaintiff announces

that he is moving for summary judgment on his claims against the Defendants in the December 6, 2001 incident. See Reply
Brief of July 30, p. 6 and 8. In the course of doing so, he rather obliquely claims that a conspiracy to harm him existed among
prison guards in retaliation for his litigation and alleged assaults against prison guards. Reply Brief of July 30, p. 5. In his Rule
56.1 Statement dated July 30, 2003, the Plaintiff states that there are no genuine issues to be tried concerning the December 6,
2001 incident. Rule 56.1 Statement, p. 1. In his second reply, dated Sept. 22, 2003, the Plaintiff explicitly claims the existence
of a conspiracy to harm him. See Reply Brief of Sept. 22, p. 4-6. In essence, he argues that given evidence that Defendants
knew of his litigious tendencies, the Court must conclude that retaliation motivated their use of excessive force against him.
However, in order to “sustain a § 1983 claim that a state actor retaliated against a plaintiff for exercising a constitutional right,
the plaintiff must show (1) that the conduct at issue was constitutionally protected and (2) that the protected conduct was a
substantial factor in the decision to discipline the plaintiff.” Wells v. Wade, 36 F.Supp.2d 154, 159 (S.D.N.Y.1999). The Plaintiff
has failed to demonstrate that the Defendants used excessive force against him in retaliation for his litigation, because he has

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KalwaSitePy andz Not Reporied MEAL Sipp. BeEYMeNt 58 Filed 11/13/25 — Page 103 of 484

made no showing that his past litigation was a substantial factor underlying the Defendants' alleged conduct. Consequently,
Plaintiff's motion for summary judgment as to the December 6, 2001 incident is denied.

IH. Conclusion

12 For the reasons outlined above, the motion for summary judgment is granted with respect to Defendants Artuz, Lawrence
and Cardarelli. The motion for summary judgment for the claims against Defendant Petrie is denied. The Plaintiff's motion for
summary judgment is also denied.

The parties are to advise the Court in writing on or before February 9, 2004 when they will be ready for trial and whether they
believe a single or multiple trials should be held.

SO ORDERED.
All Citations

Not Reported in Fed. Supp., 2003 WL 22973420

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 133 of 484

e 9:24 bi 002A BS BES IMI Document 58 ~- Filed 11/13/25 Page 134 of 484

Lewis Case.9.44

Pa KeyCite Yellow Flag
Distinguished by McDay v. Bushey, N.D.N.Y., May 14, 2018

685 Fed.Appx. 12
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.

Kacey LEWIS, Plaintiff-Appellant,
v.
Thomas CAVANUGH, James Dickey, and Robert Liquindoli, Defendants-Appellees,
City of Waterbury, Michael Gugliotti, Defendants.

No. 15-3238-pr
|
March 30, 2017

Synopsis

Background: Arrestee brought § 1983 action against police officers and city, alleging excessive force, unlawful interrogation,
and deliberate indifference to medical needs. The United States District Court for the District of Connecticut, Vanessa L. Bryant,
J., 2015 WL 540593, granted summary judgment for officers on deliberate indifference claim, and later entered judgment for
officers on excessive force and unlawful interrogation claims following trial. Arrestee appealed.

Holdings: The Court of Appeals held that:

[1] arrestee failed to sufficiently allege that he was in urgent need of medical treatment, as required to support deliberate
indifference claim, and

[2] arrestee was prejudiced by denial of his request for continuance.

Affirmed in part, vacated in part, and remanded.

Procedural Posture(s): On Appeal; Motion for Summary Judgment.
West Headnotes (2)

[1] Constitutional Law @ Conduct

Search, Seizure, and Arrest @ Medical needs

WESTLAW



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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 136 of 484

Lewis Case. 9:24-Cy500218- BIS ydK Document 58 ‘Filed 11/13/25 Page 137 of 484

All Citations

685 Fed.Appx. 12

Footnotes

1 Because we conclude that the court abused its discretion in denying a continuance, we need not reach Lewis's evidentiary
challenges or his challenge to the jury instructions. Nor do we address the parties’ apparent failure to resolve Lewis's
unconstitutional-interrogation claim during the bench trial, which the district court should address on remand.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW

LovealPRGIRse SS OOF 18-BK pdJK Document 58 Filed 11/13/25 Page 138 of 484

2025 WL 2962744
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Matthew LOVEALL, Plaintiff,
v.
Tyler WALKER et al., Defendants.

5:23-CV-1270 (AJB/TWD)
|
Signed October 21, 2025

Synopsis

Background: Arrestee, proceeding pro se, brought § 1983 action against three members of city police department, alleging
that they violated his Fourth and Fourteenth Amendment rights via use of excessive force and deliberate medical indifference.
Defendants moved for summary judgment, and arrestee failed to oppose motion.

Holdings: The District Court, Anthony Brindisi, J., held that:

[1] arrestee received benefit of required notice of consequences of failure to respond to summary judgment motion;

[2] Court would deem admitted properly supported material facts in defendants’ statement of material facts;

[3] Court would consider body camera footage;

[4] officers did not use excessive force;

[5] arrestee's medical needs were not sufficiently serious for Fourteenth Amendment deliberate indifference claim purposes; and

[6] officers were not deliberately indifferent to arrestee's medical needs.

Motion granted and complaint dismissed with prejudice.

Procedural Posture(s): Motion for Summary Judgment.
West Headnotes (44)

[1] Summary Judgment # Pro se litigants

In assessing summary judgment motion, reviewing court will typically focus its attention on a pro se litigant's
incomplete or partial submissions and conduct a careful review of what has been offered to try to determine whether
a trial might be warranted on any of the claims.

[2] Attorneys and Legal Services @ Filings and Other Submissions

WESTLAW

LovealPRGIRse SS OOF 18-BK pdJK Document 58 Filed 11/13/25 Page 139 of 484

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

Federal Civil Procedure @ Pro Se or Lay Pleadings

Pleadings, motions, and filings of a pro se litigant must be held to less stringent standards than those that might be
drafted by a lawyer.

Attorneys and Legal Services @ Construction in general

Pro se filings must be construed liberally, with special solicitude, and interpreted to raise the strongest claims they
suggest; this is particularly so when the pro se plaintiff alleges that his civil rights have been violated.

Summary Judgment # Response or Other Opposition

A non-movant's failure to respond to a motion for summary judgment generally does not relieve the movant of their
ordinary burden of production, i.e., showing that the undisputed material facts warrant judgment as a matter of law.

Summary Judgment @ Response or Other Opposition

A non-movant's failure to respond to a motion for summary judgment generally does not relieve a reviewing court of
its obligation to faithfully apply the summary judgment standard.

Summary Judgment # Response or Other Opposition

A non-movant's failure to oppose summary judgment does not permit a court to grant the motion based on some notion
of consent or default attributable to the non-movant.

Summary Judgment @ Response or Other Opposition
Summary Judgment Pro se litigants

Rule under which non-movant's failure to respond to summary judgment motion does not relieve movant of ordinary
burden or reviewing court of its obligation to apply summary judgment standard applies to unrepresented parties.

Summary Judgment # Pro se litigants

District court is obligated to ensure that a pro se litigant has actual notice, provided in an accessible manner, of the
consequences of his failure to comply with summary judgment requirements. Fed. R. Civ. P. 56.

Summary Judgment # Pro se litigants

Either the district court or the movant can supply mandated notice to pro se litigant of consequences of failure to
comply with summary judgment requirements. Fed. R. Civ. P. 56.

Summary Judgment @ Pro se litigants

Required notice to pro se litigant of consequences of failing to comply with summary judgment rules must be
provided in an accessible manner, include a short and plain statement in ordinary English that explains the nature
and consequences of summary judgment, and advise litigant to set forth all available evidence demonstrating genuine
dispute over material facts precluding summary judgment. Fed. R. Civ. P. 56.

WESTLAW

LovealPRGIRse SS OOF 18-BK pdJK Document 58 Filed 11/13/25 Page 140 of 484

[14]

[12]

[13]

[14]

[15]

[16]

[17]

Federal Courts @ Summary judgment

Failure to provide notice to pro se litigant of consequences of failure to comply with summary judgment rule is
reversible error unless the record makes it obvious that the pro se litigant has demonstrated a clear understanding of
the nature and consequences of a summary judgment motion. Fed. R. Civ. P. 56.

Summary Judgment # Response or Other Opposition
Summary Judgment Pro se litigants

Atrestee, who was proceeding pro se, received benefit of required notice of consequences of his failure to respond to
motion for summary judgment filed by three members of city police department in arrestee's § 1983 action against
them; defendants served arrestee summary judgment at his updated mailing address, which included a standardized
form informing arrestee about how to properly respond to a summary judgment motion and warned him that failure
to do so might result in some or all of his claims being dismissed, after which the District Court immediately mailed
arrestee a second copy of the notice, along with a letter emphasizing opposition deadline and cautioning arrestee that
his case might be dismissed if he did not timely respond. 42 U.S.C.A. § 1983; Fed. R. Civ. P. 56.

Summary Judgment # Pro se litigants

Reviewing court typically takes a function-over-form approach to what it receives as receives as response to summary
judgment motion from a pro se litigant; sometimes this means looking at the underlying record, at least what has been
made available, to determine if a live fact dispute exists, precluding summary judgment.

Summary Judgment @- Determination

Summary judgment rule does not impose an obligation on a district court to perform an independent review of the
record to find proof of a factual dispute on behalf of a pro se non-movant. Fed. R. Civ. P. 56.

Summary Judgment @ Use of pleadings as affidavits

Even in the absence of an opposition, a verified complaint should be treated as an affidavit for summary judgment
purposes.

Summary Judgment = Admissions

District Court would deem admitted properly supported material facts in statement of material facts submitted by
three members of city police department in assessing their motion for summary judgment dismissing arrestee's § 1983
action against them, where arrestee, who was proceeding pro se, failed to submit an opposition. U.S.Dist.Ct.Rules
N.D.N.Y., Rule 56.1(b).

Summary Judgment # Admissions

Courts routinely deem admitted properly supported facts in movement's statement of material facts for purpose of
assessing motion for summary judgment in cases involving a pro se litigant, especially one who fails to oppose or
respond to the movant's statement of material facts. U.S.Dist.Ct.Rules N.D.N.Y., Rule 56.1(b).

WESTLAW

LovealPRGIRse SS OOF 18-BK pdJK Document 58 - Filed 11/13/25 Page 141 of 484

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

[26]

Summary Judgment ¢= Documents and documentary evidence

Video evidence can and should be considered in determining whether genuine material issues of fact exist at summary
judgment stage.

Summary Judgment # Conflicting Evidence; Extent of Disagreement or Dispute as to Facts

District courts are empowered to disregard testimony that is at odds with video evidence at summary judgment stage.

Summary Judgment = Documents and documentary evidence

Where video evidence captures only part of the relevant events, courts assessing summary judgment motion should
resist the temptation to uncritically assume that video evidence inherently possesses a unique kind of reliable factual
conclusiveness.

Summary Judgment @ Law enforcement activities

District Court would consider, to the extent that it depicted relevant events, whether body camera footage tended to
establish any genuine disputes over material facts that might be sufficient to warrant a trial at summary judgment
stage of arrestee's § 1983 action against three members of city police department; Court had reviewed footage, which
broadly confirmed defendants' version of events but did not offer precise vantage points that would be necessary to
fully reconstruct encounter on second-by-second basis. 42 U.S.C.A. § 1983.

Civil Rights @ Persons Liable in General

Under § 1983, a plaintiff may bring a cause of action based on personal liability and predicated upon fault. 42 U.S.C.A.
§ 1983.

Civil Rights @ Persons Liable in General

Although the precise state-of-mind requirement might vary, a § 1983 claim holds an individual personally liable for
the role his or her acts or omissions played in violating someone's constitutional rights. 42 U.S.C.A. § 1983.

Civil Rights @ Persons Liable in General

To establish a § 1983 violation, a plaintiff must plead, and later prove, that each defendant was personally involved
in the alleged constitutional violation. 42 U.S.C.A. § 1983.

Search, Seizure, and Arrest @ Reasonableness in general; objective or subjective test

The Fourth Amendment prohibits the use of excessive force in making an arrest; whether the force used is excessive
is to be analyzed under that Amendment's reasonableness standard. U.S. Const. Amend. 4.

Search, Seizure, and Arrest @ Reasonableness in general; objective or subjective test

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[27]

[28]

[29]

[30]

[31]

[32]

[33]

Determining excessiveness of force under Fourth Amendment's reasonableness standard requires a balancing of the
nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion. U.S. Const. Amend. 4.

Search, Seizure, and Arrest @ Reasonableness in general

Fourth Amendment reasonableness is an objective standard. U.S. Const. Amend. 4.

Search, Seizure, and Arrest @ Reasonableness in general
Search, Seizure, and Arrest 9 Totality of circumstances in general

Fourth Amendment's objective reasonableness standard is wide-ranging, highly fact-specific, and requires the
reviewing court to consider the totality of the circumstances. U.S. Const. Amend. 4.

Search, Seizure, and Arrest @ Reasonableness in general; objective or subjective test

Courts assessing a Fourth Amendment excessive force claim must be careful to evaluate the record from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. U.S. Const. Amend. 4.

Search, Seizure, and Arrest @ Reasonableness in general; objective or subjective test

The continuum along which excessiveness of force in making an arrest is assessed under Fourth Amendment is not
marked by visible signposts. U.S. Const. Amend. 4.

Constitutional Law @ Fourteenth Amendment in general
Search, Seizure, and Arrest @ Reasonableness in general; objective or subjective test

A similar balancing test governs both Fourth Amendment excessive force claims and post-arraignment excessive force
claims brought by pre-trial detainees under the Fourteenth Amendment. U.S. Const. Amends. 4, 14.

Summary Judgment @ Law enforcement activities

If balancing exercise supports a conclusion that a reasonable jury could find that a defendant applied excessive force
in a manner that was objectively unreasonable under the circumstances, after drawing inferences in the light most
favorable to the plaintiff, the plaintiff has made out a Fourth Amendment excessive force violation for purposes of
surviving a motion for summary judgment. U.S. Const. Amend. 4.

Search, Seizure, and Arrest ¢ Handcuffs

Police officers did not use excessive force against arrestee in violation of Fourth Amendment, as arrestee, proceeding
pro se, alleged in § 1983 action against officers, where officers arrived on scene to investigate reported assault, took
sworn statement from putative victim that identified arrestee as her assailant, and received consent to enter shared
residence where they found arrestee seated on couch with visible injuries tending to corroborate putative victim's
version of events, after which officers told arrestee to stand up and place his hands behind his back, arrestee refused,
and officers engaged in brief struggle to get arrestee in a position to be handcuffed, with no indication that arrestee's
injuries were not pre-existing at time of that encounter. U.S. Const. Amend. 4; 42 U.S.C.A. § 1983.

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Loveal PRR nse SS O08 L8-BK alk Document 58 Filed 11/13/25 Page 143 of 484

[34]

[35]

[36]

[37]

[38]

[39]

[40]

[41]

Search, Seizure, and Arrest @ Reasonableness in general; objective or subjective test

Although the Fourth Amendment excessive force analysis depends not on a particular quantum of injury but on
a showing of the objective reasonableness of the conduct, evidence of a plaintiff's injury is relevant because it is
probative of the amount and type of force actually used by the arresting officers. U.S. Const. Amend. 4.

Summary Judgment @ Speculation or conjecture; mere assertions, conclusions, or denials

Metaphysical doubt about the facts is not enough to warrant the denial of a properly supported motion for summary
judgment; that is especially true where there are no inconsistencies or other contradictions in the available submissions
that a fact-finder might rationally credit at trial.

Constitutional Law @ Medical treatment

A pre-trial detainee's § 1983 claim based on the alleged denial of adequate medical care is governed by the Due
Process Clause of the Fourteenth Amendment. U.S. Const. Amend. 14; 42 U.S.C.A. § 1983.

Constitutional Law @ Medical treatment

For a pre-trial detainee to establish a § 1983 claim for deliberate medical indifference under the Fourteenth Amendment
Due Process Clause, the detainee must show that: (1) he had a serious medical need, and (2) the defendant acted with
deliberate indifference. U.S. Const. Amend. 14; 42 U.S.C.A. § 1983.

Constitutional Law @ Medical treatment

Alleged deprivation of adequate medical care must be objectively sufficiently serious for purposes of a claim of
deliberate medical indifference under Fourteenth Amendment Due Process Clause. U.S. Const. Amend. 14.

Constitutional Law @ Medical treatment

Determination as to objective seriousness of deprivation of adequate medical care, as required for pretrial detainee's
Fourteenth Amendment due process claim for deliberate medical indifference, requires consideration of whether the
plaintiff was actually deprived of adequate medical care and, if so, whether the inadequacy was sufficiently serious.
U.S. Const. Amend. 14.

Constitutional Law @ Medical treatment

The “serious medical needs” standard for a pretrial detainee's claim of deliberate medical indifference under the
Fourteenth Amendment Due Process Clause contemplates a condition of urgency such as one that may produce death,
degeneration, or extreme pain. U.S. Const. Amend. 14.

Constitutional Law @ Medical treatment

In determining whether a pretrial detainee's medical need is sufficiently serious to be cognizable as a basis for a
due process claim for deprivation of medical care, courts consider factors such as whether a reasonable doctor or

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[42]

[43]

[44]

patient would find the injury important and worthy of treatment, whether the medical condition significantly affects
an individual's daily activities, and whether the illness or injury inflicts chronic and substantial pain. U.S. Const.
Amend. 14.

Constitutional Law @ Medical treatment

To establish due process claim for deliberate medical indifference, pretrial detainee must show that the defendant
knew, or should have known, that the failure to provide the requested medical treatment would pose a substantial risk
to the detainee's health. U.S. Const. Amend. 14.

Constitutional Law @ Medical treatment
Prisons @ Health and Medical Care

Pretrial detainee's medical needs were not sufficiently serious to provide basis for his due process deliberate medical
indifference claim against police officers under § 1983, where arrestee suffered ankle sprain and facial fracture before
he was arrested for assault, but arrestee did not request any medical attention from arresting officers, instead waiting
four hours until he was arraigned before requesting medical attention, after which arrestee was promptly transported to
emergency room (ER) for professional medical treatment of injuries that were causing him self-reported “moderate”
pain. U.S. Const. Amend. 14; 42 U.S.C.A. § 1983.

Constitutional Law @ Medical treatment
Prisons @ Health and Medical Care

Law enforcement officers were not deliberately indifferent to pretrial detainee's medical needs, for purposes of
detainee's Fourteenth Amendment deliberate medical indifference claim in § 1983 action against officers, where
officers recognized that detainee suffered from visible facial and ankle injuries upon arresting him for assault, which
officers judged to be less than serious, but officers nonetheless offered detainee medical care, which he initially
declined, after which he was promptly transported to hospital for professional care when he changed his mind. U.S.
Const. Amend. 14; 42 U.S.C.A. § 1983.

Attorneys and Law Firms

MATTHEW LOVEALL, Plaintiff, Pro Se, 1092 County Route 30, Altmar, NY 13302.

THOMAS K. MURPHY, ESQ., MURPHY BURNS GROUDINE LLP, Attorneys for Defendants, 407 Albany Shaker Road,
Loudonville, NY 12211.

DECISION and ORDER

Anthony Brindisi, United States District Judge:

I. INTRODUCTION

1

[1] On October 12, 2023, pro se plaintiff Matthew Loveall (“plaintiff”) filed this 42 U.S.C. § 1983 action alleging that

three members of the Oswego City Police Department violated his civil rights during his arrest for an assault. Dkt. No. 1. Along

with his complaint, plaintiff moved for leave to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 3, 4. The matter

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was initially assigned to U.S. District Judge Anne M. Nardacci, who referred the complaint to U.S. Magistrate Judge Thérése
Wiley Dancks for an initial review.

On November 2, 2023, Judge Dancks granted plaintiffs IFP Application and conducted an initial review of the complaint.
Dkt. No. 5. There, Judge Dancks determined that plaintiffs Fourth Amendment claim (for excessive force) survived initial
review against defendants Tyler Walker (“Officer Walker’) and Justin D'Elia (“Sergeant D'Elia”) and that plaintiffs Fourteenth
Amendment claim (for deliberate medical indifference) survived initial review against Officer Walker, Sergeant D'Elia, and
defendant Brady Slimmer (“Officer Slimmer’). Jd.

[2] On May 15, 2024, Officer Walker, Sergeant D'Elia, and Officer Slimmer (collectively “defendants”) answered those claims
in the complaint. Dkt. No. 15. The parties completed the bulk of discovery while plaintiff was still in the custody of the New
York State Department of Corrections and Community Supervision (““DOCCS”), but he was later released from DOCCS custody

and provided the Clerk's Office with his new mailing address. " Dkt. No. 34, 36. The matter was later reassigned to this Court
for all further proceedings. Dkt. No. 35.

On July 30, 2025, defendants moved under Federal Rule of Civil Procedure 56 seeking summary judgment on plaintiff's §
1983 claims. Dkt. No. 39. Plaintiff failed to oppose. After the time period in which to do so expired, the Court held the motion
for an extra thirty days just in case a belated opposition might arrive. Because no opposition has been filed, and because the
time period in which to file an opposition has long since expired, the motion will be considered on the basis of the available
submissions without oral argument.

II. BACKGROUND
The following facts are taken from defendants’ statement of material facts, Dkt. No. 39-11 (“Defs.’ Facts”), and, for reasons

discussed infra, will be deemed admitted for the purpose of assessing defendants’ motion for summary judgment. 2

2 On October 11, 2020, at about 2:28 a.m., Sergeant D'Elia, Officer Walker, and Officer Slimmer responded to an assault
complaint in the City of Oswego (the “City”). Defs.’ Facts § 1. The officers arrived at the scene and made contact with three
women, who reported that one of them had been visiting the others at a residence they shared with plaintiff when he “attacked
and sexually assaulted” the third woman. Jd. § 2. The putative victim gave a sworn deposition about the assault and told the
officers that she wanted to pursue charges against plaintiff. /d. §] 3. The other two women gave the officers written consent to
search their shared residence. Jd.

Sergeant D'Elia and Officer Walker entered the residence. Defs.’ Facts J 4. The officers found plaintiff seated on a couch
watching television. Jd. He was “wearing shorts, no shirt, and had dried blood on his lips, a large bump and laceration with dry
and wet blood near his left eye, and scrapes on his left knee.” /d. § 5. The officers decided to arrest plaintiff based on what they
had learned from the witnesses and the victim as well as what they had observed up to that point. See id. They told him to stand
up and put his hands behind his back. Jd. §] 6. He refused. /d.

The officers proceeded to arrest plaintiff anyway. They reached for him while he was still seated on the couch. Defs.’ Facts
4 7. But plaintiff “pulled away and began turning and flopping around on the couch to evade being taken into custody.” Id.
After a “brief struggle,” the officers were able to restrain plaintiff and place him in handcuffs. /d. 8. Thereafter, the officers
stood plaintiff up from the couch and walked him to Officer Walker's patrol car. /d. 4] 9. At no point during the arrest or the
ensuing trip to the police station did plaintiff complain to either officer about his pre-existing injuries or request any medical
attention. /d. Jj] 9-11.

The time of arrest was 3:50 a.m. Defs.’ Facts § 16. The transport to the police station took no more than a few minutes. Jd. J

12. During intake, non-party Sergeant John Chodubski (“Sergeant Chodubsk’’) noticed plaintiff's injured eye and asked him if
he wanted some medical attention. /d. Plaintiff declined medical help, but told Sergeant Chodubski that he needed to urinate.

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*7 [32] “If this balancing exercise supports a conclusion that a reasonable jury could find that a defendant applied excessive
force in a manner that was objectively unreasonable under the circumstances, after drawing inferences in the light most favorable
to the plaintiff, the plaintiff has made out a constitutional violation for purposes of surviving the defendant's motion for summary
judgment.” Linton, 135 F.4th at 31.

[33] The application of this legal standard to the available record confirms that defendants are entitled to summary judgment
on this § 1983 claim. The admitted facts establish that Sergeant D'Elia and Officer Walker arrived on the scene to investigate a
reported assault, interviewed two witnesses, and then took a sworn statement from the putative victim that identified plaintiff as
her assailant. They received consent to enter the shared residence, where they found plaintiff seated on the couch with visible
injuries tending to corroborate the witnesses’ version of events.

The officers told plaintiff to stand up and place his hands behind his back. When plaintiff refused, the officers reached for him
while he was still seated on the couch. But he “pulled away and began turning and flopping around on the couch to evade being
taken into custody.” After a “brief struggle,” the officers were able to restrain him, place him in handcuffs, stand him up from
the couch, and walk him outside to a patrol car.

With all this in mind, no reasonable jury could find in plaintiff's favor on this excessive force claim. The crime that led to the
arrest was of a violent nature. Plaintiff's visible condition tended to suggest that he posed a continuing threat to safety. Plaintiff
actively resisted when the officers attempted to arrest him. Plaintiff's resistance warranted the use of some amount of force
sufficient to effect the arrest. See, e.g., Sullivan v. Gagnier, 225 F.3d 161, 165—66 (2d Cir. 2000) (“The fact that a person whom
a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree
of force ....””).

Of course, this was not a “license to use force without limit.” Sullivan, 225 F.3d at 166. But there is nothing in the available
record to suggest that either officer applied any more force than was strictly necessary to effect a lawful arrest. Cf Lennox v.
Miller, 968 F.3d 150, 157 (2d Cir. 2020) (“[I]t is impermissible to use significant force against a restrained arrestee who is
not actively resisting.’’).

The admitted facts further establish, and a review of the body camera footage confirms, that the parties’ struggle was fairly brief
and involved little more than some arm wrestling to get plaintiff into a position to be handcuffed. There is no indication in the
record or in the available footage to suggest that plaintiff's injuries were not pre-existing at the time of this encounter.

[34] Although “the relevant legal analysis depends not on a particular quantum of injury but on a showing of the objective
reasonableness of the conduct,” Moore v. Keller, 498 F. Supp. 3d 335, 357 (N.D.N.Y. 2020), evidence of a plaintiff's injury is
still relevant “because it is probative of the amount and type of force actually used by the arresting officers,” Rolkiewicz v. City
of N.Y., 442 F. Supp. 3d 627, 645 (S.D.N.Y. 2020).

Again, however, the admitted facts establish, and a review of the body camera footage confirms, that plaintiff's injuries occurred
before the encounter. There is nothing in the record tending to support an inference that plaintiff suffered any additional injuries
as a result of the conduct of either officer. And nothing in the record would support the inference that plaintiff's pre-existing
injuries were somehow exacerbated by the otherwise-reasonable force used by the two officers, either.

*8 [35] In reaching these conclusions, the Court acknowledges that there is almost always going to be some lingering doubt
about precisely what happened on a second-by-second basis in any police-citizen encounter. But “metaphysical doubt” about
the facts is not enough to warrant the denial of a properly supported motion for summary judgment. Matsushita Elec. Indus.
Co., 475 U.S. at 586, 106 S.Ct. 1348.

That is especially so where, as here, there are no inconsistencies or other contradictions in the available submissions that a fact-
finder might rationally credit at a trial. See Aponte v. Perez, 75 F.4th 49, 59 (2d Cir. 2023) (explaining non-movant can rely

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LovealPRGIRse SS OOF 18-BK pdJK Document 58 - Filed 11/13/25 Page 151 of 484

on inconsistencies in movant's own showing to establish a genuine dispute of material fact). Because no “jury, instructed as to
the relevant factors, could reasonably find that the force used was excessive,” Brown, 798 F.3d at 103, defendants are entitled
to summary judgment on this § 1983 claim.

2. Deliberate Indifference
Plaintiff's § 1983 Fourteenth Amendment claim for deliberate medical indifference survived initial review against Officer
Walker, Sergeant D'Elia, and Officer Slimmer. Dkt. No. 5.

[36] [37] A pre-trial detainee's § 1983 claim based on the alleged denial of adequate medical care is “governed by the Due
Process Clause of the Fourteenth Amendment[.]” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Darby v. Greenman, 14
F.4th 124, 128 (2d Cir. 2021) (tracing development of this doctrine). To establish a claim, the plaintiff must show that: (1) he
had a “serious medical need”; and (2) the defendant “acted with deliberate indifference.” Charles v. Orange County, 925 F.3d
73, 86 (2d Cir. 2019).

[38] [39] [40] First, the alleged deprivation of adequate medical care must be objectively “sufficiently serious.” Farmer
v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (cleaned up). This question implicates two, related
inquiries: whether the plaintiff was actually deprived of adequate medical care and, if so, whether the inadequacy was sufficiently
serious. See Singletary v. Russo, 377 F. Supp. 3d 175, 188 (E.D.N.Y. 2019). “The serious medical needs standard contemplates
a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Charles, 925 F.3d at 86; see also
Darnell, 849 F.3d at 30 (explaining this test “includes risk of serious damage to physical and mental soundness’).

[41] [42] “In determining whether a medical need is sufficiently serious to be cognizable as a basis for a constitutional
claim for deprivation of medical care, we consider factors such as whether a reasonable doctor or patient would find the injury
important and worthy of treatment, whether the medical condition significantly affects an individual's daily activities, and
whether the illness or injury inflicts chronic and substantial pain.” Charles, 925 F.3d at 86.

Second, the plaintiff must show that the defendant knew, or should have known, that the failure to provide the requested medical
treatment would pose a substantial risk to the detainee's health. Charles, 925 F.3d at 87 (emphases omitted); see also Horace
v. Gibbs, 802 F. App'x 11, 14 (2d Cir. 2020) (summary order) (explaining this test has been made more plaintiff-friendly in its
application); Boyd v. Deasis, 524 F. Supp. 3d 128, 141 (W.D.N.Y. 2021) (explaining same).

[43] Measured against this legal standard, no reasonable jury could conclude that plaintiff has a viable § 1983 claim for
inadequate or even delayed medical care. The admitted facts establish that plaintiff did not complain about his injuries to
Sergeant D'Elia or Officer Walker at the time of his arrest or during the short trip to the police station that followed. Nor did
plaintiff request any medical attention from either officer at that time.

9 The record further establishes that upon plaintiff's arrival at the police station, Sergeant Chodubski noticed plaintiff's injured
eye and asked him if he wanted medical attention, which plaintiff declined. Plaintiff later reported to Officer Slimmer that
his right ankle hurt. Officer Slimmer's own impression was that plaintiffs ankle appeared swollen, but plaintiff did not say
anything to Officer Slimmer about his eye injury or, for that matter, request medical attention at that time. None of the officers
believed that the injuries were serious. About four hours elapsed until plaintiff was arraigned. After this proceeding, plaintiff
requested medical attention. He was promptly transported to the hospital's emergency room, where he received professional
medical treatment for injuries that he self-reported as causing him “moderate” pain.

Plaintiff suffered an ankle sprain and a facial fracture. Although these are significant medical conditions (the fracture in
particular), it is doubtful that either one, or both together, would qualify as “objectively sufficiently serious.” See, e.g. Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (explaining this prong requires evidence of a “condition of urgency, one that may
produce death, degeneration, or extreme pain’’).

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no right to counsel in civil matters, and a consideration of the relevant factors set forth in Terminate Control Corp. v.
Horowitz, 28 F.3d 1335 (2d Cir. 1994), militated against the appointment of counsel.

2 Defendants have filed the body camera footage from this incident. Ex. C to Murphy Aff., Dkt. No. 39-3. The Court's
approach to this evidence will be discussed infra, too.

3 Notably, however, even in the absence of an opposition, a verified complaint should be treated as an affidavit for
summary judgment purposes. See, e.g., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). Plaintiff's complaint is not
verified. Dkt. No. 1. But even if it were, the non-conclusory factual assertions in that document are insufficient to place
any of the material facts in genuine dispute. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“While genuineness
runs to whether disputed factual issues can reasonably be resolved in favor of either party, materiality runs to whether
the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law.”).

4 These factors are a combination of the traditional three-factor test for assessing objective reasonableness in the excessive
force context from Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and the Second Circuit's
homegrown rubric for certain excessive force claims, which was first used in the “‘non-seizure, non-prisoner” context
of the Fourteenth Amendment in Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251-52 (2d Cir. 2001), but
later included as part of a Fourth Amendment excessive force inquiry in Figueroa v. Mazza, 825 F.3d 89, 106 (2d Cir.
2016). A similar balancing test governs post-arraignment excessive force claims brought by pre-trial detainees under the
Fourteenth Amendment. See, e.g., Frost v. N.Y. City Police Dep't, 980 F.3d 231, 252 (2d Cir. 2020); LaFever v. Clarke,
525 F. Supp. 3d 305, 334 (N.D.N.Y. 2021) (explaining that the standards are “broadly similar’).

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

WESTLAW

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8 BKS MIK 22Pocument 58 Filed 11/13/25 Page 154 of 484

2022 WL 357020
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.

Melbourne RIDGE, Jr., Plaintiff,
v.
Michael G. DAVIS, Emmanuel Leon-Martinez, Yermia Solomon, David A. Lindsay, and Dillon A. Ottino, Defendants.

18 Civ. 8958 (JCM)
|
Signed 02/07/2022

Attorneys and Law Firms
Melbourne Ridge, Jr., Ogdensburg, NY, Pro Se.

Ralph Puglielle, Drake Loeb PLLC, New Windsor, NY, for Defendants.

OPINION AND ORDER
JUDITH C. McCARTHY, United States Magistrate Judge

1 Plaintiff Melbourne Ridge (‘Plaintiff’), proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against
Defendants Detective-Sergeant Michael G. Davis (“Davis”), Officer Emmanuel Leon-Martinez (“Leon-Martinez”), Officer
Yermia Solomon (“Solomon’’), Sergeant David A. Lindsay (“Lindsay”), and Detective Dillon A. Ottino (“Ottino”) (collectively,
“Defendants”). (Docket Nos. 2, 37). Plaintiff filed an amended complaint on July 18, 2019 (“Amended Complaint”). (Docket
No. 37). Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Motion”).
(Docket No. 93). Plaintiff opposed the Motion, (Docket No. 100), and Defendants replied, (Docket No. 102). For the reasons

set forth below, the Court grants in part and denies in part Defendants' Motion. |

I. BACKGROUND

The following facts are gathered from Defendants' Rule 56.1 Statement of Material Facts, (Docket No. 97), Plaintiff's Affidavit in
Opposition to Defendants' Motion for Summary Judgment, (Docket No. 100), the exhibits attached to the parties' submissions,
and the affidavits submitted by Defendants in support of their contentions. The facts are construed in the light most favorable
to Plaintiff as the non-moving party. See Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018). The facts are not
in dispute, unless otherwise noted.

2 This action concerns the events leading up to Plaintiff's arrest by the Village of Monticello Police Department and
subsequent medical treatment on October 26, 2016 in Monticello, New York. (Docket Nos. 97 § 23; 100 § 3).

A. The Arrest

At approximately 2:05 p.m. on the date of the incident, Lindsay and Solomon 3 responded to a call reporting a burglary at 14
Bennett Street. (Docket Nos. 97 § 25; 94-11 § 2). When they arrived, Plaintiff was standing along the side of the road over

a pile of copper pipes. 4 (Docket Nos. 97 § 25; 94-11 4 2; see also Docket Nos. 37 J 1; 106-1 > at 27:1-4). As Lindsay and
Solomon approached Plaintiff in their patrol vehicles, Plaintiff crossed the street and walked toward his parked car. (Docket
Nos. 94-11 § 2; 97 26; 100 4 7). At least one of the officers exited his patrol vehicle and instructed Plaintiff to stop and return,

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 155 of 484

se 9,24 Ey 002 18 BKS MIKo2,Pocument 58 Filed 11/13/25 Page 156 of 484

Ridge GA is epor

and was eventually placed in handcuffs. (Docket No. 106-1 at 36:6-21, 37:4-18, 48:10-20). Plaintiff claims he was “brutally ...
kicked, kicked in the face by ... Leon-Martinez” and punched in the “upper back of the head.” (/d. at 44:19-45:5, 48:14-15). He

also “felt other officers” “hitting” and “kicking” him, 10 but cannot identify them because his face was pressed to the ground.
(Ud. at 60:24-62:1). Plaintiff testified that Davis may have participated in the beating, because Plaintiff saw him behind the store
before losing consciousness, and the first thing Plaintiff saw when he “woke up” was Davis “dragg[ing]” him into a police

vehicle with Leon-Martinez's help. u (Id. at 49:11-20, 57:15-17, 59:23-60:8). Plaintiff explained that immediately before the
“assault,” he “dropped to [his] knees” and lay down because he “realized [he] was surrounded.” (See id. at 50:5-11, 51:15-20,
54:14-17). Moreover, for at least a portion of his alleged beating, he claims he was already handcuffed. (See id. at 51:19-20).
Plaintiff asserts that none of the Defendants told him that he was under arrest until he was actually arrested. (/d. at 50:24-51:5).

4 Plaintiff also disputes Defendants' assertions that Leon-Martinez and Davis were the only ones who participated in arresting
Plaintiff behind the store. (See Docket Nos. 97 4 41; 100 § 4). Plaintiff testified that although he lost consciousness when he was

kicked, Lindsay and Solomon 12 Were also present when he dropped to his knees. (Docket No. 106-1 at 48:24-49:15, 51:6-11,
58:24-59:3). At one point during Plaintiff's deposition, he conceded that he did not see Ottino behind the store before he was
kicked, but maintained that Ottino was also present while he was assaulted because he saw Ottino both before he reached

the parking lot, and after he was apprehended and had regained consciousness. 18 Ud. at 56:16-57:7, 62:12-24). Later in his
deposition, however, Plaintiff testified that he saw Ottino with Davis behind the store before he lost consciousness, ten to fifteen
feet away. (/d. at 63:1-15).

Plaintiff does not dispute that after being handcuffed, he was placed into a police vehicle and Leon-Martinez drove him to the
police station. (Docket Nos. 97 § 45; 100 § 11).

B. Processing at the Police Station and Medical Treatment

Plaintiff concedes that he did not complain of any injuries or request medical care during the drive to the police station. (Docket
Nos. 94-13 9 4; 97 9.45; 106-1 at 65:20-66:8). Neither Leon-Martinez nor Davis observed any injuries on Plaintiff. (Docket Nos.
94-12 9 4; 94-13 9 4; 97 4 46). Nevertheless, as a precaution, Davis instructed Leon-Martinez to contact Mobile Medic to conduct

a medical examination of himself ! and Plaintiff upon arrival at the police station. (Docket Nos. 94-12 § 4; 94-13 4] 4; 97 4 46).

Records from Mobile Medic indicate that they received Leon-Martinez's call at 2:15 p.m. and arrived at the police station at
2:18 p.m. (Docket No. 94-6 at 4). The records also reflect that Plaintiff “initially refused any exam/treatment” and signed a
Refusal of Medical Attention form as well as a release. (/d. at 2-4). However, Plaintiff permitted an examination at 2:22 p.m.,
appearing alert and oriented and demonstrating “[r]egular” respiration as well as normal movement in his extremities. (/d. at
4). The “Physical Assessment” and “Comments” reflect that Plaintiff had a “scratch on [the] bridge of [his] nose” and that his

left eye “appear[ed] to have a broken blood vessel,” but Plaintiff “denie[d] p[ai]n,” 'S had “mild blurred vision,” and had “no
apparent leakage of visceral fluid.” (/d.). Plaintiff had scratches on his right wrist close to his handcuffs. (/d.). His scratches
were cleaned and bandaged. (/d.). Plaintiff was advised that “if he was released to have his doctor or [the emergency room]
look at his eye,” and that “if anything changed to call [Mobile Medic] back.” (/d. at 5).

About four hours after the initial examination, Davis interviewed Plaintiff for approximately forty-three minutes 16 With Ottino
present. (Docket Nos. 94-8; 94-12 4 5; 94-14 ¥ 3). Davis and Ottino assert that between the medical examination and the start
of the interview, Plaintiff did not complain of any injuries or request further medical treatment. (Docket Nos. 94-12 § 5; 94-14
4 3; 97 51). However, they concede that during the interview, Plaintiff “generally complained about his eye.” (Docket No. 97
4] 52; see also Docket Nos. 94-12 95; 94-14 § 3). Indeed, a video of the interview reflects that Plaintiff intermittently expressed
discomfort in his eye area five times, at approximately 6:48 p.m., 6:55 p.m., 7:03 p.m., 7:21 p.m. and 7:24 p.m. (Docket No.
94-8; see supra n.16). The first three times, at 6:48 p.m., 6:55 p.m. and 7:03 p.m., Plaintiff complained that he had unusual
sensations and pain in his eye area, but did not request further treatment. (Docket No. 94-8). At approximately 7:19 p.m., a
substance that Plaintiff identified as blood dripped from the left side of his face onto his hand, which prompted Davis to get him

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Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 157 of 484

a tissue. (/d.). Plaintiff wiped his face and at 7:21 p.m., complained that his eye “hurt.” (/d.). In response, Davis asked Plaintiff
if he wished to be examined by the medics again, and Plaintiff responded, “I told you, I need to go to the hospital.” (/d.; see
also Docket No. 94-12 § 6). Davis then advised Plaintiff that he would arrange for medical treatment and that in the meantime,
Plaintiff could speak to his partner on the phone. (Docket No. 94-8). At 7:24 p.m., Plaintiff stated: “I feel like I just made
it worse.” (/d.). However, throughout the interview and Plaintiff's subsequent phone call, Plaintiff was able to hold a cogent
conversation while sitting comfortably in a chair, and appeared to be in only mild physical distress. (/d.).

5 According to Plaintiff, upon arriving at the police station and before the interview, he was placed in a holding cell for

“a while [sic], at least an hour” "7 and “experience[d] some, a lot of pain.” (Docket No. 106-1 at 66:9-13, 67:2-6). Plaintiff
testified that while he was in the cell, he requested medical care from either Davis or Ottino because he “couldn't see out of
[his] eye” and at that point, one of these officers “said he's gonna bring a [sic] EMS.” (/d. at 67:17-68:-17). Plaintiff claims
that he did not “complain of an eye injury to anyone at the police station” before the interview because he feared for his safety.
(Ud. at 71:17-72:18). He also maintained that he “did not decline treatment by EMS;” rather, he told Mobile Medic that he
“wanted outside treatment” “through a hospital” because he believed Mobile Medic “w[as] representing Monticello Police
Department.” (/d. at 68:18-69:13). Plaintiff conceded that Davis and Ottino “may have offered EMS” and that he ultimately
accepted Mobile Medic's treatment, but he also could not recall whether that was before or after the interview, explaining that
he believes he was experiencing the symptoms of a concussion. (/d. at 70:8-71:6). Moreover, although he was transported to
the hospital shortly after the interview, he was “definitely in some pain in the holding cell” and believes that he “should have
[been brought] straight to the hospital” rather than being “interrogated.” (/d. at 73:24-75:6). Once at the hospital, he was given
a CAT scan and pain medications. (/d. at 78:13-19).

The Mobile Medic records reflect that they were called back to the precinct at 7:41 p.m., approximately sixteen minutes after
the interview ended. (Docket No. 94-6 at 7). The medics arrived at 7:45 p.m. (/d.). At that point, Plaintiff complained of pain
in his left eye, which was “obvious[ly] swollen.” (/d.). The medics categorized his “[p]resenting [p]roblem” as “[t]rauma —
[b]lunt.” (/d.). They then transported Plaintiff to Catskill Regional Medical Center (“Catskill”) for further examination, leaving
the police station at 7:57 p.m. and arriving at Catskill at 8:07 p.m. (Docket Nos. 94-6 at 7; 97 § 53).

Medical notes from Kristen M. Peace, M.D. at Albany Medical Center (“Albany”), where Plaintiff was transported after Catskill,
identify a closed fracture of Plaintiff's left eye socket and a corneal abrasion. (Docket Nos. 101-1; 106-1 at 85:22-86:3). They
also state: “Given the isolated left lamina fracture with likely left medial orbital fracture, with no signs of entrapment, I do
not feel there is an urgent need to consult ENT who is on for facial surgery at this time.” (Docket No. 101-1). Plaintiff was
given erythromycin as well as tetracaine, and was told to seek further treatment at a “clinic” within five to six days, and
“ophthalmology” within one to two days. (/d.). Plaintiff “otherwise denie[d] headache, neck pain, or any other complaints” and
reported “significant improvement of his eye[ ] scratchiness upon application of [the] tetracaine.” (/d.). There is no indication
that Plaintiff was ever diagnosed with a concussion.

Plaintiff testified that an unnamed physician at Albany recommended a surgical procedure to repair his eye socket by “plac[ing]
a metal film around the eye,” but he declined it because he “feared for his safety.” (Docket No. 106-1 at 85:24-87:19). After
“a few hours,” Plaintiff was discharged and transported to Sullivan County Jail. (See Docket Nos. 101-1; 106-1 at 87:24-88:4).
Plaintiff alleges that since the incident, he has experienced “frequent” migraines as well as blurred vision, light sensitivity, pain
and pressure in his left eye. (Docket No. 106-1 at 80:22-82:11, 88:17-22). In addition, he needs a stronger prescription for
his eyeglasses now. (/d. at 88:8-12). Plaintiff has not been able to schedule the recommended surgery because he is currently
incarcerated and “that w[ould] be very difficult to do.” (/d. at 87:20-23).

On September 8, 2017, Plaintiff was convicted of three counts of felony burglary in the third degree in connection with the
above incident. (Docket No. 94-4). He received a six to twelve-year sentence. (Docket No. 94-10).

II. LEGAL STANDARD

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Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 158 of 484

Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact.” Fed. R.
Civ. P. 56(a). The moving party has the initial burden of showing the absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, “the nonmoving party must come forward
with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v.
Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “An issue of fact is genuine if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing
law.” SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009) (quoting Roe v. City of Waterbury, 542 F.3d 31,

35 (2d Cir. 2008)) (internal quotations omitted). !

*6 In considering a motion for summary judgment, the Court must “construe the facts in the light most favorable to the non-
moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)) (internal quotations
omitted). However, the nonmovant cannot defeat a motion for summary judgment by relying on unsupported assertions,
conjecture or surmise. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The nonmovant
must also do more than show that there is “some metaphysical doubt as to the material facts.” McClellan v. Smith, 439 F.3d 137,
144 (2d Cir. 2006) (quoting Matsushita Elec. Indus Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (internal quotations
omitted). To survive a motion for summary judgment, “the non-moving party must set forth significant, probative evidence on
which a reasonable factfinder could decide in its favor.” Senno v. Elmsford Union Free School Dist., 812 F. Supp. 2d 454, 467—
68 (S.D.N.Y. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986)).

I. DISCUSSION

Plaintiff advances three theories of liability against Defendants. First, Plaintiff appears to argue that Defendants are liable for
excessive force in connection with Lindsay's use of the taser, Leon-Martinez's alleged kick, and the alleged assault behind the
Butcher Boys store. (Docket Nos. 97 4§ 11-13; 100 at 1 §§ 3-4, 4; 106-1 at 61:21-62:1). Second, Plaintiff argues that Lindsay,
Solomon, Davis and Ottino are liable for failing to intervene when Plaintiff was tased and beaten. (Docket Nos. 97 § 13; 100
at 1 3, 9). Third, Plaintiff argues that both Ottino and Davis are liable for deliberate indifference to Plaintiff's medical needs
because they failed to provide medical treatment in a timely fashion. (Docket Nos. 97 § 13; 100 at 1 § 3, 6-9). The Court
addresses each theory in turn.

A. Excessive Force

1. Use of the Taser

Defendants assert that Lindsay is entitled to summary judgment with respect to the use of his taser because he deployed it when
Plaintiff was attempting to evade arrest, rendering this action objectively reasonable. (Docket Nos. 96 at 5-7; 102 at 9-10). They
also assert that Lindsay is entitled to qualified immunity. (Docket No. 96 at 7-9). In opposition, Plaintiff argues that there are
issues of material fact regarding whether Lindsay's action was reasonable and subject to qualified immunity because Lindsay
tased Plaintiff after he had already surrendered and was on the ground. (Docket No. 100 at 3-5). Plaintiff further argues that
the physical evidence of his scars belie Lindsay's version of these events, which is not supported by any evidence except for
Lindsay's own affidavit. (/d. at 5). Defendants respond that Plaintiff cannot use his affidavit to create an issue of material fact
because his assertions regarding when he was tased contradict his prior deposition testimony. (Docket No. 102 at 9-10).

i. Sham Affidavit Rule
The “sham affidavit rule” provides that ‘“‘a party may not create an issue of fact by submitting an affidavit in opposition to

a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.” 19 See
Kennedy v. City of New York, 570 F. App'x 83, 84 (2d Cir. 2014) (summary order) (quoting Hayes v. New York City Dep't
of Corr., 84 F.3d 614, 619 (2d Cir. 1996)) (internal quotations omitted). However, this rule is inapplicable if (1) the subject
“deposition testimony and later affidavit are not actually contradictory,” see Palazzo ex rel. Delmage, 232 F.3d 38, 43 (2d Cir.

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Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 159 of 484

2000); (2) “ ‘there is a readily apparent, plausible explanation’ for the inconsistency,” see Brandon v. Kinter, 938 F.3d 21, 33 n.9
(2d Cir. 2019) (quoting Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205—06 (2d Cir. 2014)); or (3) the statements at issue
are ambiguous but “only arguably contradictory,” see Hayes, 84 F.3d at 620; see also In re Fosamax Prod. Liab. Litig., 707
F.3d 189, 194 n.4 (2d Cir. 2013) (“In the ordinary case where a district court is asked to consider the contradictory deposition
testimony of a fact witness, or where the contradictions presented are not ‘real, unequivocal, and inescapable,’ the general rule
remains that ‘a district court may not discredit a witness's deposition testimony on a motion for summary judgment.’ ”) (quoting
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010)); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir. 1996) (noting that when “subsequent sworn testimony amplifies or explains, but does not merely contradict ... [the subject]

299

prior testimony,” a party may show that a triable issue of fact exists). Indeed, “mere tensions or inconsistencies go to credibility,
not admissibility, and credibility determinations are not proper at summary judgment.” Fed. Deposit Ins. Corp. v. Murex LLC,
500 F. Supp. 3d 76, 95 (S.D.N.Y. 2020) (citing Moll, 760 F.3d at 206).

*7 Here, the statements at issue are only “arguably contradictory.” See Hayes, 84 F.3d at 620. Rather than setting forth a
completely different version of events than he relayed at his deposition, Plaintiff's affidavit “amplifies” his prior testimony. See
Rule, 85 F.3d at 1011. Plaintiff's affidavit states that he was tased when “he dropped to his knees to surrender.” (Docket No.
100 at 3-4). Defendants correctly note that when asked during his deposition if he was tased “while [he was] running or after
[he] went to [his] knees,” Plaintiff stated: “It could have been while I was running, it could have been while I was on my knees,
but I believe I was Tased prior to the assault.” (Docket Nos. 102 at 10; 106-1 at 53:21-54:1). However, at another point in the
deposition, Plaintiff also explained: “Once I realized I was surrounded I dropped to my knees and that's when I believe I was
Tased in the head. I believe I was Tased in the head first, then I was kicked in the eye.” (Docket No. 106-1 at 50:5-11).

Viewed as a whole, Plaintiff's testimony regarding the moment when he was tased is ambiguous, but his affidavit is consistent
with his statement that he dropped to his knees “and that's when I believe I was Tased.” (Compare Docket No. 100 at 3-4, with
Docket No. 106-1 at 50:5-11). Moreover, the testimony Defendants cite is equivocal, and leaves open the possibility that Plaintiff
was tased while on the ground. (Docket Nos. 102 at 10; 106-1 at 53:21-54:1). Thus, any contradiction is not “real, unequivocal,
and inescapable.” See In re Fosamax Prod. Liab. Litig., 77 F.3d at 194 n.4; see, e.g., Brandon, 938 F.3d at 33 n.9 (rejecting
sham affidavit argument where plaintiff could not remember the exact number of times he was served pork at his deposition,
but later “provided a specific number”); Fleming v. Costco Wholesale Corp., 17-CV-2878 (AMD) (PK), 2020 WL 2404907,
at *5 (E.D.N.Y. May 12, 2020) (declining to apply sham affidavit rule where affidavit expressed “certainty” regarding “former
ambivalen[t]” testimony). The inconsistencies here “go more to the reliability of plaintiff as a witness than to the genuineness of
any material factual disputes.” See Buie v. City of New York, No. 12 CV 4390(RJD)(CLP), 2015 WL 6620230, at *4 (E.D.N-Y.
Oct. 30, 2015) (“On balance, after reviewing plaintiff's deposition—during which she clearly struggled but nonetheless managed
to set forth the basic facts of her surviving claims—the Court readily concludes that while the affidavit may undermine her
credibility before the jury it is of no real consequence in the Court's determination of the motion.”). Consequently, the Court
will not preclude Plaintiff from relying on his affidavit at this stage.

ii. Merits

It is well-established that under the Fourth Amendment, “the right to make an arrest ... necessarily carries with it the right to
use some degree of physical coercion or threat thereof to effect it.” Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir. 2015)
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (internal quotations omitted). However, “law enforcement officers
violate the Fourth Amendment if the amount of force they use is ‘objectively unreasonable’ in light of the facts and circumstances
confronting them.” /d. (quoting Graham, 490 U.S. at 397). Determining whether an officer's use of force is reasonable is a fact-
intensive inquiry, “requir[ing] careful attention to the facts and circumstances of each particular case, including the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Because officers must often “make
split-second judgments” about “the amount of force that is necessary,” the reasonableness of the amount of force used “must
be judged from the perspective of a reasonable officer on the scene.” See id. at 396-97. Thus, “the factfinder must determine
whether, in light of the totality of the circumstances faced by the arresting officer, the amount of force used was objectively
reasonable at the time.” Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

WESTLAW

e FIN 00218 BKSMIKo2,Pocument 58 Filed 11/13/25 Page 160 of 484

epor

*8 “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664
(2012). Officials are “entitled to qualified immunity ... [when] their decision was reasonable, even if mistaken.” Hunter v. Bryant,
502 U.S. 224, 229 (1991). Indeed, “the qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting
‘all but the plainly incompetent or those who knowingly violate the law.’ ” /d. (quoting Malley v. Briggs, 475 U.S. 335, 343, 341
(1986)). To analyze a qualified immunity defense on summary judgment, courts ask “(1) whether the evidence, viewed in the
light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right, and (2) whether that right was
clearly established at the time of the alleged violation.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). “In the excessive
force context, ‘the question for the purposes of qualified immunity is whether a reasonable officer could have believed that the
use of force alleged was objectively reasonable in light of the circumstances.’ ” Read v. Town of Suffern Police Dep't, No. 10
Civ. 9042(JPO), 2013 WL 3193413, at *7 (S.D.N.Y. June 25, 2013) (quoting Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995)).

Defendants assert that Lindsay's use of the taser once was reasonable because Plaintiff, who was eventually convicted of three
counts of felony burglary, was running away from Lindsay in the direction of the Mountain Mall, and thus, posed a threat to
other officers and the public. (See Docket No. 96 at 6-7). As a general matter, it is true that “the use of force may be reasonable
against a suspect who is fleeing.” Soto v. Gaudett, 862 F.3d 148, 158 (2d Cir. 2017). However, such force “may be objectively
unreasonable against that suspect when he has been stopped and no longer poses a risk of flight.” /d. (citing Tracy, 623 F.3d at
96-98). Moreover, the only support for Defendants' contention that the fleeing suspect doctrine applies is Lindsay's self-serving
affidavit — which is in direct conflict with Plaintiff's own affidavit and testimony. (Docket Nos. 100 at 3-4; 106-1 at 50:5-11;
see also Docket No. 94-11). Plaintiff alleges that he was tased when he attempted to surrender by “dropp[ing]” to his “knees on
the ground.” (Docket No. 100 at 3-4; 106-1 at 50:5-11). Indeed, Plaintiff testified at his deposition that before he was tased, he
“got down” because he realized he was “surrounded” by officers and “didn't want to appear threatening.” (Docket No. 106-1 at
50:5-11, 51:14-19, 58:3-5). He further testified that he did not resist arrest, or punch or strike any officers. (Id. at 54:24-55:4).
Furthermore, Plaintiff claims that he has “noticeable” scars from Lindsay's taser, which could constitute physical evidence that

contrary to Lindsay's assertions, the taser was deployed effectively in two places. 20 (Docket No. 106-1 at 89:16-90:3, 91:8-15).

In light of the above evidence and the parties' contradictory accounts, a reasonable jury could conclude that Lindsay tased
Plaintiff when he was no longer evading arrest, and therefore, this use of force was excessive and unreasonable. See, e.g., Tracy,
623 F.3d at 96-98 (finding material issues of fact where plaintiff claimed officer used pepper spray after plaintiff told him he
was not resisting); Diaz v. City of Hartford Police Dep't, 3:18-CV-01113 (KAD), 2021 WL 1222187, at *6 (D. Conn. Mar.
31, 2021) (finding dispute of material fact regarding excessive force claim where plaintiff testified that he “fully surrendered”
before being beaten, punched, kicked and tased); Zachary v. City of Newburgh, 13 CV 5737 (VB), 2016 WL 4030925, at *9
(S.D.N.Y. July 25, 2016) (denying summary judgment “[e]ven though plaintiff was physically fighting officers just moment
before” because “a jury could reasonably conclude plaintiff was subdued prior to being tased”’); Odom v. Matteo, 772 F. Supp.
2d 377, 389 (D. Conn. 2011) (denying summary judgment where “[g]iven the competing affidavits submitted by the parties, the
jury could construe Odom's conduct as ... attempting to comply subject to limitations caused by her brain injury”). Thus, there
is a genuine dispute of material fact about when Lindsay deployed his taser that precludes the Court from finding his conduct
objectively reasonable as a matter of law.

*9 Moreover, the Court cannot grant Lindsay summary judgment on qualified immunity grounds. As of the date of the incident,
it was clearly established within this Circuit “that tasing and physically assaulting an individual who was not actively resisting
arrest or posing an immediate threat to officers constitute[s] excessive force.” See Ramos v. Town of E. Hartford, No. 3:16-
CV-166 (VLB), 2019 WL 2785594, at 18 (D. Conn. July 2, 2019); see also Tracy, 623 F.3d at 98; Garcia v. Dutchess Cty.,
43 F. Supp. 3d 281, 297 (S.D.N.Y. 2014), aff'd in part, dismissed in part sub nom. Garcia v. Sistarenik, 603 F. App'x 61 (2d
Cir. 2015). In light of this precedent, and because there is a genuine issue of material fact as to whether Lindsay tased Plaintiff
after he had surrendered, qualified immunity does not apply. Cf Read, 2013 WL 3193413, at 7-8. Accordingly, Defendants'
motion for summary judgment with regard to Lindsay's use of the taser is denied.

WESTLAW


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 161 of 484

Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 162 of 484

“at some point after losing consciousness’”’) (internal quotations omitted); Carey v. Maloney, 480 F. Supp. 2d 548, 557 (D. Conn.
2007) (holding that officer's “mere presence at the scene where [plaintiff]'s rights were allegedly violated” was insufficient to
sustain excessive force claim against him). Plaintiff does not proffer any facts beyond Defendants' presence that could provide
the logical inferences needed to convince a rational jury that they actually participated in the alleged assault. Cf Goenaga,
51 F.3d at 18.

Accordingly, Defendants' motion for summary judgment with respect to any excessive force claims against Ottino, Lindsay,
Solomon and Davis based on their direct participation in the alleged assault is granted.

3. Failure to Intervene

On the other hand, “[a] police officer ‘who does not personally inflict the injury at the core of an excessive use of force claim
may still be liable under § 1983 if the officer was present at the assault, and fails to intervene to prevent the harm when the
officer had a reasonable opportunity to do so.’ ” See Walker, 2020 WL 606788, at *4 (quoting Raffaele v. City of New York,
242 F. Supp. 3d 152, 156 (E.D.N.Y. 2017)). Defendants argue that Plaintiff's failure to intervene claim must be dismissed as to
Ottino, Lindsay and Solomon because they were not present when Plaintiff was apprehended and handcuffed. (Docket No. 96
at 14). Defendants further assert that they are entitled to summary judgment because, even assuming they were present, there
was no realistic opportunity for them to intervene in the tasing or alleged assault. (/d. at 14-15; see also Docket No. 102 at 8).
Construed liberally, Plaintiffs opposition brief contends that there are issues of material fact regarding this claim because he
testified that the Defendants were all present behind the Butcher Boys store while he was tased and assaulted, and therefore,
had plenty of opportunity to intervene. (Docket No. 100 at 9-10).

“A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being
violated in his presence by other officers.” O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). “An officer who fails to intercede
is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know: (1)
that excessive force is being used ...; (2) that a citizen has been unjustifiably arrested ...; or (3) that any constitutional violation
has been committed by a law enforcement official ....” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (citing O'Neill,
839 F.2d at 11-12; Gagnon vy. Ball, 696 F.2d 17, 21 (2d Cir. 1982)). Such liability attaches “only when (1) the officer had a
realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the
victim's constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene.” Jean-Laurent v.
Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citing O'Neil/, 839 F.2d at 11-12). “Whether [an] officer ha[s] a ‘realistic
opportunity’ to intervene is normally a question for the jury, unless, ‘considering all the evidence, a reasonable jury could not
possibly conclude otherwise.’ ” See Terebesi v. Torreso, 764 F.3d 217, 244 (2d Cir. 2014) (quoting Anderson, 17 F.3d at 557).

*11 Asa general matter, “[a] defendant who is not in the vicinity of the alleged constitutional violation, especially an isolated
violation that occurs within seconds, cannot be held liable because he lacked reasonable opportunity to intervene.” See Tafari
v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. 2010); see also Sammarco v. Hoolan, No. 12-CV-7857 (JMF), 2014 WL
3639161, at *2 (S.D.N.Y. July 23, 2014) (granting summary judgment in light of undisputed evidence that defendants “were
not involved in Plaintiff's arrest and not even present at the scene”). However, genuine disputes of material fact as to an
officer's presence during an alleged assault may preclude summary judgment by begging the question whether the officer had
an opportunity to intervene. See, e.g., Walker, 2020 WL 606788, at 5; Randle v. Alexander, 170 F. Supp. 3d 580, 591 (S.D.N-Y.
2016).

Here, Defendants concede that Davis was present behind the Butcher Boys store when Leon-Martinez apprehended Plaintiff.
(See Docket Nos. 94-12 4 2; 96 at 13 n.7). However, the parties dispute whether the rest of the Defendants were also present,
and whether the tasing occurred in a wooded area at the beginning of the chase, with only Solomon present, or behind the
Butcher Boys store as well. (Compare Docket Nos. 97 4 26-29, 41-44; 94-12 4 2; 96 at 13 n.7, with Docket No. 106-1 at
50:5-11, 52:20-22, 58:6-9, 62:12-24). Although his testimony is rife with inconsistencies, Plaintiff stated under oath that he saw
Ottino and Davis follow him from the parking lot to the back of the Butcher Boys store, and that both Lindsay and Solomon
arrived when he kneeled to the ground, after which he laid down and Leon-Martinez kicked him in the face. (Docket No. 106-1

WESTLAW


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Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 164 of 484

In light of this testimony, there is a dispute as to whether Davis, Solomon and Lindsay had a realistic opportunity to intervene
in the alleged beating after Leon-Martinez's first kick. As to the tasing and the alleged initial kick, the record indicates that
these single, rapid events occurred spontaneously and without warning. By Plaintiff's own account, Leon-Martinez was the first
officer to reach him, and mere “seconds” passed between the time when Plaintiff dropped to his knees and Leon-Martinez kicked
him. (Docket No. 106-1 at 50:3-4, 52:9-12, 91:24-92:4). Thus, no reasonable juror could find that any officer present at the
scene could have anticipated or stopped these alleged discrete uses of force. See, e.g., Raffaele, 242 F. Supp. 3d at 158 (granting
summary judgment on failure to intervene claim because “there was not enough time for any officer, from a distance of six to
ten feet, to intervene between a push and a hit occurring in a two-second span”); Elufe v. Aylward, No. 09-CV-458(KAM)(LB),
2011 WL 477685, at *9 (E.D.N.Y. Feb. 4, 2011) (“Where the alleged force consists of a single push or a ‘rapid succession’ of
blows, courts have found that the officer did not have a realistic opportunity to intervene.”’) (citing O'Neill, 839 F.2d at 11-12).

*13 However, drawing all reasonable inferences in Plaintiff's favor, there is sufficient evidence that the above three Defendants
had a realistic opportunity to intervene in the further beating Plaintiff alleges he received after Leon-Martinez's kick. Although
Plaintiff could not remember how long the beating lasted, he testified that after the initial kick, he was punched more than
once and kicked at least once again in the presence of these officers, and for some of that period, he was handcuffed. (/d. at
48:10-16, 51:19-20, 61:21-62:1, 62:2-5). A reasonable juror could accept Plaintiff's version and find that the amount of time it
took to punch Plaintiff multiple times before and after handcuffing him could have been sufficient for the Defendants to stop
any further blows. This evidence raises a question of material fact whether the duration of the assault, and the officers' proximity
to Plaintiff, gave them a realistic opportunity to intervene. See Buie, 2015 WL 6620230, at *8 (holding that “while the initial
use of force ... happened too quickly for intervention, a reasonable jury could conclude that ... defendants had time to intercede
and were capable of preventing some of the harm caused” when detectives subsequently pushed plaintiff's arms upwards and
pressed her face into the wall); Jones v. City of Hartford, 285 F. Supp. 2d 174, 183 (D. Conn. 2003) (finding issue of material
fact as to realistic opportunity to intervene where “[o]n the plaintiff's facts, the kneeing and process of unbuckling and pulling
down [his] pants would have taken enough time to ... give[ | the other officers, who ... could have seen what was occurring, a
reasonable opportunity to intervene”). That said, the jury could also find that one or more of these officers was not present, or
that the further blows were delivered too quickly for these officers to intervene. The task of weighing the parties! conflicting
evidence will require a determination as to these Defendants' credibility, on the one hand, and Plaintiff's, on the other. Because
it is not the Court's role to engage in this exercise, summary judgment on Plaintiff's failure to intervene claim against Davis,
Lindsay and Solomon must be denied.

B. Deliberate Indifference to Medical Needs

Defendants contend that Plaintiff's deliberate indifference claims fail because he was never denied medical care, nor was his
broken eye socket sufficiently serious to trigger such liability. (Docket No. 96 at 10-11). Defendants further argue that there is
no evidence that Davis or Ottino acted with the requisite state of mind to sustain this claim, and they are otherwise entitled to
qualified immunity. (/d. at 11-13 & n.6). Plaintiff maintains that (1) his broken eye socket was sufficiently serious because only
surgery will correct it; (2) both officers had knowledge of his injury because they saw him being assaulted; and (3) they refused
to take him to the hospital until after they interrogated him. (Docket No. 100 at 6-8; see also Docket No. 106-1 at 74:3-10).
Moreover, according to Plaintiff, Davis intended to delay medical assistance as a “punish[ment]” in light of his statement: “You
shouldn't have made me run like that, asshole.” (Docket No. 100 at 7-8). In response, Defendants assert that even assuming
Plaintiff's medical treatment was delayed, Davis and Ottino are entitled to judgment as a matter of law because (1) Plaintiff's
broken eye socket was not a life-threatening or fast-degenerating condition, nor did any delay create any particular risk; and (2)
there is no evidence that either Defendant was aware or should have been aware of any such risk. (See Docket No. 102 at 3-7).

A pre-trial detainee's claim for deliberate indifference to serious medical needs is evaluated under the Due Process Clause of
the Fourteenth Amendment. Davis v. McCready, 283 F. Supp. 3d 108, 116 (S.D.N.Y. 2017) (citing Darnell v. Pineiro, 849 F.3d
17, 35 (2d Cir. 2017)). “[W]hen a claim arises under the Fourteenth Amendment, ‘the pre-trial detainee must prove that the
defendant-official acted intentionally ... or recklessly failed to act with reasonable care ... even though the defendant-official
knew, or should have known that the condition posed an excessive risk to health or safety.” ” Ryan v. Cty. of Nassau, 12-

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Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 166 of 484

not actually denied care; rather, he received care almost immediately after being arrested. Davis arranged for Mobile Medic to
examine Plaintiff less than ten minutes after he arrived at the precinct, and to examine him again approximately twenty-four
minutes after Plaintiff requested further treatment that evening. (Docket Nos. 94-6 at 4, 7; 97 §§ 25, 46-47, 52-53; 94-8). Mobile
Medic transported Plaintiff to the hospital approximately twelve minutes after they examined him a second time. (Docket No.
94-6 at 7). Courts within this Circuit generally limit finding deliberate indifference based on such delays in treatment to “cases in
which, for example, officials deliberately delayed care as a form of punishment; ignored a life-threatening and fast-degenerating
condition for three days; or delayed major surgery for over two years.” See Freeman vy. Strack, No. 99 Civ. 9878(AJP), 2000
WL 1459782, at *7 (S.D.N.Y. Sept. 29, 2000) (quoting Demata v. New York State Corr. Dep't of Health Servs., 198 F.3d 233
(2d Cir. 1999)) (internal quotations omitted); see also Munoz v. Eliezer, 16-cv-6049 (NSR), 2018 WL 1626170, at *6 (S.D.N.Y.
Mar. 30, 2018).

*15 The facts here do not bear out any of these scenarios, nor do they support Plaintiff's assertion that “his body was racked
with pain” to a point of severity that would otherwise trigger liability. (Docket No. 100 at 7); cf Martinez, 2021 WL 4502440,
at *10. The medical records do not classify Plaintiff's broken eye socket as “life-threatening” or “fast-degenerating,” nor do
they identify a concussion or any other severe issues that required immediate attention. Although Plaintiff testified that at some
point, he was told that his broken eye socket required surgery, (Docket No. 106-1 at 85:24-87:19), Dr. Peace's notes from his
visit to Albany on the evening of the incident state that there was no “urgent need to consult” the facial surgeon on call, (Docket
No. 101-1). The record is clear that Mobile Medic treated him shortly after arrival at the precinct, and again less than five hours
later. (Docket No. 94-6 at 7). There is no evidence that this delay exacerbated his condition or pain. Moreover, Plaintiff's first
examination — which he initially refused — did not indicate any pain or medical conditions beyond scratches, “mild” blurred
vision, and a broken blood vessel. (/d. at 4).

Courts have consistently rejected deliberate indifference claims under similar circumstances, involving relatively brief delays
or interruptions in treatment and a dearth of evidence that the plaintiff's pain or medical condition worsened as a result. See,
e.g., Davis v. Furey, No. 3:19-CV-1867 (JCH), 2021 WL 2827366, at *6 (D. Conn. July 6, 2021) (“Davis has not presented any
evidence that he experienced any serious risk of harm as a result of the asserted two-hour delay in receiving treatment ....”’);
Liverpool v. Davis, 442 F. Supp. 3d 714, 737 (S.D.N.Y. 2020) (granting summary judgment where plaintiff waited three hours
for medical treatment but did “not allege[ ] that the delay in treatment caused his condition to worsen”); Rodriguez v. Mercado,
No. 00 CIV. 8588 JSRFM, 2002 WL 1997885, at *9 (S.D.N.Y. Aug. 28, 2002) (dismissing deliberate indifference claim based
on eight or nine-hour delay, and noting that patients “seeking care for a non-life-threatening injury generally experience[ | some
delay in receiving treatment”). In addition, although there is evidence that Plaintiff was in pain at some point while awaiting
treatment, (Docket No. 106-1 at 66:9-13, 67:2-6), his sporadic complaints as well as ability to hold a conversation during the
interview indicate that he was not in the type of “extreme pain” that may otherwise satisfy the objective prong of the analysis.
Compare Martinez, 2021 WL 4502440, at *10 (finding objective prong satisfied on summary judgment in light of evidence that
plaintiff was “screaming and crying” for hours and repeatedly told an officer that she was in too much pain to be fingerprinted),
with Benitez v. Pecenco, No. 92 Civ. 7670 (DC), 1995 WL 444352, at *3 (S.D.N.Y. July 27, 1995) (granting summary judgment
where “nothing in the record ... suggest[ed] that plaintiff's back pain was severe or excruciating[, |” no medical personnel noted he
was in “acute distress or had any difficulty standing or walking[,]” and his complaints were “only sporadic[ ]|’’). Neither Mobile
Medic nor any hospital staff noted any pain-related lapses in Plaintiff's functioning or complaints of excruciating pain at any of
his examinations. See Benitez, 1995 WL 444352, at *3. Therefore, Plaintiff's “subjective claims of ... pain, unaccompanied by
substantial medical complications,” are inadequate to create a genuine dispute of material fact as to whether his condition was
sufficiently serious to warrant more immediate treatment. See Brown v. White, No. 9:08-cv-200 (GLS/ATB), 2010 WL 985184,
at *10 (N.D.N.Y. Mar. 15, 2010) (internal quotations omitted).

Moreover, although Plaintiff alleges that Davis's comments demonstrate an “intent to punish” him “by making him wait
unreasonably for medical assistance,” (Docket No. 100 at 7-8), this conclusory assertion is not enough to withstand dismissal.
According to Plaintiff, Davis told him that he “shouldn't have made [Plaintiff] run like that” when he was putting Plaintiff
into Leon-Martinez's vehicle after the assault. (Docket No. 106-1 at 57:12-17). However, it is undisputed that Davis and Leon-
Martinez arranged for Plaintiff's examination at the precinct shortly thereafter. (Docket Nos. 94-6 at 4; 97 J 46; 100 at 3

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Ridge CASE 9124400218 BKS IK o22Pocument 58 Filed 11/13/25 Page 167 of 484

14). Therefore, no rational jury could conclude that Davis intended to delay Plaintiff's treatment when he made the subject
comment. There is no indication that Davis made any similar comments upon Plaintiff's requests for further treatment. Absent
any such evidence specifically connecting the alleged delay of Plaintiff's treatment to an improper motive, Plaintiff's claim
cannot survive on this basis. Compare Benitez v. Beneway, No. 93 Civ. 3132 (DC), 1995 WL 489694, at *6 (S.D.N.Y. Aug. 15,
1995) (holding that “[n]o reasonable jury could conclude” that defendant ordered the filing of a misbehavior report in order “to
terminate [plaintiff's] prescribed physical therapy treatment in retaliation” for plaintiff's complaint, based only on the “temporal
proximity between the mailing of the complaint ... and the issuance of the misbehavior report”) (internal quotations omitted),
with Cumberbatch v. Port Auth. of New York & New Jersey, No. 03 Civ. 749(BSJ), 2006 WL 3543670, at *2, *9 (S.D.N-Y.
Dec. 5, 2006) (finding genuine issues of material fact as to officers' intent to delay treatment as punishment due to evidence
that “continued requests for medical attention were met with” an officer's reply that “they wanted him to ‘marinate’ ”).

*16 For similar reasons, the record is inadequate to support the subjective component of Plaintiff's deliberate indifference
claims. Even if Plaintiff requested medical treatment as early as being placed in the holding cell after his initial examination,
(see Docket No. 106-1 at 66:9-13, 67:2-6), there is no evidence upon which a reasonable jury could find that at that time, Ottino
and Davis knew or should have been aware that Plaintiff had a serious medical condition that required timely treatment. See
Darnell, 849 F.3d at 35. To the contrary, Mobile Medic's initial examination did not reveal any serious medical issues that
required immediate transportation to the emergency room. (Docket No. 94-6 at 4). Furthermore, there is no indication that
Plaintiff's condition deteriorated until the middle of the interview when Plaintiff repeatedly complained about his eye and it
began to bleed — which prompted Davis to obtain further care approximately twenty minutes later. (Docket Nos. 94-6 at 7;
94-8). None of these facts suggest that either officer knew or should have known of the seriousness of Plaintiff's condition
earlier in this sequence of events, or specifically intended to delay care. See Boyd v. Deasis, 524 F. Supp. 3d 128, 148 (W.D.N-Y.
2021) (dismissing deliberate indifference claim on summary judgment where defendants “called medical shortly after Plaintiff
sustained his injury”); Vines v. McCrystal, No. 3:18cv1432(MPS), 2020 WL 4818562, at *7-8 (D. Conn. Aug. 19, 2020)
(granting summary judgment based on undisputed evidence that defendant knew that plaintiff's injury had been treated earlier
that day and that plaintiff had been instructed to seek further treatment that evening).

Accordingly, Defendants' motion for summary judgment regarding Plaintiff's deliberate indifference claims is granted in its
entirety.

IV. CONCLUSION

For the foregoing reasons, Defendants' motion for summary judgment is granted in part and denied in part. Plaintiff's excessive
force claim against Leon-Martinez, and his failure to intervene claims against Solomon, Lindsay and Davis, survive. The Court
dismisses Plaintiff's failure to intervene claim against Ottino, and his deliberate indifference claims against Davis and Ottino.
Finally, Plaintiff's claims that Davis, Solomon, Lindsay and Ottino also personally participated in excessive force are dismissed.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore
in forma pauperis status is denied for the purpose of an appeal. The Clerk is respectfully requested to terminate the pending
Motion (Docket No. 93), and mail a copy of this Opinion and Order to the pro se Plaintiff.

Attachment

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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 168 of 484
Kennedy v. City of New York, 570 Fed.Appx. 83 (2014)
570 Fed.Appx. 83 This case was not selected for publication in the Federal Reporter. Not for Publication in West's Federal Reporter. RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1. 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE( WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. United States Court of Appeals, Second Circuit.
Michael KENNEDY, Plaintiff-Appellant, V. CITY OF NEW YORK, Anthony Carreira, Police Officer Shield # 20533. Kulka, P.O., Defendants-Appellees, Dennis Lane, Sgt. Held, P.O. Shield # 2103, Cordiner, P.O., P.O. Shield # 13774, Police Officers John Does # 1-8, names and number of whom are unknown at present, and other unidentified members of the New York City Police Department, Lamantia, LL., Defendants.
The Clerk of Court is respectfully directed to amend the official caption in this case to conform with the caption above.
No.13-2989-cv. June 24, 2014.
Appeal from the United States District Court for the Eastern District of New York (Edward R. Korman, Judge).
Attorneys and Law Firms
Stuart E. Jacobs, New York, NY, for appellant
Zachary W. Carter, Corporation Counsel, Pamela Seider Dolgow, Karl J. Ashanti. Elizabeth S. Natrella, of Counsel. New York, NY, for appellecs.
Present: GUIDO CALABRESI, GERARD E LYNCH, and RAYMOND J. LOHIER: JR., Circuit Judges.
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order and judgment of the district court is AFFIRMED.
Plaintiff-appellant Michael Kennedy appeals from the district court's grant of summary judgment in favor of the defendants- appellees the City of New York and Police Officers Anthony Carreira and Thomas Kulka ("defendants") on Kennedy's *84 claims of false arrest and malicious prosecutiont. pursuant to 42 U.S.C. §§ 1983 and 1988 and New York State common law. in connection with his 2008 arrest for alleged violations of various New York State traffic laws-charges later dismissed for failure to provide Kennedy with à speedy trial. Kennedy withdrew his claims against the other parties originally named as defendants, as well as other various state. law claims, and does not challenge the dismissal of those claims with prejudice. Thus we review the district court's grant of summary judgment with regard to his constitutional claims against the above-captioned defendants for false arrest and malicious prosecution and the pendent state law claim for malicions prosecution. We assume the parties' familiarity with the facts and the procedural history, which we describe only as necessary to explain our decision
"We review a district court's grant of summary judgment de novo, resolving all ambiguities and drawing all reasonable inferences against the moving party " Swatch Grp. Migint. Seres, Ltd. v: Bloomberg LP :. 756 E3d 73, 80, 2014 WL 2219162, at +4 (2d Cir.2014). We will affirm only if "there is no genuine dispute as to any material fact and ___ the movanl is entitled to judgment as a matter of law." Id, quoting Fed.R.Ciy.P. 56(a),
"When an officer observes a traffic offense-however minor -he has probable cause to stop the driver of the velucle" and clTect a subsequent arrest For that offense. United States vi Scopo, 19 F.3d 777, 782 (2d Cir.1994), Where it exists, probable cause "presents a total defense to |a plaintiff's] actions for false arrest and malicious prosecution [and]
WESTLAW @ 2022 Thomson Wetiers. No claim In original U'S Gavemment yyorks
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15

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 169 of 484
Kennedy v. City of New York, 570 Fed.Appx: 83 (2014)
entitle(s the defendants) to judgment as a matter of law." Manshurye Wertman, 721 F 3d 84, 89 (2d Cir 2013)
Carreira testified under oath that he initially detained Kennedy for, among other traffic violations, driving through a red light without stopping, and then, following the stop. observed that Kennedy showed signs of intoxication. At his own deposition, Kennedy testified, upon thorough questioning by opposing counsel, that he was unable to remember whether he encountered any red lights before being pulled over. Kennedy's deposition testimony, which essentially claims a lack of recollection. is not sufficient to contradict Carreira's testimony, or to raise a genuine dispute of fact. Carreira's testimony that Kennedy drove through a red light thus provides a basis for the initial stop, as well as the subsequent arrest and prosecution
On appeal, Kennedy argues that a factual dispute exists because he submitted an affidavit with his Local Rule 56.1 counterstatement of material Facts in which he denied that he ran a red light, and asserted that he complied with all relevant traffic laws. However, it is well established in this circuit that
a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that. by omission or addition, contradicts the affiant's previous deposition testimony. "If a party who has been examined at length on deposition conld raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham
issues of Fact." Thus, factual issues created solely by au affidavit crafted to oppose a summary judgment motion are not "genuine" issues for trial.
Hayes \ N.Y.C Dep'T of Corr, 84 F.3d 614, 619 (2d Cit. 1996). quoting Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) (internal citations omitted). We have applied this principle to affirm a grant of summary judgment *85 against a party who testified in his deposition that he was unable to remember a particular fact, and then, in response to a summary judgment motion, submitted an affidavit claiming a recollection of events that would have raised an issue Tor trial. Raskin v Wyatt Co. 125 F.3d 55, 63 (2d Cir. 1997).
We thus conclude that Kennedy cannot rely on his affidavit to raise a disputed issue of material fact, where that affidavit contradicts his earlier deposition testimony. In the absence of his affidavit there is no dispute that the arresting officer had probable cause to perform the traffic stop and arrest Kennedy. The existence of probable cause defeats Kennedy's claims for false arrest and malicious prosecution
For the reasons set forth above. the district court properly granted the defendants' motion for summary judgment. We have considered Kennedy's other arguments and found them to be without merit. Accordingly, the judgment of the district coun is AFFIRMED:
All Citations
570 Fed. Appx. 83
End of Document
2022 Thomson Reuters, No claim to original L &-Government Wane,
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16

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 170 of 484
Dotson V. Fischer, 613 Fed.Appx. 35 (2015)
613 Fed.Appx. 35 This case was not selected for publication in West's Federal Reporter, RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT, CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. United States Court of Appeals, Second Circuit.
Tyrone DOTSON, Plaintiff-Appellant,
Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Dr. Carl J. Koenigsmann, Deputy Commissioner and Chief Medical Officer, New York State Department of Corrections and Community Supervision, Dr. Eileen Dinisio, Regional Medical Director, New York State Department of Corrections and Community Supervision, Dr. Beverly Prince, Erie County Medical Center, Dale Artus, Superintendent. Wende Correctional Facility, New York State Department of Corrections and Community Supervision, Rosalyn Killinger, Deputy Superintendent for Health Services, Wende Correctional Facility, New York State Department of Corrections and Community Supervision, Thomas Sticht, Deputy Superintendent for Security Services, Wende Correctional Facility, New York State Department of Corrections and Community Supervision, Dr. Jacqueline Levitte, Facility Health Services Director, Wende Correctional Facility, New York State Department of Corrections and Community Supervision, Defendants.
The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the above.
No.13-4428-pr. June 2, 2015.
Synopsis
Background: State prisoner filed § 1983 action against prison officials alleging violations of his First and Eighth Amendment rights when he was allegedly denied adequate medical treatment and then retaliated against for making the complaints. The United States District Court for the Western District of New York, Arcara. J., dismissed, sua sponte Prisoner appealed
Holdings: The Court of Appeals held that:
[1] complaint sufficiently alleged Eighth Amendment violation based on delayed ear surgery, and
[2] complaint sufficiently alleged Eighth Amendment violation based on medical malpractice of surgeon.
Vacated and remanded
Procedural Posture(s): On Appeal
West Headnotes (2)
[1] Prisons - Particular Conditions and Treatments
Sentencing and Punishment - Medical care and treatment
State prisoner stated claim against prison medical staff for violation of the Eighth Amendment based on their deliberate indifference to his serious medical needs; complaint alleged that although medical staff received an urgent recommendation. following a CAT scan, that prisoner receive surgery to remove a cyst in his left ear, they rejected it, without cause, knowingly delayed the surgery for one year, and as a result, prolonged his
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17

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 171 of 484
Dotson V. Fischer, 613 Fed.Appx. 35 (2015)
severe symptoms of vertigo, blinding headaches, extreme pain in his left car, and increased hearing loss, U.S.C.A. Const.Amend 8.
26 Cases that cite this headnote
[2] Prisons - Particular Conditions and Treatments
Sentencing and Punishment - Medical care and Treatment
State prisoner stated claim against prison doctor for violation of the Eighth Amendment, based on deliberate indifference to his serious medical niceds, by alleging hier culpable recklessness in committing malpractice during car surgery, complaint alleged that doctor mismanaged prisoner's first surgery by leaving gauze in lus car, that after a second surgery by same doctor he experienced months of vertigo, excessive bleeding at the incision, and pain in the eyes, and that when he saw doctor for a follow-up appointment, she admitted that prisoner now had a hole in his left ear drum and that she needed to refer him to someone more qualified. L S.C.A. Const. Amend. 8.
12 Cases that cite this headnote
*36 Appeal from a judgment of the United States District Count for the Western District of New York (Arcara, J.). UPON DUE CONSIDERATION. IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the November 5, 2013 judgment of the District Coun is VACATED and the cause is REMANDED for further proceedings consistent with this order.
Attorneys and Law Firms
Bryan 3. Wegrzyn (Ross E. Morrison, on the brief). BuckleySandler LLP. New York, N.Y., for Plaintiff- Appellant
Andrew Ayers and Kate H. Nepveu. Assistant Solicitors General, and Barbara D. Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, N.Y., for the Attorney General of New York as Amicus Curiae
PRESENT: ROBERT D. SACK, BARRINGTON D PARKER and SUSAN L. CARNEY, Circuit Judges.
SUMMARY ORDER
Plaintiff Tyrone Dotson brings claims under 42 U.S.C. § 1983 for alleged violations *37 of his First and Eightli Amendnient rights during his incarceration at the state-run Wende Correctional Facility in Alden, New York, He alleges that he was deliberately denied adequate medical treatment by prison officials and was retaliated against for making related complaints. Acting sua sponte, the District Court dismissed his pro se complaint and amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). We assume the parties' familiarity with the underlying facts and the procedural history of the case, to which we refer only as necessary 10 explain our decision to vacate and remand.
1 Because the District Court dismissed the action before process was served, the defendants listed in the complaint are not parties to this appeal and filed no briel as appellees. Al our invitation, however. the Office of the Attorney General of the State of New York filed a brief as ticus carine in support of the position of the state defendants and of one defendant. Dr. Prince, who was a state contractor
Dotson challenges the District Court's dismissal of his Eighth Amendment claims against Dis. Dinisio, Koenigsman, and Prince, and of his First Amendment claim against Sticht. Dotson alleges that Drs. Dinisio and Koenigsmann, each of whom had supervisory authority over inmates' medical care, violated the Eighth Amendment by denying an urgent. recommendation that he receive surgery to remove a cyst in his left ear, delaying the surgery for one year and prolonging his severe symptoms. He asserts that Dr. Prince provided unconstitutionally inadequate medical care in connection with the surgery that she performed on his left ear. Finally, he claims that Sticht, the Deputy Superintendent for Security. violated the First Amendment by imposing on Dotson conditions akin to disciplinary confinement in retaliation for Dotson's repeated filing of grievances. Sticht accomplished this. Dotson alleges, by changing to a "medical keeplock" permit a "feed-in-cell" permit that Dotson was issued for medical reasons.
The Disinci Count (Judge Larimer) reviewed Dotson's initial complaint as required by 28 U.S.C §§ 1915(e)(2)(B)
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and 1915A, which apply to actions brought by prisoners proccoding in forma pauperis and provide for dismissal of a complaint that is frivolous, malicious, or fails to state a claim on which relief may be granted. See Abbas v Dixon, 480 F.3d 636, 639 (2d Cir. 2007), In May 2013, the court dismissed with prejudice the Eighth Amendment count against Dr. Prince for failure to state a claimi, It further dismissed without prejudice the claims against Dis. Dinisio and Koenigsmann under the Eighth Amendment and against Sticht under the First Amendment, permitting Dotson to file au amended complaint as to these defendants. Dotson did so. supplementing his original allegations.
On November 5, 2013, the District Court (by then, Judge Arcara) determined-also under §§ 1915(e)(2) and 1915A- that the amended complaint, too. failed to state a claim to relief as to the remaining defendants and entered judgment dismissing the action with prejudice. Dotson timely appealed. and our Court granted Dotson's motions for leave to proceed in forma pauperis on appcal and for appointment of counsel. 2
2 Pro bono counsel Bryan J. Wegrzyn and Ross E. Morrison of Buckley Sandler have performed ably in this matter, and the Court appreciates their service, which it hopes may continue on remand. If counsel is disinclined, however, to continue its representation in further proceedings, the District Court should appoint new counsel.
*38 Now ably counseled. Dotson argues on appeal that the District Court erred in dismissing his constitutional claims against Sticht and Drs. Dinisio, Koenigsmann, and Prince, We review de novo a District Court's sua sponte dismissal of a complaint under 28 UL.S.C. §§ 1915(e)(2) and 1915A. See Grano v Goord, 250 F.3d 146, 149- 150 (2d Cir.2001); see also Larkin v. Savage. 318 F.3d 138, 139 (2d Cir 2003) (per curiam). To avoid dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face " Bell til. Corp. v. Twombly 550 U.S. 544, 570, 127 S.CL. 1955, 167 L.,Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft w Iqbal, 556 U.S. 662, 678 129 S.CL 1937. 173 L.Ed.2d 868 (2009). We afford a pan se litigant "special solicitude" by interpreting a complaint filed pro se "to raise the strongest claims that it suggests." Hill v. Carcione: 657 F.3d 116, 122 (2d Cir.2011) (internal alterations and quotation marks omitted)
[1] Upon considered review. we conclude that the District Court erred by dismissing Dotson's Eighth Amendment claims that Drs. Dinisio and Koenigsmann unconstitutionally denied him medical care, A prisoner pressing such a claim must colorably allege that the defendant acted with deliberate indifference to his serious medical needs. See Hilron K. Wright. 673 F.3d 120, 127 (2d Cir2012) (per curiam), A. "serious medical need" exists where, objectively, "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Harrison w Barkley: 219 F.3d 132, 136 (2d Cir, 2000) (internal quotation marks omitted). "Deliberate indifference" requires allegations of the defendants' subjective state of mind: thại the prison official "kn[ew ] of and disregard[ed] an excessive risk to inmate health or safety." Smuth v. Carpenter, 316 F.3d 178. 184 (2d Cir 2003) (internal quotation marks omitted).
The amended complaint plausibly alleges a serious medical need. Dotson alleges that a CAT scan revealed a cyst in his left ear, and that Nurse Practitioner Jennifer Wrest recommended surgery and requested an "urgent" level of attention. App. 41. Over the year following that"urgent" recommendation, while the recommended surgery was delayed. Dotson complained on numerous occasions of "vertigo, blinding headaches, extreme pain in his left ear, and increased hearing loss." Id. at 41-42. When the cyst was finally removed, one year later. it was of "significant size." Id. at 42. Such allegations of a "condition of urgency" that "may produce ... extreme pain" satisfy the objective prong of the analysis, Hathaway Coughlin, 99 F 3d 550. 553 (2d Cit 1996) (internal quotation marks omitted).
The amended complaint also plausibly alleges that Drs Dinisio and Koenigsmann acted with sufficiently culpable states of mind to support liability. To satisfy this prong of the deliberate indifference test, a plaintiff must allege only that the defendant was "aware of facts" from which one could infer that "a substantial risk of serious harm" existed, and that the defendant actually drew that inference. Farmer i Brennan, 511 U.S. 825. 837. 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see also Hilton, 673 F.3d at 127. Here, Dotson asserts that Drs. Dinisio and Koenigsmann reviewed Wrest's evaluation and recommendation that his condition demanded "urgenl" care and rejected it, apparently without causing him to be examined again in person or taking any further step. As noted, their denials are alleged to have delayed Dotson's surgery for one year and *39 resulted in the continuation of severe symptoms. Allegations of delayed medical care my support a finding of deliberate indifference to a serious
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medical need, see, e.g., Hathaway v Coughlin 841 F.2d 48, 50-51 (2d Cir 1988), and allegations that delayed treatment resulted in senous harm may bear on the reasonableness of an inference of a defendant's knowledge of the risks lo which he or she subjected the plaintiff, see Hilton, 673 F.3d at 127. We believe Dotson's allegations suffice at this carly stage of the litigation to state a plausible claim to relief.
[2] We similarly conclude that the District Court erred by dismissing Dotson's Eighth Amendment claim against Dr. Prince for her affirmative acts. Although mere allegations of medical malpractice are generally insufficient to support Tiability, see Estelle . Gamble, 429 U.S. 97, 105-06, 97 S.C1. 285, 50 1.Ed,2d 251 (1976), allegations regarding the provision of medical care may be actionable under the Eighth Amendment when the alleged malpractice involves culpable recklessness, that is, "an act . by a prison doctor that evinces a conscious disregard of a substantial risk of serious harm." Hill, 657 F.3d at 123 (internal alterations and quotation marks omitted). Here, Dotson alleges that Dr. Prince mismanaged his first surgery by leaving gauze in his ear: that after a second surgery by Dr. Prince, he experienced months of vertigo, "excessive bleeding at the incision, and pain in the eyes." App. 14; and that when he saw Dr. Prince for a follow-up appointment, she admitted that Dotson "now ha[d] a hole in his left ear drum" and that she needed to refer him to someone "more qualified." App: 15. Consuming Dotson's pro se pleadings, as we must, to maise the strongest arguments they suggest. we rule that Dotson's allegations permit a reasonable inference that Dr. Prince's malpractice mose to il level of culpable recklessness and suffice to state an Eighth Amendment claim.
Finally, we conclude that the District Court improperly dismissed Dotson's First Amendment retaliation claim against
Sticht. To state such a claim, an inmate must allege that he engaged in protected conduct and that his conduct was a "substantial or motivating factor" for an adverse action taken by a prison official. Holland w Gourd, 758 F.3d 215, 225 (2d Cir2014) (intemal quotation marks omitted). "|T|cmporal proximity of an allegedly retaliatory misbehavior report lo a grievance may serve as circumstantial evidence of retaliation," Caylee Gumyea, 313F.3d 677.683 (2d Cu.2002) (citing Colon e Conghlin, 58 F.3d 865, 872 (2d Cir 1995)) Although Dotson's pleadings on this matter are not a model of clarity, they suggest sufficient temporal proximity between Dotson's complaints of inadequate medical care and Sticht's decision placing Dotson in keeplock to support Dotson's retaliation claim at this pleading stage. With the assistance of counsel. Dotson may replead this claim if he so chooses and the District Court can then reassess its viability.
...
We therefore VACATE the judgment of the District Court and REMAND the cause for further proceedings consistent with this order.
3 Our vacatur and remand are without prejudice to any motion to dismiss the complaint that defendants may file after they have been served with the amended complaint. We also leave open the possibility that, represented by counsel, Dotson may propose an additional amended complaint appending any relevant medical documents that he has procured.
All Citations
613 Fcd. Appx 35
End of Document
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Demosthene v. City of New York, 831 Fed Appx. 530 (2020)
831 Fed.Appx. 530 This case was not selected for publication in West's Federal Reporter, RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT, CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. United States Court of Appeals, Second Circuit.
Kroutchev DEMOSTHENE, Plaintiff-Appellant, v.
CITY OF NEW YORK, Dora B. Schriro, Detective John Roberts, P.O.s John and Jane Does 1-10, Defendants-Appellees,
19-3002
October 9, 2020
Synopsis
Background: Arrestee brought action against municipality. police commissioner, and police officer, alleging false arrest. false imprisonment, malicious prosecution, denial of his due process right to fair trial, fabrication of evidence, and excessive force The United States. District Court for the Eastern District of New York, Sterling Johnson, Senior District Judge, 2019 WL. 3992868, granted summary judgment to municipality and its personnel after adopting the report and recommendation of Vera M. Scanlon, United States Magistrate Judge, 2018 WL, 111072931 Arrested appealed.
Holdings: The Court of Appeals held that
[1] police officer had probable cause to arrest arrested for robbery!
[2] arrestee's speculation that police officer who arrested him punched him twice while transporting him to police
department precinct was not sufficient to raise genuine issue of material fact on excessive force claim:
[3] arrestee's accusation that police officer who arested lum choked him when line-up was conducted was not sufficient lo raise genuine issue of material fact on excessive force claim:
[4] district court's decision to not grant requests for further extensions of time with respect to discovery deadline was well within range of permissible decisions and did not constitute. abuse of discretion; and
[5] arrestee waived further judicial review of findings contained in report and recommendation.
Affirmed
Procedural Posture(s): On Appeal: Motion for Summary Judgment
West Headnotes (5)
Arrest - Identification or description of offender or vehicle
Police officer had probable cause to arrest arrested for robbery, where telephone mimber provided by robber to victim in arranging sale of cell phone was linked to account associated with arrestee's date of birth and address, arrestee fit general physical description that one victim provided to police department immediately after mobbery took place, and victim identified arrester from photo array. L.S Const. Amend. 4.
1 Cases that cite this headnote
Federal Civil Procedure - Civil rights cases in general
Arrestce's speculation that police officer who arrested him punched him twice while transporting him to police department precinct was not sufficient to raise genuine issue of material fact on excessive force claim on motion for summary judgment, although only two officers were in vehicle and arresting officer was in vehicle. U.S. Const. Amend. 4; Fed. R. Civ. P. 56(a).
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4 Cases that cite this headnote
[3] Federal Civil Procedure Civil rights cases in general
Arrestee's accusation that police officer who arrested him choked him when line-up was conducted was not sufficient to raise genuine issue of material fact on excessive force claim on motion for summary judgment; arresting officer was not present when the line-up was conducted and officer who allegedly choked him was Black, and officer was Caucasian. U.S. Const Amend. 4; Fed. R. Civ. P. 56.
| Cases that cite this headnote
141 Federal Civil Procedure Time for motion
District court's decision to not grant requests for further extensions of time with respect to discovery deadline before allowing summary judgment motion to be filed was well within range of permissible decisions and did not constitute abuse of discretion, in arrestee's action against municipality, police commissioner, and police officer alleging false arrest, where arrestee received numerous extensions of that deadline over two-year period and still failed to complete such discovery.
I Cases that cite this headnote
[5] United States Magistrate Judges - Time for objecting; extensión
United States Magistrate Judges - Waiver of right to review in general
Arrestee waived further judicial review of findings contained in report and recommendation by not objecting in timely Fashion after receiving notice that failure to do so would constitute waiver, in arrestee's action against municipality, police commissioner, and police officer alleging false arrest. U.S. Const. Amend 4.
*531 Appeal from a judgment and various orders entered by the United States District Court for the Eastern District of New York, granting summary judgment to defendants on all claims, denying plaintiff's request to amend the complaint. and denying various requests for extensions of time and other relief (Johnson, Jr., .J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and orders of the district court are AFFIRMED
Attorneys and Law Firms
For Plaintiff-Appellant: UGOCHUKWU UZOH, Ugo Uzoli, P.C., Brooklyn, New York.
For Defendatus-Appellees: TAHIRIH.M. SADRIEH (Aaron M. Bloom, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, New York.
PRESENT. JON O. NEWMAN, RICHARD C. WESLEY. JOSEPH F. BIANCO, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Kroutchev Demosthene appeals from the judgment and decisions by the district court, granting summary judgment to defendants on all claims, denying his request to amend the complaint to include additional defendants, and denying various requests for extensions of time and other relief, In his complaint, Demosthene asserted claims for violations of his civil rights under 42 U.S.C. § 1983 against the City of New York (the "City"), Commissioner Dora Schriro, Detective John Roberts, and several other employees of the City (collectively. "defendants"), including claims for, among other things, false arrest/imprisonment. malicious prosecution, denial of his due process right to a fair trial, fabrication of evidence, and excessive force Demosthene also asserted a conspiracy claim under 42 U. S.C § 1985 and various state law claims The underlying arrest and prosecution of Demosthene were for robbery of a cell phone *532 at gunpoint, but the charges were ultimately dismissed
This appcal centers primarily on two rulings by the district court. First, on August 28, 2015, the district court adopted the magistrale judge's Report and Recommendation, dated June 26, 2015 (the "2015 R&R"), granting in part and denying in pan Demostliene's motion to amend Second on August 16, 2019, the district court adopted the Report and
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Recommendation, dated July 20. 2018, granting summary judgment to defendants on all federal claims and declining to exercise supplemental jurisdiction over the remaining state law claims. In addition, Demosthene appeals various other orders issued by the district court relating to these motions, including: (1) the Order, dated August 26, 2015, denying his request for additional time to file objections to the 2015 R&R; (2) the Orders, dated September 9 and 11, 2015, denying his request for reconsideration of the partial denial of his motion to amend and denial of his extension of time to file objections; and (3) the Orders, dated September 19. 2017, denying his requests for reconsideration of the district court's decisions to deny a further extension of the discovery deadline and to allow defendants to move forward on their summary judgment motion.
We assume the parties' familiarity with the underlying facts and procedural history, which we reference only as necessary to explain our decision to affirm. We will address the summary judgment decision first and then analyze the various challenges to the other orders issued by the district court.
1. Summary Judgment
This Court reviews a grant of summary judgment de novo Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cmr 2000) "Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."" Doninger , Niehoff, 642 F.3d 334, 344 (2d Cir 2011) [quoting Fed. R Civ. P. 56(a)); accord Celotex Corp. v. Catreit, 477 U.S. 317. 322. 106 S Ct. 2548, 91 L., Ed.2d 265 (1986).
A. False Arrest and Malicious Prosecution Claims
Demosthene argues that the district court erred in concluding that there was probable cause For his arrest and prosecution, and that his false arrest and malicious prosecution claims should have survived summary judgment. We disagree.
Probable cause is a complete defense to a cause of action for false arrest or imprisonment, as well as malicious prosecution Covington v City of New York, 171 F3d 117, 122 (2d Cir 1999) (false arrest); Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003) (malicious prosecution). Probable cause exists "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Singer
Felton Cmg Sheriff. 63 E.3d 110, 119 (2d Cir. 1995) (internal quotation marks omitted). Probable cause does not require "hard certainties" but instead "requires only facts establishing the kind of fair probability on which a reasonable and prudent person, as opposed to a legal technician, would rely." Figuerou : Mazza, 825 F.3d 89, 99 (2d Cir. 2016) (internal quotation marks and alteration omitted). Moreover. "[w ]hen information is received from a putative victim or an eyewitness, probable cause exists, unless the circumstances raise doubt as to the person's veracity." "533 Curley y. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (citations omitted). "|Where there is no dispute as to what facts were relied on to demonstrate probable cause, the existence of probable cause is a question of law for the court." Walczyky Rio, 496 F.3d 139, 157 (2d Cir. 2007).
[1] Here, the uncontroverted evidence in the record taken together supports a finding of probable cause as a matter of law. New York Police Department ("NYPD") Detective John Roberts relied upon tuee pieces of evidence to support his probable cause determination at the time of Demosthene's arrest. First. the telephone number ending in 3565 that was provided by the robber to the victim in arranging the sale of the cell phone was linked to an account associated with Demosthene's date of birth and address 2 Although Demosthene attempts to provide alternative innocent explanations for the incriminating telephone record evidence, any such attempts do not vitiate the probable cause that otherwise existed for the arrest. See Panetta y: Crowley. 460 F.3d 388, 395 (2d Cir. 2006) ("[T]he fact that an innocent explanation may be consistent with the facts alleged . does not negate probable cause." (internal quotation marks omitted)). Second, Demosthene fix the general physical description that one of the victims provided to the NYPD immediately after the robbery took place. In particular, the victim described the perpetrator as a Black man, between the ages of 20 to 25 years old, and aboul 5'10 tall. Demosthene, at the time, was 21 years old. 6' tall, and is a Black man. Third, the victim selected a photo of Demosthene from a photo array as the individual who robbed littt. Although Detective Roberts did not participate in the investigation into the robbery himself, his NYPD colleagues informed him of all these facts. This information was "sufficient to warrant a person of reasonable caution" lo believe that Demosthene had committed the robbery See Singer, 63 F.3d at 119 (internal quotation marks omitted): see also Harrison v. County of Nasson. 804 F. App'x 24. 27 (2d Cir. 2020) (concluding that photo army identification supported probable cmise),
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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I The only named defendants in the complaint are Detective Roberts, Commissioner Schriro, and the City, Therefore, the probable cause analysis is based upon the information available to Detective Roberts, rather than other unnamed officers.
2 There was no real name associated with the number, instead, the name for this account was what appeared to be an alias
Demosthene argues that there was sufficient evidence of fabrication of the photo array identification to undermine the probable cause determination and preclude summary judgment. We find that argument umpersuasive. Detective Roberts stated that he "was informed by Detective Gary Haber that the complaining victim identified plaintiff in the photo array as having committed the gun point robbery." Joint App'x at 572, which was corroborated by a contemporancous document of a re-interview of the victim by Detective Haber on February 29, 2012, noting such identification. Moreover, there is no evidence that Detective Roberts would have any reason to believe that Detective Haber would fabricate the identification. See Martinez v, Simonetti, 202 F.3d 625. 635 (2d Cir 2000) (noting that absent a reason to question his veracity, an officer may rely on a fellow officer's account to establish probable cause),
Notwithstanding this evidence. Deniosthene suggests that purported deficiencies in the paperwork suggest that Detective Haber fabricated the identification, These conclusory and speculative assertions of fabrication are insufficient to create *534 a gemiine issue of fact with respect to the fabrication of evidence. See, e.g., Cameron k: Cinty Aid for Retarded Children, Inc., 335 F 3d 60, 66 (26 Car. 2003) ("|A|n inference that |the defendant] fabricated complaints would be based on nothing but speculation lacking in the concrete particulars required to defeat summary judgment," (internal quotation marks omitted)); see also Crawford w City af New Jork. 477 F App'x. 777. 780 (2d Cir, 2012) ("[The plaintiff] offers nothing beyond speculation to suggest that [the Detective] fabricated a story, Conclusory allegations are insufficient to withstand summary judgment."). To the extent that Demosthene contends that he could have uncovered such evidence of fabrication with additional discovery, the declaration submitted in opposition to the motion for summary judgment did not comply with Rule 56(d) of the Federal Rules of Civil Procedure, in that it failed to state "the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine
issue of material fact, what effons the affiant has made to obtain those facts; and why those efforts were unsuccesshil Paddington Partners V. Bouchard 34 F.3d 1132, 1138 (2d Cir 1994) (discussing the prior and materially identical version of' Rule 56(d)). In light of that failure, the district court did not err in considering the summary judgment motion based upon the record before it. See id. at 1137-38.
In short, based upon the victim's identification and other corroborating information, no rational jury could find that there was a lack of probable cause for Detective Roberts to arrest Demosthene for the robbery. Similarly, with respect 10 the malicious prosecution claim, there is no evidence in the record that Detective Roberts became aware of information after the arrest that would overcome the presumption of probable cause that attaches to the grand jury's indictment. Sce Bermudez v. City of New York, 790 F.3d 368, 377 (2đ Cir. 2015) (explaining that presumption of probable cause from an indictment "can only be overcome by evidence that the indictment was the product of fraud, perjury, the suppression of evidence by the police, or other police conduct undertaken in bad faith" (internal quotation marks omitted)) Accordingly, we affirnt the district court's dismissal of the false arrest and malicious prosecution claims.
3 Given the absence of evidence from which a rational jury could find fabrication of evidence by the police in this case, we also alfinn the district court's dismissal of the fabrication of evidence und due process claims. Moreover, in light of the absence of an underlying constitutional violation. the district court correctly dismissed the claim against the Cuy pursuant to Monell u Department of Social Services of City of New York, 436 U S. 658. 98 S.CI. 2018, 56 L.Ed.2d 611 (1978) and the conspiracy claim under § 1985. See Segal u Cry of New York. 459 F.3d 207. 219 (2d Cir. 2006). Spencer v Casovilla, 903 F.2d 171. 174 (2d Cir 1990).
B. Excessive Force Claims
[2] Demosthene's excessive force claims focus on two incidents - namely. (1) when an unidentified officer allegedly punched him twice while he was transported to the NYPD precinct on April 9, 2012 following his arrest, and (2) when an unidentified officer allegedly choked him while he was participating in an October 2012 line-up. Demosthene argues that, although he could not identify either officer allegedly involved in these attacks. a rational jury could conclude that
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Demosthene v. City of New York, 831 Fed:Appx. 530 (2020)
Detective Roberts participated in the assaults, or, at the very Icast, failed to intervene. We find Demosthene's arguments unpersuasive.
With regard to the alleged April 2012 punching incident in the police vehicle following Demosthene's arrest, he testified *535 that there were two officers in the vehicle, but he was unable to identify the officer who allegedly punched him. Instead, Demosthene only testified that it was the unidentified officer in the passenger seat who punched him, Although Detective Roberts was in the police car at the time Demosthene alleges he was punched, there is nothing in the record from which a rational jury could reasonably infer that it was Detective Roberts who punched Demosthene, rather than the other police officer in the car. Any such finding by the jury based upon this scant record would be sheer speculation.
Demosthene attempts to overcome this evidentiary gap by arguing that, at a minimum, Detective Roberts could be liable under a failure-to-intervene theory even if he was the driver of the police car while the other officer punched him. That argument, however, is similarly flawed. A police officer has an affirmative duty to intercede when excessive force is being used by other officers if there is "a realistic opportunity to intervene to prevent the harm from occurring." Anderson ki Branen, 17 F.3d 552, 557 (2d Cir. 1994). Here, Demosthene testified in his deposition that, when he kept questioning why he was being arrested and where they were going, the officer in the passenger seat "turned around with his right [hand] and strick [him] two times." Joint App's at 645 Based upon Demosthene's own testimony regarding the brief nature of the alleged incident, no rational jury could find that the driver of the police car would have had a reasonable opportunity to intervene while driving and prevent the alleged throwing of two punches by the other officer. See D'Neill Krzeminski, 839 F.2d 9, 11 (2d Cir 1988) (holding that no rational juror could conclude that the defendant had an opportunity to intercede when "blows were stnick in such rapid succession").
[3] With respect to the October 2012 line-up, both Detective Roberts's affidavit and a record of the line-up demonstrate that Detective Roberts was not present when the line-up was conducted. Demosthene offers no evidence to the contrary, In fact, Demosthene himself testified that the officer who allegedly choked him was Black, and Detective Roberts is Caucasian. It is axiomatic that claims under $ 1983 for use of excessive force or failure to intervene require personal involvement to trigger liability, See Patterson v: County of
Oneida, 375 F.3d 206, 229 (2d Cir. 2004). Due to this lack of' evidence regarding Detective Roberts's personal involvement in the alleged excessive use of force at the time of the line- up, the district court also properly dismissed this portion of Demosthene's excessive force and failure to intervene clauns
IL. Other Rulings by the District Court
Demosthene also argues the district court erred in addressing a manber of his motions, including: (1) denying huis request to further extend the discovery deadline before allowing defendants 10 file their summary judgment motion; (2) denying his request for an additional extension of time to file objections to the 2015 R&R regarding his motion to amend. and then failing to consider the late objections: (3) denying. in part, his motion to amend; and (+) denying his motions for reconsideration related to these rulings,
We review each of these decisions for abuse of discretion. See. e.g., In re Agent Orange Prod. Ltdb. Ling, 517 F. 3d 76, 102 (2d Cir. 2008) (discovery rulings); Wesolek . Canadair Ltd. 838 F.2d 55. 58 (2d Cir 1988) (denial of motion to extend time to file objections to a report and recommendation): IT'S/ Comme'us, Inc.: Shoor Fund, Lad .. 493 F.3d 87. 108 (2d Cir 2007) 536 (denial of leave to amend): Innhuiical Survs., Inc. v. Tonga Partners, I.P., 684 F.3d 36, 52 (2d Cir 2012) (motion for reconsideration); "A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions,"Ia re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks, citations, and alterations omitted).
[4] [5] With respect to the discovery deadline, Demosthene received numerous extensions of that deadline over a two- year period, and still failed to complete such discovery Similarly, Demosthene received a 14-day extension of time to file his objections to the 2015 R&R but, when the district court failed to grant his additional extension requests, chose to file his objections one week after the deadline. The district court's decision not to grant these requests for further extensions of time was well within the range of permissible decisions and did not constitute an abuse of discretion under these circumstances. Moreover, given that Demosthene did not object in a timely Fashion to the 2015 R&R (after receiving notice that the failure to do so would constitute waiver), he waives further judicial review of the findings contained in the 2015 R&R + See Frank w. Johnson, 968 F 2d 298, 299 (2d
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
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Page 179 of 484
Demosthene v. City of New York, 831 Fed.Appx. 530 (2020)
Cir, 1992). We recognize that, because this waiver rule is non- jurisdictional, we "may excuse the default in the interests of justice "Thomas 1; Are: 474 U.S. 140, 155, 106 S.CL 466. 88 L.Ed.2d435 (1985). That standard, however, has not been met here because Demostbene has failed to demonstrate that the proposed amendments for which he was denied Icave raised plausible claims against the additional defendants. Finally, to the extent that Demosthene also challenges the district court's denial of his various motions for reconsideration with respect to these various milings, we similarly conclude that the district court did not abuse its discretion in denying such motions.
4 On June 26. 2015, the magistrate judge issued a report and recommendation, which recommended that Demosthene's motion to amend the complaint be granted in part and denied in part. The end of the 2015 R&R stated that written objections must be filed within fourteen days of service of the 2015 R&R and that failure to file objections
within that time waives the right to appeal. Despite receiving an extension of that deadline to July 24. 2015. Demosthene failed to file objections by the deadline. The district court then adopted the 2015 R&R in its entirety, The district court ordered Demosthene to file an amended complaint complying with its niling within ten days, but Demosthene never did
**
We have reviewed the remainder of Demosthene's arguments and conclude that they are without merit. For the foregoing reasons, the judgment and orders of the district court are AFFIRMED.
All Citations 831 Fed. Appx 530
End of Document
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26

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 180 of 484
Fleming v. Costco Wholesale Corporation, Slip Copy (2020) 2020 WL 2404907
2020 WL 2404907 Only the Westlaw citation is currently available. United States District Court, E.D. New York.
Cicera FLEMING, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendant.
17-CV-2878 (AMD) (PK)
Signed 05/12/2020
Attorneys and Law Firms
Steven Wildstein, Great Neck. NY. for Plaintiff.
Robert Joseph Walker. Brian R. Kenney, Gallagher, Walker. Bianco & Plastaras, LLP, Mincola, NY, Scan Michael Costigan. Brand. Glick & Brand, P.C., Garden City, NY, for Defendant
MEMORANDUM DECISION AND ORDER
ANN M DONNELLY. United States District Judge:
*1 On December 29. 2016, the plaintiff filed a complaint in the New York Supreme Court, alleging that the defendant's negligence caused her to slip and fall in a Brooklyn Costco store (ECF No. I at 7-8 ) The defendant removed the action to federal court on May 11. 2017 (ECF No. 1 at 1-4), and moved for summary judgment on December 18, 2019 (ECF No 31) The plaintiff opposes the motion for summary judgment. (ECF No. 36.) For the reasons that follow, the defendant's motion is granted in part and denied in part.
BACKGROUND
In deciding whether summary judgment is appropriate, the Court resolves all ambiguities and draws all reasonable inferences in favor of the plaintiff, the non-moving party. See Kavtor v Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir, 2010); Salomon 1 Our Lady of Victory Nosp. 514 F.3d 217. 226 (2d Cir. 2008).
On March 7. 2016, the plaintiff went to the Brooklyn Costco Warehouse with her niece, Miranda Richardson (ECF No.30, Def. Rule 56. | Statement ("Def: 56.1")17 1-3.)- Shortly after she entered the store, the plaintiff noticed a round piece of red cake, approximately four to five inches in diameter on the floor near the bread and produce displays. (Id. 11 7.8. ECF No. 33-8, Richardson Dep. 17:6-11.) The plaintiff told a Costco employee about the cake, and he replied that he or another employee would take care of it. (ECF No. 33-4, PI Dep, 37;21-38:5; Richardson Dep. 19:20-21:12.) The plaintiff and her niece continued shopping in other parts of the store (Richardson Dep. 10:5-11:19.)
2
Unless otherwise noted, the factual background is based on my review of the entire record, including the parties' 56.1 statements, which are not especially detailed. On a motion for summary judgment, the Court's consideration is limited lo factual material that would be admissible in evidence at trial. Local Unions 20 v: United Bhd uf Carpenters and Jomers of Am. 223 F. Supp 2d 491, 496 (S.D.N.Y. 2002), Factual allegations that are disputed without a citation to admissible evidence are deemed admitted, as long as they are also supported by the record, Local Civ. R. 56.1; Giannulloy. City of New York, 322 F.3d 139. 140 (2d Cir. 2003). Factual allegations that are not disputed are deemed admitted, as long as they are also supported by the record Id. I disregard any arguments in the Rule 56.1 statements. Pape w Direksen & Talleyrand Inc., No. 16-CV-5377. 2019 WL 1435882, at *2 (E.D.N.Y.Feb. 1. 2019). report. and recommendation adopted, 2019 WL 1441125 (E.D.N.Y. Mar 31. 2019),
Approximately ninety minutes Inter, the plaintiff and her niece retumed to the bread and produce section so that the plaintiff could get some honey wheat bread. (/d. 11: 18-24.) When she did not find the bread, she walked back to her niece, but slipped and fell on her side. (PI. Dep. 43:8-12, 61-62; Def. 56.1 9 9.) A shopper and a Costco employee from the bakery section, Veronica Johnson, helped the plaintiff up: the shopper escorted the plaintiff downstairs to the manager's office, where the plaintiff filled out an incident report in which she described her incident as follows: "I slipped on something on the floor and fell on my side (night)." (ECF No. 33-9; PL Dep. 62:7-68:16, 75:3-22.)
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
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Fleming v. Costco Wholesale Corporation, Slip Copy (2020) 2020 WL 2404907
42 Pursuant to store policy. Costco employees conduct "floor walks" on an hourly basis. [ECF No. 33-5, Ramgolam Dep 12:5-14 ECF No. 33-7. Johnson Dep 27:13-28:21) During a Boor walk, a Costoo employee walks duroughoul the store lo cicar debris from the aisles and monitor the freezer temperatures. (Johnson Dep. 27:16-23.) The employee records the results from the walk on a "Daily Floor- walk/Safety Inspection" worksheet, which is then signed by a manger (Ramgolam Dep. 19.) Ales Ramgolam did a floor walk from 7:06 p m. to 7:46 p.m. on the night of the plaintiff's fall. (ECF No. 33-11; Ramgolam Dep. 24:16-26:6.) He did not nole any dangerous conditions on the worksheet (ECF No. 33-11)
The parties dispute what caused the plaintiff's fall. According to Ms. Johnson, something that looked like the top of a strawberry or a partially eaten strawberry was on the floor near where the plaintiff was lying.
Q: So describe the strawberry top that you saw after the woman gol up off of the floor
A: Ii looked exactly like a bitten strawberry. Like if you take a bite out of the strawberry, what was left, is what was on the floor
Q: Was the green little stem left intact on top of the strawberry?
A: Yes
(Johnson Dep. 17:15-24.)
Ms. Johnson photographed the strawbeny after the plaintiff got up. (/d. 19:13-16. ECF No. 33-10.)
The plaintiff, on the other hand, attributes the fall to the piece of red cake. At her deposition, she conceded that she did not Jook at the floor after she slipped
Q: [A]t any time before you left to go downstairs to the cashier, did you look at that area where you slipped?
A: No.
Q. Can you tell me anything about what it looked like in that arda that day after your accident before you wont downstairs?
A: I didn't look back there.
Q: So you have no observations?
A: No observations
(PL. Dep. 81:3-14.) Nevertheless, she saw bits of cake on her shoes and clothes after she fell.
Q. What was on your shoes after the accident"?
A: The red cake.
Q. Was there any material anyplace else on your body other than your right shoe ... between your ankle and knee?
A: Between my ankle and my knee.
Q: What did you see there?
A: It looked like pieces of cake.
(Id. 46:23-25. 83:14-84:14.) According to the plaintiff's niece, Miranda Richardson, the plaintiff fell on "something red ... I'm just assuming it probably was a cake. I don't know (Richardson Dep, 10:5-13; see also id. 45:8-11 (It looks like red, as I just said. I don't know if it's cake or something. but it looks red, exactly the same thing that when we came in, what was on the floor.").)
The plaintiff and Ms. Richardson submitted affidavits executed after their depositions, in support of the plaintiff's opposition to summary judgment. In the plaintiff's affidavit she states that she slipped on "pieces of cake, possibly carrot cake or red velvet cake, and maybe some pieces of red Fruit or cake decoration as well " (ECF No, 36-1 " +.) In addition she states that Johnson's photograph shows "at least 2 of the pieces of the red cake that were on the floor before and at the time of my accident" although "some of the substance ended up on my clothing after | Tell in it and was struggling to get off the floor." (fel. "1 11. 16.)
Although Ms. Richardson testified at her deposition that the plaintiff fell on "something red" which she "just assumled] was a cake," she states in her affidavit that she is "certain" that her aunt slipped on "the same substance that existed on llic floor at the time [the plaintiff] complained to the store employee" about the rod cake. (ECF No. 36-2 1 6.) Ms Richardson states further that her aunt "slipped and fell on a red substance on the floor that looked like pieces of cake and a partial piece of strawberry." (Id " 4.)
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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*3 In addition to the affidavit, the plaintiff made substantive changes to her deposition transcript and submitted a "correction" shect in connection with her brief, The plaintiff's Original (ECF No. 33-4)
Q: Is this four to five inch piece of cake that you saw an hour and a half before what you claim you stepped on?
A: Apparently that's the same thing.
Q: When you say apparently, do you know for a fact?
A: Well, it was in the same area I fell down. (41:9-17)
Q: At any time before you got up, did you look at that area three feet away from where you slipped?
A: No.
Q: At any time after you got up, did you look at that area that had been three feet away from where you slipped?
A: Did I look there? I only paid attention - I can't remember if I looked there.
(80:13-22)
Q: I just want to know about the area where you slipped - at any time before you left to go downstairs to the cashier, did you look at that area where you slipped?
A: No.
Q: Can you tell me anything about what it looked like in that area that day after your accident before you went downstairs?
A: I didn't look back there.
(81:2-12.)
LEGAL STANDARD
Summary judgment is appropriate only if the parties" submissions, including deposition transcripts, affidavits or other documentation show that there is "no genuine dispute as to any material fact," and the movant is "entitled to judgment
correction sheet makes the following changes, among others.
to her testimony:
Correction (ECF No. 37-2)
Q: Is this four to five inch piece of cake that you saw an hour and a half before what you claim you stepped on?
A Apparently that's the same thing.
Q: When you say apparently, do you know for a fact?
A: Yes.
(41:9-17)
Q: At any time before you got up, did you look at that area three feet away from where you slipped?
A: Yes.
Q: At any time after you got up, did you look at that area that had been three feet away from where you slipped?
A: Yes.
(80:13-22)
Q: I just want to know about the area where you slipped - at any time before you left to go downstairs to the cashier, did you look at that area where you slipped?
A: Yes.
Q: Can you tell me anything about what it looked like in that area that day after your accident before you went downstairs?
A: Red Cake.
(81:2-12.)
as a matter of law." Fed. R. Cw. P 5001): see also.Anderson k Liberty Lobby, Inc. 477 U.S. 242. 247-48 (1986). The movant has the burden of showing the absence of any gemarine dispute as to a material fact, MeLee y Chrysler Corp., 100 F 3d 130 134 (2d Cir: 1997) (citation omitted).
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29

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 183 of 484
Fleming v. Costco Wholesale Corporation, Slip Copy (2020) 2020 WL 2404907
A fact is "material" when it "might affect the outcome of the suit under the governing law." and an issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Barion A Male Geneva Police Officer Who Arrested Me on Jan 2005. 434 F. App'x. 22, 25 (2d Cir. 2011) (internal citations omitted). Once the moving party has met its burden, the party opposing summary judgment must identify specific facts and affirmative evidence that contradict those offered by the moving party to demonstrate that there is a genuine issue for trial. Ethelberth v. Choice Sec. Co., 91 F, Supp. 3d 339, 349 (E.D.N.Y. 2015) (citing Celotex Corp. « Catreli, 477 U.S. 317, 324 (1986)).
DISCUSSION
To establish a prima facie case of negligence under New York law, "a plaintiff must demonstrate *(1) the existence of a duty on defendant's part as to plaintiff: (2) a breach of this duty: and (3) injury to the plaintiff as a result thereof." " Lionel . Target Corp., 44 F. Supp. 3d 315, 318 (E.D.N.Y. 2014) (quoting Akins . Giens Falls City Sch. Dist,, 53 N.Y.2d 325, 333 (1981) (citations omitted)). "In order to show breach of a duty of care in a slip-and-fall case," id., the plaintiff must demonstrate a genuine issue of material fact "that the defendant created the condition which caused the accident or that the defendam had actual or constructive notice of the condition,“ Watley . Waldhaum, Inc., 69 A D 3d 902, 903 (2d Dep't 2010) (citations omitted). To constinite coristmictive notice: "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." Id. (citations omitted)
L Actual Notice
It is undisputed that the defendant had actual notice that there was red cake on the floor (Def. 56.1 $ 7.) The plaintiff argues that she has raised a question of fact as to whether the red cake caused her fall. (ECF No. 36.) The defendant counters that there is no legitimate evidence that the red cake caused the plaintiff's fall, and moves to strike the plaintiff's deposition correction sheet and post deposition affidavits (ECF No. 37.)
3 Curiously, the defendant included this fact in its stipulation of undisputed facts, but then argued in its brief that the evidence supporting the Fact is
inadmissible hearsay because the plaimiff could not identify the Costco employee to whom she spoke. (ECF No. 37 at 3 ) The defendant should not stipulate lo facts the evidentiary basis of which il intends to challenge on summary judgment. In any event, the plaintiff's statements that she told an employee about the cake are not hearsay.
*4 The plaintill's correction sheet is unusual, to say the least Slie made substantive changes to her testimony that bear on central issues of the case, going so far as to change answers from "no" to "yes." For example, the plaintiff testified at least five separate times during her deposition that she did not look back at the spot on the floor where she slipped and fell. In the correction sheet, however, the plaintiff changes cach response, and asserts that she did in fact look back at the floor where she fell. And, she altered her response to this question: "Can you tell me anything about what it looked like in that area that day after your accident before you went downstairs?" from her originil answer-"I didn't look back there"-to "Red Cake" in the correction sheet. The form correction sheet, which the plaintiff submitted with her corrections, includes a column entitled "Reason for change:" the plaintiff wrote "correction" as the reason for each change. (See ECF No. 37-2.)
Under Rule 30(e), a witness is permitted to review the transcript of her deposition and make changes "in form or substance" and must include the reasons for making those changes. Fed. R. Civ. P. 30(e)(1)(B). A judge in another jurisdiction might very well consider striking the plaintiff's correction sheet and imposing sanctions. Greenway v. Tar'? Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992) {"The Rule; cannot be interpreted to allow one to alter what was said under oath . A deposition is not a take home examination."). In the Second Circuit, however, courts "construe Rule 30(e) broadly. permitting any changes to the deposition to be considered as part of the record, even where they contradict the original answers" Sumed Bros., Inc. v. Bokaro Rug Co., Inc., No 09-CV-5843, 2012 WL. 43613, at *% (S.D.N.Y. Jan 9, 2012) (collecting cases); see also Pulell v Citicorp Diners Chih. Inc. 112 F,3d 98, 103 (2d Cir, 1997) ("A deponent invoking this privilege must sign a statement reciting such changes and the reasons given for making them, but the language of the Rule places no limitations on the type of changes that may be made nor does the Rule require a judge lo examine the sufficiency, reasonableness, or legitimacy of the reasons. for the changes, even if those reasons are ticonvincing."). (citations, alterations and internal quotation marks omitted).
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30

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 184 of 484
Fleming v. Costco Wholesale Corporation, Slip Copy (2020) 2020 WL 2404907
What this means is that the defendant has no remedy on summary judgment. Of course, the defendant will be permitted to impeach the plaintiff's testimony at trial using her original answers, and will be able to question her about the timing and circumstances of the changes. See Podell. 112 F.3dat 103 ("[W]hen a party amends his testimony under Rule 30(e), the original answer to the deposition questions will remain part of the record and can be read at trial.") (citations, alterations and internal quotation marks omitted); Teland w Forest Laboratories, Inc., No. 00-CV-4179. 2001 WL 30617. at *1 (S.D.N.Y. Jan. 11. 2001) ("The changes obviously may affect the trier of fact's view of the credibility of the witness. Surely a skilled cross-examiner is well able to deal with the existence of contradictory sworn statements by an adverse witness.").
The defendant also maintains that the post deposition affidavits are: "shams" that I should disregard under the "sham affidavit" tule. (ECF No. 37 at 4.) Under the rule, a plaintiff cannot submit a declaration that contradicts her own prior deposition testimony. See Palazzo ex rel. Delmage M. Core, 232 F,3d 38, 43 (2d Cir. 2000) ("[I]n opposing summary judgment, a party who has testified to a given fact in his deposition cannot create a friable issue merely by submitting an affidavit denying the fact.") (citing Perma Research and Den Co. v. Singer Co., 410 F.2d 572, 578 (2d Cm. 1969)): The mle does not apply in two situations; "first, where the subsequent swom statement either does not actually contradict the affiant's prior testimony or addresses an issue that was not. or was not thoroughly, explored in the deposition, and second, where that testimony is contradicted by evidence other than the deponent's subsequent affidavit, for when such other evidence is available, the concern that the proffered issue of fact is a mere "sham" is alleviated." Torrico w Int'l Bus. Mach, Corp. 319 F Supp Zd 390, 394 11 2 (S.D.N. Y. 2004) (quoting Corio, 232 F,3d at 43-44) (internal quotation marks omitted):
*5 Like the correction sheet, the affidavits are obviously designed to shore up damaging deposition testimony. For example, both the plaintiff and Ms. Richardson equivocated during their depositions about what caused the plaintiff's fall. The plaintiff testified that the substance she slipped on was "apparently I I the same thing" as the red cake she observed on the floor ninety minutes carlier. (PI. Dep. 41:12-13.) Ms. Richardson testified that her aunt fell on "something red ... I'm just assuming it probably was a cake, I don't know." (Richardson Dep. 16:10-12.) In contrast. both express certainty in their affidavits that the plaintiff slipped on the
same red cake she had seen before. (ECF No. 36-1 5 15 ("That substance is at precisely the same location as it was one and a half hours prior to my accident and was exactly the same color as the substance that I complained about lo the Costco employee before the happening of my accident."); ECF No 36-2 " 6 ("I am certain that it was the same substance that existed on the floor at the lime [ the plaintiff] complained to the store employee an hour and a half before her accident.").)+
4 The affidavits seem to make use of evidence to which neither the plaintiff nor Ms. Richardson had access when they testified at their depositions Thus, the staterients in both affidavits now align with photographic evidence and Ms. Johnson's testimony that the plaintiff slipped on a half-eaten strawberry
Nevertheless, the affidavits embellish rather than contradict the deposition testimony The plaintiff's previous vague answers-that what she slipped on was "apparently" red cake -is given new detail: "possibly carrot cake or red velvet cake, and maybe some pieces of red I'mil or cake decoration as well." (ECF No. 36-1 . 4.) Ms. Richardson's former ambivalence-"I'm just assuming il probably was a cake. I. don't know"-becomes certainty: "I am certain that it was the same substance that existed on the floor at the time |the plaintiff] complained to the store employee an hour and a half before her accident." (ECF No. 36-2 5 6.)
The sham affidavit rile does not bar such editorializing in this Circuit. See Gorzynksi 1: JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) ("If, however, the allegations in the affidavit, rather than contradicting. explain or amplify prior deposition testimony, then the affidavit may create a genuine issue of material fact sufficient to defeat summary judgment.">(citation omitted): see also LeBlanc : United Parcel Serv. No. 11-CV-6983. 2014 WL 1407706, at *9 (S.D.N.Y. Apr. 11. 2014) (noting that "Isjome counts have suggested ... that [the sham affidavit mle] will not bar an affidavit when an issue was not fully explored in the deposition, or the deponent's responses were ambiguous") (citations and internal quotation marks omitted). It is for the jury to decide whether these modifications are persuasive or damaging to the plaintiff's credibility. Buie \ City of New York, No. 12-CV-4390, 2015 WL 6620230, at *3 (E.D.N.Y. Oct. 30. 2015) ("On balance, after reviewing plaimiff's deposition .. the Court readily concludes that while the affidavit may undermine her credibility before the jury it is
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Fleming v. Costco Wholesale Corporation, Slip Copy (2020) 2020 WL 2404907
of no real consequence in the Court's determination of the motion.").
The post deposition adjustments will no doubt be fertile grouxl for cross-examination. but I will not disregard them. In any case, the plaintill's original testimony-that there was red cake on her shoes and pants after her fall-would have been sufficient to defeat summary judgment.
IL Constructive Notice
The plaintiff did not respond to the defendant's arguments that it did not have constructive notice of the strawberry hazard. Accordingly, the plaintiff has abandoned the theory that the defendant had constructive notice of the existence of a different hazard. See Harte v. Ocwen Fin. Corp., No. 13- CV-5410, 2014 WL 4677120, at *8 (E.D.N.Y. Sept. 19, 2014) (Given Plaintiff's lack of opposition to this particular cause of action, the Court understands Plaintiff to have abandoned these claims.") (collecting cases).
The constructive notice theory does not survive summary judgment in any event. Under New York law. "Itjo meet its initial burden on the issue of lack of constructive notice, the defendant musi offer some evidence as to when the area in question was last cleaned or inspected relative to the time the plaintiff fell." Birnbaum v. New York Racing Aww'n, Inc., 57. A.D.3d 598, 598-99 (2d Dep't 2008) (citations omitted), The defendant has presented evidence that an employee patrolled the store in the hour before the plaintiff's fall and did not find any hazardous conditions, and the plaintiff has not offered any evidence in opposition. This is sufficient to establish a lack of constructive notice. See Morahan Gick v. Costco Wholesale Corp., 116 A.D.3d 747 (2d Dep't 2014) ("Here, the evidence submitted by the defendant, which included,
among other things, its maintenance record for the day of the incident, was sufficient to establish, prima facie, that it did not create the allegedly dangerous condition or have actual or constructive notice of it , In opposition, the plaintiff failed to raise a triable issue of fact.") (citations omiued), Sloane y Costco Milesale Corp. 49 A.D.3d 522, 523 (2d Dept 2008) ("Here, the defendant sustained this burden by submitting evidence that it did not create the condition which caused the plaintill's fall, and that no spills or other hazards were found when an employee conducted a walk-through inspection of its store just minutes before the accident occurred. In opposition. the plaintiff failed to raise a triable issue of fact.") (citation omilled).
CONCLUSIONS
5 On April 27, 2020, I ordered the plaintiff to submit a version of her 56.1 statement that complics with the formatting requirements in my individual practices and rules In light of the COVID-19 pandemic, and in the interest of efficiency, I rescind thal order.
*6 Accordingly, the defendant's motion for summary judgment is denied in pant and granted in pan. The plaintiff may proceed to trial on an actual notice theory of negligence. The constructive notice theory of negligence is dismissed.
SO ORDERED.
All Citations
Slip Copy, 2020 WL 2404907
End of Document
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32

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Bule v. City of New York, Not Reported in F.Supp.3d (2015) 2015 WL 6320230
2015 WL 6620230 Only the Westlaw citation is currently available. United States District Court, E.D. New York.
Linda BUIE, Plaintiff,
CITY OF NEW YORK, et al., Defendants.
No. 12 CV 4390(RJD)(CLP).
Signed Oct. 30. 2015.
Attorneys and Law Firms
Patrick Ike O'Keke. Esq .. O'Keke & Associates, PC. Brooklyn. NY. for Plaintiff.
Cun Peter Beck, NYC Law Department. New York, NY. for Defendants.
MEMORANDUM & ORDER
DEARIE, District Judge
*1 Plaintiff brings this action, pursuant to 42 U.S.C. 5.1983, against the City of New York (the "City") and three detectives from the New York City Police Department ("N.Y.P.D."), Keith McDowell. Todd Cracco, and Orlen Zambrano, for constitutional violations arising out of plaintiff's arrest in her home on the evening of January 7 2012. Despite significant disputes of fact, defendants move for summary judgment. For the reasons discussed below, the Court grants defendants" motion in part.
BACKGROUND
The following are generally agreed-upon facts.
1 Defendants object to a number of plaintiff's responses in her Local Rule 56.1 statement (such as neither admitting nor denying statements or denying statements after altering them). To the extent that plaintiff has denied statements for lack of 'knowledge and information, or through some other vague or unsupported response. those statements are "deemed admitted." Stepheny
y Brooklin Hebrew Selt for Special Children. 356 F.Supp.2d 248, 255 n. 4 (E.D.N.Y.2005). However, "|w|here _ the record does not support the [defendants'] assertions in [their] Local Rulo 56.1 statement, those assertions [have] be[en] disregarded and the record reviewed independently," Holtz « Rockefeller & Co. Inc. 258 F.3d 62. 74 (2d Cir 2001).
On January 7. 2012, at some point between 7:30 p.m. and 8:00 pm,, sixty-two year-old Linda Bule returned to her home in Brooklyn, New York Declaranon of Cart P. Beck ECF No. 78-3 [hereinafter Beck Decl.]. Ex. J.at 14:6-9 (Cracco deposition): vel., Ex. L at 53:20-25 (Zambrano deposition). id., Ex. P at 22:2 (Bule deposition). As she neared, plaintiff saw that her elder son was being placed under arrest and the front door of her home was open. Dejs." Statement of Lindisputed Facts Pursuant to Local Rule 56.1, ECF No. 78- L [hereinafter Defs ' 56.) Statement | at '1 149, 152. Plaintiff then went into her building, the entrance of which was not blocked by any police officers or barriers PI.'s Affirmation In Opposition to Defs. Motion for Summary Judgment, ECF No: 80 [hereinafter Pl's Aff.]. Ex.10 at 58:10-25, 59:2 (Cracco deposition); Beck Decl,, Ex K at 73:15-25, 74:2- 19 (McDowell deposition). In the first floor hallway, plaintiff encountered detectives McDowell and Cracco arresting her neighbor and asked what they were doing in her home. Beck Decl, Ex. J'ai 118:12-13, 122:2-24: id., Ex. Kal 73:914 AF some point thereafter, plaintiff was handcuffed and fell to the ground. Dejs ' 56. | Statement at "| 1. 140; Beck Decl, Ex. Jat 138:2-9; ld .. Ex. K at 128:24-25; (, Ex. Pat 80:1425, 81:1; PI's.Ag, Ex.2 at" 22 (Buie affidavit). Around this same time. plaintiff's younger son and grandson were arrested upstairs Defs. '56 1 Statement at " 29.
Later that night. the N.Y.P.D. executed a warrant to search plaintiff's home. Beck Decl. Ex. F (affidavit in support of application), 1d., Ex G (search warrant). Plaintiff was kept overnight and arraigned the next day on an obstruction of govemmental administration charge bul accepted an adjourment in contemplation of dismissal Dejs' 56.1 Statement at 111 5-6, Reply Declaration of Curl P. Beek, ECF No. 83-1. Ex. A at 167;6-23 (Buie deposition), Plaintiff's cider son later pled guilty to a misdemeanor dnig possession charge. Pls'A/C, Ex: 2 at 1 41.
Two days later, plaintiff went to see a doctor, stating that she had been assaulted by the police and had muscle pain. Defs." 56.1 Statement al 1 110, 113; Beck Decl, Ex O (medical records). The doctor observed no bruises or signs of distress
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but nonetheless gave plaintiff a shot of pain reliever. Defs." 56.1 Statement at "1. 128-32, 135; Beck Decl. Ex. O (medical records)
*2 The remaining details are contested,
A. Defendants' Narrative
According to defendants, this series of events began with a buy-and-bust. Beck Decl .. Ex. J at 73:9-14. Plaintiff's elder son took part in a drug transaction with an undercover officer, using plaintiff's home as his base. Id .. Ex. J at 77:11-17. 115:23-25, 116;2-19. After this transaction, members of the police team approached the house. 7d., Ex. J at 116:20-25. 117:2-5. Through the open door, they saw plaintiff's neighbor in possession of crack cocaine and entered the home to arrest her. Id., Ex. J at 113:19-25, 114:2-17, 117:6-10. Once inside, two members of the police team went upstairs, where they arrested plaintiff's younger son and grandson id. Ex. J at 15;2-9: 1d., Ex. K at 75:24-25. 76:2-5, 81:18-21
When plaintiff first entered her home, Cracco was arresting her neighbor in the first floor hallway and McDowell was just entering the building. Id., Ex. J at 122:2-24; id .. Ex. K al 73:1214. Plaintiff shouted at the officers, asking what they were doing in her home. Id., Ex. J at 118:12-13, 121:22- 25, 122:2-24. McDowell responded that the police were conducting an investigation and plaintiff would have to leave the building. 7d., Ex. J at 122:8-20; il. Ex. K at 74:22- 25. 75:2. Plaintiff left but returned shortly thereafter, while Cracco and McDowell were securing her neighbor Id., Ex J at 126:10-24, 134:2-25; id. Ex. K at 80:19-25, 81:2-17 At this point, either Cracco or McDowell handcuffed and arrested plaintiff. /d., Ex. Jat 14:10-18, 16:714. 137:2-9;id., Ex. K at 77;5-15 No force was used to effect the arrest, and plaintiff was not searched. Pl's. Aff .. Ex. 10 at 135:5-14, Beck Decl, Ex. Kat 126:13-25, 127:2-25, 128:2-21. However, the detectives acknowledge that, at some point during this arrest, plaintiff "flopped to the ground." Id. Ex. J at 138:2-9; ld. Ex. K at 128:24-25
Zambrano was outside in the police van at the time of plaintiff's arrest and never entered plaintiff's home.2 (d., Ex: L'at 53:20-25, 54:1-7 (Zambrano deposition) His only interaction with plaintiff was to drive her to the precinct. Id .. Ex. L. at 56:1-9.
2 Zambrano testified that plaintiff was already arrested by the time he arrived but admitted that
he picked up one male, presumably plaintill's elder son, at 7:55 p.m. on the corner next to plaintiff's home. Beck Decl. Ex. M at 11 10-11 and Ex. A. The parties have consistently disagreed as to the timing of the arrests, with defendants asserting that plaintiff was arrested around 8:00 p.m. Therefore. by defendants' own account. Zambrano was in the vicinity of plaintiff's home by the time of her arrest.
A later search of the liome revealed crack cocaine, marijuana a pistol, ammunition, drug paraphernalia, and $582 m cash Tdl. Ex, E (property clerk invoice).
B. Plaintiff's Narrative
According to plaintiff. as she approached her home, she witnessed her elder son being arrested on the street corner. PL.'s Aff. Ex. 2 at 1 7 (affidavit); id., Ex. 7 at 139:11-16. Plaintiff continued down the block to her building where she saw that her front door was open. Id., Ex. 2 at 1 12; id, Ex 8 at 270:11-13. When plaintiff entered and encountered Cracco and McDowell, she asked them what they were doing in her home and, receiving no response, continued inside. Beck Decl., Ex. P at 79:18-20. 80:6-16. At this point, Zambrano came in from behind plaintiff and slammed her against the wall Beck Decl. Ex. Pat 80:14-25; Pt's Aff. Ex: 2 at 1 16
3 Plaintiff testified without names, referring only to a white and a black officer, Beck Deel, Ex. Puit 23:3- 6. 79:18-20, Plaintiff later submitted an affidavit, naming Cracco, who is white, and McDowell, who is black. PL's Aff. Ex. 2 al { 15; Defs' 56.1 Statement at "1 37. 54.
4 Again, plaintiff testified without names, referring to this detective as a "Mexican" officer. Beck Deel., Ex. Pal 23:3-9, 80:18-25. She later submitted an affidavit, naming Zambrano, who is part Japanese and part Ecuadorian. Pl's .(/). Ex. 2 at *| 59, Beck Decl., Ex L ai 59:15-20.
*3 Cracco and McDowell then assisted Zambrano as all three detectives pushed plaintiff's arms upwards, pressed hier face against the wall, and searched her person. Beck Dech .. Ex. P at 80:14-25; PI's Aff., Ex: 2 at "M 16, 18-19. Being forced into this position triggered a great amount of pain in plaintill's armis, back, neck, and shoulder area, causing plaintill' to pass out. Beck Dech, Ex, Pat 80:14-25,81 ]. PL.X Aff, Ex. 2 at 11 17, 22, When she came to, the detectives were
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holding her up and escorting her to the police van. PI's Aff. Ex. 2 at *| 23,
5 This conflicts with plaintiff's testimony, in which she stated only that the while officer assisted Zambrano, Beck Deel,Ex. Pal 80.18-20; PL's A/] .. Ex. 8 at 278:13-24.
Plaintiff denies that there were any drugs or weapons in the residence at the time of her arest. PL's Statement of Material Facts Pursuant to Local Rule 56.1. ECF No. 80-22, at Mf 2021. 40, 50. She concedes that her doctor did not find any bruises but insists that she felt and still feels muscle pain in the areas strained by her arrest. Id. at "| 128. Pl.'s Aff, Ex. 2 at 1 44-45.
PROCEDURAL HISTORY
The amended complaint pleads six claims against the City and the three detectives for constitutional violations arising out of plaintiff's arrest: (1) a federal and state false arrest claim; (2) a federal unlawful search claim: (3) a federal excessive force claim; (4) a federal failure to intervene claim; and (5) a federal denial of fair trial claim." ECF No. 52. Despite the extensive factual disputes, defendants move for summary judgment on all of plaintiff's claims on the grounds that the detectives had probable cause to arrest her and did not use force. Alternatively, defendants argue that the detectives are entitled to qualified immunity Defendants also accuse plaintiff of submitting a "sham affidavit."
6 The amended complaint also pleads a Monell claim against the City, but plaintiff conceded in her motion papers that she did not attain sufficient evidence to support this claim.
DISCUSSION
Summary judgment is appropriate where "the evidence, viewed in the light most favorable to the party against whom it was entered. demonstrates that there are no genuine issues of material fact and that the judgment is warranted as a matter of law." Delaney i: Bonk of Im. Corp., 766 F.3d 163, 167 (26 Cir, 2014) (internal quotation marks and citation omitted); see also Fed R Civ.P. 36(a). "A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is "genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Windsor V. United States, 699 F.3d 169, 192 (2d Cir.2012) (internal quotation marks alteration, and citation omitted)
A. Sham Affidavit
As an initial matter, defendants accuse plaintill of submitting a slam affidavit in order to survive their summary judgment motion It is well settled in this Circuit "that "Till a party who has been examined at lengthi on deposition could raise an issue of fact simply by submitting an affidavit contradicting h[er] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." " Palazzo ex rel. Delmage v Corto, 232 F.3d 38, 43 (2d Cir.2000) (quoting l'erma Research & Det: Co. 1; Singer Co., 410 F.2d 572, 578 (2d Cir.1969)). However, this so-called "sham affidavit" principle does not apply where the affidavit (1) "addresses an issue that was not, or was not thoroughly or clearly, explored in the deposition" or (2) is corroborated by other evidence. Id. (collecting cases).
*4 Many of the so-called "contradictions" between plaintiff's affidavit and her testimony go more to the reliability of plaintiff as a witness than to the genuineness of any material. factual disputes. For example, while defendants are correct that plaintiff was previously unable to identify any of the officers involved in her arrest, she did provide ethnicities for the officers that match those of the defendants. Furthermore, although plaintiff's affidavit adds a fair amount of color to her claims, this detail was hardly necessary to create a genuine issue of material fact on plaintiff's surviving claims.
One of the inconsistencies between plaintiff's deposition testimony and her affidavit is more substantial. Plaintiff's affidavit states for the first time that McDowell physically participated in her arrest. This addition is notable, especially given the great extent to which plaintiff was deposed on her arrest and the participants therein. But defendants. themselves, provided corroborating evidence admitting that McDowell was at least present for the arrest. 7
7 Both Cracco and MeDowell testified that the two of them were in the hallway for at least part of plaintiff's atrest and that they saw plaintiff fall to the ground during her arrest
On balance, after reviewing plaintiff's deposition-during which she clearly struggled but nonetheless managed to sel forth the basic facts of her surviving claims-the Count readily concludes that while the affidavit may undermine her
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credibility before the jury it is of no real consequence in the Court's determination of the motion.
B, False Arrest
To prevail on her claims for false arrest under federal and state law, plaintiff must show, inter olis, that defendants intentionally arrested her without justification. See Wewent ir Okst, 101 E,3d 845, 852 (2d Cir. 1996). Defendants maintain that the arrest was justified
First, defendants argue that seizure of the home and its occupants was reasonable. To determine the reasonableness of the seizure of a residence prior to obtaining a search warrant, courts must balance the following four factors: "(1) whether the police had probable cause to believe that the home contained evidence of crime or contraband; (2) whether the police had good reason to fear that, absent restraint, evidence would be destroyed before they could retum with a warrant; (3) whether the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy"; and (4) whether the 'time period was no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant."" Cucuto v. New York Cin, 25 F Supp.3d 400.411 (S.D.N.Y.2014) (quoting Illinois & McArthur; 53] U.S. 326, 331-33, 121 S.Ct. 946, 148 L., Ed.2d 838 (2001))
Defendants claim that the officers had probable cause to believe that plaintiff's home contained evidence of her son's dnig sale, which may have been destroyed if the home's occupants had been permitted "to remain inside unobserved while aware of the law enforcement investigation." See i.d. at 411-13 (finding reasonable the seizure of apartment of a suspect's girlfriend where suspect, who sold crack cocaine lo undercover police officers, told officers he was staying at the apartment and officers suspected he may be keeping drugs there), This line of argument is developed from illinois McArthur, in which the Supreme Court held that the seizure of a suspect's trailer home was not unreasonable where police officers had been told by the suspect's wife that he had hidden marijuana in his home, 531 U.S. at 331-32.
*5 However, though both MeArthur and Cucuta justify the temporary scizure of plaintiff's home under the facts defendants describe, neither supports the forcible arrest and overnight jailing of a homeowner returning to the premises before the officers hrad obtained their search warrant. See MeArthur: 331 U.S. at 332 (noting that "the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy" by not arresting the
suspect before obtaining a warrant and instead "impos[ing] a significantly less restrictive restraint," of merely "preventing [the suspect] __ from entering [ his) trailer unaccompanied") (emphasis added); Cuenta, 25 F.Supp.3d al 413 (stating thai the court was not required to consider the personal privacy interests of the apartment's occupants because they were not parties to the action); see also United States \ Watson, 703 F.3d 684, 693-94 (41): Cir.2013) (Gnding unreasonable the Ihrce hour detention of criminal defendant in building open to the public while officers sought a search warrant, where officers had observed a drug transaction near the building but had no information linking defendant to the criminal activity ); Briddell v. Chester, 206 F.Supp.2d 733, 736-38 (D.Md.2002) (finding reasonable the five bour seizure of a home owned by a drig suspect's mother while officers sought a warrant but noting that the woman had been free to leave the house and use the phone). In fact. "each of the reasons justifying the police conduct in Me. Arthur is either absent here or weighs against a conclusion that the officers reasonably seized and detained (plaintiff], " IFarson, 703 F.3d at 692, The restraint in McArthur "was different in both character and duration" than the forcible arrest of the sixty-two year-old mother of a drug suspect in this case and was based on a stronger "connection between the [plaintiff] and the contraband that was the subject of the search warrant application." Id.
As an alternative, defendants argue that they had probable cause to arrest plaintiff. "Probable cause is determined on the basis of facts 'known to the arresting officer at the time of the arrest," " Shamir v. City of New York-F.3d- 2015 WL 6214708, at *4 (2d Cir 2015) (quoting Devenprek v.Alford, 543 U.S. 146. 152, 125 S.CI: 588. 160 L.Ed.2d 537 (2004), judged against the "totality of the circumstances," Simpson v: City of New York, 793 F 3d 259. 265 (2d Cur.2015) (internal quotation marks and citation omitted), "Probable cause exists when one has knowledge of, or reasonably trustworthy information as 10, facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested." Betis & Shearman 751 F.3d 78, 82 (2d Cir.2014) (intemal quotation marks and citation omitted). The information required "need not reach the level of evidence necessary to support a conviction ... but it inust constitute more than rumor, suspicion, or even a strong reason to suspect" United States v. Fisher, 702 F.2d 372, 375 (24 Cir. 1983) (internal quotation marks and citations omitted).
*6 Defendants argue that they had probable cause lo arresi plaintiff for (1) constructive possession of the visible drugs
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in the home because plaintiff claimed ownership of the home when she asked the officers what they were doing in her house, or (2) obstructing governmental administration because plaintiff reentered the home after being given clear instructions to stay outside, However, genuine issues of material fact preclude the Court from determining as a matter of law that probable cause existed. &
8 Defendants argue plaintiff has no basis to deny that the officers found drugs in her home while she was out. However, plaintiff was arrested before the search warrant was procured and at the same tinic as the officers who had arrested her son and grandson returned from upstairs. Thus, the only drugs in the home known to ber arresting officers by the time of plaintiff's arrest would have been openly visible to plaintiff, as well as the officers.
Nonetheless, plaintiff's state law false arrest claim against the City must be dismissed for plaintiff's failure to attend the hearing required by New York General. Municipal Law § 50(h)." Plaintiff claims that she never received notice of the hearing because it went to her previous attorney However, the record does not show any attempt by plaintiff's new attorney to arrange a 50(h) hearing "Although the Second Circuit has not definitively decided the issue, courts have placed the burden on the plaintiff to resolve any discrepancies regarding the rescheduling of a | 50(h) hcaring] in accordance with the Second Circuit's directive to construc Įstato] [njotice of |ellaim requirements "strictly,' - Gilliard. 2013 WL 521529 at $16 (collecting cases) (noting that "Idjisregarding any proffered reason is ... good policy" because "the City must handle the rescheduling of thousands" of 50(h) hearings, whereas "plaintiff is only concerned with her own"). Therefore, plaintiff's failure to attend the requisite 50(1%) hearing. "no matter the reason," is a "complete bar" 10 her state law false arrest claim against the City. Id.
9 Contrary to defendants' assertions, "failure to comply with section |50(h) | precludes only claims against the City, not employees who are sued in their individual capacities alongside the City." Cilliard v. City of New York, No. 10-CV-5187 (NGG) (CLP). 2013 WL 521529. at +15 n. 19 (E.D.N.Y. Feb .. 11. 2013); see also N.Y. Gen. Mun L. $ 5000).
Accordingly, the Court denies defendants' motion for summary judgment on plaintiff's federal and state false arrest
claims, except that the Court dismisses plaintiff's state law false arrest claim against the City for failure to attend the requisite 50(h) caring.
C. Uinlavefill Search
Defendants argue that any search of plaintiff's person was proper as a search incident to hier lawful arrest. Because there are disputes of fact as to whether defendants had probable cause to arrest plaintiff, this argument fails. Therefore, the Court denies defendams' summary judgment motion on plaintiff's unlawful search claim as to any search of plainill's person
As for any search of plaintiff's home, plaintiff has provided' no evidence-and cannot testify from personal knowledge to refute defendants' claims that her elder son had engaged in a drug transaction with an undercover officer somewhere on her street and that the officers suspected there may be. more drugs in the residence. " Even assunting, as plaintiff claims, that the officers could not see plaintill's neighbor or any drugs through the front door, the nearby drug transaction involving plaintiff's son would be sufficient tinder MeArthur and Cuenta to justify a temporary seizure of the residence while the N.Y.P.D. sought a search warrant, 531 U.S. at 33132: 25 F.Supp. 3d at 411-13. And the record contains no evidence that defendants searched plaintiff's house before the warrant had been signed, that the wait for the warrant was unreasonably long, or that the warrant was not valid See Cucuta, 25 F.Supp 3d at 411-13 (finding reasonable the five hour seizure of apartment of drug suspect's girlfriend). Furthermore, other than plaintiff's bald allegation in one sentence of her affidavit, the record contains no evidence that the search of plaintiff's home resulted in damage to her property
10 Notably, the record contains no testimony from plaintiff's sons or grandson And plaintiff's elder son pled guilty to a misdemeanor dnig possession charge.
*7 Accordingly, the Court grants defendants' motion for summary judgment on plaintiff's unlawful search claim as to the search of plaintiff's home.
D. Excessive Force
Excessive force claims stemming from an arrest invoke the Fourth Amendment's protection against unreasonable seizures. Tiralaenn & Conner: 490 U.S. 386. 394. 109 S.Cr.
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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1865. 104 L,Ed.2d 443 (1989), "Police officers' application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable 'in light of the facts and circumstances confronting Them, without regard to their underlying intent or motivation." "Maswell v City of New York. 380 F.3d 106. 108 (2d Cir.2004) (quoting Graham 490 U.S. al 397). This Inquiry "requires a careful balancing the nature and quality of the intrusion on the plaintill's Fourth Amendment interests against the countervailing governmental interests at stake," including consideration of the following three factors: (1) the "severity of the crime." (2) "whether the suspect poses an immediate threat to the safety of the officer or others," and (3) "whether Isthe is actively resisting arrest or attempting to evade arrest by flight." Brown K City of New York. 798 F.3d 94, 100 (2d Cir.2015)-(internal quotation marks omitted) (quoting Graham, 490 U.S. at 396).
Because "Injot every push or shove, even if it may later Seem unnecessary in the peace of a judge's chambers, violates ... the Fourth Amendment," courts are instructed to evaluate the record "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396 (internal quotation marks and citation omitted) However, "[defendants are liable as long as the force used exceeded the force needed for the factual circumstances and the fact that [a] [plaintiff may not have sustained serious long lasting harmr is not dispositive." Graham v. Cityof New York: 928 F.Supp.2d 610, WIR (E.D.N.Y.2013) (collecting cases)
Defendants principally contend that plaintiff's injuries are de minimis and do not rise to the level of a constitutional violation This Court disagrees.
First, as discussed further below, plaintiff provided sufficient descriptions of the arresting officers-combined with defendants' admissions that they were at or near the scene- to allow a reasonable jury to conclude that each individually named defendant either (1) directly participated in plaintiff's forcible arrest or (2) was present and had a reasonable opportunity to intervene after Zambrano slammed plaintiff Into the wall. See Corley 1. Should, 89 F.Supp.3d 518, 523 (E.D.N.Y.2015) (discussing requirements for personal involvement in use of excessive force),
Second, the Court does not agree that plaintiff's alleged injuries are de minimis and do not rise to the level of a constitutional violation. Viewed in the light most favorable to plaintiff, the most that defendants knew was that she
was the owner of a home being investigated in connection with a drug transaction. Nonetheless, according to plaintiff. Zambrano grabbed this sixty-two year-old grandmother from behind (without first warning her that her home was under investigation or instructing lier to leave) and slamnied her into a wall. All three detectives then pushed plaintiff's arms upwards and pressed her face into the wall, causing plaintiff to pass out
*8 Considering the totality of circumstances, a reasonable jury crediting plaintiff's description of the arrest could find that the defendants' decision to use such aggressive tactics was objectively unreasonable and that some lesser degree of force would have been appropriate. See Sash v. United States. 674 F.Supp.2d 531, 539 (S.D.N.Y.2009) (finding that "[t]ackling an arrestee on the street and forcibly shoving him into a metal gate when he offer [ed] no resistance certainly could be actionable conduct") (collecting cases). Moreover, even if plaintiff is required to show some threshold of injury. she has done so, at least sufficiently for nominal damages. See id. at 540 (upholding excessive force claim where plaintiff, who stated that he had pain in his neck and back, "lack[ed] [the] physical evidence, such as scraping or bruising, typically associated with the application of force") (collecting cases) Furthermore, while it is true that plaintiff's evidence is thin-consisting primarily of her own testimony-Cracco and McDowell both admitted to seeing plaintiff fall to the ground while she was being handcuffed, thereby corroborating at least a portion of plaintiff's account. See id. at 541 (declining lo engage in credibility assessment on plaintiff and arresting officers' conflicting testimonies)
Accordingly, the Court denies defendants' motion for summary judgment on plaintiff's excessive force claimt
E. Failure to Intervene
"An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or bas reason to know (1) that excessive. force is being used. .. (2) that a citizen has been unjustifiably arrested. or (3) that any constitutional violation has been committed by a law enforcement official .... " Anderson v. Branen, 17 F.3d 552, 557 (2d Cir 1994) (citations omitted) "Inorder for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring." Id. "Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all
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the evidence, a reasonable jury could not possibly conclude otherwise." Id.
Defendants' argue that plaintiff cannot establish a violation of any constitutional right, However, there is a dispute of material fact as to whether defendants' falsely arrested, unlawfully searched, and used excessive force on plaintiff, Therefore, plaintiff's failure to intervene claim "cannot be dismissed on this ground," Richardson v. Providence, No. 09- CV-4647 (ARR)(LB), 2012 WL 1155775, at *4 (E.D.N.Y.
Apr. 6. 2012). "And while the initial use of force-in which plaintiff claims that Zambrano slammed her into a wall- happened too quickly for intervention, a reasonable jury could conclude that each of the individually named defendants had time to intercede and were capable of preventing some of the harm caused. Anderson, 17 F.3d at 557, see also ('Neill W Krzemunski, 839-F.2d 9. 11-12 (2d Cir 1988) (rejecting failure to intervene argument where "three blows were struck in such rapid succession that [the nearby defendant] had no realistic opportunity to attempt to prevent them" but finding issue of fact as to whether defendant could have stopped "the subsequent dragging of [plaintiff] across the floor").
= The Court also rejects defendants' argument that plaintiff abandoned her failure to intervene claim through inadequate briefing, because the brief contains a cognizable argument.
*9 Accordingly, defendants' motion for summary judgment on plaintiff's failure to intervene claim is denied.
E. Denial of Fair Trial
A plaintiff establishes a denial of fair trial claim when a police officer (1) "creates false information likely to Influence a jury's decision," (2) "forwards that information to prosecutors" and (3) the plaintiff is deprived of her liberty as a result.12 Riceatt y NY.C. Transit Auth. 124 F.3d 123. 130 (2d Cir.1997) (emphasis added); see also Jovanovic \ City of New York, 486 Fed. App's. 149, 152 (2d Cir.2012) (unpublished). Defendants argue that plaintiff failed to show that the detectives fabricated any evidence, much less admissible evidence likely to influence a jury. Plaintiff argues that McDowell signed a criminal complaint falsely asserting, upon information given to him by Cracco, that plaintiff was arrested because she pushed Cracco while he was arresting her neighbor. Pl's Aff, Ex. 3 (criminal complaint).
12 "[C]ourts in this Circuit ... have ruled that a plaintiff's accepting an [adjournment in contemplation of'dismissal] does not preclude a fait trial claim" Apostol w. City of New York, No. 11- CV-3851 (RRM)(CLP), 2014 WL 1271201, at *5 (E.D.N.Y. Mar 26, 2014) (collecting casos); see also Horvath y City of New York, No. 12-CV-6005 (RJD)(JMA), 2015 WL 1757759, al +6 (ED.N.Y. Apr. 17, 2015) ("A plaintiff assening a fair trial claim need not show he was convicted or that the case even went to trial.").
As an initial matter, there is no record evidence that Zambrano was involved in preparing the criminal complaint, and accordingly, summary judgment in favor of Zambrano is appropriate on this basis alone. See Struthers i City of New York, No. 12-CV-242 (JG). 2013 WL 2390721, at +13 (E.D.N.Y. May 31. 2013)
For the remaining defendants, in order to establish the first element of her denial of fair trial claim_ plaintiff must show that Cracco and McDowell "create[d] false information" in the criminal complaint that was "likely to influence a jury's decision." Ricciuti, 124 F.3d at 130 (concluding that a reasonable jury could find that the defendant officers had violated plaintiff's right to a fair mal "by conspiring to fabricate and forward to prosecutors a known false confession almost certain to influence a jury's verdict"). However, "plaintiff's ability to recover for violations of h[er] right to a fair trial is hindered by the common law doctrine that shields witnesses, including officers, in a cloak of absolute immunity for their testimony in judicial proceedings " Horvath, 2015 WL. 1757759 at *7 (citing Rehberg w Pomilk, -U.S. - 132 S.CE: 1497. 1507. 1510. 182 L.Ed.2d 593 (2012), Brisene v CeRae, 460 U.S. 325, 335-36, 103 S Ct. 1108, 75 L. Ed.2d 96 (1983), and Jovanovic, 486 Fed. App's at 152). Plaintiff seeks to circumvent the rule of absolute immunity by claiming that the criminal complaint contains fabricated evidence, which courts in this Circuit have frequently held-without addressing admissibility-is sufficient to form the basis of a denial of fair trial claim. See, e.g., Brown v. City of New York. No. 08-CV-5095 (FB)(MDG), 2013 WL 1338785, at +6 (E.D.N. Y. Apr. 1, 2013) (denying summary judgment because issue of Fact as to whether criminal complaint contained fabricated evidence); Struthers, 2013 WL 2390721 al *13 (same).
In Jovanovic, an unpublished summary order, the Second Circuit affirmed summary judgment in favor of a defendant police officer-accused of lying in his grand jury testimony
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-for lack of causation "because the only avenue by which the testimony could |havej reached] the Jury was through [the officer]'s testimony, for which he enjoy[od] absolute immunity .._ " 486 Fed. App's, al 152 (emphasis added), Some district courts have interpreted this statement as providing that allegedly falsified evidence itself must be admissible, See. e.g. Brown v City of New York. No. 14-CV-5372 (BMC), 2014 U.S. Dist. LEXIS 181736, at *9-10 (E.D.N.Y. Dec, 23, 2014) (dismissing l'air trial claim because the false statements, including those made in a criminal complaint, were inadmissible hearsay). Other district courts. however, have argued that the phrase "likely to influence a jury's decision" refers to the "materiality of the information," nol its "likelihood] to be presented to a jury" in admissible form. Garnett v. Undercover Officer C0039. No. 13-CV- 7083 (GHW), 2015 WL 1539044, at #8 (S.D.N.Y. Apr.6. 2015) (citing Ricciuti 124 E,3d at 130); see also Rucks k City of New York, -F.Supp.3d. - 2015 WL 1433383. al *10 (S.D.N.Y.2015) (arguing that "both the Supreme Court and the Second Circuit . have declined to endorse" an admissibility requirement because they maintained or discussed claims against officers who had falsified evidence inadmissible at trial) (citing Rehberg. 132 S.C1. at 1507 n. | and Coggins . Buonora, 776 F 3d 108, 113 (2d Cir.2015)).
*10 This Court is reluctant to adopt a hard line rule that a plaintiff may never bring a denial of fair trial claim where the allegedly falsified evidence is inadmissible. See Horvath. 2015 WT. 1757759 at *7 (dismissing fair trial claim in part because "the allegedly false statements by defendants to the district attorney" were inadmissible hearsay but also noting these statements were likely entitled to absolute immunity). Bur though the Court agrees with Judge Woods that "likely to influence a jury's decision" refers to the materiality of the allegedly false information, Gornett, 2015 WL. 1539044, at *8, the Court considers the admissibility of this information as an important factor in in the materiality assessment. For Instance, fabricated confessions, like in Ricciuti, and physical evidence are "almost certain to influence a jury's verdict." not merely because they are potent proof of wrongdoing but also because such pieces of evidence are virtually guaranteed to make it to a jury table during deliberation. Ricciuti. 124 F.3d al 130, see also Brown, 2014 U.S. Dist LEXIS 181736, al *9 (noting that a fabricated confession "would most certainly have been admissible at trial under the rules of evidence as an admission" and thereby influenced the jury's verdict). Meanwhile, inadmissible statements made to prosecutors orally, in police reports, and in criminal complaints, though they raise similar concerns about the credibility of police
work. do not oqually corrupt "the truth-secking function of the trial process," because they have no direct avenue by which to reach a jury. Ricciweil, 124 F,3d at 130 (intemal quotation marks and citation omilled)
Other factors in a court's materiality assessment include whether the false statements are entitled to absolute immunity. see Horvath, 2015 WL 1757759, at +7, and whether these statements "laid the groundwork" Tor plaintiff's deprivation of liberty, Coggins, 776 F.3d at 113 (affirming denial of absolute immunity to officer on malicious prosecution claim and noting that the claim was based on "conduct that laid the groundwork for [plaintiff]'s indictment"); see also Jovmovie, 486 Fed. App'x at 152 (stating that the allegedly false grand jury testimony was entitled to absolute immunity and distinguishing this result from Riceluni by noting that the allegedly fake admissions in that case were "willfully fabricated" and "caused the plaintiffs to be charged with a more serious crime and delayed their opportunity to be freed on bail"). For example, in Jones & City of New York, Judge Gleeson noted that officers' allegedly false statements to the district attorney that they had conducted a show-up were "insufficiently material" to sustain a denial of fair trial claim because the statements were not only inadmissible but also redundant to the other identifications of the criminal defendant in that case. No. 12-CV-3658 (G), 2013 WL 6047567. at *10 (E.D.N.Y.Nov. 14. 2013) (noting that this other evidence "would render evidence of the allegedly fabricated show-up essentially immaterial") vacated on other grounds, 603 Fed App'x. 13 (2d Cir Mar 4. 2015). Conversely, in.Jeon-Laurent v. Bowman, Judge Matsumoto found that a plaintiff "need not demonstrate that [an officer's| purportedly false statements would reach a jury" for procedural due process claim because he had shown that "the alleged fabrications |wefre central to the question of whether [the officer] had probable cause to arrest plaintiff" and thus "led to his brief pre-trial detention." No. 12-CV- 2954 (KAM)(LB), 2014 WL 4662232. at +3 | | |E.D.N.Y. Sept. 18, 2014) (citing Jovanovic, 486 Fed. App's at 152).
*11 Accordingly, while the precise contours of this largely superfluous claim have yet to be scripted, the Court concludes that the allegedly false statements in the criminal complaint are sufficient for a reasonable jury to find that plaintiff was denied a fair trial. The criminal complaint, itsell, is inadmissible, and any evidence to support the accusations therein would be limited to the defendants' immunity-cloaked testimony, However, the allegedly false statements in the criminal complaint-that plaintiff pushed Cracco while he
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was trying to arrest her neighbor-were the very heart of the obstruction of governmental administration charge on which plaintiff was arrested and detained overnight
Accordingly, defendants' motion for summary judgment on plaintill's denial of fair trial claim is denied as to Cracco and McDowell but granted as to Zambrano
G. Qualified Immunity
The "contrasting accounts" of the circumstances surrounding plaintiff's arrest create a dispute as to the objective reasonableness of her arrest and search, including the amount of force employed therein and the subsequent drafting of the criminal complaint, German : City of New York, 26] F3d 229, 239-40 (2d Cir.2001) (noting "summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness") (internal quotation marks and citation omitted). A reasonable jury. if it credited plaintiff's account of what happened on the night in question, could find that defendants' conduct violated federal rights that were "clearly established" at the time. Tolon & Cotten, U.S. - 134 S.CI. 1861. 1863-66, 188 L.Ed.2d 895 (2014) (per curiam) (articulating the "two-pronged inquiry" for "resolving questions of qualified-imimity at summary judgment").
Therefore, the Court demes defendants' motion for summary judgment on the basis of qualified imnumity.
CONCLUSION
For the reasons stated above, the Court grants defendants' summary judgment motion in part. Defendants' summary judgment motion is granted-as to all defendants on plaintiff's unlawful search claim, to the extent plaintiff claims defendants searched her home. Additionally, plaintill's state false atrest claim against the City is dismissed for failure lo attend the requisite 50(h) hearing. And defendants' summary judgment motion is granted-as to Zambrano-on plaintiff's denial of fair trial claim.
However, defendants' summary judgment motion is denied -as to all defendants-on plaintiff's (1) federal false arrest claim, (2) unlawful search claim, to the extent plaintiff claims defendants searched her person, (3) excessive force claim and (4) failure to intervene claim. Additionally, defendants' summary judgment motion is denied-as to all individually named defendants-on plaintiff's state false arrest claint And defendants' summary judgment motion is denied-as to Cracco and McDowell-on plaintiff's denial of fair trial claim. Furthermore, the Court concludes that the individually named defendants are not entitled to summary judgment on plaintiff's surviving claims on the basis of qualified immunity
*12 Plaintiff's Afonell claim is dismissed on consent.
SO ORDERED
All Citations
Not Reported in F.Supp.3d. 2015 WL 6620230
End of Domumeni
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Read v. Town of Suffern Police Dept., Not Reported in F.Supp.2d (2013) 2013 WL 3193413
2013 WL 3193413 Only the Westlaw citation is currently available. United States District Court, S.D. New York.
David P. READ, Plaintiff.
TOWN OF SUFFERN POLICE DEPARTMENT, et al., Defendants.
No. 10 Civ. 9042(JPO).
June 25, 2013.
MEMORANDUM AND ORDER
J. PAUL DETKEN, District Judge.
*1 Pro se Plaintiff David Paul Read, currently detained al Anica Correctional Facility, brings this civil rights action pursuant to 42 ELS.C. § 1983 against the Town of Suffern Police Department, Officer Michael Lourenso. Officer James Giannetino. Detective Raymond Sheehan, Sgt. John Glodie, and Sgi. David Tarritino, alleging false arrest, failure to provide proper medical treatment and excessive force in violation of his Founh and Eighth amendment rights, in connection with his arrest in violation of a restraining order, Defendants have moved for summary judgment on all of Plaintiff's claims under Fed.R.Civ.P. 56. For the reasons that follow. Defendants' motion for summary judgment is granted in part and denied in part
Plaintiff initially brought claims against several other defendants. These claims were dismissed by the Court sua sponte at the commencement of the litigation (See Dkt No. 1L.)
L Background
A. Factual Background
The following facts are drawn from Plaintiff's complaint, the parties' Local Rule 56 | statements, depositions, and other materials submitted in connection with the instant motions These facts are undisputed unless otherwise noted.
The claims in this action arise out of two separate events, the first on April 27, 2009, and the second on April 28, 2009.
1. The Events of April 27, 2009
Plaintiff has been married to Michelle Surdak-Read ("Surdak ) for fourteen years (Dkt. No. 10) ("Mastellone Decl."), Ex. C ("Read Dep"). at 6:20.) During the period in question, the two shared an apartment. (d. at 34:3.) On August 30, 2006, an order of protection was issued on Surdak's behalf against Plaintiff. (Mastellone Decl. Ex: D.)? The order of protection was set to expire on August 29, 2009
2 The order of protection required Plaintiff to Jefram from generally stalking or harassing Surdak, but did not require Plaintiff to stay away from Surdak altogether
On April 27, 2009, Surdak called the police from her car, stating that Plaintiff bad threatened her. (PL.Ex, 14 ("Tr.Trans."), at: 36-37.) Shortly after 10 pm., Ollicer Giannctino was radiocd by dispatch and sent to Plaintiff' and. Surdak's apartment. (id. at 10.) When Giannelino amived, Surdak confirmed That Plaintill had threatened her. (DkI No. 132 ("Lourenso Decl.") at f 3.) She also reported having an order of protection against Plaintill.
Surdak lel herself and Gianpelino into her apartment building. and the two were then joined by Officer Lourenso. (Trial Tr .. at 13:7.) When Surdak was unable to open the apartment door with her key, she knocked and called out for Plaintiff. (d. at 13:18.) Plaintiff opened the door, and the officers entered with Surdak behind them. (ef at 13:21-23.)
While Lourenso interviewed Plaintiff, Giannetino confirmed through radio dispateli that there was indeed am outstanding order of protection (Lourenso Decl. at 1 4.) Plaintiff argued that the order was no longer valid, and attempted to gather corroborating papers from his briefcase. (Read Dep. at 39:4.) When Plaintiff was unable to collect the relevant papers Lourenso performed a pat down search. According to the officers, at this point, Plaintiff called his wife a "pig" and threatened to kill her. (Lourenso Decl. at [ 5.)
*2 Plaintiff was taken to Grannetino's squad car and Imnsferred to the Suffern Police station, (id. at 1 6.) Affer arriving at the station. Plaintiff was placed into a holding cell: (Trial Tr. at 12:20.) Approximately fifteen minutes Inter. Surdak entered the station and was brought into the squad room, (/d. at 18:21 ) Plaintiff reportedly continued to threaten Surdak From his holding cell. (ld at 19 %)
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Shortly after Surdak's departure from the station, Plaintiff had an anxiety attack and repeatedly asked for his medication (Read Dep, al 47:5.) The requested medication was in Plaintill's black bag, which had been brought to the station by Lourenso. (ld at 52:11-13.) When the officers responded that they could not provide Plaintiff with the medication while he was detained, Plaintiff claimed to have suicidal thoughts and asked to be laken lo the hospital, (Id at 54;16.) Sergeant Glodie and Officer Giaunctino complied with Plaintiff's request, calling the paramedics and accompanying Plaintiff to Good Samaritan Hospital (Jd. at 54.21-23.) At the hospital, Plaintiff briefly spoke to a doctor (Id. al 55:14.) Plaintiff claims that, during this conversation, Glodie told the doctor not to prescribe anything since Plaintiff was under arrest and could not receive medication while detained. (Id. at 55:19.) According to Plaintiff, Glodie then told the doctor "[tjo huny up with his paperwork" (d. ) Plaintiff was signed out shortly Thereafter, and returned to Suffer Police Station and his holding cell. (d. at 36:15-18.)
2. The Events of April 28, 2009
At approximately 12 p m. the next day. Plaintiff began yelling that he needed his medication due to another panic attack (Read Dep. at 59:4.) Shortly thereafter, Plaintiff claims that his toilet clogged and his cell began to flood. (ld at 59:14 15.)
3 The officers tell a different story. According to them. Plaintiff tore up and tied his standardissued blanket around the cell doors. (Dkt No. 142 ("Tamitino Decl") at . 4.) Plaintiff then allegedly retrieved a green plastic soda bottle from his cell. shredded it, and motioned as if he would cut himself with the pieces. Ud. at | 5.) The officers then claim that Plaintiff plugged up the toilet himself. purposely causing his cell to flood (/d. at 17.
After his cell flooded, Plaintiff was removed from his cell and handcuffed to a mailing in a reversed-seared position (Read Dep, at 60:22-24 ) Apparently still panicking, Plaintiff attempted to retrieve hus black bag from a nearby storage locker in order to obtain his medication. Plaintiff claims that he was tased by Lourenso before he could reach his bag. [/d. at 61:20-22 x Defendants claim that the tasing was done entirely by Officer Tarntino; indeed, they assert that Lourenso was not even present when the tasing occurred. Moreover, according to Tarritino. PlaintilI was tased not when he reached for his
bag, but after he had successfully pulled out lus medication and had ingested some of his pills. (Tarritino Deel, at 1 9.) In any event. after the first tasing. Plaintiff claims he collapsed "with his body uncontrollable " (PL. Rep. al 3.)
According to Plaintiff. Officer Tarntino then grabbed Lourenso's taser and continued to shock him. exclaiming. "How do you like this, motherfucker? How does this feel? I'm going to mast your ass " (Read Dep, at 62;7.) Tarritino denies gratuitously tasing Plaintill. (Tarritino Decl. al " 13.) He claims that Plaintiff was tased to protect both himself and those officers present. (Id .) Plaintiff was not taken to the hospital after being lased. Plaintiff cannot "substantiate any physical injuries" from the incident. (Read Dep. at 103.23 104:8.)
*3 Immediately following these events. Plaintiff was arraigned, Ud. at 65:3-4.) In December 2010. Plaintiff was convicted in a jury trial for criminal contempt in the first degree for violating the order of protection. (Mastellone Deel, Ex. E.) He unsuccessfully appealed this judgment. See People v. Remi 97 A D,3d 702 (2d Dep't 2012), leave to appeal denied, 978 N.E.2d 113 (2012).
II. Legal Standard
A. Summary Judgment
A court may not grant a motion for summary judgment unless all of the parties' submissions, read together reveal 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); JFHighE )a Ground, 554 F 3d 255, 266 (28 Chr 2000) The moving party bears the burden of proving that there is no genuine difference of material Fact, Zalaska . City of Bridgeport Police Dept, 013 F 3d 336, 340 (2d Ct: 2010). In contrast, the non-movant benefits from a coun's construction of all facts, and the resolution of all ambiguities, in its favor Brod v Omeya, Ine, 653 F3d 156. 164 (2d Cir 2011), A fact is "material" only if it will affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc. 477 L'S 242.248(1986). When there is no evidence in the record "from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact." summary judgment is proper, Cadin . Subol, 93 F 3d 1112, 1116 (24 Cir. 1996)
While a court must construc the facts "in the light most favorable" to the non-movant, id., il must also "dispose of factually unsupported claims or defenses " Celotex Corp w
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Catrett, 477 U.S. 317. 323-24 (1986). Thus, courts must deny a motion for summary judgment where reasonable jurors could disagree as to the proper result. It bears mentioning. however, that "Alhe mere existence of a scintilla of evidence in support of the plaintill's position will be insufficient, there must be evidence on which the jury could reasonably find for the plaintiff." AAnderson, 477 U.S. al 252.
B. Construction of Pro Se Submissions
Pro se submissions are to be constried liberally and thus should be read lo raise the strongest argument that they suggest. Cruz v Midwood Ambulance & Oxygen Serv, Inc .. 136 F. Appx. 414. 415 (2d Cir.2005) (citing Bingos @ Hopkins, 14 F.3d 787. 790 (2d Cir.1994)), "The rule favoring liberal constriction of pro se submissions is especially applicable to civil rights claims," Id. (citing Weixel v. Bd, of Ed: 287 F.3d 138, 146 (2d Cir2002)). Nevertheless, even where the non-movant is pro se, mere "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment" Kulak v City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
C. Qualified Immunity
Where police officers are sued in their individual capacities for alleged rights violations, they are entitled to qualified immunity with respect to certain discretionary actions Cermine al Brown, 246 F3d 194. 198 99 (2d Cir2001) An officer is immune from suit, and accordingly, from civil liability. if either (1) "his "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " id. at 199 (quoting Harinw w Fizgerald, 457 U.S. 800, 818 (1982)), or (2) "it was 'objectively reasonable for him to believe that his actions were lawful at the time of the challenged act." - id. (quoting Lennon . Miller, 66 F.3d 416, 420 (2d Cir.1995) (citing Anderson w Creighton, 483 U.S. 635 (1987)). "Qualified imnminity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment. distraction, and liability when they perform their dutics reasonably," Pearson v. Callahan, 555 U.S. 223, 231 (2009),
*4 An officer's subjective beliefs and motivations are irrelevant to the qualified immunity analysis. See Lennon, 66 F.3d al 423. Instead, courts decide only whether a jury could find that " "officers of reasonable competence could disagree" on the legality of the defendant's actions." Id. at 420 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)), Importantly,
while sununary judgment demands that all facts be construed in the light most favorable to the non-movamt, courts consider whether the officers made "reasonable inferences from the facts they possessjed] al the time of [the alleged violation] based upon their own experiences" Cerrone, 246 F.3d at 203 (citing Ornelas : United States, 517 U.S. 690, 699 (1996)). Il'a genuine issue of material fact exists regarding the reasonableness of the officers' conduct, summary judgment must be denied. See Azriell & Cohen Law Offices, 21 F.3d 512. 516 (2d Cir.1994). Finally. "[qualified immunity is an affirmative defense." Lee \ Sandberg, 136 F.3d 94, 101 (2d Cir.1997). Accordingly, the burden rests on the officers "10 raise the defense in their answer and to establish the defense ou a motion for summary judgment." Id. (citing In re Store Police Litigation, 88 F.3d 111. 123 (2d Cir: 1996).
HIL Discussion
A. Claims against the Suffern Police Department
At the outset, summary judgment must be granted in favor of Defendants with respect to all claims against the Suffern Police Department. In determining whether the arm of a municipality may be sued, courts look to state law Fed.R.Civ.P. 17(b)(3). Under New York law. "departments which are merely administrative ans of a municipality. " as is the case here, "do not have a legal identity separate and apart from the municipality and cannot sue or be sued. " Hall : City of White Plains, 185 F.Supp.2d 293, 303 (S.D.N.Y. Jannary 25. 2002) (citations omitted). Thus, summary judgment is granted as to the claims against the Town of Suffer Police Department.1
4 Nor is there evidence that any of the alleged constitutional violations stem from "a policy statement, ordinance, regulation, or decision officially adopted and promulgated" by the town of Suffern. Monell w. Dep't of Social Services of the City of New York. 436 U.S. 658, 690 (1978); see also id. at 690-95 (explaining that local governments cannot be held liable for the acts of their employees under the doctrine of respondeat superior ). Thus, even were the Court to construc Plaintiff's claim against the Suffern Police Department as against the town of Suffern, it would nonetheless fail.
B. Claims against Detective Raymond Sheehan
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Summary judgment must also be granted in favor of Detective Raymond Shechan, Nowhere doos Plaintiff allege that Shechan was involved in any of the events that took place regarding This suit. Thus, all claims against Shochan arc dismissed. See IFliams v Smith, 781 F.2d:319, 323 (2d Cir.1986) ("personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983" (citation omitted)).
C. False Arrest Claims
Plaintiff alleges that Officers Lourenso and Giannetino violated his Fourth Amendment riglus by falsely arresting and incarcerating him. To prevail on a false arrest claim, a plaintiff must show that "(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged " Jocks 1. Tavernier, 316 F.3d 128, 134-35 (2d Cir,2003) (citation
and quotation marks omitted). The presence of probable cause "is a complete defense to an action for false arrest." Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994), see also Singer y. Fillion County Sherriff. 63 F.3d 110, 118 (2d Cir 1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cruise.") To receive qualified immunity, officers need only have " 'arguable" probable cause." Cermane. 246 F.3d ar 202. "Arguable" probable cause is met when "a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in the light of well-established law." Lee, 136 F.3d at 102 (emphasis in original). Thus, an arresting officer is "entitled to summan judgment on qualified immunity grounds if [his] actions were not objectively unreasonable at the time they were taken." meaning either "(a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met ." Id. at 102.
*5 Probable cause "is based upon whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause lo arrest." Jegly y Couch, 439 F.3d 149, 153 (2d Cir 2006) (citing Devenpeck 6: AHford, 543 U.S 146. 153 (2004)). "Probable cause to arrest exists when the arresting officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.'
" Escalera v: Luna, 361 F.3d 737, 743 (2d Cir.2004) (citations omitted):
Here, il is beyond genuine dispute that The officers had probable cause to arrest Plaintiff, Surdak informed the police that: Plaintiff was threatening her and that he had violated an order of protection Nor does Plaintiff dispute that he continued to threaten Surdak in the officers' presence. Finally, dispatch confirmed that there was a valid order of protection against Plaintiff. Given this confluence of circumstances, the arresting officers reasonably believed that they possessed probable cause to detain Plaintiff.
Plaintiff argues that the order of protection was no longer valid. Yet even if the order of protection had been nullified, the officers acted reasonably in arresting a man alleged to have threatened his wife in a domestic dispute. Moreover, the officers had "reasonably trustworthy information" regarding the restraining order-it had been confirmed by police dispatch. More importantly, Plaintiff was eventually convicted for violating the protective order. and his conviction was affirmed on appeal. See Weyant v. Okst. 101 F.3d 845, 852 (2d Cir.1996) ("If, following the arrest, the plaintiff was convicted of the charges against him, that conviction normally would be conclusive evidence of probable cause ... if the conviction survives appeal." (internal quotation marks and citations omitted)); see also Cawremen 1. Fogarty. 806 F,2d 380 387 (2d Cir 1986) ("[E]ven if no probable cause existed at the time of arrest. .. a suit for false arrest may not normally be maintained if the arrest was followed by conviction, regardless of the validity of the arrest at the time it was made." (internal quotation marks and citations omitted)) Given Plaintiff's threats to his wife. police dispatch's confirmation of the warrant's validity, and the upholding of Plaintiff's conviction on appeal, probable cause existed as a matter of law. See Lee, 130-F,3d at 102.
Accordingly. Plaintiff's false arrest claim is dismissed.
D. Failure to Treat Claims
Plaintiff alleges that Officers Giannetino and Glodie violated his riglus by failing to supply him with anxiety medication and refusing hus request for treatment after he was tased. If Plaintiff was an inmate, his deliberate indifference claims would be rooted in the Eighth Amendment, see Chy of Revere 1 Massachusetts Gen Hosp, 463 U.S. 239, 244 (1983), but since Plaintill was a pre-trial detainee, his claim is governed by the Fourteenth Amendment, id. This distinction however, is academic: "While the Eighth Amendment may
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Read v. Town of Suffern Police Dept., Not Reported in F.Supp.2d (2013) 2013 WL 3193413
not, strictly speaking, be applicable to pretrial detainces." claims by detainces under the Fourteenth Amendment are analyzed under the same standard. Irmye a Scharfer; 548 F2d 47, 50 (2d Cir 1977) (citation omitted):
*6 The test for deliberate indifference under either the Eighth or the Fourteenth Amendment contains both an objective and a subjective component. Hudson y McMillian. 503 U.S. 1, 21 (1992), Hemmings . Gorczyk, 134 F,3d 104, 108 (2d Cir.1998). "The objective component requires that the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency. one that may produce death, degeneration, or extreme pain exists." Hill v. Carcione. 657 F.3d 116. 122 (2d Cir.2011) (citation and internal quotation marks omitted), but see Smith y Carpenter: 316 F.3d 178 (2d Cir.2003) ("Because the objective component of an Eighth Amendment claim is .. necessarily contextual and fact-specific, the serious medical need inquiry must be tailored to the specific circumstances of each case." (internal quotation marks, citations and alterations omitted)). To satisfy the subjective component, a plaintiff mist demonstrate that the defendant "actfeld with a sufficiently culpable state of mind" that he was aware of and purposely disregarded Plaintiff's objectively serious medical needs. Hudson, 5603 U.S. at 8 (citation and internal quotation marks omitted). The Second Circuit has analogized this element to the standard of "recklessness" in criminal law. See Phelps v Kopnolas, 308 Fad 180, 186 (2d Cir 2002). In sum, an official cannot be held liable for deliberate indifference of medical needs unless he or she "knows of and disregards an excessive risk to" the detainee's health or safety, or "was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists." Farmer v: Brennan, 511 U.S. 825. 837 (1994);
1. The Anxiety Attacks
Defendants were not deliberately indifferent to Plaintiff's anxiety attacks. Officers Giannetino and Glodie did not ignore Plaintiff's pain, but rather, shortly after his complaints began, escorted him to Good Samaritan Hospital to be evaluated It is undisputed, in other words, that the officers quickly responded to his repeated requests for aid. Furthermore, there is no evidence that, once Plaintiff was at Good Samaritan, the doctor denied him full and fair treatment. Plaintiff claims that his care was rushed, but the Constitution entitles one only to adequate medical care. not to the "type or scope of medical care which he personally desires." Gorcar : Senkowski, 919 F.Supp. 609, 615 (N.D.N.Y.1996) (quoting United States ex rel. Hyde y McGinnis, 429 F.2d 864. 867 (2d Cir. 1970)); see also Alston w Bendbei: 672 F.Supp.2d.
378, 385 (S.D.N.Y.2009) ("An inmate's disagreement with his treatment or a difference of opinion over the type of course of treatment do not support a claim of cruel and unusual punishment." (citation omitted). Since no evidence exists lo create a genuine dispute that the officers were deliberately indifferent to Plaintiff's needs, summary judgment is granted in their favor as to this claim. 5
5 The Court need not reach the objective prong here, as Plaintiff clearly fails to satisfy the requisite subjective prong It is worth noting. however, that Plaintiff's anxiety attacks were likely not sufficiently serious to satisfy the objective component of the "deliberate indifference" analysis.
2. The Tasing
*7 Plaintiff next claims that he was unconstitutionally denied medical care after he was tased. Here, Plaintiff has not satisfied the objective prong of the objective prong of the deliberate indifference test, as Plaintiff's alleged injuries are insufficient to prove a denial of medical treatment claim While Plaintiff states he was in pain from the tasing, he manies no particular medical need ansing from this event Furthermore. Plaintiff provides no medical information to support this possibility. Since Plaintiff does not allege any "sufficiently serious" injury requiring professional treaunent, he has failed to create a genuine dispute of material fact as to his second failure to treat claim
B. Excessive Force Claim
Finally, Plaintiff alleges that his sasing at the hands of Officers Lourenso and Tarrattino constitutes excessive force "Claims that law enforcement officers have used excessive force ... in the course of an arrest, investigatory stop. or other "seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490. U.S. 386. 395 (1989); see also Tracy v: Freshwater: 623 F.3d 90, 96 (2d Cir. 2010), But see United States v: Walsh, 194 F.3d. 37, 48 (1999) (using an Eighth Amendment "cruel and unusual" analysis in an excessive force claim by a pretrial detainee against a correctional officer in a jail), "[T]he reasonableness question is whether the officers' actions were "objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation" Mickle v Morin. 297 F3d 114, 120 (2d Cir 2012) (citation omitted) Importantly, "[t]he "reasonableness' of a particular use of force must be
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," so as to allow "for the fact that police officers are often forced lo make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Graham. 490 U.S. al 396-97 (citation omitted).
"It is well established that qualified immunity may operale as a defense to excessive force claims." Mesa y CHy uf New York: No. 09 Civ. 10464(JPO), 2013 WL 31002 (S.D.N.Y. Jan 3. 2013) (citing Finnegan : Fountain, 915 F.2d 817. 822- 23 (2d Cir. 1987)). At the same time, "filt is beyond dispute that the right to be free from excessive force has long been clearly established." Green v. Montgomery, 219 F.3d 52, 59 (2d Cir.2000) (citation omitted). Thus. in the excessive force context, "the question for the purposes of qualified immunity is 'whether a reasonable officer could have believed that the use of force alleged was objectively reasonable in light of the circumstances." " Lennon, 66 F.3d at 425 (quoting Row lond v. Perry: 41 F.3d 167, 173 (4th Cit. 1994).
1. Officer Lourenso
*8 Officer Lourenso denies that he was present when Plaintiff was tased. Yet even if Plaintiff's version of the story is Inie and Lourenso conducted the initial tasing. Plaintiff's claim of excessive force falls short. Given Plaintiff's behavior. it was reasonable for Lourenso to believe that he might harm himself or others. Immediately prior to being tased, Plaintiff was both acting manically and reaching inside a contraband item only a few feet away. It was entirely reasonable for the officers to believe that Plaintiff might pull something more dangerous from the bag than his pills. Even if Plaintiff only grabbed his pills, his prior suicidal threats gave the officers reason to restrain him as quickly as possible.
Plaintiff argues that Defendants could have less aggressively restrained him or removed the bag from his possession Perhaps so. But courts must be hesitant in judging such splitsecond decisions, especially in such a tense and uncertain situation See Graham, 490 U.S. at 396-97. Given Plaintiff's potential harin to himself and the officers, the undisputed evidence establishes that the initial decision to tase Plaintiff does not constitute excessive force.
2. Officer Tarritino
The second tasing is another matter. Plaintiff states that after the initial tasing, Officer Tarritino grabbed the laser front
Lourenso and continued to shock Plaintiff, remarking that he was going to "roast" him Construing the facts in light most favorable to Plaintiff, this second tasing constitutes a viable claim of excessive force, In huis declaration, Tarrilino curly testifies that lic acted to prevent Plaintiff from causing further harm to himself or others. According to Plaintiff, however, the initial tasing rendered him immobile. It is hard to image how a man tied to a railing and temporarily paralyzed could continue to pose a danger to himself or the officers. Again, the Court recognizes, and respects, that police officers are Forced to make quick judgments in difficult situations. Graham. 490 U.S. al 396-97. Nonetheless, the present record fails to demonstrate how it was objectively reasonable to continue shocking Plaintiff after he had collapsed. Accord Towsley y. Frank, No. 09 Civ. 23, 2010 WL 5394837, at +7-10 (D.VE. Dec. 28. 2010) (officer was justified as a matter of law in tasing plaintiff initially, but material facts precluded summary judgment on the second tasing while plaintiff was lying on the sidewalk).
According to Defendants, Plaintiff's inability to prove that he sustained any injuries disqualifies his excessive force claim See Santiago v. C.O. Campisi Shield No. 4592. 91 F.Supp.2d 665, 674 (S.D.N.Y.2000) (noting that de minimus physical contact is not cognizable under the Eighth Amendment) In the Fourth Amendment context. however, it is the officer's unreasonable conduct, and not the injuries that result, which is of critical imponance. Of course, " "[njot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," . violates the Fourth Amendment." Graham, 490 U.S. at 396 (quoting Johnson & Glick 481 F.2d 1028. 1033 (2d Cir.1973)). Needless to say, however, a taser to the back is not a "non-serious or trivial use of force" akin lo a shove; rather, it is a "serious intrusion into the core of the interests protected," Towsley, 2010 WL 5394837, at *8 (quoting Medios v; Agarone, 590 F.3d 1082. 1087 (9th Cir 2010)); see also Bryan w MacPherson, 630 F 3d 805. 810 (9th Cir 2010) (describing use of a taser as an "intermediate, significant level of force that must be justified by the governmental interest involved" (citation omitted)). cf. Mes a, 2013 WL 31002, at *20 (S.D.N.Y. Jan. 3, 2013) (noting that "bruises or even fleeting pain, such as that which [the defendant] [ ] claims she experienced during her arrest, may give rise to an excessive force claim"), Since il remains unclear whether Officer Tarritino's use of force was objectively reasonable and serious injury need not be shown here, summary judgment on Plaintiff's excessive force claim as to the second tasing is denied.
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
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IV. Conclusion
*9 For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. The excessive force claim against Officer Taritino survives summary judgment. Plaintiff's other claims are dismissed
The Clerk of the Count is directed to close the motions at Docket Numbers 131 and 134.
SO ORDERED
All Citations
Not Reported in F.Supp 2d. 2013 WL 3193413
End of Document
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48

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 202 of 484
Diaz v. City of Hartford Police Department, Slip Copy (2021) 2021 WL 1222187
2021 WL 1222187 Only the Westlaw citation is currently available. United States District Court, D. Connecticut.
DIAZ, et al., Plaintiffs, Vi CITY OF HARTFORD POLICE DEPARTMENT, et al., Defendants.
3:18-CV-01113 (KAD)
Signed 03/31/2021
Attorneys and Law Firms
Matthew D. Paradisi, Emanuele Robert Ciceluiello, Michael John Reilly, Cicchiello & Cicchiello, LLP. Hartford CT. for Plaintiffs.
Rebecca M. Hamis, Crumbie Law Group, LLC. Hartford, CT. for Defendants Steplien Barone, Sean Spell.
Joseph W. McQuade. Kainen, Escalera & McHale, PC. Hartford. CT. for Defendants Christopher Mastroianni, Sammel Cruz, Ricardo Colon. Luan Bojka, William Cole, Carlo Faienza, Luis Franco. Robert Foge. Carlos Torres, Luis
MEMORANDUM OF DECISION RE: DEFENDANT JEREMY ALLEN'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 74); DEFENDANTS LUAN BOJKA, RICARDO COLON, WILLIAM COTE, SAMUEL CRUZ, CARLO FAIENZA, ROBERT FOGG, LUIS FRANCO, CHRISTOPHER MASTROIANNI, LUIS RUIZ, AND CARLOS TORRES' MOTION FOR SUMMARY JUDGMENT (ECF NO. 77); DEFENDANTS STEPHEN BARONE AND SEAN SPELL'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 80)
Kar A. Dooley, United States District Judge
1 This civil rights action arises out of the aftermath of a car-chase during which plaintiffs Emilio Diaz ("Diaz") and Ricardo Leon Perez ('Perez") allege that they were subjected to umecessary and excessive force by. defendant police officers who effectuated their arrest. Plaintiffs bring claims pursusint to 42 U.S.C. § 1983 ("Section 1983") and state law against Officer Stephen Barone, Detective Christopher Mastroianni, Officer Samuel Cruz. Officer Ricardo Colón Officer Luan Bojka, Officer William Cote, Officer Carlo Faienza. Officer Luis Franco, Sergeant Sean Spell, Officer Jeremy Allen, Officer Robert Fogg. Officer Carlos Torres and Sergeant Luis Ruiz as follows:
Katherine: E. Rule, Thomas R. Gerarde, Howd & Ludorf, LLC. Hartford, CT, for Defendant Jeremy Allen.
Count Cause of Action
Plaintiff
Defendants Named
1
Section 1983/Connecticut Constitution
Diaz
All Defendants
2
Section 1983/Connecticut Constitution
Perez
All Defendants
3
Negligence
Diaz
All Defendants
4
Negligence
Perez
All Defendants
5
Recklessness
Diaz
All Defendants
6
Recklessness
Perez
All Defendants
7
Negligent Infliction of Emotional Distress
Diaz
All Defendants
8 Negligent Infliction of Emotional Distress
Perez
All Defendants
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Diaz v. City of Hartford Police Department, Slip Copy (2021) 2021 WL 1222187
9 Intentional Infliction of Emotional Distress
Diaz
All Defendants
10 Intentional Infliction of Emotional Distress
Perez
All Defendants
Pending before the Court are three separate motions for summary judgment. Officer Allen moves for summary judgment on all Counts (ECF No. 74) Detective Mastroianni, Officer Cmiz, Officer Colon. Officer Bojka, Officer Cote, Officer Faienza, Officer Franco, Officer Fogg, Officer Torres, and Sergeant Ruiz move for summary judgment on all Counts. (ECF No. 77). Officer Barone moves for summary judgment on all Counts and Sergeant Spell moves for summary judgment on Counts Two through Ten (ECF No. 80) The Count heard oral argument on the motions on November 24, 2020.
1 Defendant Spell did not move for summary judgment as to Count One. (See ECF No. 94 at 7).
Facts
The following facts are undisputed unless otherwise indicated
Prior to the Pursuit
On June 4. 2016. Perez consumed 3-4 blunts of PCP in addition to 2-3 blunts of marijuana while Diaz consumed a six pack of beer, two blunts of marijuana laced with PCP, 4-5 bags ol'heroin and $10 worth of cocaine. (Mastroianni, et al., Local Rule 56(a)(1) Statement ("Mastroianni SMF"), ECF No. 79 9. 31. 35). After consuming the drugs. Perez picked up Diaz at Perez's brother's apartment in a Toyota Camry (Id. 1 33) The Toyota Camry was a rental, but had been reported stolen by the rental agency when Perez kept the car after the rental period expired. (/d 1 38-40)
The Pursuit
The pursuit began after Perez beeped his hom while passing a marked police car driven by Officer Barone on Zion Street in Hartford, Connecticut, (Mastroianni SMF, ECF No. 79 1 41: Barone and Spell Local Rule 56(a)(1) Statement ("Barone SMF ** ). ECF No. 80-2 1 25-26). Officer Barone attempted to pull Perez over, but Perez sped away, failing to stop for stop signs or stop lights, because he knew that he was driving a stolen car. (Mastroianni SMF. ECF No. 79 41 41-42; Barone SMF. ECF No. 80-2 ! | 26-27).
When the car reached Affleck Street, it stopped. Officer Cote approached the car, opened the driver's side door, and attempted to pull Perez out of the car (Mastroianni SME, ECF No. 79 43). Officer Cruz then opened the rear driver's side door to assist in Perez's removal. (Id } 44), Instead of exiting the car. Perez shifted the car into reverse and stepped on the gas (Id. " 45). Officer Cruz was hit by an open door and sustained a left knee injury. (fd 1| 46). Perez, accompanied by Diaz, left the scene of the attempled stop, again, at a high rate of speed. (Barone SMF. ECF No. 80-2 5 44).
2 As the pursuit continued, Percz drove recklessly despite there being traffic, pedestrians, and children on bicycles (Mastroianni SMF, ECF No, 79 1 49-50, Barone SMF. ECF No. 80-2 5 49). Diaz did not ask Perez to slow down, to stop the vehicle, or to be let out of the vehicle. (Mastroianni SMF. ECF No. 79. 60) Eventually. West Hartford police deployed stop sticks to deflate the car's tires though Perez continued to drive on the tire rims. (Mastroianni SMF, ECF No.79456-57; Baronic SMF,ECF.No.80-211 56-57). Soon thereafter, the pursuit ended in the vicinity of 800 Flatbush Avenue in West Hartford. (Mastroianni SMF. ECF No. 79 1 59; Barone SMF, ECF No, 80-2 1 61), In his last effort to evade apprehension. Perez struck multiple police cruisers (Barone SMF, ECF No. 80-2 9 61).
After the Pursuit
After the Camry was stopped and boxed in by police vehicles. the parties' versions of events diverge. Specifically. the parties disagree as to whether Perez and Diaz actively resisted arrest following the stop thereby rendering the use of force. necessary, or whether they surrendered themselves to the police, obviating the need for force. The following facts however, are undisputed unless otherwise indicated.
Arrest of Diaz
After the pursun, Officer Bojka broke open the passenger side window with his baton (Mastroianni SMF, ECF No. 79 136) Before Diaz exited the car, Officer Bajka struck Diaz multiple times with the baton, one strike of which may have connected with Diaz's forehead. (d. f 137).
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Diaz v. City of Hartford Police Department, Slip Copy (2021) 2021 WL 1222187
After Diaz exited the car, Officer Colon struck Diaz in the head with closed fists. (id. "| 147), and Officer Allen deployed huis laser on Diaz, (Allen Local Rule 56(a)(1) Statement ("Allen SMF ), ECF No. 74-2 f 12). According to Diaz, Officer Allen tasod him in the back while he was flat on the ground facedown. (/d. 11 47-48), Thereafler, Officer Colon kicked Diaz, (Mastroianni SMF, ECF No. 79 1 148), and Officer Fogg struck Diaz's right shoulder with his right foot and used his knee to pin Diaz's shoulder to the ground. (id. 1 102). While Diaz was on the ground. Detective Mastroianni applied foot strikes to Diac's back/torso area until other officers were able to handcuff him. (id. " 130).
After Diaz was handcuffed and kneeling in the grass, Sergeant Spell "used his foot onto the lower back side of Diaz's head or shoulder area to force him onto the ground " (Barone SME, ECF No. 80-2 9 90, 95).2 Eventually, Diaz was taken by ambulance to the hospital. (id f 97)
2 According to plaintiffs, "Defendant Spell gratuitously, intentionally, and willfully stomped Plaintiff Diaz's Ticad into the ground as he lay face down, prone, with his hands cuffed behind his back." (Plaintiffs' Local Rule 56(a)(2) Statement ("Plfs," SMF"). ECF No. 84-11 at 88). Having viewed the dashcam video from this event. the plaintiffs' description appears more apt. In Defendant Spell's reply in support of his motion for summary judgment, Spell argues that the dashcam video is not authenticated and that plaintiffs have not presented any affidavits or other admissible evidence to identify the people depicted in the video, (ECF.No. 94 at 6), The Court's decision does not turn on the content of the video and the Court does not therefore resolve this evidentiary claim.
Arrest of Perez
While still in the car, Perez testified that he was hit in the forehead with a baton. (Perez Dep., ECF No. 84-4 m 177). After officers removed Perez from the car. non- party Detective Abhilash Pillai. Officer Cote, and Officer Barone placed Perez on the ground. (Barone SMF. ECF No. 80-2 51 69, 71). Officer Faienza then tased Perez, which enabled Detective Pillai and Officer Barone to handcuff him, (Mastroianni SMF, ECF No. 79 11 95-96; Barone SME, ECF No. 80-2 | 79). Before Perez was handcuffed, Officer Cote
kicked Perez in the shoulder twice and on the right side of his face once and Officer Barone struck his torso multiple times with closed fist strikes. (Mastroianni SMF, ECF No. 791 123; Barone SMF, ECF No. 80-21 77).
3 The record evidence is not clear as to whether Perez was physically removed from the car or whether he exited the car on his own or in response to officer commands
*3 Aller Perez was apprehended, Officer Franco escorted Perez to the hospital in an ambulance. (Mastroianni SMF. ECF No. 79 113). On the ride to the hospital, Officer Franco claims that he used the heel of his hand to turn Perez's face away from him to prevent Perez from spitting at him (Id. 1 114) + At the hospital, Perez claims that Officer Franco punched lim while he was handcuffed to the hospital bed (ECF No. 84 at 6-7).
4 Perez argues that he did not spit at Officer Franco in the ambulance. (ECF No. 84 at 6 (citing Perez Dep., ECF No. 84-4 al 142)).
Standard of Review
The standard under which the Coun reviews motions for summary judgment is well-established. "The court shall grani summary judgment if the movam shows 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) A fact is "material" if it "miglu affect the outcome of the suit under the governing law." while a dispute about a material fact is "gemine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson 1. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
Significantly, the inquiry conducted by the Court when reviewing a motion for summary judgment focuses on "whether there is the need for a trial whether, in other words. there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party " Id. at 250. As a result. the moving party satisfies his burden under Rule 56 "by showing ... that there is an absence of evidence to support the nonmoving party's case" at trial, PepsiCo. Inc. v. Ched- Cola To., 315-F.3d 101. 105 (2d. Cit. 2002) (per curiam) (internal quotation marks omitted). Once the movant meets its burden. "[t]he nonmoving party must set forth specific facts showing that there is a gemiine issue for trial[.]" Irizarry ): Caisiminidis. 722 F.3d 99. 103 n.2 (2d Cir. 2013) (quoting
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Rubens v. Mason, 527 F.3d 252, 254 (2d Cir. 2008)). "[T]he party opposing summary judgment may not merely rest on the allegations or denials of his pleading" to establish the existence of a disputed fact, Wright . Goon), 554 F,3d 255, 266 (2d Cir. 2009), accord Lujan v: Not7 Wildlife Fed'n, 497 U.S. 871, 888 (1990). "[M]ere speculation or conjecture as to the true nature of the facts" will not suffice, Hicks : Baines, 593 F.3d 159. 166 (2d Cit. 2010) (citations omitted; internal quotation marks omitted), Nor will wholly implausible claims or bald assertions that are unsupported by evidence. See Carey : Crescenzi. 923 F.2d 18, 21 (2d Cir. 1991); Argax Inc. « Eastman Kodak Co., 801 F.2d 38. 45 (2d Cir 1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 1].S. at 249-50 (citations omitted).
In determining whether there exists a genuine dispute as to a material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Jolison M. Killian. 680 F.3d 234. 236 (2d Cit. 2012) (quoting Terry, M.vishcroft. 336 F.3d 128, 137 (2d Cir. 2003)). Importantly, "[a]ssessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the count on summary judgment." Adamson x Afiller, 808 F. App's 14. 16 (2d Cir. 2020) (summary order) (internal quotation marks omitted). "Corroboration, though helpful, is not essential; *a § 1983 plaintiff's testimony alone may be independently sufficient to raise a genuine issue of material fact." " la. (quoting Bellamy v: City of New York, 914 F.3d 727, 746 (2d Cir. 2019)), "In deciding a motion for summary judgment, the district court's function is not to weigh the evidence or resolve issues of fact, it is confined to deciding whether a rational juror could find in favor of the non-moving party." Lucente y: Int'l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir 2002)
Discussion
Preliminary Matters
*4 Through the briefing and argument on the motions for summary judgment, the scope and nature of the plaimill's" claims narrowed significantly. The Coun has been, and is therefore, able to resolve many of the issues maised in summary fashion. First, the Court granted summary judgment in favor of Defendants Luis Ruiz, Carlos Torres, and Samuel Cruz on all Counts because plaintilTs did not contest entry of judgment in their favor. (ECF No. 98). Next, as confirmed
at oral argument, cach defendant ouly interacted with one of the plaintiffs even though cach defendant was named by both plaintiff's on a failure to intervene theory of liability But plaintiff's acknowledged that they did not brief and therefore abandoned their Section 1983 Failure to intervene theory of liability. Lami w. Stahl, No. 3:05-CV-1416 (MRK), 2007 WL. 3124834, al *| (D. Com. Oct. 25, 2007) ("It is well settled that a failure to brief an issue is grounds to deem the claim abandoned. "). Accordingly, absent objection, the Court granted summary judgment in favor of cach defendant on cach count asserted against that defendant by the plaintiff with whom that defendant did not interact. > Specifically, the Court granted summary judgment in favor of Defendants Luan Bojka, Chnstopher Mastroianni, Robert Fogg, and Ricardo Colon as to Counts 2, 4. 6, 8, and 10 (claims brought by Perez), in favor of Defendants Carlo Faienza, William Cote, and Luis Franco as to Counts 1, 3, 5, 7, and 9 (claims brought by Diaz); in favor of Defendant Jeremy Allen as to Counts 2, 4, 6, 8, and 10; in favor of Defendant Scan Spell as to Counts 2. 4, 6, 8, and 10; and in favor of Defendant Stephen Barone as to Counts 1, 3, 5. 7. and 9. (ECF No. 98).
5 To the extent plaintiffs bring a Section 1983 failure to intervene theory of liability against those defendants with whom they interacted, plaintill's have also failed to brief and, therefore, abandoned this theory of liability.
In addition, at oral argument, plaintiffs confirmed that they have abandoned their claims brought pursuant to the Connecticut State Constitution
Plaintiffs' Deposition Testimony
The Count also addresses, as a preliminary matter. the question of whether the plaintiffs should be permitted to rely upon their own deposition testimony in opposing these motions For summary judgment. In the analysis below, plaintiffs' deposition testimony is central to determining if a genuine issue of material fact exists as to whether plaintiffs actively resisted arrest. thuis necessitating the force used Some defendants argue that the Court should not consider plaintiffs' deposition testimony because it is so inherently unreliable as to render il inadmissible given plaintiff's" admitted dnig use and Perez's admitted inability to recall much of the events surrounding the pursuit and the arrest While there may be extraordinary circumstances under which such testimony might be properly challenged. this is not
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Diaz v. City of Hartford Police Department, Slip Copy (2021) 2021 WL 1222187
that case. Whether the plaintiff's were under the influence at the time of the arrest, or whether their recollections are imperfect, are considerations which go to the weight of their testimony, And the Court must consider plaintill's' deposition testimony, not to weigh its credibility but to determine whether, if credited, it creates a genuine issue of material fact in dispute. To do otherwise would be lo improperly engage in credibility determinations forbidden when deciding motions For summary judgment. Rogoz 9, City of Hartford, 796 F3d 236, 245 (2d Cir. 2015) ("In reviewing the evidence and the inferences that may reasonably be drawn, the court may not make credibility determinations or weigh the evidence, Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." (internal quotation marks, citations, alterations and emphasis omitted)). In fact, the Court must resolve questions of credibility in the plaintiff's" favor. Fel. at 246.
Section 1983 - Excessive Force
Plaintiffs allege that defendants violated their Fourth Amendment rights, as incorporated against the states by the Fourteenth Amendment, see Tenenbaum v. Williams, 193: F.3d 581. 602 0:14 (2d Cir: 1999), by their excessive use of force during plaintiffs' arrest on June 4, 2016 "The Fourthy Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest?" Jamison 1: Atete, 541 F App'x 15, 19 (2d Cir. 2013) (summary order) (internal quotation marks omitted). "A police officer violates the Fourth Amendment if the amount of force he uses in effectuating an arrest is objectively unreasonable in light of the facts and circumstances confronting the officer." Lennox v. Miller, 968 F 3d 150, 155 (2d Cir 2020) (internal quotation marks and alterations omitted).
*5 "Determining whether the force used to effect a particular scizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing govemmental interests at stake." Graham w Connor, 490 U.S. 386, 396 (1989) (internal quotation marks omitted), More specifically, "[a] determination of whether the Forco used was reasonable requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Miller, 968 F.3d at 155, (internal quotation
marks omitted). Importantly, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of lundsight." Graham, 490 U.S. at 396, Thus, "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are lense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation," Jd. al 396-97;"In sum, the standard to be applied in determining whether the amount of force used exceeded the amount that was necessary in the particular circumstances is reasonableness at the moment." Rogoz 796 F.3d at 247 (emphasis added, internal quotation marks omitted). "In light of the fact-specific nature of the inquiry on an excessive force claim, granting summary judgment against a plaintiff on such a claim is not appropriate unless no reasonable factfinder could conclude that the officers" conduct was objectively unreasonable." MAiller, 968 F3d at 155 (internal quotation marks and alterations omitted).
As to these claims, all defendants argue that they are entitled to qualified immunity. "[Qualified immunity protects government officials from suit if 'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,"" Gonzalez T: City of Schenectady, 728 F.3d 149. 154 (2d Cit: 2013) (quoting Harlow y Fitzgerald, 457 U.S. 800, 818 (1982) The shield of qualified immunity insulates law enforcement officials from liability in their individual capacities unless the plaintiff demonstrates "(1) that the official violated a statutory or constitutional right, and (2) that the right was. clearly established' at the time of the challenged conduct." Ganek y Lethowitz, 874 F.3d 73, 80 (2d Cir. 2017) (quoting Ashenaff & al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818)), However, "lijn this Circuit. even where the law is clearly established' and the scope of an official's permissible conduct is clearly defined,"the qualified immunity defense also protects an official if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful" Southerlond w City of New York, 680 F.3d 127, 141 (2d Cir. 2012) (quoting Taravella. v. Towa of Wilcon, 599 F.3d 129, 134 (2d Cir 2010) (brackets omilled)). Thus, "a defendant is entitled to summary judgment on qualified immunity grounds when no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff's, could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established l'ederally protected
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right." Thomas « Roach, 165 F.3d 137. 143 (2d Cir. 1999) (internal quotation marks, citations, and alterations omitted) Accordingly, "[summary judgment on qualified immunity grounds is not appropriate when there are facts in dispule that arc material to a determination of reasonableness" El:
Given these applicable legal principles, it is clear that in an excessive force case, the issue of qualified immunity necessarily overlaps considerably with the question of liability on the underlying claimt as both require an assessment of the objective reasonableness of the arresting officer's conduct. See Cowan ex rel, Em, uf Cooper : Breen, 352 F.3d 756, 764 n. 7 [2d Cir. 2003) (noting that, in some excessive force cases, the qualified immunity and Fourth Amendment issues converge on one question: "Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful.").
The Arrest at Flatbush Avenue
Courts have held that the use of force after a suspect has surrendered is excessive and, therefore, violates the Fourth Amendment. For example, in Jamison, plaintiff alleged that defendant-police officers used excessive force "when they shot at him multiple times, causing mjury, as he fled following a high-speed car chase." 541 F. App'x at 17. According to the officers, plaintiff stnick an officer with his car. "fired on the officers, and refused to comply with the officers1 orders to drop lus gun and stop ninning" Id. Nevertheless, the Second Circuit found that plaintiff's verified complaint and a witness affidavit were sufficient to raise "a genuine dispute . as to whether |plaintiff] had surrendered and was no longer a threat when [the defendants] employed deadly force." /d. at 19. Significantly, the court found that under plaintiff's version of events, in which he surrendered before the officers' application of force, "the officers lacked probable cause to believe that Iplaintiff] posed a serious threat to the officers or to otliers, and the decision to use force was not objectively reasonable." Id. Thus, even though "other evidence in the record supportfed] the officers" account, and a reasonable jury may well accept their version of events," the court reversed the district count's grant of sununary judgment on plaintiff's excessive force claim. (. at 17_ 19. The court further found that the officers were not entitled to qualified Hmmmmily because it was "clearly established law that it is objectively unreasonable to use deadly force on a suspect who has fully surrendered[.]" Fc.
*6 Similarly, in Hemphill v Schott, the plaintiff brought au excessive force claim against, among others, a police officer who shot him prior to his atrest for armed robbery: 141 F 3d. 412, 414 (2d Cir 1998). There, the police officer claimed that plaintiff' led the police on a chase and "made furtive motions at his waist, as if to draw a weapon, immediately before the shooting." Id: aL 416. The police officer also claimed that he gave advance warning to the plaintiff of his intention to use deadly force Id. In contrast, plaintilT claimed that he did not evade the police, that he stopped and raised lus hands in the air when commanded, and that he was not provided advance warning by the police officer before the shooting. 7d. al 417. Accepting plaintiff's version of events "inunediately preceding the shooting." the Second Circuit found that the officer's "alleged decision to use potentially deadly force upon a suspect who stopped and raised his arms in the air when commanded to do so does not qualify as reasonable[.]" Id. Accordingly, the court held that the district court erred in entering summary judgment in favor of the officer "[bjecause summary judgment based either on the merits or on qualified immunity requires that no dispute about material factual issues remain[ ]" Id, at 418.
Diaz (Count One as against Defendants Allen, Bojka, Mastroianni, Fogg, and Colon)
Here, viewing the evidence in a light most favorable to Diaz, Diaz fully surrendered when the car stopped on Flatbush Avenie. Indeed, at his deposition. Diaz repeatedly testified that he put his hands up when the car stopped. (Diaz Dep .. ECF No 84-3 at 160 ("Well, after the car went over the Stop Sticks, we was on Flatbush. The car came to a stop. To the best of my knowledge I put my hands up so the officers could see my hands."): 162-63 (same): 163-64 (Q: "Do you recall police officers coming to your side of the vehicle and issuing commands to get out of the car?" A. "He didn't say nothing I was willing to comply with the officer. I was ready to do anything. He didn't say nothing. I had my hands up. He tried opening the door. He didn't say "Unlock the doing [ sic] door," nothing. He busted the window out."): 198 ("|When the car came to a stop. I put my hands up and was waiting l'or directions I didn't hear anything."); see also id. at 200. 236). Diaz also repeatedly testified that he did not otherwise resist arrest while being apprehended by the defendants. (la. al 202-03 (testifying that he lied facedown on the ground will his hands at his side after being yanked out of the car); 205 (testifying that he did not do anything to resist arrest while on the ground): 262 (testifying that he did nothing to threaten
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officers on the scene after he had his hands up). 267 (testifying that he did not resist the officers' efforts to place him into handcuffs))
By Diaz's account, it was therefore after he surrendered that Officers Bojka, Allen, Fogg. Colon, and Detective Mastroianni used the force described above, i.e., baton strikes, a laser deployment, punches and kicks, while effectusting his arrest. Although defendants offer evidence that Diaz was actively resisting arrest and that the force was therefore necessary, the Court must view the above facts in a light most favorable lo Diaz. Thus, given Diaz's testimony that he fully surrendered after the car stopped at Flatbush Avenue, the Court finds that there is a genuine issue of material fact as to whether the defendants' use of force against Diaz was reasonable under the circumstances. See Jamison, 541 F. App'x at 19: Hemphill. 141 F.3d nt 416-18: see also Getlin w Zoll, 707 F. Supp. 2d 369, 378-79 (E.D.N.Y. 2010) (finding that defendant police officer was not entitled to summary judgment or qualified immmmnity on an excessive force claim because he did not have probable cause to believe that the plaintiff posed a significant threat after the plaintiff stopped his car and put his hands in the air and because it was unreasonable for the officers to drag the non-resisting plaintiff's body through the window and to kick and punch him): compare MacLeod v Town of Brattleboro, 548 F. App's 6, 8-9 (2d Cir 2013) (summary order) (finding that the officer's use of a taser was not excessive force where plaintiff contravened "clear, repeated instructions that he acknowledge[d] he understood"). Therefore: Officers Bojka Allen, Fogg. Colon, and Detective Mastroianni are not entitled to summary judgment with respect to Diaz's Section 1983 claim for excessive force.
Perez (Count Two as to Defendants Barone, Faienza, Cote and Franco)
*7 Viewing the evidence in a light most favorable to Perez, Peroz initially signaled his intent to surrender when the car stopped at Flatbush Avenue by raising his hands in the air But there is no evidence to suggest that Perez continued in that vein or that he did not thereafter resist arrest when he exited the vehicle. After the car stopped, Perez testified that he put his hands up. (Percz Dep, ECF No. 84-4 at 128 ("I remember pulling my hands up in the air when I went to completely stopped."); 135 (Which llc car stopped, "I just put my hands up in the air")). Though, aller putting his hands up. Perez docs not remember much else. (Id. at 135-36
(Q: "All right. What do you remember about what happened when the car finally stopped?" A: "I just put my hands up in the air All of a sudden, I just don't remember nothing from there" Q: "Okay. So you-when the car stopped you remember putting your hands up in the air?" A: "From there I just don't remember nothing, what happened all from there."). 136 (Q: "Okay. What do you recall about police officers approaching the car!" A: "I guess it was like, 'Freeze Don't move,"After that I don't remember everything else. " Q: "Do you have any recollection of how you got out of the car?" A: "I don't remember. No."): 137 (Q: "Do you have a recollection of anything between when the car stopped and when you woke up al Hartford Hospital?" A: "Just woke up at Hartford Hospital being scared, like wow.")), More specifically. Perez testified that he does not remember anything after officers broke the driver's side window and hit him with a baton. (Id at 175. 176 (Officers "broke the window, hit me with a baton, and after that I don't remember nothing else."), 177 (A: "I got hit with the baton stick, and after that I don't remember nothing else." Q: "You got hit with a baton stick while you were seated in the driver's seat?" A: "Yes.")). Perez' inability to recall the remainder of the events of his arrest notwithstanding the defendants have submitted substantial evidence, unanswered by Perez, that Perez continued his efforts to avoid apprehension and resisted arrest after he exited the car. (See, e.g., Barone Aff., ECF No. 80-3 11 38. 40. 44: Faienza Incident Report, ECF No. 79-3 at 60 ('[Perez] was actively resisting officers by flailing his arms and pushing off the ground."); Cote Incident Report, ECF No 79-3 at 69 ("[Perez] exited the vehicle ignoring numerous verbal commands given by officers to stay in the vehicle [Perez] took a fighting stance and appeared to be looking for an avenue of escape.")). Therefore, viewing the evidence in a light most favorable to Perez, the use of excessive force claim would be limited to force used while Perez was still in the car having signaled an intention to surrender. But Perez offers no evidence identifying the officer who allegedly strick him with a baton while he was inside the car,"
6 Although plaintiffs appear to argue that Officer Barone strick Perez in the head with a baton while Perez was still in the car with his hands up, there is no evidence that suggests this happened. Perez testified that he was struck in the head with a baton while in the car, but he also testified that he did not know who struck him. (Perez Dep .. ECF No. 84-4 at 177). Further, the Internal Affairs investigation report cited by plaintiffs only indicates that Officer
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Barone struck Perez with his fist while Percz was already out of the car. (ECF No. 84-1 at 23).
And the uncontradicted evidence is that Officers Faienza, Cote, and Barone used foroc to effectuate Perez's arrest al Flatbushs Avenue only after Perez exited the car and was actively resisting arrest Specifically, Officer Faienza deployed a taser on Perez after he exited the car because he failed to follow verbal commands, (Faienza Incident Report, ECF No. 79-3 at 58-60), Officer Cole applied foot strikes 10 Perez after Perez fell lo the ground because be continued to thrash about and did not follow commands to stop resisting. (Cote Aff., ECF No. 93 at 25-26, "1 8, 12), and Officer Barone issued closed list strikes to Perez's right forso while Perez was on the ground because Perez would not show his hands to the officers. (Barone Aff., ECF No. 80-3 1 43-45). Therefore. because there is no evidence that Officers Faienza, Barone, or Cote used any force on Perez while he was in the car. and Perez does not offer any evidence which counters the defendants' sworn statements that the force was necessary to effectuate his arrest given his active resistance after he exited the car. Perez hus not raised a genuine issue of material fact as to whether these defendants acted reasonably under the circumstances. See Rogoz, 796 F.3d al 246 ('Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of pliysical coercion or threat thereof to effect it." (internal quotation marks and citation omitted)). see, e.g.Crowell : Kirkpatrick. 400 F. App'x 592, 594-95 (2d Cir, 2010) (summary order) (finding application of taser objectively reasonable where arrestees were actively resisting arrest). Accordingly, Officers Barone, Faienza, and Cote are entitled to summary judgment with respect to Count Two, the Section 1983 claim alleging excessive force.
7 The Court notes that Perez does not assert that, even under the defendants' version of events, a gemine issue of material fact exists as to whether the force used was reasonable
Defendant Franco
Percz also claims that Officer Franco punched him while he was being transported to Hartford Hospital in an ambulance However, Perez offers no evidence to support this claim Rather, Perez's claim appears to be based on his interpretation of Officer Franco's statement of material facts, which indicates that Officer Franco used the heel of his hand to turn Perez's face in the other direction after Perez attempted to
spit at him. (Mastroianni SMF, ECF No. 791 114. see also Franco Incident Report, ECF No. 79-3 at 66 ("1 then placed the hecl of my right palm over |Perez's| face and forcefully pushed him away from my dircetion to avoid any more of his blood from being spit at nie.")), Perez argues that he did not spit at Officer Franco, but in making this argument, Perez cites to his deposition testimony in which he states that he does not remember what happened in the ambulance. (Perez Dep,, ECF No: 84-1 at 142 (Q. "Do you have any recollection of spitting bloody saliva at Officer Franco who was in the ambulance with you?" A: "I don't remember, No.")), In fact. Perez testified that be had no recollection of the ambulance ride, (Id. (Q: "Mr. Perez, do you have any recollection of the ambulance ride from the end of the car chase to Hartford Hospital? Do you have any recollection of that?" A: "No.")). Thus, the record indicates, and there is no genuine dispute. that Officer Franco pushed Perez's face away after Perez spit blood at him. Under these circumstances, no reasonable jury could find that Officer Franco's use of force was excessive. See Girahant. 490 U.S. at 396 {"Not every push or shove ... violates the Fourth Amendment." (internal quotation marks and citation omitted))
*8 At Hartford Hospital, Perez further claims that Officer Franco punched him while he was handcuffed to a bed. which Officer Franco denies. (Perez Dep., ECF No. 84-4 at 143. 180-82, 222; Franco Aff .. ECF No. 93 at 34, 5 19). Perez described the officer that punched him as "Spanish, young." (Perez Dep., ECF No. 84-4 at 144) And, Perez submitted a picture of an officer, who he identifies as Officer Frinco, allegedly fitting that description. (ECF No. 84-7).8 There is no dispute that Officer Franco is the officer who handcuffed Perez to a bed at Hartford Hospital. (See Franco Aff., ECF No. 93 at 34, ' 17). And, in his deposition. Pérez testified that he was punched while he was being handcuffed to the bed by an officer. (Perez Dep, ECF No 84-4 at 180-81). Accordingly, a genuine issue of material fact exists as to whether Officer Franco punched Perez while he handcuffed Perez to the bed, which if proven would clearly constitute excessive force. Lennox. 968 F.3d at 157 (finding that, at least as of July 22, 2016, it was "clearly established by [Second Circuit] caselaw that it is impermissible to use significant force against a restrained arrestee who is not actively resisting"); Jimey w Trenibig. 963 F 3d 214. 225 (2d Cir 2020) (Before April 2015, "it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others."). Thus, Officer Franco is not entitled to.
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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summary judgment as to Perez's Section 1983 claim based on the purported punch at the hospital.
8 Officer Franco argues that the picture is not properly before the Court because Perez did not authenticale il. Whether the picture is properly before the Court does not alter the Count's analysis.
State Law Claims
In the Third Amended Complain, in Counts Three through Ten, plaintiffs. in conclusory fashion, assert that their allegations also give rise to liability under the various state law claims specified. Although the defendants addressed each additional count in the motions for summary judgment, plaintiffs" response to these arguments was conclusory almost to the point of being deemed abandonment. See Zadrowski M. Town of Plainville, No. 3:09-CV-1367 (DJS). 2013 WL 5435491. at "8 (D. Com. Sept 30. 2013) ("Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way."(internal quotation marks and citation omitted)). When asked whether abandonment was in fact the plaintiff's" intent, counsel advised the Court. in essence, that he viewed the state law claims as rising or falling with the Section 1983 claims. Even though these additional causes of action have different elements or might be subject to different defenses, in the absence of meaningful briefing, the Count takes counsel at his word. Accordingly, because Perez has failed to raise a genuine issue of material fact as to his Section 1983 claims against Defendants Cote. Barone and Faienza, these defendants" motions for summary judgment are granted as to Counts Four, Six, Eight and Ten as well
As to Defendants Allen, Bojka, Mastroianni. Fogg. Colon, and Franco, the Count must address their arguments that irrespective of the outcome on the Section 1983 claims, which have survived summary judgment as discussed above, they are entitled to summary judgment on the state law claims The Court must also take up Defendant Spell's motion for summary judgment as to the state law claims.
Intentional Infliction of Emotional Distress (Counts Nine, Ten)
To establish liability for imentional infliction of emotional distress, plaintiff's must show: "(1) that the actor intended to inflict emotional distress or that lic knew or should have
known that emotional distress was the likely result of his conduct: (2) that the conduct was extreme and outrageous: (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) thal the emotional distress sustained by the plaintiff was sovercl." Carrot v Mistase Ins. Co., 262 Cont: 433.443 (2003) (intemal quotation marks and citations omitted). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. "Courts have held that the use of excessive force can establish a claim for intentional infliction of emotional distress." Frappier w Cup of Waterbury, No. 3:07-CV-1457 (WWE). 2008 WL 4980362, al *3 (D. Com Nov. 20, 2008); see, e.g., Birdsall v. City of Hartford, 249 F. Supp 2d 163. 175-76 (D. Com. 2003) (finding that plaintiff could proceed past summary judgment on an intentional infliction of emotional distress claim where a police officer hit him repeatedly with a flashlight).
*9 Here. if the allegations of excessive force under the circumstances described by Perez and Diaz are proven. a reasonable jury could find the remaining defendants conduct so "extreme and outrageous | | as to permit recovery." Birdsoll. 249 F. Supp. 2d at 175 (internal quotation marks and citation omitted). At the very least, because "there are genuine issues of material fact that are properly left to a jury regarding how defendants and plaintiff[s]-acted during the arrest [and thereafter] . [i]t is best left upon a full trial: record for a properly instructed jury to decide if [plaintiffs have] established the elements of [their claims for intentional infliction of emotional distress]." Bussolari v: City of Horford. No. 3:14-CV-00149 (IAM), 2016 WL 4272419, at +4 (D Cont. Aug. 12. 2016). Accordingly Defendants Allen, Bojka Mastroianni. Fogg, and Colon are pot entitled to summary judgment on Count Nine and Defendant Franco is not entitled to summary judgment on Count Ten, plaintiffs' respective claims for intentional infliction of emotional distress
Similarly, Defendant Spell, who did not move for summary judgment as to Diaz's excessive force claim, is not entitled to summary judgment on Diaz's claim for intentional infliction of emotional distress. See Frappier. No. 3:07-CV-1457 (WWE), 2008 WL. 4980362, al *3 ("Because defendants have not souglut summary judgment ou plaintill's excessive force claim, the Coun cannot grant summary judgment on the intentional infliction of emotional distress claim."). This is especially so where the Court, viewing the facts in a light most Favorable to Diaz, must take as true Diaz's allegation
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that Defendant Spell gratuitously kicked him in the head after he was fully apprehended. (See, e.g., Diaz Dep., ECF No 84-3 at 170 ("Once they finished on the side of the car, I got handcuffed and moved over From the car. .. Now that I'm nơi next to the car, this is when the other ollicet kicked me in the head. I'm thinking I'm gonna die. I'm crying for my life. I'm thinking I'm gonna die. He tells me if I don't stop crying. he gonna kick me again in the head."); see also id al 17| (identifying Defendant Spell as the person who kicked him in the Icad)).
Recklessness (Counts Five, Six)
All remaining defendants also seek summary judgment as to plaintiffs" recklessness claims. "Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man[.]" Doe . Hartford Roman Cath, Diocesan Corp., 317 Coun. 357, 382 (2015) (internal quotation marks omitted). Although recklessness is a "state of consciousness with reference to the consequences of one's acts" it "may be inferred from conduct." Id. "[Recklessness] is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Id. (internal quotation marks omitted).
Here, as discussed above, there is a genuine dispute as to the nature of defendants" use of force at Flatbush Avenue and Defendant Franco's purported unprovoked punch of Perez at the hospital and therefore a genuine dispute as to whether the remaining defendants acted recklessly. See Zadrowski, No 3:09-CV-1367 (DIS), 2013 WL. 5435491, at *2. 19 (finding that it is a question for the jury to determine whether the officer's conduct was reckless where the officer slammed plaintiff against a car and choked her)." Accordingly, Defendants Allen, Bojka, Mastroianni, Fogg, Colon, Franco, and Spell are not entitled to summary judgment on Count Five or Count Six, plaintiffs' respective claims for recklessness,
9 Defendant Spell argues that his conduct did not amount to recklessness because Diaz was spitting blood at him. However, viewing the record in a light most favorable to Diaz, Diaz did not spit at Defendant Spell. (Diaz, Dep., ECF No. 84-3 at 172 (Q: "Were you spitting at the time?" A: "No. I didn't raise my head. I didn't raise my head. I didn't do
nothing. I kept my head down" Q. "Did you spit at any officer. any officer that night on June 4. 2016?" A: "For what? To get beat up? I ain't stupid" Q: "Were you spitting on the ground?" A. "I wasn't spitting nowlicre. How am I spitting and the blood is coming straight out of my forehead dripping onto the ground?")).
Negligence/Negligent Infliction of Emotional Distress (Counts Three, Four, Seven, Eight)
*10 All remaining defendants argue that they are entitled to summary judgment as to plaintiffs' negligence-based claims Specifically, defendants argue that plaintiffs' negligence claims fail as a matter of law because their allegations involve only allegedly intentional conduct. See Frappier, No. 3:07- CV-1457 (WWE): 2008 WL 4980362. al *3 (Plaintiffs "may not prevail on a negligence claim when Ithey havel brought claims of intentional use of excessive force and intentional infliction of emotional distress."). However, "[t]he majority of courts in this District have recognized that plaintiffs may simultaneously plead negligence-based and intent-based claims arising from the same conduct." Wilson v. Boaday, No. 3:17-CV-00813 (ICH). 2018 WL 3596750, at +4 (D. Com July 25, 2018) (collecting cases), As Judge Meyer explained. "[t]he case that is most often cited by Connecticut federal courts for the proposition that § 1983 and negligence claims are incompatible is based on an interpretation of New York law that finds 'no cause of action for negligence on the part of a police officer' when making an arrest." Bussolari. No. 3:14- CV-00149 (JAM), 2016 WL 4272419, at *3 (internal citation omitted). In contrast, for example, "Connecticut courts have allowed for recovery under Connecticut's negligence-based municipal liability statute, Conn. Gen Stat. § 52-577n, in cases involving allegations of excessive force by police officers"Id. Thus, defendants purely legal argument fails on this point and plaintiffs may pursue negligence-based claims arising out of the remaining defendants' alleged excessive force.
Defendants funher argue that they are entitled to governmental immunity pursuant to Conn. Gen. Stat. F $2-557 ;. The Court construcs defendants' argument as seeking common law govenunental immunity for municipal employees. 1 "Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts." Mulligan u Rious, 229 Conn. 716. 727 (1904). Because "[a]
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police officer's decision to make an arrest and the amount of force to use to effectuate an arrest are discretionary rather than ministerial decisions for purposes of considering whether the officer has immunity from a claim of negligence." Bussolari, No. 3:14-CV-00149 (JAM), 2016 WL 4272419, at *4, the governmental immunity applies to this case. However, there are three exceptions to the immunity: (1) "where the circumstances make it apparent to the public officer that his or her failure to act would be likely lo subject an identifiable person to imminent hart"; (2) "where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws"; and (3) "where the alleged acts involve malice, wantonness or intent to injure, rather than negligence[.]" Spears w. Garcia, 263 Conn. 22. 36 (2003).
10 Comx Gen. Stat. § 52-557n establishes municipal liability for negligent acts of employees. See Bussolart, No: 3:14-CV-00149 (JAM), 2016 WL 4272419, ar *5.
Here, plaintiffs assert that the "identifiable person-imminent harm exception" applies. The Court agrees. The exception requires: "(1) an imminent harm: (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." /Joe k: Petersen, 279 Conn. 607, 616 (20106). "This imminent harnt exception applies to police officers." to include "those who affirmatively act[.]" Hassolari, No. 3:14-CV-00149 (JAM), 2016 WL. 4272419, at *4. In this case, viewing the evidence in a light most favorable to plaintiffs, the identifiable person- imminent harm exception lo govemmental immunity is applicable. Diaz and Perez were clearly identifiable victims to the defendants and defendants, through their respective use of force as detailed above, subjected Diaz and Perez to imminent harm /d. (finding that officers knew that their conduct would likely subject plaintiff to an imminent harm where officers restrained and punched the plaintiff). Thus, there is a genuine issue of material fact remaining as to whether defendants are entitled to governmental immunity Accordingly. Defendants Allen, Bojka, Mastroianni, Fogg, Colon, Franco, and Spell
are not entitled to summary judgment on Counts Thec. Four, Seven and Eight, plaintiffs' respective negligenoc- based claims. The Coun again stresses that plaintiff's, after given the opportunity to present their full case to a jury, must establish the elements of each respective cause of action
11 Although the Court is allowing the state law claims to proceed past summary judgment, the Court notes that the plaintiffs "may not obtain double recovery under altemative theories that are based on the same conduct and harm|.|" Bassolari, No 3.14- CV-00149 (JAM), 2016 WL 4272419: at *4.
Conclusion
*11 For the foregoing reasons, summary judgment is GRANTED in favor of Defendants Barone, Faienza and Cote as to Counts 2. 4. 6, 8, and 10, Defendant Franco's motion l'or summary judgment is DENIED as to Counts 2, 4, 6, 8, and 10. Defendant Allen's motion for summary judgment is DENIED as to Counts 1, 3, 5, 7, and 9. Defendants Bojka, Mastroiamu, Fogg, and Colon's motion for summary judgment is DENIED as to Counts 1, 3. 5. 7, and 9. Defendant Spell's motion for suttumary judgment is DENIED as to Counts 3, 5, 7, and 9. Accordingly, the only clainis remaining in this action are as follows: (1) Diaz's Section 1983 claim for excessive force against Defendants Allen, Bojka. Mastroianni, Fogg. Colon, and Spell: (2) Diaz's state law claims against Defendants Allen, Bojka, Mastroianni. Fogg. Colon, and Spell for the same: (3) Perez's Section 1983 claim for excessive force against Defendant Franco based on his purported punch in the hospital: and (4) Perez's state law claims against Defendant Franco for the same.
SO ORDERED at Bridgeport, Connecticut, this 3 1st day of March 2021.
All Citations
Slip Copy. 2021 WL 1222187
End of Document
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Zachary v. City of Newburgh, Not Reported in Fed. Supp. (2016) 2016 WL 4030925
2016 WL 4030925 Only the Westlaw citation is currently available. United States District Court, S.D. New York.
Chaz ZACHARY, Plaintiff, v.
CITY OF NEWBURGH, Officer Roman Scuadroni, Carlos Mendez, Andres Arrestin, Daniel Volpe, William Hinspeter, William Lahar, Sgt. Anderson, Kevin Lahar, Jake Kirby, Howard Ladlee, Defendants.
13 CV 5737 (VB)
Signed 07/25/2016
Attorneys and Law Firms
Chaz Zachary, Ottisville, NY, pro sc.
David Lewis Posner, McCabe & Mack LLP, Poughkeepsie. NY. Kellie Elizabeth Lagitch, Sharon Kay Worthy-Spiegl. Goshen NY. for Defendants.
OPINION AND ORDER
Briccetti. United States District Judge
*1 Plaintiff Chaz Zachary, who is proceeding pro se. brings this civil rights action pursuant to +2 LL.S.C. § 1983 arising from events during and after his arrest on May 9, 2013, in the City of Newburgh, Plaintiff brings an excessive force claim under the Fourth Amendment and a procedural due process claim under the Fourteenth Amendment against two Orange County Sheriff's Office ("OCSO") deputy sheriff's and eight Newburgh Police Department ("NPD") officers.
Defendants Deputy Sheriff Daniel Volpe and Deputy Sheriff Jako Kirby ("County Defendants") move for summary judgment as to both claims. Defendants Officer Roman Scundroni, Officer Carlos Mendez, Officer Andres Arrestin, Officer William Hinspeter. Officer William Lahar, Sergeant Anderson, Officer Kevin Lahar, and Officer Howard Ladice ("Newburgh Defendants") move for summary judgment as to the procedural due process claim and as to the excessive force claim arising from an altercation in the NPD booking room
Plaintiff's excessive force claim arises from two separate incidents - his arrest and later in the NPD booking room. The Newburgh defendants do not seck summary judgment dismissing plaintiff's excessive force claim as it relates to the arrest itself. but only as il relates to the incidents in the booking room
For the following reasons, defendants' motions are DENIED as to plaintiff's excessive force claim and GRANTED as lo plaintiff's procedural due process claim.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331
BACKGROUND
The parties have submitted briefs statements of fets. declarations with supporting exhibits, and vidco evidence .- which reflect the following factual background
2 Defendants submitted video footage recorded by six security cameras within the NPD headquarters. (Exhibit E to the Declaration of Kellie E. Lagitch, Esq .. hereinafter "Ex. E"). None of the video footage has audio.
On May 9. 2013. County Defendants were assigned to work on an "Operation Impact" patrol, which was a joint operation between the OCSO and the NPD targeting quality-of-life crimes. NPD Officers Roman Scuadroni, William Hinspeter. Carlos Mendez, William Lahar, and Kevin Lahar were also assigned to Operation Impact.
I. Plaintiff's Arrest
AL approximately 6:25 p.m. on May 9. 2013. Officer Scuadroni received a radio transmission identifying an individual with an open container. Officer Scuadroni drove to the reported location, exited his vehicle, and appmached plaintiff. Plaintiff fled. Officer Scuadroni pursued plaintiff on foot and sent a radio transmission informing other officers of the pursuit. County Defendants and Officers Mendez and Hinspeter received Officer Scuadroni's radio transmission and dmve to his location. Upon their arrival, County Defendants witnessed Officer Scuadromi struggling to handcuff plaintiff
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The parties dispute what happened during the arrest and which officers were involved in subduing plaintiff Plaintiff contends "numerous officer[ Is arrived and began to assault" him, and further contends "officers kicked [him] while |he] was down and handcuffed" (Zachary Aff \ 1)} Plaintiff states he was on his chest when he was kicked in his nbs and legs. Plaintiff does not know who kicked him, but asserts Officer Mendez stepped on the back of his head. It took between thirty seconds and one minute for Deputy Volpe and Officer Mendez to gain control of plaintiff and place him in handcuffs. Deputy Kirby contends he did not help subduc or handcuff plaintiff. but did scarch plaintiff after he was handcuffed. Deputy Kirby maintains he never observed anyone kick plaintiff or put their feet on his head or back as he claims" (Kirby AIT { 9). Plaintiff admits Deputy Volpe did not punch, kick, or knce him during his arrest.
Plaintiff submitted an affidavit as a part of his opposition lo defendams' motions (Doc. #187 al 14-18)
II NPD Booking Room Incident
"2 NPD officers arrived at the NPD headquarters with plaintill at approximately 6:30 p.a. County Defendants arrived shortly thereafter Non-defendant officers escorted plaintiff into the booking room. Deputy Volpe then escorted plaintiff, who was handcuffed, to the strip search roont to conduci a "pat frisk " (Volpe Aff " 11), During the pat frisk, plaintiff asked Deputy Volpe if Deputy Volpe was the officer that pursued him on foot prior to his arrest Deputy Volpe responded he was not. Upon completing the pat frisk. Deputy Volpe escorted plaintill out of the strip search room to a bench in the booking room.
+ The strip search room is located witten the booking room. It has one entrance and does not have a door Two of the six surveillance cameras in the booking room lave sightlines into the strip search room, but the space to the left of the entrance in the strip search room is almost entirely out of view of the cameras. Officer Hinspeter explained in his affidavit that the visual obstruction is an intentional measure to provide privacy to those undergoing strip searches.
A. Altercation with Officer Scuadroni
Ar approximately 6:38 pin, Officer Scuadroni escorted plaintiff back to the strip search room to conduct a full
strip search because officers recovered drugs from plaintiff during his arrest. Plaintiff remained handcuffed. As they were walking to the strip search room, plaintiff asked Officer Squadroni if he was the officer that pursued him on fool prior to his arrest. Officer Scuadroni responded he was.
Once inside the strip search room, Officer Scuadroni faced plaintiff towards the wall to the left of the room's entrance. (Ex. E. Booking 1. at 6:38:48). Officer Scuadroni stood just behind plaintiff, facing his back Officer Scuadrom then removed plaintiff's handcuffs About ten seconds after Officer Scuadroni positioned plaintiff in the strip search room, Deputy Volpe entered the strip search room and stood behind Officer Scuadroni
5 The Count adopts the nomenclature supplied in Exhibit E to identify cach camera.
The parties dispute what happened immediately after Officer Scuadroni removed plaintiff's handcuffs, Plaintill contends Officer Scuadroni bent plaintiff's arm and grabbed plaintiff's throat. Plaintiff asserts he then pushed Officer Scuadrom away, and Officer Scuadrom swung al plaintill' before plaintiff swung back. Plaintiff denies striking Officer Scuadroni.
Officer Scuadroni contends he simply removed plaintill's handcuffs and did not twist plaintiff's arm or grab plaintiff's throat. Officer Squadroni maintains plaintiff turned and struck him as soon as plaintiff's handcuffs were removed, opening a laceration on Officer Squadroni's scalp. Although plaintiff says he did not strike Officer Scuadrom, Officer Scuadrom was taken to the hospital and received three staples to close a wound to his head.
The surveillance video does not conclusively show what happened after Officer Squadron removed plaintiff's handcuffs because plaintiff was standing in the area of the strip search mom that is obstricted from the cameras' sightlines. During the fourteen seconds between Officer Scuadrom positioning plaintiff in the strip search room and plaintiff striking Officer Scuadroni, the surveillance video does not clearly show Officer Scuadromi's arms for approximately seven seconds, including the four seconds immediately preceding the altercation. However it shows Officer Scuadroni's legs and upper body remained stationary during that time (Ex. E. Booking | & Booking 2, at 6:38:54-6:38:57, 6:38:59-6:39:02).
B. The Melee While Plaintill was Unrestrained
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43 The parties also dispute what happened next. Plaintiff contends Deputy Volpe swung at him first before he swung back at Deputy Volpe Deputy Volpe argues he struck plaintiff in self-defense after plaintill swung at him unprovoked. The parties agree Deputy Volpe struck plaintill twice.
The surveillance video shows that approximately one second after Deputy Volpe positioned himself behind Officer Scuadroni, Officer Scuadroni quickly bent down to his right. (Ex. E, Booking 1, at 6:39:03). Deputy Volpe, facing towards plaintiff. lifted his arms up as if to cover his face and stepped backwards, away from plaintiff. Less than one second later, plaintiff, no longer handcuffed, turned around to face Deputy Volpe with luis fists clenched and his arms extended towards them. (Id. at 6:39:04). Within the same second. Deputy Volpe swung his closed left fist towards plaintiff's upper chest, and plaintiff swung his closed left fist towards Deputy Volpe's head. Plaintiff then swung his right arm towards Deputy Volpe's head. Then Officer Scuadroni grabbed plaintiff's torso and pushed him against the back wall of the strip search room as Deputy Volpe swung his right arm at plaintiff's head. hitting him with his closed fist. (Id. at 6:39:06)
Seconds later. Officer Mendez, Officer Arrestin, Officer Hinspelet, Deputy Kirby, and a non-defendant officer rushed towards the strip search room. Plaintiff contends Officer "Mendez tried to knee [him] against a wall" (Zachary Dep, Tr. at 84), and one officer "was swinging a knife" or "something silver" at him (Id at 85), No knife is visible in the surveillance video Defendants contend the officers were merely attempting to secure plaintiff and gain his compliance after he had struck Officer Scuadrom.
The surveillance video shows that Officer Mendez and the officer not named as a defendant entered the strip search room, while Officer Hinspeter discharged pepper spray towards plaintiff's face from outside the room's entrance (Ex, E, Booking I. at 6:39:06). For about five seconds, plaintiff was obscured from the surveillance video both by the wall of the strip search room and by the presence of officers in and around the entrance to the room.
C. Subduing Plaintiff
After the five seconds in which plaintiff was not visible in the surveillance video. plaintiff crawled underneath the officers to exit the sinp searchi room into the booking roont (Ex. E. Booking 1, al 6:39:11) Officer Hinspeler pointed his pepper spiny in plaintill's direction, but did not continue to spray.
After plaintiff had crawled for approximately four seconds. Deputy Kirby stepped on plaintiff's right hand or wrist, and Officer Mendez stepped on plaintiff's left hand or wrist (Ex. E, Booking 2, at 6:39:16), Plaintill contends Deputy Kirby, and Officer Mendez stepped on Its wrists "without cause," (Zachary Aff, " 3), while they contend they placed their feet on plaintiff's wrists to regain control of plaintiff Both Deputy Kirby and Officer Mendez removed their feel Ilirce seconds later when Officer Arrestin tased plaintill in the back: (Ex, E, Booking 1. at 6:39:19).
After the five-second taser cycle was complete, plaintiff lay face-down on the ground and placed his hands behind his head. (Ex. E. Booking 1. at 6:39:23). Deputy Volpe rook plaintiff's right hand and placed it behind plaintiff's back. (Id at 6:39:31), Officer Mendez placed handcuffs on plaintiff's left hand and pulled his left arm backwards before placing it behind plaintiff's back. (Id. at 6:39:33), Officer Hinspeter placed his right knee on plaintiff's upper back and neck while Deputy Volpe and Officer Mendez handcuffed plaintiff (Id. at 6:39:30-6:39:47). Officer Hinspeter then removed his knee from plaintiff, and Officers Mendez and Hinspeter lifted plaintiff onto his feet and took him back into the strip search room. (Id. at 6:39:48-6:39:53), Approximately three minutes later, Officer Ladlee placed plaintiff in shackles while plaintiff lay on the floor (Ex. E, Booking 2, at 6:43:04),
D. After Plaintiff was Subdued
*4 The parties also dispute what occurred after plaintiff was shackled in the strip search room for approximately twenty- one minutes
Plaintiff claims (1) Officer Arrestin stomped plaintiff's throat and head, and placed a taser under his chin, tu) he lost consciousness, (iii) an officer whose identity plaintiff cannot recall placed a knife under his throat and threatened 10 stab him. (iv) Sergeant Anderson stomped on his legs and shackles, and (v) Officer William Lahar yanked the taser prongs from his back.
Defendants dispute plaintiff's account Officer Arrestin admits he had a taser in his hand, but did not use it while in the strip search room with plaintiff, Sergeant Anderson denies having any physical contact with plaintiff. Officer William Lahar denies removing taser prongs from plaintiff's back, and asserts that the taser prongs were already out of plaintiff's back when he entered the strip search room Officer Arrestin attests that the laser prongs fell out of plaintill's back prior
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Zachary v. City of Newburgh, Not Reported In Fed. Supp. (2016) 2016 WL 4030925
to his return to the strip search room because someone had stepped on the taser wires
The surveillance video is inconclusive, It shows that Officers Mendez and Hinspeter placed plaintill on the ground to the left of the room's entrance, where he lay down with his head facing away from the entrance. (See Ex. E, Booking 2. at 6:42:44-6:43:45,6:48:38-6:52:30). However, the surveillance video does not clearly capture plaintiff for approximately twenty-one minutes while he was in the strip search room. During that time, Officer Arrestin. Sergeant Anderson Officer William Lalar, and Officer Hlinspeter entered the strip search room, but the surveillance video does not depict what defendants were doing in the strip search room.
At approximately 6:52 pm .. plaintiff stood up. and officers positioned him to face towards the wall. Between approximately 6:52 pm and 7:00 pm., Officers Kevin and William Lahur conducted a strip search of plaintiff. At approximately 7:01 p.m., Officer William Lahar escorted plaintiff from the sinp search room and seated him on a bench in the booking room. Plaintiff assens he lost consciousness while in the booking room. Plaintiff did not lose consciousness in the booking room prior to 7:15 p . when the surveillance video ends.
III. Plaintiff's Hospital Visit
Later that evening. Officer Mendez transported plaintiff to St. Luke's Hospital in Newburgh Plaintiff arrived at the emergency room at approximately 9-17 p m
The hospital medical records show plaintiff complained of pain in his left elbow, left wrist, chest, and ribs. " Plaintiff's medical report indicates he had mild swelling of his left wrist at the handcuff site and redness on his left elbow, but reports his left elbow was "atraumatic with slightly red." meaning the elbow did not show signs of serious injury. (Ex. G at 10) The medical report also indicates plaintiff's head was "normocephalic" and "atraumatic." (Id.). Plaintiff's X-ray of his wrist and elbow was negative for injuries Plaintiff was instructed to take Tylenol or ibuprofen for his pain
= Plaintiff's medical records from St. Luke's Comwall Hospital are Exhibit G to the Declaration of Kellie E. Lagitch. Esq. hereinafter referred to as "Ex G. (Doc #172)
45 As a result of these incidents on May 9, 2013. plaintiff was charged with (i) assault in the second degree, (ii) attempted assault in the third degree (iii) possession of manjuana, (iv) tampering with physical evidence (v) rosisting arrest, and (vi) criminal possession of a controlled substance in the seventh degrec. Following a jury trial in January 2014 in Orange County Court, plamtill was convicted on all charges. Plaintiff's appeal of luis conviction is pending
V. Procedural History
Plaintiff Gled his initial complaint on August 13, 2013 (Doc. #2), and filed an amended complaint on December 19, 2013, which included an Eighth Amendment claim, a false arrest claim, a malicious prosecution claim, Fourteenth Amendment procedural and substantive due process claims, an excessive force claim, and a municipal liability claim against the City of Newburgh (Doc. #18) Plaintiff also sought a declaratory judgment and injunctive relief barring the City of Newburgh from arresting him in the future
Newburgh Defendants moved to dismiss plaintiff's amended complaint in part on January 9. 2014. (Doc. #19). Plaimiff voluntarily withdrew his Eighth Amendment claim on February 19. 2014 (Doc. #34), and his false arrest and malicious prosecution claims on March 12, 2014. (Doc. #46)
On April 2, 2014, the Court dismissed plaintiff's request for a declaratory judgment and injunctive relief for lack of subject matter jurisdiction, and dismissed plaintiff's substantive due process and minicipal liability claims for failure to state a claim (Doc. #47), Newburgh Defendants answered plaintiff's amended complaint on July 11, 2014 (Doc. #63), and County Defendants answered plaintiff's amended complaint on August 13, 2014 (Doc #70)
Following discovery, Newburgh Defendants and County Defendants moved for summary judgment. (Doc ##156,
DISCUSSION
L. Legal Standard
The Coun must grant a motion for summary judgment if the pleadmes, discovery materials before the Court, and any affidavits show there is no genuine issue as io any material fact and it is clear the moving party is entitled to judgment as
IV. Criminal Conviction
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a matter of law. Fed. R. Civ. P. 56(c): Celotex Corp y, Catrett. 477 U.S. 317, 322 (1986).
A l'act is material when it "might affect the outcome of the suil under the governing law ... Factual disputes that are irrelevant or unnecessary" are not material and thus cannot preclude summary judgment. Anderson y Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
A dispute regarding a material Fact is genuine if there is sufficient evidence upon which a reasonable jury could return a verdict for the non-moving party. See id. The Count "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Wilson y Nw. Mut. Ins Co., 625 F.3d 54, 60 (2d Cir. 2010) (citation omitted). It is the moving party's burden to establish the absence of any genuine issue of material fact. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, then summary judgment is appropriate. Celotex Corp Y Catrett 477 U.S. at 323, If the non-moving party submits evidence that is "merely colorable," summary judgment may be granted. Anderson v Liberty Lobby, Inc .. 477 U.S. at 249-50. The non-moving 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." Brown y. Eli Lilly & Co . 654 F.3d 347_358 (2d Cir. 2011) (internal citations omitted). The mere existence of a scintilla of evidence in support of the non-moving party's position is likewise insufficient; there must be evidence on which the jury could reasonably find for him. Dawson v Country of Westchester, 373 F 3d 265, 272 (2d Cir. 2004)
*6 On summary judgment. the Count resolves all ambiguities and draws all permissible factual Inferences in favor of the non-moving party. Nagle y Marron, 663 F3d 100, 105 (2d Cir. 2011), If there is any evidence from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper. See Soc. Ins. Co. of Hartford y. Old Dominion Freight Ling Inc., 391 F 3d 77, 83 (2d Cir 2004)
While "it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage," Jeffreys v. City of New York. 426 F.3d 549, 554 (2d
Cir. 2005), the Supreme Court has instructed that "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott . Harris, 550 U.S. 372, 380 (2007). Therefore, district courts may make credibility assessments at the summary judgment stage "where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete. [because] it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any "genuine' issues of material fact, without making some assessment of the plaintiff's account." Jeffreys y, City of New York. 426 F.3d at 554 (internal citation omitted).
II. Excessive Force Claim
The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer." Tracy v Freshwater. 623 F.3d 90, 96 (2d Cit. 2010). The touchstone of the excessive force analysis is whether the force used by a police officer was "objectively unreasonable 'in light of the facts and circumstances confronting them, without regard to [the officers'] underlying intent or motivation "" Jones y: Pannley, 465 F.3d 46, 61 (2d Cir 2006) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)) The analysis looks to the totality of the circumstances, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham v. Connor, 490 U.S. at 396 Also relevant is whether officers "continued to use force against a suspect who, although previously resistant, has been subdued." Whitfieldy City of Newburgh 2015 WL 9275695. al *18 (S.D.N.Y. Dec. 17. 2015)7
7 Plaintiff will be provided with copies of all unpublished opinions cited in this decision. See Lebron v. Sanders, 557 F.3d 76. 79 (2d Cir. 2009).
The "force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened. or reasonably perceived to be threatened, against the officer." Sullivan y Gagnier, 225 F.3d 161, 166 (2d Cir. 2000), "The reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" Graham y. Connor, 490 U.S. at 396.
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Zachary v. City of Newburgh, Not Reported in Fed. Supp. (2016) 2018 WL 4030925
Because police officers often must use some degree of force when arresting or otherwise lawfully "seizing" an individual, the Supreme Court has recognized that "Injot cvery push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham x. Connor. 490 U.S. at 396 (internal citation omitted). Thus, a plaintiff generally must prove he sustained some injury to prevail on an excessive force claim. McAllister v. N.Y.C. Police Dep't, 49 F Supp, 2d 688, 699 (S.D.N.Y, 1999); 502 Landy v. Trizatry, 884 F. Supp. 788, 799 1L: 14 (S.D.N.Y. 1995) ("An arrester must prove some injury, even if insignificant. to prevail in an excessive force claim.").
A. County Defendants" Involvement in Plaintiff's Arrest
8 County Defendants and Newburgh Defendants submitted statements of undisputed facts pursuant to Local Rule 56.1. but plaintill' submitted a counterstatement of facts only in response to Newburgh Defendants' submission County Defendants argue the Court should deem admitted the facts contained in their Rule 56.1 Statement. However, the Court recognizes "the various procedural rules attendant to opposing summary judgment may be challenging or confusing for a pro se litigant." Cavemittes v. City of New York Dep'i of Hous. Pres. & Dev., 974 F Supp. 2d 240; 243 (S.D.N.Y. 2013), affd. 2016 WL 860063 (2d Cir. Mar 7, 2016). Therefore, the Court will "in its discretion opt to conduct an assiduous review of the record." Alexander y The Bd. of Educ, of City of New York. 2016 WL 2610009. at *2 (2d Cir. May 6, 2016) (summary order).
*7 County Defendants argue they are entitled to summary judgment for plaintiff's claim of excessive force arising from his arrest because they were not personally involved insofar as they did not kick or personally harm plaintiff.
The Count disagrees.
A reasonable juror could conclude County Defendants were personally involved in the use of excessive force during plaintiff's arrest by failing to intervene.
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages imder $ 1983." Wright Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotation omitted). "To survive a motion for summary judgment. there
must be some evidence of the personal involvement of cach defendant in the alleged constitutional deprivation." Ricks y O'Hanlon, 2010 WI. 245550, at *4 (S.D.N.Y. Jan. 19. 2010) (citing Williams v. Smith, 781 F.2d 319, 323 (24 Cir 1986).
"A police officer is personally involved in the use of excessive force if lie either: (1) directly participates in an assault; or (2) was present during the assault, yet failed to intercede on behalf' of the victim even though he had a reasonable opportunity to do so." JulTreys \ Rossi, 275 F. Supp. 2d 463. 474 (S.D.N.Y. 2003), aff'd sub pom. Jeffreys v. City of New York. 426 F.3d 549 (2d Cit. 2005). At the summary judgment stage, "[a] plaintiff need not establish who, among a group of officers, directly participated in the attack and who failed to intervene." Id. at 474. "This is especially true where the acts complained of by the plaintiff, if true __ are likely to have prevented plaintiff from identifying which ... defendant officers specifically engaged in the bad acts." Shinkle \ Andreone. 2009 WL 3111761. at $5(E.D.N.Y. Sept: 25, 2009) (internal citation omitted). A plaintiff need only show there was "a realistic opportunity to intervene to prevent the larm from occurring " Anderson y. Branen. 17 F.3d 552, 557 (2d Cir 1994),
"[T]he question whether a defendant had a realistic chance to intercede will turn on such factors as the number of officers present, their relative placement, the environment in which they acted, the nature of the assault, and a dozen other considerations." Figueroa v. Mazza 2016 WL 3126772 at +13 (2d Cir June 3. 2016). Because no single factor is dispositive, "[t]he essential inquiry is whether, under the circumstances actually presented, an officer's failure to intervene permits a reasonable conclusion that he became a "tacit collaborator" in the unlawful conduct of another." Id "Whether an officer had sufficient time to intercede or was capable of preventing the hann being caused by another officer is an issue of fact for the jury unless, considering all the evidence. a reasonable jury could not possibly conclude otherwise." Anderson y, Branen, 17 F.3d al 557
Here, plaintiff contends he was on the ground on his chest and is unable to identify which officers kicked him in his ribs and legs while County Defendams were present. Even assuming County Defendants did not kick plaintiff, a reasonable jury could credit plaintiff's account that he was kicked after he was on the ground and compliant, and therefore conclude County Defendants failed to intervene in other defendants' use of excessive force
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65

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 219 of 484
Zachary V. City of Newburgh, Not Reported in Fed. Supp. (2016) 2018 WL 4030925
9 County Defendants do not argue that any kicking occurred too quickly For them to intervene, Even if they had made such an argument, viewing the facts favorably to plaintiff, the Court would not be able conclude that this "assault occurred so quickly that defendant officers lacked time to intercede as a matter of law." Figueroa v: Mazza, 2016 WL 3126772, al +10 (denying summary judgment on personal involvenient grounds when defendant officers were present for an alleged assault of an arrestee that lasted approximately twenty seconds).
*8 Accordingly, County Defendants' motion for summary judgment on plaintiff's excessive force claim with respect to plaintiff's arrest is denied. 10
10 As noted above, Newburgh Defendants do not seck summary judgment as it relates to the arrest itself.
B. Officer Scuadroni's Use of Force While Uur- Handcuffing Plaintiff
Summary judgment is not appropriate as to Officer Scuadroni because there are issues of material fact as to whether, as plaintiff claims, Officer Squadroni bent plaintill's armi and grabbed plaintiff's throat during, or immediately following. his removal of plaintiff's handcull's.
Although the video evidence casts significant doubt on plaintiff's version of the events in the strip search room, a reasonable juror could credit plaintiff's account that Officer Scuadroni twisted his arm and grabbed his throat, unprovoked. Summary judgment is inappropriate when "an excessive force claim mums on which of two conflicting stories best captures what happened." Whitfield y City of Newburgh, 2015 WL 9275695, at "18 (S.D.N.Y. Dec. 17, 2015) (quoting Sancier y. Katz, 533 U.S. 194, 216 (2001) (Ginsburg, J., concurring)), and "video evidence is ambignous as to how much force, if any, the officers used." Hicks v. Vill. of Ossining, 2016 WL 345582, al *5 (S.D.N.Y. Jan 27. 2016) (denying summary judgment for defendant officers when surveillance video did not clearly capture the amount of force used to apprehend plaintiff). Here, surveillance video shows that Officer Scuadron's legs and back were relatively stationary when he removed plaintiff's handcuffs, consistent with Officer Scuadroni's account that he was did not twist plaintiff's ann or grab plaintiff's throat. (Ex. E, Booking | & Booking 2, at 6:38:49-6:38:59), However; Officer Scuadroni's anns are not visible during the four seconds just before plaintiff turns to strike Officer Scuadroni.
(Id. at 6:38:59-6:39:03). Viewing the record in the light most favorable to plaintiff, as the Court must at the summary judgment stage, a jury could credit plaintiff's account that Officer Scuadromi -unprovoked by any of plaintill's actions- twisted plaintill's ann and grabbed his throat while removing the handcuff's.
Therefore, Newburgh Defendants' motion for summary judgment on plaintill's excessive force claim is denied as lo Officer Scuadroni.
C. The Melee While Plaintiff was Unrestrained
After Officer Scuadroni removed plaintiff's handcuffs. it is uncontroverted that plaintiff struck Officer Scuadroni " and a melee ensued for approximately thirty seconds.
11 Although plaintiff denics striking Officer Scuadroni in the head, he is estopped from doing so. "Collateral estoppel operates only to prevent [plaintiff] from asserting facts that were necessarily decided in his previous trial." Hemphill y, Scholl 141 F3d 412, 417 (2d Cir. 1998). Plaintiff was charged with second degree assault in violation of New York Penal Law $ 120,08 for sinking Officer Scuadroni in the head. A jury found plaintiff guilty. necessarily deciding that plaintiff' struck Officer Scuadroni in the head. Under New York law. "unless and until the state count judgments are reversed" on appeal. "they continue to constitute final and binding adjudications" Antonions v. Muhammad, 873 F. Supp. 817, 824 (S.D.N.Y. 1995), affd. 8 Fed.Appx. 78 (2d Cin. 2001). Therefore plaintiff is estopped from denying he struck Officer Scuadroni.
*9 During the fracas, County Defendants, Officer Mendez and Officer Hinspeter each used force that appears to have been reasonable in light of plaintiff's efforts to fight the officers and to resist their efforts to restrain him. Sce Graham . Connor, 490 17.S. at 396 (the reasonableness of an officer's use of force depends in part on whether the suspect poses an immediate threat to the safety of the officers and whether he is actively resisting arrest): Tracy y -Fresinwater. 623 F 3d at 97 (holding a law enforcement officer's use of force was reasonable when he struck plaintiff with his flashlight after plaintiff "made a quick and sudden movement as [the officer) attempted to effect an arrest") County Defendants. Officer Mendez, and Officer Hinspeter attempted to restrain
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Zachary v. City of Newburgh, Not Reported in Fed. Supp. (2016) 2018 WL 4030925
plaintiff - while he was physically fighting with or resisting the defendant police officers. Defendants argue "[e]ach had every right to take reasonable measures, including the use of force, to end the threat to their safety " (Newburgh Defs. Br. At 5).
12 Deputy Volpe punched plaintiff after plaintiff assumed a fighting stance and reached towards him Officer Mendez entered the strip search room and attempted to knee plaintiff against the wall. Officer Hinspeter sprayed plaintiff with pepper spray. Deputy Kirby and Officer Mendez stepped on plaintiff's wrists.
Although it appears these defendants' use of force was reasonable while plaintiff was fighting and resisting the officers' efforts to restrain him, the Court declines lo grant summary judgment and conclude as a matter of law that their use of force was reasonable during this thirty second period of time. As discussed below, issues of material fact preclude summary judgment for each of these four defendants' use of force while plaintiff was no longer fighung or resisting. Tlius, there would be little benefit of finding these four defendants' use of force - for an approximately thirty-second period of time - reasonable as a matter of law. given that the Court must defer to the province of the jury as to other aspects of plaintiff's excessive force claim.
D. Subduing Plaintiff
Defendants argue summary judgment should be granted in favor of Deputy Volpe and Officers Mendez, Hinspeter, and Arrestin with respect to their efforts to subdue plaintiff outside the strip search room because their actions were objectively reasonable.
Although it is a close call, the court disagrees.
When officers continue to apply force to an arrestee who is already subdued, it may be sufficient for a jury to find such force to be excessive. See. e.g.Allowsky v. Ryan 658 F. Supp. 2d 526, 538 (S.D.N.Y. 2009). aff'd sub nom. Allsovsky v. Paul, 406-Fed Appx 535 (2d Cir. 2011) (denying summary judgment for defendant officers when they slanimed an arrestee's head into a glass window after he had been handcuffed). Specifically: the use of a taser on a suspect who has already been subdued is some indication of excessive force See Garcia y Dutchess City 45 F Supp Ad 281. 293 (S.D.N.Y. 2014), aff'd in part. dismissed in part sub nom. Garcia v. Sistaremk. 603 Fed Appx. 61 (2d Cie 2015)
(denying sununary judgnient when an officer tased an ariestee twice after officers stood on top of the arrestce and pulled his arms behind his back to handcuff him), Therefore, the reasonableness of force used by (i) Officer Arrestin when he tasod plaintill, (ii) Deputy Volpe and Officer Mendez when they grabbed plaintiff's arms to reapply his handcuffs, and (iii) Officer Hinspeter when he placed his knee on plaintiff's neck and upper back, depends in part on exactly when plaintiff was subdued and no longer a threat to the officers' safely
Based on the video and other evidence, the Court is simply not able to say as a matter of law precisely when plaintiff was restrained to the point that he no longer posed a threat to the officers' safety. On the one hand, Newburgh Defendants argue Jujuless and until |plaintiff] was fully restrained in cuffs he posed a threat." (Newburgh Defs' Br. at 12). However, Deputy Kirby and Officer Mendez stepped on plaintiff's wrists as he lay face-down on the ground, and then Officer Arrestin deployed his laser. Even though plaintiff was physically fighting officers just moments before, a jury could reasonably conclude plaintiff was subdued prior to being tascd, grabbed, or kneed,
*10 Of course, the jury is not compelled to find plaintiff was already subdued prior to being tased, grabbed. or kneed. These are issues that remain in dispute. A jury may conclude plaintiff was subdued only after he was tased, or, as defendants contend, only after Volpe, Hinspeter, and Mendez reapplied plaintiff's handcuffs. But if plaintiff was no longer resisting, and if defendants gratuitously tased, grabbed. or kneed plaintiff, causing injuries, a reasonable jury could find the force used was excessive, 14
13 Even assuming the Court could conclude as a matter of law the exact moment plaintiff was subdued, whether plaintiff was still resisting officers' commands is not necessarily dispositive of whether the force used against him was unconstitutionally excessive. A. law enforcement officer's use of force may be unreasonable, even if the arrestee is not yet subdued. if the officer "uses overwhelming and disproportionate force in subduing" the arrestee. Mccrory v, Belden. 2003 WL 22271192, at +4(S.D.N.Y. Sept. 30, 2003). The surveillance video does not conclusively convey the degree of force Deputy Volpe, Officer Mendez, and Officer Hinspeter used as they reapplied plaintiff's handcuffs. When plaintiff arrived at the hospital, he complained of pain in his leff wrist, and
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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the medical report reflects swelling of plaintiff's wrist at the handcuff site. Thus, regardless of exactly when plaintiff was subdued, a reasonable jury could find the force with which these officers handcuffed plaintiff constituted excessive force.
E. After Plaintiff was Subdued
Because material facts are disputed and the record is inconclusive regarding the events that transpired in the strip search room after plaintiff was placed there in shackles, summary judgment is denied as to plaintill's excessive force claim arising from this period of time:
Plaintiff contends Officer Arrestin stomped on his head and throat, and Sergeant Anderson stomped on his shackled ankles and kicked him in his back. Plaintiff also states Officer William Lahar yanked the taser prongs from his back.
Defendants argue plaintiff's medical records reflect only minor injuries and do not support his claims of being assaulted while shackled in the strip search room. Defendants are correct that a mere de minimis injury is evidence that de minimis force was used. See. e.g. Carvalho v. City of New York. 2016 WL |274575, at "12 (S.D.N.Y. Mar 31. 2016) (holding the force used in applying flex cuffs to be a reasonable as a matter of law because the mimbness and tingling plaintiff experienced were de minimis). However, the absence of long-term injury is not dispositive of an excessive force claim. See Franks y. New Rochelle Police Dept. 2015 WL 4922906, alt +14 (internal quotation omitted) (collecting cases and concluding, despite the plaintiff's lack of major injury, that the reasonableness of the defendant officers' nse of force should be left to the jury ). "[Tlo focus on the severity of an arrestce's injury as opposed to the reasonableness of an officer's use of force is to focus on the wrong question " Id.
To the extent defendants invite the Count to discredit plaintiff's version of events based on the minor injuries reflected in his medical records, the Court declines to do so Although plaintiff's medical records do appear incongruous with his version of events, plaintiff's account is not "blatantly contradicted" by the video and documentary evidence such that the Court should discredit plaintiff's account at this stage as a matter of law. CL. Scoll y. Harris, 550 U.S. at 380. Ii short, it is the province of the jury to weigh credibility.
*11 Accordingly, summary judgment is denied with respect to plaintiff's excessive force claim after lie was subdued and back in the strip search room. 14
14 Newburgh Defendants argue there is no evidence Officer Kevin Lahar, Officer William Labar, and Officer Ladlee personally used force against plaintill during the altercation in the booking room. (Newburgh Dels' Reply at 5-6). This argument may well have micrit. However, these defendants' were present during their colleagues' use of force and would have had an opportunity to intervene if their colleagues' use of force was excessive. Sce supra Discussion Section ILA (discussing failure to intervene theory of personal involvement as to the County Defendants during plaintiff's arrest). Because issues of material fact preclude summary judgment as to plaintiff's excessive force claim, summary judgment is also denied as to Officer Kevin Lahar's. Officer William Lahar's. and Officer Ladlee's failure to intervene.
III. Qualified Immunity
The Court must next address whether defendants' actions are protected by qualified immunity. Qualified immunity shields government officials whose conduct "does not violate clearly established stamtory or constitutional rights of which a reasonable person would have known." Harlow y Fitzgerald 457 U.S. 800, 818 (1982), The scope of qualified immunity is broad, and it protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs 475 LJ.S. 335. 341 (1986). A qualified immunity defense is established where "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Tierney y-Davidsoir, 133 F.3d 189. 196 (2d Cir 1998)
The doctrine of qualified immunity recognizes that "reasonable mistakes can be made as to the legal constraints on particular police conduct" Saucier y Katz. 533- U.S 194, 205 (2001) Qualified immunity applies if the officer's mistake as to what the law requires is reasonable Id. It does not apply if, on an objective basis, it is obvious that no reasonably competent officer would have taken the actions of the alleged violation. Malley \ Briggs. 475 U.S. at 341.
Defendants argue the force they used was objectively reasonable as a matter of law.
Defendants are incorrect.
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 222 of 484
Zachary v. City of Newburgh, Not Reported in Fed. Supp. (2016) 2018 WL 4030925
Issues of fact exist as to whether (i) County Defendants had an opportunity to intervene while plaintiff contends he was being kicked during his arrest; (ii) Officer Scuadroni grabbed plaintiff's throat and bent his arm while un-handcuffing him; and (ii) whether the defendants' use of force was excessive after plaintiff was re-restrained, Were a jury to credit plaintiff's account, it could reasonably conclude defendants violated plaintiff's Fourth Amendment right to be free from excessive force, and it was not objectively reasonable for defendants to have done so.
Accordingly, summary judgment on the issue of qualified immamily is not appropriate.
IV. Procedural Due Process Claim
To prevail on a procedural due process claim, a plaintiff must show he possessed a protected liberty or property interest and was deprived of that interest without due process. McMenemy v. City of Rochester. 241 F.3d 279, 285-86 (2d Cir. 2001). The Due Process Clause protects "the right not To be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity." Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir 2000): sec Ricciuti y: N.Y.C. Transit Auth. 124 F.3d 123, 130 (2d Cir. 1997) ("No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately mannfacture false evidence against an arrestée.").
*12 The Supreme Coun has held, "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck , Humphrey 512 U.S. 477. 486-87 (1994), If a Section 1983 claim "would "necessarily imply the invalidity of the punishment imposcd," ... the claim [is] "not cognizable under [ Section] 1983,' " Jackson y Johnson. 15 F. Supp. 2d. 341, 348 (S.D.N.Y. 1998) (quoting Edwards y Balisok. 520. U.S. 641. 648 (1997)).
Plaintiff contends he was deprived of a full and fair opportunity lo litigate his criminal conviction in violation of his Fourteenth Amendment Due Process rights because a suppression licaring was held on December 11, 2013, but
"was never ruled on." (Zachary AIf. 19 14-15). Defendants argue summary judgment must be granted in light of plaintiff's criminal conviction
Defendants are correct.
Plaintiff's due process claim necessarily challenges the validity of lus criminal conviction. A plaintiff is barred from bringing such a claim in civil court if his conviction has not been invalidated, See Barnes v. City of New York. 2015 WL 5052508. at +6 (S.D.N.Y. Ang, 26, 2015) (granting summary judgment on plaintiff's claims brought after his conviction premised on the allegation that defendant officers fabricaled evidence). see also Edwards y Balisok, 520 U.S. at 644-45 (holding plaintiff's due process claim under Section 1983 was not cognizable, as his allegation that the hearing officer at his prison disciplinary proceeding " "intentionally denied" him the right to present evidence in his defense" would have necessarily invalidated the results of his hearing).
Here, an appeal of plaintiff's conviction is pending in the Appellate Division Second Department. As long as plaintiff's case has not been "reversed on direct appeal" or otherwise invalidated. Heck ; Humphrey, 512 U.S. at 487, plaintiff's procedural due process claim is not cognizable under Section 1983. As such, summary judgment for defendants is granted as to plaintiff's due process claim.
CONCLUSION
Defendants' motions for summary judgment are DENIED as to plaintiff's excessive force claim and GRANTED as to plaintiff's procedural due process claim
Counsel for all parties, as well as plaintiff, are directed to attend a case management conference on August 22. 2016. at 2:30 p.m. Defense counsel shall arrange for plaintiff's appearance by telephone.
The Clerk is instructed to terminate the motions (Docs ##156.171]
SO ORDERED
All Citations
Noi Reported in Fed. Supp, 2016 WL 4030925
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Zachary v. City of Newburgh, Not Reported in Fed. Supp. (2016) 2016 WL 4030925
End of Document
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
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Ramos V. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
2019 WL 2785594 Only the Westlaw citation is currently available. United States District Court, D. Connecticut.
Wilson RAMOS, as Administrator of The Estate of Jose A. Maldonado, and Individually, Plaintiff,
V. TOWN OF EAST HARTFORD et al., Defendants.
No. 3:16-CV-166 (VLB)
Signed 07/02/2019
Attorneys and Law Firms
David M. Cohen, Leonard Braman, Zachary Jolin Phillipps. Wofscy. Rosen, Kweskin & Kuriansky, Stamford. CT. for Plaintiff.
Michael Brave, Pro Hac Vice. Taser International, Inc., Scottsdale, AZ, Alan Raymond Dembiczak, Beatrice S. Jordan, Thomas R. Gerarde, Howd & Ludorf, LLC. Hartford, CT, Sarah Murphy, Durham, CT, Winifred B. Gibbons, Eckert Seamans Cherin & Mellott, LLC, Boston, MA, for Defendants Town of East Hartford. James Lis, Jason Cohen. Scott Sansom.
Dennis M. Dumo, James Newhall Tallberg, Karsten & Tallberg LLC. Rocky Hill, CT. Kristan M. Maccit. Thomas R. Gerarde. Howd & Ludorf, LLC, Hanford, CT, for Defendant Jason Kaplan
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [DKTS 125. 126]
Hon Vanessa L. Bryant. United States District Judge
*1 Plaintiff Wilson Ramos ("Ramos"); as administrator of the Estate of his deceased brother Jose A. Maldonado (the "Estate" or "Maldonado"), and individually, brings this action against the Town of East Hartford and Officers Jason Kaplan, James Lis, Jason Cohen, and Chief Scott Sansom (collectively. "Defendants"). Plaintiff brings various state and federal claims stemming from the fatal altercation he observed between Maldonado and Defendants Kaplan. Lis, and Cohen on April 13, 2014.
Before the Court are two motions for summary judgment. Defendants Town of East Hartford. Lis, Cohen, and Sansom filed a Motion for Summary Judgment ("Defendants' Motion for Summary Judgment"). See |DkL 126 (Mot. for Summ J.)]. Defendant Kaplan filed a separate Motion for Summary Judgment ("Defendant Kaplan's Motion for Summary Judgment"). See [DKL 125 (Del Jason Kaplan's Mol. for Sumin. J.)]. For the following reasons, the Court GRANTS IN PART AND DENIES IN PART Delendants' Motion for Summary Judgment and Defendant Kaplan's Motion for Summary Judgment.
I. Factual Background
The facts are taken from the parties' Local Rule 56(a) Statements and the exhibits submitted in support of and in opposition to Defendants' Motion for Summary Judgment and Defendant Kaplan's Motion for Summary Judgment.
On April 12. 2014, Ramos and Maldonado attended a party and Maldonado drank beer and cognac to the point of intoxication. They left early because Maldonado was so intoxicated. [DKL. 126-5 (Ramos Dep.) at 44:21-25 49;16-52;6]. Ramos and Maldonado were half-siblings. Id. at 10:2-8. Ramos had never seen Maldonado as drunk as he was that night. /d. al 43:24-44:1.
While Ramos and Maldonado were walking towards Ramos's car. a vehicle occupied by Angel Arroyo, Liz Bigio, and three children stopped, and an argument ensued during which Maldonado punched and shattered the glass of the driver's side window. Id. at 62:19-64:23; see also [Dkt. 126-6 (Bigio Dep.) at 18:8-13]: [Dkt. 126-7 (Arroyo Dep.) at 16:23-25]. Ms. Bigio called the police and Sergeant Lis was the first to arrive on the scene alone. [Dkts. 126-5 at 69:22-70:6: 126-6 at 38:16-26: 126-8 (Lis Dep.) at 54:7-19]. Sergeant Lis spoke with Ms Bigio and observed damage to her vehicle [Dkt. 126-8 at 54:7-23]. Ms. Bigio pointed to Ramos and Maldonado and stated that one of them broke her window: Id.
Sergeant Lis approached Ramos and Maldonado and observed Ramos pushing Maldonado into the passenger seat of a motor vehicle. [Dkt. 126-5 at 70:18-71:14]. Sergeant Lis instructed Ramos to move away from the vehicle, so he could speak to Maldonado, but Ramos refused. [Dk1. 126-8 at 57:8-16]. At his deposition, Ramos admitted he heard Sergeant Lis's command, but could no longer recall what
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Ramos V. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
Lis said. [Dkt. 126-5 at 71.5-8]. Ramos admitted he did not comply with Sergeant Lis's command and told Lis to wait until he got Maldonado fully into the vehicle |Dkts. 126-5 at 116, 132-6 (Ramos Aff.) al 9 4; 126-8 al 57:3-58:25, 71:1-20]. After Ramos got Maldonado into the vehicle, be turned around and Sergeant Lis sprayed him with pepper spray. [Dkis. 126-5 at 71:1-4: 132-6 al | 4, 126-8 at 56:21-37:23], Ramos claims he did not have a chance to acknowledge Sergeant Lis's command voluntarily because he was pepper sprayed almost immediately after the command. [Dkis. 132-3 (Ramos Dep.) at 72:13-18: 132-6 at * 41. Sergeant Lis, with the help of Officer Millet who arrived on the scene, handcuffed Ramos and brought him to the ground |Dkis. 126-8 at 59:3-10: 132-3 at 72:24-73:6].
*2 Next. Sergeant Lis mimed to Maldonado who was walking towards him with clenched fists and saying. "Fuck you, motherfucker" [Dkt. 126-8 at 59:22-60:11] Sergeant Lis struck him in the face. Id. Then, Officer Parlapiano arrived. sprayed Maldonado with pepper spray, and both officers brought Maldonado into custody. /d. at 60:12-13. Once Maldonado was handcuffed, he continued to resist and try to pull away, [Dkt. 126-10 (Cohen Dep.) at 65:21-24, 66:16-22], Ramos did not see this interaction between Maldonado and the officers because he was handcuffed and face down on the ground. [Dkt. 132-3 at 74:15-75:11]. Officers Parlapiano and Cohen observed Sergeant Lis struggling to take Maldonado into custody. [Dkts. 126-9 (Parlapiano Dep.) at 16:5-19; 126-10 at 62:24-63:21 Mr. Arroyo and Ms. Bigio also observed that the officers had a hard time controlling Maldonado. [Dkts 126-6 at 37:2-23; 126-7 at 22:12-21] Mr. Arroyo described Maldonado like "a buller going everywhere" and Ms. Bigio described him as "The Hulk." [Dkts. 126-6 at 37:2-23; 126-7 at 25:1-20].
After he was handcuffed, the officers observed that Maldonado was intoxicated and continued to be uncooperative. [Dkts 126-8 at 71:18-24. 126-10 at 65:12-66:22; 126-11 (Kaplan Dep ) at 133:21-134:12]. He struggled during the pat down and refused to get into the police cruiset. [Dkts. 126-8 at 75;8-12; 126-11 at 133:24-134:6]. Ramos was compliant with the officers for the remainder of the night and no additional force was uscd. [Dkt, 126-8 at 66:9-21]. Maldonado and Ramos were put in separate police cruisers and transported to the East Hartford Police Department headquarters by Officers Kaplan and Cohen, respectively. [Dkts. 126-10 at 70:5-8; 126-11 at 145:9-19| Maldonado was spitting al Officer Kaplan during
the transport. but Ramos was transported without incidem [Dkt: 126-11 at 145:12-17].
Upon arrival at the headquarters, Officers Kaplan and Cohen broughti Maldonado to the cycwash decontamination arca in the booking room to let him rinse his eyes, but he refused. [DKL. 126-10 at 72:2-12; 126-11 at 143:20-147:6] Plaintiff disputes that Maldonado refused, but he cites no evidence in support of his assertion. Officers Kaplan and Colien then escorted Maldonado into the holding cell inside the booking area, uncuffed him, and locked him inside the cell. [Dkis. 126-17 (Holding Cell Video): 126-10 al 73:3-5. 126-11 al 146:17-147:6]. After he was alone in the cell, Maldonado began pacing and disrobing. [Dkt. 126-17 at 2:00:49-2:04:35].
Next. Officers Cohen and Kaplan escorted Ramos into the booking area and allowed him to rinse his face in the eye decontamination area. [Dkts: 126-10 at 73:15-74:2: 126-11 at 147:11-148:10] By this time, Sergeant Lis arrived in the booking room. [Dkt. 126-8 at 77:21-78:5]. Maldonado had removed all of his clothing except for his underwear and his right pant leg which was stuck around his ankle over his shoe. [Dkt. 126-17 at 2:00:49-2:04:35]. The officers asked Ramos if he was comfortable going into the holding cell with Maldonado and Ramos said yes. [Dkt. 126-5 at 84:24-85:3]. Officers Kaplan and Cohen escorted Ramos to the holding cell door and told Maldonado, who was inside the cell. to step away from the door. Id. at 90:1-6. The officers removed Ramos's handcuffs. Id. at 89:12-14. One of the officers unlocked the holding cell door
What happened during the next two minutes was captured by two cameras, neither of which recorded audio:
Til on Cateva!
2-64:28
Maldonarin betjes moving towares thi
door of the holding cell.
2:04:30
Maldonado grabe the siding door of the holding call
2:04:20
Maldonado pushus the widing door af
the holding call open and steps isto the threshold of the door
2:04:40
Mitonado reaches
standing immediately outside of tha
wirting door of the housing cell:
2:04:41
Mitonmat is punched and pushed
barkwarts towards the holding call.
2:0447
Mininaso is pushet backwards wal reenters the holding cell.
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Tire con Carrera"
Event
2:04 43
Maldonado struggles with the officers who are crowded in the entrance of the cet. Maldonado punches forward towards the officers with his righe artt. Maldonado continued to struggle with the officers
Ramos exita the holding cel followed Dy Sergiend Lis: Difficars Cohen and Kaplan move towards the door of trie Testing call
2:00:12-18
2:08.18 2:06.25
Officer Kapitan waits Ine holding cal Inligand by Officer Cohen All three officers leden the holding cal und remain in the atua bubside thu oport door of the holding cei
2:06:23-2:06:29
Drie of the officers slides the door of The frukcang cell elusedl
2:06:30
The door of the holding cell in fully closed. Maldonado is left alone inside the holding coll lying on his side with hình hands cuffed bnfind him
[Editor's Note: The preceding image contains the reference for footnote - J.
2:04.48
Bergement Lis punches Maldonado in the face with his left arm. Maldonado doubles over, spins approximately w2 and is facing the back at tu holding cell
Sergeist Lis puishe Maldonato from behind towards the holding cell wall Greity opposte from the dout Maldonado entends his arna 10 coach bratt Hn fails forward and les head wukus contact with lhe wall
Sergeant Lis runs loww ds Meistonado and novers over him.
Sergeast Lis stays near Madonadin eining over him.
Oscar Kaplan continues to hold the laser simed at Maldonado. With hun other hand, he hoity Ramos agunet the side of the holding col against the cell wall.
Mildonado braces tân right arm tma the foor and ifta his upper body off His Maldonado sits on the floor with his upper body slumpest forward over fes
Tims we Camara'
204:55
Sergeant Lis wtepe tack from
Officer Kaplan nokgs Ramos in the corner of the holding cell against the wall Hin ocetinues to Bold
7 4 66-7-04:06
Maldonado remains seated caring forward as his torso tocks slightly from
The officers stand back from Maldonado who ~ stis wanted and leaning very far forward
2-05-01-2:05:01
2:05.04
3:05:05-7:05:08
Sergeiet Lis iskey nut his hanttufts and moves towards Maldonado Bergumne Lis and Officer Cohver contirue ba move forwards Moldiunadin. Sergeant Lis and Officer Coben mors Maldonado preparacion
2:05 09
Sergeant Lis moves away from
2:05 0M 2:05:18
2:05 17
2:05-17-4:05:33
Maldonado towards Officer Kaplan and Ramos in the corner of the holding cost Discar Cohen moves Validonadu to les side and begins handcuffing his wrists. DWcer Kaplan joins Officer Cohen lo assist in Bandcuffing Maldonado. DEcers Kaplan and Cohen pull Maldonado's arms behind his hack and cuff him
2:05 42-2:05:44
DEces Kaplan anıt Cohen stand up behind Maldonado Diferr Cuben neves away from Maldonado towards the door of the
2.05.47 2.05.57
2:06 67 4:08:07
All diey ufficurs are stand it a larule around Maldonado, Ramos tümants in twe copy of the holding call Sergeant Lis moves tomartis the door of the holding cell, but all three officers remain in the holding ces with Maldonado Ramus mamaim in the comer of the holding cell
20 4
his hand towards the door of the batting call
Time on Camera
Time on Camere
Evert
2,00:00-2:00:11
2:08 44
2.04.45
Maldonado extorids his left arm and ties to keep Sergeant Lis at hay OScer Kaplan takes out fi's taser and sim il at Maldonado.
2:08 40
Oficer Kaplan taken a step forward soll aiming ter laser at : Majorede, Maldonado's arms are bent at a ninsty. dogree anight. thesetacto takes & shop to the side with his left itg. He does not
2 Two timestamps are visible on the video. The Court uses the timestamp in the upper left corner of the video in large white text. [Dkt. 126-17].
During the altercation with Maldonado, Defendant Kaplan deployed the taser for twenty seconds. [Dkt. 132-2 (Taser Deployment Report)|. The maximum recommended deployment lime for a laser is fifteen seconds. |Dkts 132-40 (ECW Guidelines) at 18: 132-41 (Taser Training) at 5]. Tasing for longer than fifteen seconds may increase the risk of serious injury or death and should be avoided. [Dkt. 132-25 (Minor Dep.) at 110:17-25]. The laser prongs struck Maldonado in the chest. [Dkt. 132-7 (Postmortem Examination) at 2]. Taser training warns against targeting a person's chest. [Dkts. 132-40 at 37: 132-41 at 4: 132-25 at 119; 132-24 at 88:3-7. 91:6-21: 132-18 at 36:6-23; 132-23 at 32:17-33:9].
*3 Ramos washed his eyes again and afterwards he sat unhandcuffed on the floor outside of the holding cell. approximately eight feet away from Maldonado. [Dkts [26-5 at 99:18-100:10, 102:21-103;5, 102:21-23; 126-8 at 113:14-19: 126-17 at 2:09:40]. Officer Parlapiano arrived and observed Maldonado lying on the floor in the holding cell. [Dkt. 126-9 at 37:20-22]. The officers did not reenter the cell lo check on Maldonado until 2:10:34 AM-after approximately four minutes passed. [Dkt. 126-17 at 2:10:34] During that four-minute period. Maldonado remained lying on the floor of the cell on his side with his hands cuffed behind his back moving slightly every couple of seconds The holding cell camera depicts his movements:
Event
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2:06:26-2:06:31
Maldonado seen moving slightly.
2:06:46-2:06:50
Maldonado seen moving slightly.
2:07:05-2:07:08
Maldonado seen moving slightly.
2:07-10
Maldonado seen moving slightly.
2:07:22-2:07:25
Maldonado seen moving slightly.
2:07:27-2:07:293
Maldonado seen moving slightly.
2:07:46-2:07:50
Maldonado seen moving slightly.
2:07:53
Maldonado seen moving slightly
2:07:56-2:07:57
Maldonado seen moving slightly.
2:08:02
Maldonado seen moving slightly.
2:08:06-2:08:08
Maldonado seen moving slightly.
2:08:12
Maldonado seen moving slightly.
2:08:35
Maldonado seen moving slightly.
2:09:03
Maldonado seen moving slightly
2:09:15
Maldonado seen moving slightly.
2:09:25
Maldonado seen moving slightly.
2:10:04 2:10:05
Maldonado seen moving slightly.
3 There is a gap in the video from 2:07:31 to 2:07:45. [Dki. 126-17].
Plaintiff's expen Dr. Robert Myerburg described these slight movements as "gasping respirations," which, to a trained eye, indicate that Maldonado suffered potemially lethal brain trauma: [Dkt. 126-14 (Myerburg Dep.) at 114:12-115:9]. Dr. Myerburg also testified that it is unlikely a police officer would not appreciate the significance of the movements Id. at 115:10-11611. Dr. Myerburg testified that while awareness that while gasping respiration was not something he was sure he would hold a police officer to appreciate, "if does not matter because what they didn't do was respond to an unconscious patient" Id at 115:21-116;1 Defendant Kaplan's expert, Sergeant Henry Minor, testified that police officers are trained to know the difference between normal breathing and agonal respiration [Dkt. 132-25 at 56:19-25].
Defendants Kaplan, Lis, and Cohen were near the holding cell throughout the four-minute period The holding cell' is surrounded by a chain link enclosure. The officers observed Maldonado without entering the cell several times [Dkts. 126-16 (Booking Room Video) at 2:07:41. 2:07:49. 2:07:58-2:08:03. 2:08:37. 2:10:14] Ramos also observed Maldonado from the outside of the holding cell door Id. at 2:09:26 Ramos initially thought Maldonado was sleeping but became concerned and asked the officers to check on him [Dk: 126-5 al: 100:21-101:17].
The officers entered the cell at 2:10:34 AM, That was 29 seconds after the last time the video depicted Maldonado moving. [Dkt. 126-17 at 2:10:34]. Prior to that, the longest period Maldonado was still was 28 seconds herween 2-08:35 and 2:09.03. [Dkt. 126-17 al 2:08:35-2:09,03]
The officers tried to rouse Maldonado, but they were unable to do so [Dkt. 126-17 at 2:10:37-55], Officer Cohen grabbed
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Maldonado and lifted his torso upright. [Dkt. 126-17 at 2:11:00|. He tried to check for a pulse, but he was not sure if he detected one. |Dkts. 126-17 at 2:11:44; 126-10 at 108:3-21]. Sergeant Lis directed Officer Parlapiano to call for paramedics. Officer Parlapiano made the call and requested assistance "as soon as possible." [Dkts. 126-9 at 38:22-39;7; 126-18 (Audio Recording No. 6093498)]. Officer Parlapiano then took Ramos lo a cell in the cell block. [DkL 126-9 al 41:14-25] Tluee minutes later, Officer Parlapiano made a second radio call. [Dkis. 126-9 at 46:9-23; 126-19 (Audio Recording No. 609512)], Although Officer Parlapiano did not examine Maldonado between the first and second calls, he informed the paramedics thal Maldonado was unconscious. [Dkt. 126-19]. None of the officers performed CPR or other emergency medical procedures while waiting for the paramedics.
Paramedics entered the cell at 2:16:36 AM and began CPR at 2:17:57 AM. [Dkt. 126-17]. Maldonado was eventually transferred to Hartford Hospital where he was pronounced dead. [Dkt. 132-31 (Prehospital Care Report Summary)].
Il, Legal Standard
*4 Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). An issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Eitherty Lobby, fre., 477 U.S 242. 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. "[T]he substantive law will identify which facts are material in a given case " Herbert Construction Co. w.Continental Ins. Co., 931 F.2d 989, 990 (2d Cir. 1991) (quoting Anderson. 477 U.S at 248). A material fact is one which establishes an essential element of a claim or defense. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the TacL
Fed. R. Civ. P. 56(c)(1), A party asserting that a fact is or is not true must present admissible evidence to support their assertion. Fod R. Civ. P. 56(c)(2). At the summary judgment stage of the proceeding, "allegations alone, without [admissible] evidence to back them up, are not sufficient." Welch-Rubin v Sandalx Corp., No. 3-CV-481. 2004 WL. 2472280, at +1 (D. Corn Oct. 20, 2004) (citing Gottlieb Civ: of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); see also Mariniez 1, Conn. State Library, 817 F. Supp, 2d 28. 37 (D. Conn. 2011). The moving party bears the burden of proving not only that no genuine factual disputes exist but also that it is entitled to judgment as a matter of law because the non- moving party cannot present admissible evidence to establish the claim. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010).
Where a defendant presents admissible evidence tending to show there is no genuine issue of material fact for a jury to decide and she is entitled to judgment as a matter of law; a plaintiff must produce admissible evidence mising a genuine issue of material fact to defeat summary judgment. Fed. R. Civ. P. 56(c). Conclusory statements unsupported by admissible evidence, speculation, conjecture, or surmise do not create a genuine issue of fact for a jury to decide and will not defeat summary judgment. See Gottlieb, 84 F,3d at 518: see also Fincher v Depository Trust & Clearing Corp 604 F,3d 712, 726-27 (2d Cir, 2010); Welch-Rubin, 2004 WL 2472280_at *|
"In determining whether that burden [of showing the absence of any genuine issue of fact] has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.7 Vivenzio, 61| F.3d at 106 (citing Anderson, 477 U.S. at 255); see also Motsushito Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S 574.587 (1986). This means that "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 LLS. 133. 151 (2000); see Weich-Rahin, 2004 WL 2472280, at *1; Determinations of the weight to accord to the evidence or assessment of the credibility of the witnesses are improper on a motion for summary judgment as those assessments are the sole province of the jury, See Hayes \ New York City Dep't of Corrs:, 84 F.3d.614,619(2d Cir. 1996); see also United States 1: Rem, 38 F.3d 634, 644 (2d Cir 1994)) Put another way. "[i]f there is any evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary
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judgment must be denied." Am. Home Assurance Co. v. Hapag Lloyd Container Line, GmbH, 446 F 3d 313, 315-16 (2d Cir 2006) (internal citation and quotation omitted) Only where there is no evidence upon which a jury could properly render a verdict for the party producing it and upon whom the onus of proof is imposed, such as where the evidence offered consists of conclusory assertions without further support in the record, may summary judgment lie.
IIL Abandoned Claims
"5 "Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way " Coltin . Corp. for Justice Mgmt,, Inc. 542.F. Supp. 2d 197, 206 (D. Conn. 2008) (internal quotation marks omitted): see also Olschafskie v. Town of Enfield, No. 15-CV-67. 2017 WL 4286374.at *11, n.8 (D. Conn. Sept. 27, 2017). Plaintiff alleges mimerons claims in his complaint and Defendants moved for summary judgment on all of them In his Motions in Opposition to Summary Judgment. Plaintiff fails to oppose all of Defendants' arguments Therefore, where noted in this decision. the Court deems cenain claims abandoned and grants summary judgment in favor of Defendants. See Ferrareswo v Town of Granby, 646 F Supp. 2d 296. 305 (D. Conn. 2009) ("grounds alleged in the complaint, but not relied upon in summary judgment are deemed to be abandoned")
IV. Federal Claims
A. Section § 1983 Claims
In a convoluted Count One, Plaintiff alleges a bevy of different § 1983 claims against Defendams Kaplan, Lis, and Cohen with no clear or concise indication of which claims are alleged against which officers.
4 Plaintiff is reminded of Federal Rule of Civil Procedure 8(d) which states, "Each allegation must be simple, concise, and direct." Fed. R Civ. P. 8(d).
Section 1983 provides that "any person who, acting under color of law, 'subjects or causes to be subjected, any Citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and the laws' of the United States shall be liable to the injured party in actions at law." Shattuck w Stratfordl. 233 F. Supp: 28 301, 306 (D. Com. 2002) (quoling 42 U.S.C. § 1983). By comparing the operative complaint and the bricling, the Court construes the operative complaint to allege the following active claims: (1) unreasonable search and seizure by Ramos against Defendant Lis; (2) excessive force by Ramos against Defendant Lis and by the Estate against Defendants Kaplan, Lis, and Cohen; (3) failure to intervene by the Estate against Defendants Kaplan Lis, and Cohen: and (+) deliberate indifference to medical needs by the Estate against, Defendants Kaplan, Lis, and Cohen.
1. Count 1- Unreasonable Search and Seizure
i By Ramos Against Lis
Ramos alleges that Defendant Lis arrested him without probable cause or arguable probable cause in violation of the Fourth Amendment. " The Fourth Amendment protects individuals against "unreasonable searches and seizures." U.S. CONST. amend. IV. A warrantless arrest violates the Fourth Amendment unless it is supported by probable cause, See United States y. Valentine, 539 F.3d 88, 93 (2d Cit. 2008) (internal quotation marks omitted) ("[A warrantless] arrest. must be supported by probable cause or else it violates the Fourth Amendment"). "Probable cause to arrest a person exists if the law enforcement official. on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." Id. (quoting United States : Patrick, 899 F.2d 169. 171 (2d Cir 1990)): see also Wałczyk v Rio, 496 F.3d 139, 156 (2d Cir. 2007). The existence of probable cause to arrest constitutes justification and "is a complete defense to an action for false arrest." Weyant y. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard \ United States, 25 F.3d 98. 102 (2d Cir. 1994)); Fulton & Robinson, 289 F.3d 188, 193 (2d Cir 2002)
5 In Defendants' Motion for Summary Judgment. they address unreasonable seizure claims based on the investigative detention of Ramos and Maldonado. In his opposition briefing, Plaintiff does not address the investigative detention argument and therefore, the Court assumes that
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Plaintiff alleges only unreasonable seizure based on Ramos's arrest. Defendants also address an unreasonable search and scizure claim by Ramos against Defendant Cohen and by Maldonado against Defendants Lis and Colica Plamnull's do not address these arguments in their opposition briefing. Therefore, the Court deems them abandoned See [Dkl: 154 (Mol. to Amend Comply1.
*6. We consider the elements of the offense for which an individual was arrested to assess the objective reasonableness of the officers' belief. Lennon w. Miller, 66 F.3d 416, 424 (2d Cir. 1995). "[T]he arresting officer need not have in hand evidence which would suffice to convict." but an arrest "without a warrant must stand upon firmer ground than mere suspicion." Wong San v. United States, 371 U.S. 471. 479 (1963)."The validity of the arrest does not depend on whether the suspect actually committed a crime; the mere fact that the suspect is later acquitted of the offense for which he is arrested is irrelevant to the validity of the arrest." Michigan v. DeFitlippo, 443 U.S. 31. 36 (1979).
Conn. Gen. Stat § 53a-167a provides that "[a] person is guilty of interfering with an officer when such person obstructs, resists. hinders or endangers any peace officer ... in the performance of such peace officer's ... duties," CONN. GEN, STAT: 53-167a(a). See Palmer v: Ruggiero, No. 10-CV-779 2012 WL 34424|1, at *4 (D Conn, Ang. 14, 2012) ("Given [the plaintiff's] failure to comply with [the officer's] orders to leave the aren ... probable cause existed for arresting him on a charge of interfering with an officer"); see also Lagasse v. City of Waterbury, No 09-CV-391. 2011 WL 2709749, ar "4 (D Conn Jul. 12. 2011) (collecting cases).
Ramos's unreasonable search and seizure claim against Defendant Lis must fail because his arrest for interfering with an officer was indisputably supported by probable cause Sergeant Lis appeared at the scene of the altercation, was informed by the complainant that that Maldonado, Ramos, or both quarreled with her and broke her car window while she and her children were scaled inside. [Dkl. 126-8 at 54:7-23]. Sergeant Lis approached and observed Ramos pushing Maldonado into the passenger seat of their car. [Dkis. 126-5 al 70:18-71:14: 126-8 at 56:20-57:16]. Sergeant Lis instructed Ramos to move away from the car where Maldonado was scaled. [Dkis. 126-5 at 71;9-11: 126-8 at 57:11-16]. Ramos admitted that he heard Sergeant Lis say something, which at the time of his deposition he could no longer recall. [Dkl. 126-5 al 71:5-8]. However, he tacitly
admitted it was a command with which he refused to comply. stating he told Sergeant Lis to wait so he could get Maldonado fully into the vehicle. | Dkts. 126-5 at 71:1-20. 116, 132-6 al 4; 126-8 at 57:3-58:25] Specifically, Ramos testified, "I believe [Sergeant Lis] said something [before he used mace]. I don't recall what it was." [Dkt. 126-5 at 71:5-8]. Ramos testified that Sergeant Lis "probably" wanted Ramos to move away from the car. Id. at 71:9-11. Ramos further lestified, "I said to [Sergeant Lis] that this is my brother and [ was just trying to be helpful." Id, at 71:12-14. When Ramos turned around, he was pepper sprayed by Lis. [Dkt. 126-8 at 57:18-231.
In his opposition briefing. Ramos submitted an affidavit further acknowledging that he refused to comply, He admits he "heard the police [officer] say something to |him], and [he did not comply because hej was trying to complete getting Jose squared away so that [he and Jose] could respond to them." [Dkt. 132-6 at " 4]. Despite Ramos's efforts to recharacterize his refusal to cooperate with Defendant Lis's commands, the Court finds that the uncontroverted evidence, including Ramos's own admissions, shows that Ramos resisted Sergeant Lis's instruction and obstnicted the officer's investigation of the complaint to which he was responding For these reasons. Ramos's unreasonable search and seizure claim fails as a matter of law and Defendants' Motion for Summary Judgment on this claim is GRANTED
2. Count 1- Excessive Force
*7 Ramos and the Estate bring excessive force claims against Defendants Kaplan. Lis, and Cohen. Excessive force claims are governed by the Fourth Amendment's "objective reasonableness" standard. See Graham vo Connor: 490. UL.S 386, 388 (1989). A police officer may use force to compel compliance, but "the use of force is contrary to the Fourth Amendnient if it is excessive under objective standards of reasonableness." Saucier v. Katz, 533 U.S. 194. 201-02 (2001) (citing Grakum, 490 U.S. at 388) "Police officers' application of force is excessive .. if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent of motivation," Afarwell y City of New York, 380 F.3d:106, 108 (2d Cir 2004) (internal: citation and quotation marks omitted).
Application of the objective reasonableness standard "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests
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against the countervailing governmental interests at stake." Grohum, 490 U.S. at 396 (internal citation and quotation marks omitted). Further, this evaluation must consider all the facts of the case, including the severity of the crime, whether the arrestee posed an innnodiate threat to the safety of others, and whether he actively resisted the arrest. Il. at 396; C'areye Maloney, 480 F. Supp. 2d 548, 556 (D. Conn.2007). Thoughi the Second Circuit has not yet miled on the issue, many cours have viewed the "immediate threat to the safety of the officers or others" as the most important Graham factor See A.K.H. v. City of Tusim. 837 F.3d 1005, 1011 (9th Cir, 2016) (quoting Mottos V. Agaramo, 661 F.3d 433. 441 (91) Cir 2011) (en banc))
"The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight .... Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Grafuon, 490 U.S. at 39% (internal citations omitted). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." (d' at 396-97. For an officer to be "grantjed] summary judgment against a plaintiff on an excessive force claim. ... no reasonable factfinder could conclude that the officers' conduct was objectively unreasonable" Ammesty Am. v. Town of IEC Hartfond, 361 F.3d 113, 123 (2d Cif 2004).
i. By Ramos Against Lis
Ramos claims that Defendant Lis used excessive force against him when effectuating his arrest by spraying him with pepper spray. The Second Circuit has held pepper spray "has a variety of incapacitating and painful effects" and "constitutes a significant degrec of force." Tracy : Freshwater, 623 F.3d 90, 98 (2d Cir. 2010) (holding that district court erred in granting summary judgment for officer where a reasonable jury could find that "the use of pepper spray deployed mere inches away from the Face of a defendant already in handculTs and offering no further active resistance constituted an unreasonable use of force.").
Whether the use of pepper spray is excessive depends on the circumstances under which it is used. Generally, the use of pepper spray alone when necessary to compel a potentially
dangerous person to comply with an officer's orders has not been found to be excessive. Thus, when an arrestec has not yet been handcuffed or is resisting arrest, various courts within this district have found that pepper spray is a reasonable usc of Force. In addition, couns have held it appropriate to deploy pepper spray when necessary to eliminate a risk of harm, MeKnight w Vasile, No. 11-CV-6328P. 2017 WL. 1176051. al *28 (W.D.N.Y. Mar 30, 2017) ("[W]here an individual is actively resisting arrest and refusing orders, and the scene presents a risk to officer safety-courts have: granted judgment to the officers on the grounds that the use of pepper spray was not excessive or that the officers were entitled to qualified immunity:") (collecting cases); see also Buckley v. Niagara Frontier Transp, Auth Mfrs. No. 13- CV-1205. 2016 WL 7403812, at *2-3 (W.D.N.Y. Dec. 21. 2016) (granting summary judgment in favor of officers on excessive force claim where plaintiff was pepper sprayed after resisting arrest, flailing about, and attempting to flee while a crowd was forming); see also Roach y, Okur, No. 13-CV-866, 2017 WL 3638464. at *4-5 (N.D.N. Y. June 6, 2017) (granting summary judgment in favor of officer on excessive force claim where plaintiff was pepper sprayed after climbing on a sink in a holding cell and threatening to hurt himself). adopted by, No. 13-CV-86G, 2017 WL. 3638197, at º1 (N.D.N.Y. Ang 23, 2017)2 see also Dawson v. City of Tuinkers Police Dept No. 99-CIV-9877, 2001 WL 969005, al +4 (S.D.N.Y. Ang 21. 2001) (granting summary judgment in favor of officers on excessive force claim where plaintiff was pepper spnived after he forced officers into a high speed chase and violently resisted arrest).
*8 Here, as explained above, Defendant Lis deployed pepper spray to compel compliance with his command and to protect himself, the complainant and her children, and possibly the Plaintiff from harm. When Defendant Lis came onto the scene alone he spoke with Liz Bigio who told him that Maldonado had punched and shattered her car window with her children inside Defendant Lis observed the broken glass at the scene He did not know for certain whether Ramos, Maldonado or both men were involved in the altercation and responsible for the broken window. He had reason to believe that a violent crime had been committed by Ramos, Maldonado, or both. The undisputed facts show that Defendant Lis approached Ramos, who was trying to push Maldonado into a car, and ordered Ramos to move away from the car. Ramos expressly refused to comply with Defendant Lis's command. Ramos continued to try to pushi his brother into the car even though he knew that Defendant Lis wanted him to stop. As Ramos buddled with Maldonado in the car, refusing to comply with
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his command, Sergeant Lis could not see everything they were doing. He could not see if they were preparing to persist in resisting his authority. When Ramos turned around Defendant Lis did not know whether Ramos was going to continue to resist and obstruct, become aggressive, or submit to his authority. See Bozung : Rawson: 439 Fed App'x 513, 520 (6th Cir. 2015) (in determining that force used was reasonable, court noted "it may have been difficult for the officers lo judge [arrested's] intentions" to harm officers), In light of the circumstances on the scene. the Court finds it was objectively reasonable for Defendant Lis to compel compliance with his command, and to be concerned for his safety and that of others on the scene, and therefore it was objectively reasonable for him to pepper spray Ramos when he turned around. Thus, Defendants' Motion for Summary Judgment as to Ramos's excessive force claim is GRANTED.
ii. By the Estate Against Kaplan, Lis, and Cohen
The Estate argues that Defendants Kaplan, Lis, and Coben all ucted with unreasonable and excessive force. First, the Estate argues that Defendant Kaplan used excessive force by firing a taser into Maldonado's chest at close range for over twenty seconds. Second, the Estate claims that Defendant Lis acled with excessive force by punching Maldonado in the head in the holding cell after he was already stick with the taser by Defendant Kaplan and shoving him into the back of the cell wall. Lastly, the Estate argues that Defendant Colen acted with excessive force by spraying Maldonado with pepper spray after he had been shoved to the ground by Defendant Lis and was handcuffed and seated on the cell floor. In response, Defendants claim that summary judgment should be granted in their favor because the undisputed facts show that their use of force was reasonable under the circumstances. The Coun will consider cach use of force in tum.
The relevant facts, as viewed in the light most favorable to the Estate, support its excessive force claims against Defendants Kaplan, Lis, and Cohen. Maldonado was highly intoxicated, combative, and physically aggressive. He cursed and charged at the officers after Ramos was pepper sprayed. He spit on Officer Kaplan while he was in the back of Officer Kaplan's cruiser in route to the police station.
Maldonado continued to act erratically at the police station After being placed in the holding cell, he paced the cell removing his clothing. He was in the holding cell in the booking room while Defendants Kaplan, Lis, and Cohen
attempted to place Ramos in the cell. He had almost completely distobed and his pants were hanging from one ankle The officers unlocked the sliding door of the holding cell but leff it closed when Maldonado grabbed it with both hands and Forced it open. Undoubtedly, the officers had the right to use a reasonable degree of forec to compel Maldonado's compliance and lo repel the force Maldonado exerted. The question is whether the facts raise a genuine issue as to whether the officers used a degree of force greater than that required to achieve their legitimate objective.
After forcing the door open. Maldonado stepped over the threshold of the cell and swung at the officers. [Dkt. 126-17 al 2:04:39-40]. Officer Lis pushed Maldonado backwards into the cell Id. About the same time Officer Kaplan fired the taser into his chest, Maldonado attempted to punch the officers Id. at 2:04:39-43. Maldonado and the officers continued to struggle, Id. at 2:04:45, Officer Kaplan contimied to aim the taser at Maldonado who stepped to the side. Id. at 2:04:46-47. Sergeant Lis punched Maldonado, who doubled-over, and Lis strick Maldonado again from behind propelling him to the back of the holding cell where Maldonado hit his head on the wall. Id, at 2:04:48-49. While still holding Ramos. Officer Kaplan continned to aim the faser at Maldonado, who sat slumped over on the floor. Id, at 2:04:51. Maldonado remained subdued and he was handcuffed. Id. at 2:05:10. The fight evolved mpidly, and the entire altercation lasted approximately twenty seconds. Nevertheless, as set forth in detail below, the Coun cannot find that Defendant Kaplan, Lis, and Cohen's use of force was objectively reasonable as a matter of law.
a. Taser by Defendant Kaplan
*9 Courts in the Second Circuit have found that tasers constitute a "significant degree of force" and a "serious intrusion" on the individual's Fourth Amendment rights. See Bryant « Meriden Police Dept. No. 13-CV-449, 2017 WL 1217090, at $7 (D, Conn Mar 31, 2017) (collecting cases); Read w Town of Suffern Palice Dep't, No 10-CV-9042 2013 WL 3193413, al *8 (S.D.N Y, June 25, 2013) (holding thal a taser is a "serious intrusion into the core of the interests protected").
This use of force must be balanced against the Graham l'actors outlined above - the severity of the crime, whether the arrestee posed an immediate threat to the safety of others, and whether he actively resisted the arrest. Graham, 490 U.5. at
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Ramos V. Town of East Hartford, Not Reported In Fed, Supp. (2019) 2019 WL 2785594
396."Courts have [also] endorsed consideration of additional factors, including: (1) the existence of less intrusive means of accomplishing the law enforcement objective, (2) the nature and quality of any warnings that preceded the use of force, and (3) the law enforcement objective justifying the use of force." Bryant. 2017 WL 1217090, at *10 (internal citations and quotation marks omitted). The Court will consider each factor in turn
The Estate relies licavily on Bryant y Meriden Police Department, but that case differs in several key ways from the matter at hand. 2017 WL 1217090. The Bryant Count found that an arrest for "simple possession of narcotics, nol with distribution or with possession with intent to distribute" did "not support the government's interest in tasing [the arrestee]." Id. at *11. Here, Maldonado was arrested for a serious violent offense. When Sergeant Lis arrived on the scene, he saw broken glass from Ms. Bigio's car window and she identified Maldonado as the perpetrator. Maldonado was highly intoxicated and shattered the glass with his fist when Ms. Bigio was inside the car with her boyfriend and her three children.
Not only was Maldonado arrested for a far more serious crime, his behavior at the station differed drastically from the arrestee in Bryant. When the atrestee in Bryant was brought to the holding cell, he "had not offered any resistance since his arrest and the officers, having found nothing during the arrest, had no reason to believe he was armed." fa. In contrast, as detailed above, Maldonado resisted from the moment he encountered Sergeant Lis and was combative, using retaliatory profanity. He violently resisted arrest and was only brought into custody with the assistance of multiple officers and pepper spray. Then, he refused to get in the police vehicle for transportation to the station and spit on Defendant Kaplan during the ride. At the station, Maldonado refused to rinse his eyes in the cycwash station His aggression continued when he charged the cell door, forced it open attempted to force himself out of the holding cell, where three police officers were standing, and physically resisted the Defendants' efforts to contain him.
The circumstances in Bryant also differ sharply From the present case with regard to the final two Graham Factors- threat to the safety of others and resisting arrest: The Bryant Court found that the arrester "posed no immediate threat to the officers or others at the time of the tasing." Id. He was handcuffed and offered no active resistance, Id. Here, The opposite is true. While Defendants Lis, Kaplan, and Coben
were outside of the holding cell door uncuffing Ramos 10 place him inside. Maldonado took the officers by surprise and overcame their force. He pushed the holding cell door open with two hands and lunged forward, Defendants pushed and punched him before he moved backwards. Maldonado continued his aggression and swung at the officers. The parties dispute whether Maldonado made contact with any officers, but Plaintiff does not suggest that Maldonado did nol allempi lo strike them. The undisputed evidence show Maldonado actively and violently charged at Defendants Lis. Kaplan, and Cohen in the small space of the holding cell in what can only be described as a melee. The video depicts Ramos allempling to stay out of the scuffle.
*10 Turning to the additional factors for consideration, the Court finds that they support the initial use of the taser. First. the officers attempted to close the holding cell door and when that failed used physical force to contain Maldonado prior to using the taser. They pushed and punched him, but he continued to fight back: See Campos u City of Glendale, No. CV-06-610, 2007 WL 4468722, at $5 (D. Ariz Dec. 14. 2007) (finding that taser use was reasonable when prior use of physical force did not lead to compliance), Second, the parties. dispute whether Defendant Kaplan warned Maldonado before using the taser. Defendant Kaplan testified that he yelled taser more than once and Ramos testified that he did not [Dkb. 126-11 at 160;7-9]; see also [Dkt. 126-5 at 91:10-16] "Courts have consistently held that a failure to warn before the release of a K-9 or the use of taser can constitute excessive force depending on the circumstances." Whitfield v. City of Newhargh, No. 8-CV-8510, 2015 WL. 9275695. at: $10 (S.D.N.Y. Dec. 17. 2015). Here, the Court finds that even if Defendant Kaplan did not warn Maldonado it was reasonable under these circumstances because the fight evolved unexpectedly and rapidly, and a warning was not feasible, See Bryan v. MacPherson, 630 F.3d 805, 831 (th Cir. 2010) (finding failure to warn tended to show force was unreasonable where warning was feasible). Finally, the objective was to prevent imminent hanti to Ramos and the officers: See Bryant, 2017 WI. 1217090, at *% ("Though the Second Circuit has not yet ruled on the issue, many courts have viewed the immediate threat to the safety of the officers or others as the most important Graham factor") (internal citations and quotation marks omitted).
Although the Court has established that the initial use of the taser was reasonable under the circumstances, it must consider the duration of the laser use. The undisputed evidence shows that Defendant Kaplan deployed the taser For
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Filed 11/13/25
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Ramos v. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
Twenty seconds. [Dkt. 132-22 (Taser Deployment Report)], The parties dispute whether Maldonado was resisting or posing a threat to the Defendants, and the Court finds that the video is inconclusive on this issuc.
Ramos testified that Maldonado was "paralyzed from the Taser." [Dkt. 126-5 at 92:6-7]. The Defendants disagree, Defendant Lis testified that he thought the taser was mol working because Maldonado was still uprighi, but bent over and had his hands near the taser probes. [DKL. 126-8 at 99:2-25]. He explained further that. "[t]he majority of times when I see somebody get tased, they're they completely lock up. They're not able lo bend over or put their hands near the probes like they're going to pull it out. That was my first inclination, And the second inclination was there was a loud popping sound to the Taser. When we have our training that's not a connection that's being made ... when it's a good Taser hit and good connection, it's very quiet .... the combination of everything with him bending over, him putting his hands near the probes, Officer Kaplan saying he's going to pull out the probes, the sound of the Taser. I don't think any of it was working." Id, at 99:25-100:17. Similarly, Defendant Kaplan testified that he expected Maldonado to become incapacitated, but instead he "made fists with his hands while yelling and flexing up towards [Defendant Kaplan]" [Dkf. 126-11 at 160:15-24].
It is well seriled that force "should not be used lightly or gratuitously against an arrestee who is complying with police commands or otherwise poses no immediate threat to the arresting officer," Tracy, 623 F.3d at 98; see Whitfield; 2015 WL 9275095. at 18 ("It is well-settled that an officer may not continue to use force against a suspect who, although previously resistant, has been subdued."). Therefore, the reasonableness of force used by Defendant Kaplan depends on when Maldonado was subdued and no longer a threat to Defendants or to Ramos. Considering the video evidence and the testimony of the parties, the Count cannot pinpoint as a matter of law when Maldonado was no longer resisting the Defendants or posing a threat to their safety, in addition to Ramos's safety, Therefore, Defendant Kaplan's Motion for Summary Judgment on the Estate's excessive force claim for use of a laser is DENIED.
b. Punch and Shove by Defendant Lis
The Estate argues that Defendant Lis used excessive force by punching Maldonado and pushing him into the wall of
the holding cell because Maldonado was already under the power of the taser at that time and was not resisting or posing a threat to the officers. Like the use of the laser by Defendant Kaplan, the reasonableness of Defendant Lis's use of force against Maldonado depends on when Maldonado was subdued and no longer a threat to Defendants or to Ramos. As explained above. the Court cannot determine as a matter of law when Maldonado was no longer resisting the Defendants or posing a threat to their safety, in addition to Ramos's safely In addition, a reasonable jury could find Maldonado was no longer a danger after before he was last struck by Sergeant Lis. Therefore, Defendants' Motion for Summary Judgment on the Estale's excessive force claim for the punch and shove is DENIED.
c. Pepper Spray by Defendant Cohen
*11 The Second Circuit has found that it was objectively unreasonable for an officer to use pepper spray "mere inches. away from the face of a defendant already in handcuffs and offering no further active resistance." Tracy: 623. F.3d at: 98. The Estate argues that a reasonable jury could find that Defendant Cohen used excessive force by spraying him with pepper spray after he was handcuffed. The Count agrees. Here, the parties dispute the threshold issue of whether any force was used at all. Ramos claims Maldonado was pepper sprayed by Defendant Cohen. Ramos testified, "I was outside of his cell sitting down while I was like, looking when 1 said earlier that I was 8 feet away and I was seeing him and he was facing down when they handcuffed him. They had a knee behind him and one of the officers took his spray from his waist and sprayed him while he was on the floor. That's why I said, You didn't have to do that, there's no reason for that, he was already handcuffed." [Dkt. |32-3 at 152:13-153:201. Officer Cohen testified that he pointed his pepper spray can at Maldonado, even though Maldonado was handcuffed, as a precaution should he resist, but did not spray [Dkt. 132-18 at 114:5-119:23]. Officer Cohen also admitted that at the time he placed the pepper spray cannister in Maldonado's face, Maldonado posed no risk of harm to anyone. /d. at 117:14-19. A reasonable jury could credit Ramos's testimony and find that Officer Cohen pepper sprayed Maldonado while he was subdued and handcuffed on the cell floor, and therefore, Defendant Cohen used excessive force against Maldonado. For these reasons, Defendants' Motion For Summary Judgment on the Estale's excessive Torce claim for use of pepper spray is DENIED.
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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3. Count | - Failure to filtervene
i. By the Estate Against Kaplan, Lis, and Cohen
Maldonado brings a claim for Failure to intervene against Defendants Kaplan, Lis, and Cohen arguing that they should have intervened to prevent the use of excessive l'orce by their fellow officers. "It is widely recognized that all law enforcement officials have an affirmative duty to intervene lo 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) (citations omitted). In this Circuit. "[a]n officer who fails to intercede is liable for the preventable hann caused by the actions of the other officers where that officer observes or has reason to know ... (1) that excessive force is being used. (2) that a citizen has been unjustifiably arrested, or (3) that any constitutional violation has been committed by a law enforcement official. Id. (citations omitted). "In order for liability to attach, there must have been a realistic opportunity to intervene to prevent the harm from occurring." fd. "Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise " Id. Liability hinges on whether an officer permitted fellow officers to violate a suspect's 'clearly established statutory or constitutional rights' of which a reasonable person would have known." Ricciuti & N.Y.C. Transit Auth., 124 F3d 123, 129 (2d Cit. 1997) (quoting Harlow V. Fitzgerald, 457 U.S. 800, 818 (1982)). "Failure to intervene claims are 'contingent upon the disposition of the primary claims underfying the failure to intervene claim." " Usovage v: Port Auth. of N.Y., & N.J., 932 F. Supp. 2d 575. 599 (S.D.N.Y 2013) (quoting Atantheirx 4: City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y 2012)) Where the record does not disclose an underlying excessive force violation, and does not suggest that an officer who observed the disputed incident could have been aware of the use of excessive force, summary judgment on a duty to intercede claim is appropriate. See Ferraresso v Town of Granby, 646 F, Supp. 2d 296, 308 (D. Conn, 2009).
As explained above, there is a genuine dispute of material fact regarding whether Defendants Kaplan, Lis, and Cohen used excessive force against Maldonado, However, even if a jury did find excessive force was tised, because the events evolved so rapidly and the officers were in such close proximity to one another and to Maldonado, no reasonable jury could find that
any of the officers had an opportunity to anticipate, prevent of stop the force used by the others. Therefore, the Court finds as a matter of law that Defendants did not fail to intervene to prevent the use of excessive force by their fellow officers against Maldonado and their Motions for Summary Judgment on this claim are GRANTED.
4. Count 1-Deliberate Indifference to Medical Needs
i By the Estate Against Kaplan, Lis, and Coben
*12: The Estate alleges that Defendants Kaplan. Lis, and Cohen were deliberately indifferent to his medical needs while he was a pretrial detaince. "A pretrial delaince's claims are evaluated under the Due Process Clause [of the Fourteenth Amendment rather than the Eighth Amendment. as] "[p]retrial detainees have not been convicted of a crime and thus may not be punished in any manner-neither cruelly and unusually nor otherwise." " Darnell . Pietro, 849 F.3d 17. 29 (2d Cir. 2017) (quoting Iqbal v: Hasty, 490 F.3d 143, 168 (2d Cir. 2007)). To prevail on such a claim, a plaintiff must demonstrate: (1) that an official "denied [him] treatment needed to remedy a serious medical condition." and (2) that the official did so "because of his deliberate indifference to that need." WFeyant w Oksr, 101 F.3d 845, 856 (2d Cir 1996). When analyzing the sufficiently serious prong. the Court must determine "whether the prisoner was actually deprived of adequate medical care." Salahuddin v: Goord. 467 F.3d 263, 279 (2d Cir. 2006) If so, the Court must then consider "whether the inadequacy in medical care is sufficiently serious." Id. at 280. For the mens rea prong, "the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety." Derwelt .. 849 F.3d at 35.
Here, the Estate has sufficiently raised a genuine issue of material fact as to whether Defendants were deliberately indifferent to his medical needs. As to the first prong the Estate has produced evidence that Defendants denied Maldonado prompt medical care and the delay was sufficiently serious to his health, given the length of the tasing and the location where Maldonado was tased. Defendants were required to conduct a medical assessment after an individual was lased. [Dkts. 131-20 al 108:3-22; 131-23 (Lis
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Dep.) at 114:21-115:18]. They left the holding cell at 2:06.18 AM and did not return to physically check on Maldonado until 2:10:34 AM, approximately four and one-half mimites later. When they determined that Maldonado did not have a pulse, they did not perform CPR. Although Defendants were not designated first responders, Defendants Kaplan and Lis were trained to perform CPR. [Dkis. 131-24 (Kaplan Dep.) at 57:6-59:16; 131-23 al 42:24-43:51.
This Estate's experts also opine that Maldonado was deprived of adequate medical care. Plaintiff's expert Dr. Maria Haberfeld stated that "[based on departmental guidelines, as well as their training and experience, it should have been evident to the officers that Mr. Maldonado was in need of medical assistance and they should have provided or summoned such assistance immediately," [Dkt. 132-19 (Haberfeld Report) at 9]. Another expert, Roger Clark, agrees: "[a]ny reasonably trained officer who was present when Mr. Maldonado was Tased in the chest for an extended period of time, was punched in the head, struck his head against the cement wall and appeared so suddenly flaccid. would know that he was significantly injured and in a medical crisis that required immediate medical care." [Dkt. 132-11 (Clark Report) at 19].
In addition, Maldonado's condition was sufficiently serious it is undisputed that when the Defendants reentered the holding cell. Maldonado was unconscious and Defendants did not know if he had a pulse. Paramedics entered the cell al 2:16:36 AM, approximately six minutes after the officers returned to physically check on Maldonado, The last time Kaplan is seen pointing the taser at Maldonado is 2:05:09 AM. [Dkt. 126-17 at 2:05:09]. Medical assistance arrived more than ten mimites after the officers left the cell and approximately twelve minutes after Kaplan appears to have tased Maldonado last
Further, Maldonado was tased for a total of twenty seconds As Defendant Kaplan's expert testified, taser training teaches that tasing for longer than fifteen seconds may increase the risk of serious injury or death and should be avoided. [Dkt. 132-25 at. 110:17-25]. Taser training materials also indicate that tasing for more than fifteen seconds should be avoided [Dkts. 132-40 (ECW Guidelines) at 18; 132-41 (Taser Training) at 5]. In addition, as Defendants were aware, tascr training cautions against tasing in the chest. [Dkts. 132-40 at 37; 132-41 at 4. 132-25 at 119; 132-24 at 88:3-7, 91:6-21; 132-18 al 36:6-23; 132-23 at 32:17-33:9], Dr. Myerburg opined that Maldonado could have survived
il' Defendants began lifesaving treatment [Dkt. 132-27 at 131:20-134:22].
*13 Turning to the mens rea prong, the Estale has also created a genuine issue of fact as to whether Defendants recklessly failed to act with reasonable care to mitigate a risk they knew or should have known lo Maldonado's health or safety. It is undisputed that Maldonado was tased in a single interval for a continuous period of twenty seconds. Defendant Kaplan was aware that a taser can be lethal. [Dkl. 125-7 (Kaplan Dep.) at 84:12-24].
Defendant Kaplan also knew that the regular taser cycle was five seconds. Id. at 96:7-21. Ile was instructed to fire at five-second bursts then assess impact, and he knew it was better to not exceed the five-second interval. /d. at 97:4-24 Kaplan used the taser for a prolonged period, approximately Tour times that recommended because he suspected it was not working; however, he did not know for certain whether the taser was working and whether Maldonado received excessive electrical charges. Id. at 260:13-261:9
Defendam Kaplan was also instnicted to try not to target a person's chest, among other areas, because it could interfere with the heart. Jd. at 88:3-10. Defendant Cohen and Defendant Lis also knew that the chest was not the best spot to target [Dkt: 131-18 (Cohen Dep.) at 35:13-36:23: 131-23 (Lis Dep.) at 32:22-33:23]. When Defendant Kaplan initially began tasing he was responding to Maldonado's unexpected and rapidly evolving aggression and was in very close quarters A reasonable officer under those conditions is unlikely to have the time and space to target the taser However, for at least a portion of the time he used the taser Officer Kaplan did have the opportunity and space to target another part of Maldonado's body
Contrary to Defendants' claims, the Court finds that a reasonable jury could find that Defendants, with knowledge of Maldonado's exposure to the taser in his chest for an excessive period of time, knew that Maldonado needed immediate medical attention and that his affect suggested he may have suffered a serious injury Notwithstanding this knowledge, Defendants failed to provide reasonably timely medical care. Therefore, Defendants' Motions For Summary Judgment as to the Estate's claim for deliberate indifference to medical needs is DENIED.
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83

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 237 of 484
Ramos v. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
5. Count 2 - Monell Claim
i. By Ramos and the Estate Against Town of East Hanford and Sansom
Ramos and the Estate bring a $ 1983 claim against Defendants Town of East Hartford and Chief Sansom To state a claim under $ 1983 against a municipality, a plaintiff must show *(1) an official policy or custom that (2) causes the plaintiff To be subjected to (3) a denial of a constitutional right." Wrayy City of New York, 490 F.3d 189, 195 (2d Cir. 2007). A plaintiff must prove "both the existence of a municipal policy or custom and a causal connection between that policy or custom and the deprivation of his constitutional rights." Dodd v. City of Norwich, 827 F.2d 1. 5 (2d Cir. 1987). "Courts have recognized four ways for plaintiffs to demonstrate a policy or custom: (1) a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. (2) conduct ordered by a municipal official with policymaking authority: (3) actions maken pursuant to governmental custom even though such a custom has not received formal approval through the body's official decisionmaking channels; or (4) a failure to train municipal employees that amounts to deliberate indifference to the rights of persons with whom the [employees] come imto contact." Walker & Cinyof New Tark No. 12-CV-5902 2014 WL [259618, at *2 (S.D.N.Y. Mar. 18, 2014) (internal citations and quotation marks omitted).
*14 Defendants argue they are entitled to summary judgment because Plaintiff asserts only conclusory allegations unsupported by record evidence. In response, Plaintiff claims he has clear record evidence of the following customs by Defendant Town of East Hartford and Defendant Sansom: (1) condoning the firing of tasers into suspects' chests contrary to taser warnings; (2) discouraging officers from providing lifesaving treatment; (3) failing to train its officers to obtain timely emergency treatment; (4) condoning use of excessive force by Ilie officers in this case by its failure to perform a genuine internal affairs investigation.
The Coun considers Plaintill's claims that the Defendant Town of East Hartford and Defendant Sansom maintained various improper customs or practicos collectively. "Monell's policy or custom requirement is satisfied where a local government is faced with a pattem of misconduct and does nothing, compelling the conclusion that the local government has acquiesced in or tacitly authorized its subordinates'
unlawful actions." Reynolds « Gindimmi, 506 F.3d 183. 192 (2d Cir. 2007) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701. 737 (1989)). "To demonstrate an official policy or custom, a plaintiff must show the existence of a ... practice What is so persistent and widespread that it constitutes a custom or usage of which supervisory authorities must have been aware, or that a municipal custom, policy, or usage can be inferred from the evidence of deliberate indifference of supervisory officials as lo such abuses." EZ Pawa Corp w City of New York. 16-CV-3852, 2019 WL 2393780, ut -15 (E.D.N.Y. June 5. 2019) (internal quotation marks omitted) (quoting Jacovangelo \ Carr. Med. Care, Inc .. 624 F. App's 10, 13 (2d Cit, 2015)) (summary order). Plaintiff's argument falls "far short of establishing a practice that is so persistent and widespread as to justify the imposition of municipal' liability:" Giacco' City of New York, 308 Fed. App'x. 470 472 (2d Cir. 2009) (internal quotations omitted) (finding that four examples of a particular practice was not sufficient to establish pervasiveness to survive a motion for summary judgment).
First, Plaintiff argues that Defendant Town of East Hartford has a custom of condoning the use of a taser in a suspect's chest, and such custom is evidenced by the fact that there were sixteen instances of taser firing in the chest over a two-year period, from 2014 to 2015. [Dkt. 132-49 (EHPD Taser Statistics 2014-2015)]. Plaintiff presents no contextual evidence for the Court to determine the significance of these members. See Tieman v. City of Newhurgh, 13-CV-4178. 2015 WL 1379652, at *17 (S.D.N.Y. Mar. 26, 2015) ("The lawsuits cited by Plaintiff in the PAC, even when combined with the allegations regarding the public forum comments and the Matrix Report, are insufficient to plausibly support an inference of a widespread custom ... the fact that there were allegations of thirteen instances of excessive force during arrests over four years (none of which involved findings or admissions of culpability) during which hundreds. if not thousands of arrests were made does not plausibly demonstrate that the use of excessive force during arrest was so frequent and pervasive to constitute a custom ") (collecting cases). Testimony from Defendant Sansom similarly fails to indicate a widespread policy. He indicated that the sixteen incidents of tasing to the chest would not trigger a supervisory response by him, but he also indicated that he does not review the use of force unless it has been flagged by a reviewing officer as outside of the protocol. [Dkt. 132-20 (Sansom Dep.) at 136:9-14: 132:15-25; 120.5-121:23]. There is no evidence that any of the sixteen incidents were lagged as outside of the protocol. Nor is there any evidence they should
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Ramos V. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
have been flagged. There is no evidence of the circumstances surrounding the taser incidents to suggest they were not reasonable under the circumstances, Therefore, the Court finds that there is insufficient evidence for a reasonable jury to find a widespread policy.
*15 Even if Plaintiff could establish a policy, however, Plaintiff has produced no evidence of a causal link between the alleged custom and the alleged violation of Ramos and Maldonado's constitutional rights. There must be "a direct causal link between the municipal policy or custom and the alleged constitutional deprivation." Outlaw : City of Hartford, 884 F.3d 351, 373 (2d Cu. 2018) (internal quotation marks omitted): see also Jie Yin v. NFE1, 188 F. Supp, 3d 259. 275-76 (W.D.N.Y. 2016) (granting summary judgment in "the absence of any showing of a custom or practice as well as a direct causal link between that custom or practice and the alleged violation of Plaintiff's constitutional rights"), Here, Plaintiff has presented no evidence that Defendants Kaplan, Lis, and Cohen understood that there was a custom of permitting officers to fire a taser into a suspect's chest such that Defendant Kaplan understood he could do so with impunity. On the contrary, the evidence shows the officers were aware that tasering someone in the chest should be avoided. Therefore. Defendants' Motion for Summary Judgment on the theory of tasing in the chest is GRANTED.
Second, Plaintiff claims that Defendants discouraged officers from providing lifesaving freatment and condoned use of force by failing to perform a genuine internal affairs investigation In support, Plaintiff cites Defendant Sansom's testimony iliat officers are not required to be first responders and the policy, especially with regard to emergencies on police department property, was to call the fire department because the department is in the building and the firefighters are the designated first responders. [Dkt. 132-20 at 24:4-22, 27:19-23]. Plaintiff also claims that the Defendants' failure to follow their own policies regarding in-custody deaths reflects its custom of condoning the use of excessive force Defendant Sansom testified that he did not recall what the East Hartford Police Department did in response to the Connecticut State Police's investigation report even though his Department declared it would "review the Connecticut State Police's investigation report prior to declaring the final disposition of this case." [Dkl. 132-20 at 77:7-20]. Like Plaimiff's claims regarding tascring in the chest, there is no evidence of a widespread custom of discouraging officers from providing lifesaving treatment and failing to perform internal investigations. Even if such evidence
existed, however, there is no evidence that Defendants failed to provide treatment to Maldonado because of any alleged discouragement to do so or used excessive force against Ramos and Maldonado because they believed an internal investigation was unlikely. Plaintiff Fails to present evidence of a practice of failing to investigate.
Lastly, Plaintiff claims that Defendants Town of East Hartford and Sansom Failed to train officers regarding timely emergency treatment "A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train" Cannick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted). "To satisfy |$ 1983]. a. municipality's failure to train its employees in a relevant respect must amount to deliberate indifference to the rights of persons with whom the [untrained employees] come into contact." Id. (internal quotation marks and citation omitted), "A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train." Id. at 1360 (internal quotation marks and citation omitted). "[T]o constitute deliberate indifference in a municipal failure to train or supervise claim, a plaintiff must show that (1) a policymaker knew to a moml certainty that his or her employees will confront a given situation: (2) the situation would present employees with a difficult choice of the sort that training or supervision would make less difficult or a history of mishandling the situation; and (3) the wrong choice by a city employee would frequently cmuse the deprivation of a citizen's constitutional rights." Jane Doe // v. City of Hartford, 1-CV-1026, 2005 WL. 2009051, at *5 (D. Com. Aug. 22, 2005) (citing Walker . City of New York, 974 F.2d 293, 297-98 (2d Cir 1992)). A plaintiff "must show that the need for more or better supervision to protect against constitutional violations was obvious" Kann w City of New Jork, 72 F3d 1040, 1049 (2d Cix 1995), "An obvious need may be demonstrated through proof of' repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents." Id. A need may also be "obvious" enough to permit an inference of deliberate indifference where a supervisory official fails to intervene after personally witnessing an instance of "blatantly unconstitutional" conduct. Ammesty Am., 361 F.3d at 127 n.8. The municipality's failure to take action must constitute "deliberate indifference, rather than mere negligence or bureaucratic inaction," Id. al 128,
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+16 Plaintiff must also proffer "evidence as to the city's training program and the way in which that program contributed to the violation," dd. at 127 n 8. A plaintiff should present evidence of a training deficiency, including "how the training was conducted, how better or different training could have prevented the challenged conduct, or how 'a hypothetically well-trained officer would have acted' under the circumstances." Id. at 130 (internal citation and quotation marks omitted). "[T]he factfinder's inferences of inadequate training and causation must be based on more than the more fact that the misconduct occurred in the first place." Id. (internal citation omilted).
Here, the record is completely devoid of evidence that there was an obvious need for more training regarding timely emergency care. Although East Hartford Police Department's policy was for police officers not to perform CPR and to summon the emergency medical responders employed by the fire department located in the same building, Plaintiff presents no evidence of instances where emergency care was not timely provided, or situations where supervisors personally witnessed such failures. Therefore, Plaintiff's claim that Defendants were deliberately indifferent to the needs of pretrial detainees in police custody by failing to train in emergency treatment fails as a matter of law. Jackson Town of Bloomfield, No. 12-CV-00924, 2015 WL 1245850. at *19(D. Conn. Mar. 18. 2015) (granting summary judgment where plaintiffs "failed to provide evidence of deliberate indifference on the part of policy making officials."). For these reasons, Defendants' Motion for Summary Judgment on the theory of deliberate indifference to emergency training is GRANTED
B. Qualified Immunity
Defendants argue that they are immune from liability under the doctrine of qualified immunity under which "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violare clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v: Fitzgerald, 457 U.S. 800, 818 (1982), see also Pearson v. Callahan, 555 U.S. 223, 231 (2009), When considering qualified immunity. "[t]he dispositive question is whether the violative nature of particular conduct is clearly established [and] [i]his inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition." Mullemix w Luna, 136 S.CI. 305, 308. 193
L.Ed.2d 255. 308 (2015) (internal citations and quotations omitted). For a right to be clearly established, it must be "sufficiently clear that a reasonable official would understand. what he is doing violates that right" Andersun v Creighton 483 U.S 635, 640 (1987), see also Reichte v Howards, 566 U.S. 658. 664 (2012)
The factors to assess in determining whether a right was clearly established are; "(1) whether the right in question was defined with 'reasonable specificity': (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Penay, DePrisco, 432 F.3d 98, 115 (2d Cir. 2005) (internal citation omitted). This does not mean that there must be "à case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Isheroff v: al-Kidd, 563 U.S. 731. 741 (2011).
"Even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was "objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act." Lennon 1: Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citing Anderson, 483 U.S. at 641). Since law enforcement officers must make prompt decisions in mpidly evolving situations "there can frequently be a mnge of responses to given situations that competent officers may reasonably think are lawful" Walezyk v. Rin, 496 F. 3d: 139, 154 n 16 (2nd Cir 2007) Qualified immunity is a "forgiving" standard. Amore \ Novarm. 624 F.3d 522. 530 (2d Cir 2010), Qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley w. Briggs, 475 U.S 335. 341 (1986), Only the most egregious conduct is not protected by qualified immunity
*17 "Qualified immunity is an affirmative defense and the burden is on the defendant-official to establish it on a motion for summary judgment." Batley v. Pataki. 708 F.3d 391, 404 (2d Cir. 2013). In assessing the validity of a qualified immunity defense, the Court is "not concerned with the correctness of the defendants' conduct, but rather the objective reasonableness' of their chosen course of action given the circumstances confronting them at the scene." Lennon, 66 F.3d at 421. "For a defendant to secure summary judgment on the ground of qualified immunity, he must show that no reasonable jury, viewing the evidence in the
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light most favorable to the Plaintiff, could conclude that the defendant's actions were objectively unreasonable in light of clearly established law." Ford & Aloore: 237 F. 3d 156. 162 (2d Cir 2001). "[A] court may grant [summary | judgment if it is clear-after viewing the facts in the light most favorable to plaintiff-that reasonable law enforcement officers could have disagreed about whether defendants' conduct violated the law." Ozga v: Ellant, 150 F. Supp, 3d 178, 189 (D. Colin 2015)
1. Qualified Immunity as lo Ramos's Claims
Even if Sergeant Lis's use of force against Ramos was unreasonable. Ramos's claim would still fail because Sergeant Lis is entitled to qualified immunity, Here, no reasonable jury could conclude that the force used by Defendant Lis under these circumstances was objectively unreasonable in violation of the Fourth Amendment. In fact, in Brown .. City of New York, the Second Circuit recently affirmed the district count's grant of qualified immunity on similar facts, 862 F.3d 182, 189-92 (2d Cir. 2017), In Brown, the plaintiff repeatedly refused to follow instructions of the officers who were attempting to handcuff and arrest her. Jd, at 190. The officers used pepper spray with prior warning to plaintiff, kicked the plaintiff's legs out from under her to bring her to the ground, and pushed her face into the pavement. Id. The Count found that "[njo precedentinl decision of the Supreme Court or this Court 'clearly establishes' that the actions of [the officers], viewed in the circumstances in which they were taken, were in violation of the Fourth Amendment." Id.
Similarly, in Mcknight w. Vasile, the plaintiff challenged an officer's use of pepper spray against her while she was resisting arrest by a different officer. 2017 WL 1176051 at *26, The officer observed plaintiff resisting arrest and trying to enter her home, Id. at +27. His attempts to physically restrain her failed and he deployed his pepper spray without warning. Id. The officer testified that he deployed the spray "after he failed to gain control of her and in the moment that she turned toward him he felt vulnerable to a physical threat such as a punch." Id. The court granted qualified immunity and found that "a reasonable officer in [his| position would not have clearly understood that resort to one burst of pepper spray was unlawful." Id. at *28.
Although Ramos did not physically resist arrest, he refused to comply with Defendant Lis's commands and obstructed his investigation of a violent altercation. Defendam Lis was
the only officer at the scene and he wanted to ensure that Ramos and Maldonado did not drive away. [Dkt. 126-8 at 56:14-19|. At this time, Maldonado was swearing and trying to get out of the car, Id. al 57:1-2. Defendant Lis perceived thai Maldonado was the aggressor le al 57:4-7 Ramos refused to comply and clenched his fists. Defendant Lis testified that he was fearful because Ramos clenched his fists and was; not obeying commands, so he pepper sprayed him to "gain control of him." Id. al 57;18-23, The Court finds that under these circumstances a reasonable officer would not have understood that his acts were unlawful and grants Defendant Lis qualified immunity on Ramos's excessive force claim Therefore, Defendants' Motion for Summary Judgment based on qualified immunity is GRANTED,
2. Qualified Immunity as to the Estate's Claims
a. Failure to Intervene
*18. A police officer is entitled to qualified immunity unless his failure to intervene was under "circumstances making it objectively umreasonable for him to believe that his fellow officers' conduct did not violate [the plaintiff's| rights." Ricintti & M.E.C. Transit .luth. 941 F.2d 123. 129 (2d Cir. 1997); see also Berg V, Kelly, 897 F. 3d 99, 113 (2d Cir. 2018). As explained above, the Court finds as a matter of law that no reasonable jury could find that Defendants had any opportunity to prevent or stop the use of force by their fellow officers. Under these circumstances, it was not: objectively unreasonable for Defendants to believe that their fellow officers' conduct did not violate Maldonado's rights Therefore, Defendants' Motions for Summary Judgment based on qualified immunity are GRANTED.
b. Deliberate Indifference to Medical Need
Maldonado's riglit to be free from deliberate indifference to his medical needs was clearly established on the niglu of his arrest. See Estelle v Gamble, 429 U.S. 97, 106 (1976), Mille Fenger, 216 Fod. App'x 7, 11 (2d Cir 2006) (citing Liscio Warmew. 901 F.2d 274. 276-77 (2d Cit. 1990)) (vacating summary judgment against pretrial detainee and further finding that "defendants are not entitled to qualified immunity because a pretrial detatrice's right not to be recklessly denied treatment for a serious medical condition was "clearly established' at the time these events transpired"); Lewis v.
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Clarkstown Police Dept., 11-CV-2487, 2014 WL 1364934. at *10 (S.D.N.Y. Mar 31, 2014) (finding that "rights of pretrial detainees to be free from deliberate indifference to their serious medical needs are well established" and denying summary judgment based on qualified immunity). Here, there is a genuine issue of material fact regarding whether Defendants recklessly denied Maldonado sufficient medical care. Given these factual disputes, the Court cannot determine that Defendants' actions were objectively reasonable as a matter of law. Therefore, Defendants' Motions For Summary Judgment based on qualified immunity are DENIED:
c. Excessive Force
i. Taser by Defendant Kaplan and Punch and Shove by Defendant Lis
As of the date of this incident, it was clearly established within the Second Circuit that tasing and physically assaulting an individual who was not actively resisting arrest or posing an immediate threat to officers constituted excessive force. See Whitfield, 2015 WL 9275695. al $18; see also Zachary V.City of Newburgh, No. 13-CV-5737, 2016 WL 4030925. af 99 (S.D.N.Y. July 25. 2016) ("When officers continue to apply force to an arrestee who is already subdued, it may be sufficient for a jury to find such force to be excessive.") (collecting cases). Here, there is a genuine issue of material fact regarding whether Maldonado was resisting during the entire time the taser was deployed and when Defendant Lis punched him and shoved him towards the holding cell wall This fact dispute precludes the Court from granting summary judgment on qualified immunity grounds. See Orell v Minekle, No. 11-CV-97, 2012 WL. 3231017, at +5 (1) Conn. Aug. 6. 2012) (denying summary judgment on qualified immunity grounds where a reasonable juror could find officer used mureasonable force in deploying taser); see also Zachary, 2016 WI. 4030925, at *9, 11 (denying summary judgment on qualified imiminity grounds where "the Court is simply not able to say as a matter of law precisely when plaintiff was restrained to the point that he no longer posed a threat to officers' safety"). Therefore, Defendants' and Defendant Kaplan's Motions for Summary Judgment on Maldonado's excessive force claim based qualified immunity is DENIED.
ii. Pepper Spray by Defendant Cohen
*19 At the time of Maldonado's arrest, the Second Circuit had clearly established that "no reasonable officer could have believed that he was entitled to use pepper spray gratuitously against a restrained and unresisting arrestce" Tracy, 623 F.3d 90, 99 m5 (2d Cit. 2010), Since then, many counts have denied qualified immunity to officers for using pepper spray on individuals who were not actively resisting arrest or who had already been restrained. See, e.g., Knight v. City of New York, No. 16-CV-7888, 2019 WL 95480, al "5 (S.D.N.Y.Jan 2. 2019) ("[A]t least since Tracy, deploying pepper spray in the face of [an individual] 'already in handcuffs and offering no further active resistance' constitutes a clearly established unreasonable use of force.") (citing Tracy, 623 F.3d al 98), Jackson v: Tellado, 236 F. Supp, 3d 636, 669 (E.D.N.Y. 2017) ("It is clearly established that the use of pepper spray against a restrained and cooperative person constitutes excessive force. Once Plaintiff was handcuffed and restrained, any additional use of force was plainly unnecessary and thus violated clearly established law.") (collecting cases): Bryant, 2017 WL 1217090_ al 15 ("Like other courts before me. I hold as a matter of law that it was clearly established in March 2011 that officers could not employ a significant degree of force, such as a taser, against a suspect who was handcuffed. surrounded by multiple officers in a police station holding cell, and who did not pose either a threat to the officers of a threat of escape.").
Here, as explained above, the panties dispute whether Defendant Cohen discharged his pepper spray at Maldonado Because there are disputed facts as to Defendant Cohen's actions, the Court cannot determine if Defendant Cohen acted reasonably and cannot find as a matter of law that he is entitled to qualified immunity. For the foregoing reasons, Defendants" Motion for Summary Judgment based on qualified immunity is DENIED
V. State Claims
A. Count 3 - Connecticut Constitutional Claims, Art. 1, §§ 7, 9
Ramos and the Estate bring claims against all Defendants under two sections of the Connecticut Constitution." Article First, § 7 provides that "[t]he people shall be secure in their persons, houses, papers and possessions from imreasonable searches or seizures ... " CONN. CONST. ant. 1. § 7, Article First, § 9 provides that " [njo person shall be arrested, detained
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or punished, except in cases clearly warranted by law." Id. at § 9. In Binette M. Sabo, the Connecticut Supreme Court recognized "a common-law cause of action under article first, §§ 7 and 9, of [the stale constitution] for the policy reasons articulated in Bivens y Sir Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388." 244 Coun, 23, 32 (1998), see also Lopez . Siniley, 375 F, Supp. 2d 19, 23 (D. Com. 2005) ("Binette created a narrow cause of action for money damages under the Anicle First, $5 7 and 9 of the Connecticut Constitution for illegal searches and seizures of private homes by police officers, a cause of action that is equivalent to the federal Bivens action under the Fourth Amendment to the United States Constitution.").
6- Plaintiffs' claims against Defendant Town of East Hartford fail as a matter of law because "damages claims based on violations of the Connecticut constitution cannot be maintained directly against a municipal entity" MfcCulough . Town of Rocky ITHI. No. CV1550168315. 2018 WL 1278220, at3 (Conn. Super. Ci. Jan. 31, 2018) (internal citation omitted).
Following Binette, the Connecticut Appellate Court, in Martin \ Brady, affirmed the dismissal of the plaintiff's complaint finding that it was distinguishable from Binette because the alleged conduct was not sufficiently egregious. 64 Con. App: 433. 441 (2001), The court noted that the Binette complaint "was sustained because of its specific allegations of an unreasonable, egregious search and seizure." id. at 440 In Mortia, plaintiff alleged two improper intrusions into his home, property damage, and physical harm /d. The count found that these allegations were ta far remove from the allegations of misconduct that underlay Binette." Id.
Despite Martin. "[c]ourts in this District have diverged on the issue of whether Binette created a cause of action for every violation of sections 7 and 9 or only for those violations that are sufficiently egregious." Gilbert \ Newion, No, 13- CV-1715 JCH. 2015 WL 3755955. al *2 (D, Conn. June 15. 2015); Judges Hall and Haight have found that, based on a close reading of Binelle and its underlying rationale. "a violation of sections 7 and 9 gives rise lo a cause of action even if it is not the result of egregious conduct." Ick, see also Waller w City of Middletown, 50 F. Supp, 3d 171, 191-92 (D. Conn 2014), order vacated in port on other grounds on reconsideration, 89 F. Supp. 3d 279 (D. Com 2015).
*20 In the majority of cases, this Court has recognized Binette claims where officers have entered a plaintiff's premises illegally and seriously injured the plaintiff. See e.g. Ouilaw . City of Hartford, No. 7-CV-1769, 2015 WL 1538230, *14 (D. Conm. April 6, 2013) (dem ing summary judgment where officers entered without a warrant and seriously injured plaintiff who was not resisting or attempting to flee); Fago ez Devin, No. HHD-CV-146053659S, 2015 WL 5135940, al +3 (Conn. Super, C) July 31, 2015) (granting motion to strike because allegations that one officer was aggressive and slammed plaintiff against a car and another coerced witnesses for evidence necessary for plaintiff's arrest did not rise to the level of egregious misconduct necessary to state a cause of action): Faulks y, City of Hartford, No. 8- CV-270, 2010 WL 259076, at +10 (D. Com. Jan. 19, 2010) (granting summary judgment where plaintiff was struck with a baton until he fell and could be handcuffed on the grounds that this conduct did not rise to the level of egregious); Conroy 1. Caron. 275 F. Supp, 3d 328. 352 (D. Conn. 2017) (denying summary judgment where officers unlawfully entered and searched a family's home, used excessive force on a teenager who was verbally objecting to their presence and arrested multiple family members without probable cause).
Here, the Count finds that Ramos and the Estate fail to state claims based on the Connecticut Constitution as a matter of law. First, there was no illegal entry into their private home. Ramos and Maldonado were on a public street when they were arrested and placed in police custody in the booking room. Second, although the result of Ramos and Maldonado's contact with police-Maldonado's death-was the most egregious imaginable, the Court cannot find that the police conduct rose to the level and type of egregiousness required by Emette. The undisputed facts demonstrate that Maldonado was attempting to exit the holding cell and punched one of the officers. His conduct is wholly unlike that of other plaintiffs who were compliant with the officers' requests. In contrast, the record also reflects that Ramos cooperated with the officers after his arrest, but he was not injured in the altercation. On these facts, the Court finds that the Defendants' conduct was not sufficiently similar to the conduct at issuc in Binette so as to warrant the ercation of a private cause of action. See, e.g., Nelson v. City of Stamford, No. 09-CV-1690, 2012 WL 233994, al "12 (D, Conn. Jon 25. 2012) (granting summary judgment where one plaintiff' admitted to resisting arrest and the other did not sustain an injury because the conduct did rise to the level of egregious). see also Edwards y City of Hartford, No. 13-CV-878, 2015 WL 7458501. al *2, 5 (D. Com. Nov. 23. 2015) (granting
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summary judgment where one plaintiff was in close proximity to a taser and pepper spray discharge and the other was pepper sprayed on the grounds that the circumstances and injurics were not egregious).
In addition, as this Court has previously acknowledged, "[i]here are separation of powers considerations at issue which counsel against recognizing a state constitutional claim. This case deals with police action, which is an extension of the executive branch of municipal government, If' a cause of action under the state constitution is created here, it may lead to 'second-guessing" by the judiciary of executive actions. This second-guessing could have a chilling effect on police actions." Faults. 2010 WL 259076 at "10, "The threat of liability ... may have a chilling effect on the zeal with which [police officers] undertake their responsibilities." Id. (quoting Kelley Prop. Dev., Inc. v. Lebanon, 226 Con at 314, 342 (1993)) ..
For the foregoing reasons, Defendants' Motions for Summary Judgment on Plaintiff's claims for violations of Articles 7 and 9 of the Connecticut Constitution are GRANTED
B. Count 4 - Negligence Claim
1. By Ramos Against All Defendants
Ramos alleges that Defendants breached their duty to act with reasonable care because, among other things, the Defendant officers acted with excessive force and the Defendant Town of East Hartford and Chief Sansom failed to properly supervise the Defendant Officers. Defendants first argue that Ramos's claim fails as a matter of law because a plaintiff cammot prevail on a negligence claim where he also claims intentional use of excessive force. See e.g., Frappier v. City of Waterbury No 7-CV-1457, 200% WL 4980362, at *3 (D. Con Nov 20. 2008) ("Plaintiff may not prevail on a negligence claim when she has brought claims of intentional use of excessive force and intentional infliction of emotional distress.") A$ Ramos points out, however, other judges within the District of Connecticut have disagreed. See e.g., Bassolari v City uf Hartford, No. 14-CV-00149, 2016 WL 4272419, al *4 (D. Conn. Aug. 12. 2016) ('I do not see why a special exception to this general mule [allowing altemative theories of liability ] should or must exist for claims of intentional and negligent police misconduct in the excessive force context."); Olschafskle, 2017 WL 4286374, at *7 ("[O]ther courts in this District have allowed negligence-based and intent-based
claims regarding the same conduct to proceed to trial, which is consistent with federal pleading rules.").
*21 In Bussolari, Judge Meyer questioned the rationale behind cases that refused to allow alternative theories of liability:
Those decisions ciled above that have disallowed simultaneous intentional/ negligent tort claims in this context have not elaborated on their reasoning other than to cite the fact of prior court rulings. They rely in part on cases applying New York law that appears to be different from Connecticut law ... By contrast, it appears that Connecticut law allows for claims of negligence against police officers. including for negligent arrest and use of force ... Similarly, Connecticut courts have allowed for recovery under Connecticut's negligence-based municipal liability statute, Conn Gen Stat § 52-577n, in cases involving allegations of excessive force by police officers.
2016 WL. 4272419. M *3-4 (internal citations and quounion marks omitted); see also Olschafskle. 2017 WI. 4286374, at *7, Judge Meyer concluded that "gemine fact issues remain to allow a jury to consider whether the defendant officers are liable for intentional forts or negligent tons ... there are genuine issues of material fact that are properly left to a jury regarding how defendants-and plaintiff-acted during the arrest." Bussolari, 2016 WL 4272419, at *3-4, As the Court has stated repeatedly, the nature of the Defendants' conduct is far from clear. Therefore. the Court will allow the jury to decide whether Ramos can prove intentional or negligent conduct. As Ramos cannot recover under multiple claims based on the same conduct and harm, Defendants are not prejudiced.
Defendants next claim that Ramos's claim must fail because they are immune The Court will first consider immunity as applied to the officers involved at the scene, Defendants Lis, Kaplan, and Cohen. The Court will next consider the imimmity as to the Town of East Hartford and Defendant
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Sansom Connecticut employees may claim governmental immunity under common law for negligence claims arising from their official acts that are discretionary rather than ministerial in nature, See, e.g., Spears v Garcia, 263 Com 22, 36 (2003); Belanger v Cuy of Hardfont, 578 F. Supp 2d 360. 366 (D. Comt 2008). "The manner in which a police officer makes an arrest, including when to use force, is a discretionary act" See, e.g. Edwards, 2015 WL 7458501. al *4, Galindez y. Miller, 285 F Supp, 2d 190. 195 (D. Cont. 2003), Therefore, Defendants Kaplan, Lis, and Cohen are entitled to claim governmental immunity The Court also finds that Defendants Town of East Hartford and Sansom are entitled to claim governmental immunity_7
7 The Court discusses the application of governmental immunity to Defendant Town of East Hartford in more detail in Section V.F.
There are three exceptions to the governmental immunity for discretionary acts: "first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm[.] second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws[.] and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence:" Spears, 263 Coun at 36, 818 4.2d 37.
*22 "Courts in this district have applied the identifiable person-imminent harm exception in the context of excessive force claims based on affirmative acts where the harm to the individual is so foreseeable as to create just such a duty of care." Belanger, 578 F. Supp. 2d at 367 (collecting cases). The Connecticut Supreme Court has laid out a three-part test for the identifiable person-imminent harm exception to apply: "(1) an imminent harmi: (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." Doe v. Petersen, 279 Conn. 607, 616 (2006); Brooks @ Powers. 165 Conn App. 44, 54 (2016) (same). For the exception to apply, all three elements must be proven. De, 279 Con, at 620,
Ramos alleges that Defendants Kaplan. Lis, and Cohen used excessive force by causing trauma to his head, increased his risk of harm, failed to use generally-accepted law enforcement tactics, and failed to take measures to protect his health. He also alleges that Defendants Town of Fast Hartford and Sansom failed to properly hire, train, and supervise employees, failed to enforce lawful policies, and tolerated
wrongful policies. Defendants move for sununary judgment on Ramos's claim in its entirety. In his opposition briefing however, Ramos fails to address the full claim and argues only the following: (1) Ramos was an identifiable victim because he was the persou against whom Defendant Lis used force, (2) Ramos was subjected to an imminent harm while in police custody, and (3) it was apparent to Defendant Lis that his conduct was likely to cause Ramos that harin because he is the one who deployed the pepper spray To the extent that Ramos alleges a negligence clain, other than the negligence claim against Defendant Lis for spraying him with pepper spray prior to his arrest, the Court deems il abandoned and grants Defendants' Motions for Summary Judgment on that claim
As to the claim against Defendant Lis. Ramos could constitute an identifiable victim of the alleged harm, pepper spray. caused by the Defendant Lis's force if such force was shown to be excessive, See, e.g. Jefferson v. Reddish, No. 12-CV-1543. 2017 WL 62510. at *5 (D. Com. Jan. 4, 2017) "[A plaintiff] could constitute an identifiable victim of the alleged harms caused by the force applied if such force is shown to be unauthorized as excessive."). As explained above, however, the Court finds that the undisputed facts show that Defendant Lis did not use excessive force against Ramos at any point on the night of April 13. 2014. Therefore, because the Court finds that Defendants Lis did not use excessive force against Ramos or arrest him in an unreasonable manner as a matter of law. Defendant Lis is entitled to governmental immunity and the identifiable person-imminent harm exception does not apply For the foregoing reasons, Defendants' Motions for Summary Judgment on Ramos's negligence claim is GRANTED
C. Count 5 - Wrongful Death Claim
E By the Estate Against All Defendants
The Estate brings a wrongful death claim against all Defendants In Connecticut, a decedent's estate may recover "from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, including funcral expenses." CONN. GEN, STAT. § 52-555(a). As explained above in Section V.B., state governmental actors may claim immunity for govemmental acts that were discretionary and not ministerial. Govemmental acts are "supervisory or discretionary in nature" and ministerial acts are those "to be performed in a prescribed manner without the exercise of judgment or discretion" Ravalese w Town of East Hartford
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Ramos v. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
et al. No. 16-CV-1642, 2019 WL 2491657, at *10 (D: Com June 14. 2019) (quoting Mulligan v. Rioux, 229 Conn. 716, 727 (Conn 1994)) (internal citations and quotation marks omitted).
*23 To determine the nature of Defendants' actions, the Count must consider the Estate's claim against eachv Defendant. The Estate alleges that Defendant Kaplan used excessive Force against Maldonado and Defendants Kaplan, Lis. and Colieu failed to provide him seek prompt medical attention. The decision as to the appropriate type and amount of force is discretionary and the Court finds Defendants may be immune unless an exception applies.
The Estate alleges that Defendants Town of East Hartford and Sansom failed to properly train officers, condoned improper practices, and discouraged officers from using lifesaving medical treatment to save detainees' lives, These acts are discretionary in nature and Defendants Town of East Hartford and Sansom may claim governmental immunity unless an exception applies
Defendants argue that they are imimine, and the parties dispute whether the identifiable person-imminent harm exception applies. Defendants Kaplan, Lis, and Cohen argue that Maldonado was not an identifiable victim and it was not apparent that their conduct was going to cause him imminent harm. As the Estate correctly argues, however, "[c]ouns in this district have applied the identifiable person-imminent harm exception in the context of excessive force claims based on affirmative acts where the harm to the individual is so foreseeable as to create just such a duty of care." Belmiger v. City of Hartford, 578 F. Supp 2d 300. 367 (D) Com: 2008) (collecting cases); see also, Keeney , City uf New London, 196 F. Supp, 2d 190, 202 (D. Conn 2002) (denying summary judgment on wrongful death claim on the grounds that "officers' alleged use of force after the plaintiff was handcuffed posed an apparent and imminent harm to |arrestee]"); see also Jefferson, 2017 WL 62510, at *4 (denying summary judgment on negligence claim where "plaintiff could constitute an identifiable victim of the alleged harms caused by the force applied if such force is shown to be unauthorized as excessive"). see also Roguz v. Walsh, No. 9- CV-1052. 2012 WL 6049580, a( *9 (D Conn. Dec. 5. 2012) (denying summary judgment ou governmental funnunity and applying imminent harm exception where "plaintiff was a clearly identifiable victim to Walsh, and it is undispuled that Walsh purposefully hit and swung his baton at plaintiff, Plaintill was put at risk of inuminem harn from Walsh's hits
and baton swings"). Here. Maldonado was an identifiable victim when Defendant Kaplan tased him, when Defendant Lis punched him and when Defendant Cohen allegedly pepper sprayed him. There is sufficient evidence for a jury to conclude that Maldonado was subject to the possibility of imminent harm and the Defendants were aware that their conduct was likely to subject Maldonado to that harm. See Marsh y Tinen of East Hartford, No. 16-CV-928, 2017 WL 3038305, al *8 (D. Conn July 18, 2017) (denying summary judgment on governmental immunity where "there |was] sufficient evidence for a jury to conclude that Marsh was an identifiable victim who was subject to possibility of imminent harmi during the course of the arrest"). Accordingly, as lo Defendants Kaplan, Lis, and Coben, sunumary judgment on the Estate's wrongful death claim is DENIED.
Defendants Lis and Cohen also argue that the Estate's wrongful death claim fails because there is no evidence of proximate cause. They cite Dr. Myerburg's testimony that there was no evidence that Maldonado's head hitting the wall led to cardiac arrest and ultimately, Maldonado's death. [DkL 126-7 at 77:18-78:11, 104:20-105:7]. In response, Plaintiff argues that Maldonado's cause of death is disputed and cites. the medical report which lists "blunt injury of head" as a contributing cause of Maldonado's death. [Dkts. 132-7 at 6; see also 132-35 (Gill Dep.) at 50:5-17 ("I think the precordial and electric shock and the blunt injury of the head are both kind of the processes that resulted in the death and the cardiac arrhythmia.")]. A reasonable jury could conclude that: Defendants' actions were a proximale cause of Maldonado's death For the foregoing reasons, Defendants' Motion for Summary Judgment on Plaintiff's wrongful death claim as 10 Defendants Kaplan. Lis, and Cohen is DENIED, See Kenney, 196 F. Supp. 2d at 202.
*24 The Court finds, however, that the identifiable victim- imminent harm exception does not apply to Defendants Town of East Hartford and Sansom. " Under the exception, "[i]mminent does not simply mean a foreseeable event at some unspecific point in the not too distant future Rather, we have required plaintiffs to identify a discrete place and time period at which the harm will occur." Haynes w City of Middletown, 314 Con. 303. 318 (Conn 2014) (quoting Bonington w Westport: 297 Conn. 297, 314 (2010)) (collecting cases). The Estate argues that Defendants condoned improper taser use, discouraged officers front performing lifesaving medical treatment, failed to train officers to perform medical treatment, and tatified use of excessive force, The Estate presents no evidence to establish
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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an imminent and specific harmi and thereby fails to mect its burden to establish the exception to governmental immimity as a matter of law. See Seri, 573 F. Supp. 2d at 676 (granting summary judgment for lown defendant where plaintiff did not allege that it, "acting through a specifically identified public official, was on notice that [plaintiff] was individually subject to a specific and imminent harm so that it was in a position to make a decision that specifically impacted [plainti[T] and caused the resulting harm,"); see also Elliott w. Harnett, 9-CV-00948, 2014 WL 4199663, at +8 (D. Conn. Ang: 22. 2014). Because the exception does not apply to Defendants Town of East Hartford and Sansom, they are entitled lo immunity. Therefore, Defendants' Motion for Summary Judgment on the Estate's wrongful death claim as to Defendants Town of East Hartford and Sansom is GRANTED.
8 Since the Connecticut Supreme Court's decision in Doe . Petersen, "the prevailing opinion of the lower courts in Connecticut appears to be in favor of applying the identifiable victim/imminent har exception to municipal immunity, too." Serf Towa of Newtown. 573 F. Supp. 2d 661. 673 (D. Conn. 2008), see also Cooper v. City of Hartford. No. 7-CV-823. 2009 WL 2163127. al *27 (D): Con July 21, 2009) (adopting the "prevailing opinion"); Gothherg \ Town of Plainville, 148 .F. Supp: 3d 1GX, 193 6 30 (D, Conn 2015).
D. Count 6 - Bystander Emotional Distress Claim
1. By Ramos Against Kaplan, Lis and Cohen
Ramos brings a claim for bystander emotional distress against Officers Kaplan: Lis and Cohen. To recover on a claim for bystander emotional distress under Connecticut law, Ramos must show "(1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional Injury of the bystander is caused by the contemporancous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location, (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an
abnormal response." Clolessy v: Bachelor, 237 Con. 31. 56 (1996).
Del'endanis argue that Ramos's bystander emotional distress claim fails as a matter of law because the undisputed evidence shows he cannot meet the final prong serious emotional injury. This prong requires injuries so severe such as to "warrant a psychiatric diagnosis or otherwise substantially impair the bystander's ability to cope with life's daily routines and demands" Squeo \ Norwalk Hosp, Ass'w. 316 Con 558, 585 (2015), Defendants argue that Ramos cannot show a serious entotional injury under either of these methods, First. Defendants note that Ramos attended only three counseling sessions with Donald Topor. a Licensed Clinical Social Worker ("LCSW"), even though he had the opportunity to attend ten sessions through his employer. Ramos has not sought additional treatment since those three sessions in the summer of 2017 and Defendants claim he has not received a psychiatric diagnosis. Second, Defendants argue that Ramos's full-time employment and pursuit of his master's degree evidence that he is fully capable of coping with life's demands
In response, Ramos points to evidence which shows a genuine dispute of material fact. With regard to a psychiatric diagnosis. Ramos cites LCSW Topor who diagnosed him with major depression, recurrent. LCSW Topor also noted symptoms which may interfere with Ramos's ability 10 cope with activities of daily life such as depressed mood, diminished interest and pleasure, insomnia, worthlessness, irritated mood excessive anxiety, and irritability. Ramos testified that he is triggered by police officers and celebrating family evems. He also testified that he has taken time off work because of his symptoms. The Court finds that a reasonable jury could conclude that Ramos has established a claim for bystander emotional distress. Therefore, Defendants' Motions for Sununary Judgment on this claim are DENIED
E. Count 7 - False Arrest Claim
i. By Ramos Against Lis and Cohen
*25 Ranios brings a state law claim for false arrest against Officers Lis and Cohen These claims must be dismissed for the same reasons that they were dismissed under § 1983. See Jocks w. Taverwier, 316 F.3d 128, 134 (2d Cir. 2003) ("Claims for false arrest or malicious prosecution, brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are "substantially the
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Page 247 of 484
Ramos v. Town of East Hartford, Not Reported In Fed. Supp. (2019) 2019 WL 2785594
samo'as claims for false arrest or malicious prosecution under state law "). As explained above in Section IV.A. T. the Count found that the undisputed facts show that there was probable cause for Officer Lis to arrest Ramos: "It is well-established that probable cause is a complete defense to claims of false imprisonment and false arrest" Johnson e, Ford, 496 F. Supp 2d 209, 213 (D. Com. 2007), see also David v Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004), Because Officer Lis has established a complete defense, Ramos's false arrest claims fail as a matter of law. Therefore, Defendants' Motions for Summary Judgment on the false arrest claim are GRANTED,
Con Gen. Stat. § 7-465 provides that a municipality shall indemnify its employees acting within the scope of their employment for all infringement of civil rights or damage lo person or property unless the damage was the result of a willful or wanton act. See CONN. GEN, STAT. § 7-165 Defendant Town of East Hartford is only liable to indentify Defendants against Ramos's negligence claim. Because the negligence claim fails and there is no other claim for which Defendant Town of East Hartford can indemmily Defendants, Defendant Town of East Hartford's Motion for Summary Judgment on Plaintiffs' § 7-465 claim is GRANTED.
F. Count 8 -Con: Gen. Stat. § 52-557n Claim
i. By Ramos and the Estate Against Town of East Hartford
Conn. Gen Stat. § 52-557n provides that a municipality shall be liable for damages to person or property caused by the negligent acts or omissions of its employees acting within the scope of their employment, provided that such acts or omissions do not constitute "criminal conduct, fraud. actual malice or willful misconduct." See CONN. GEN STAT. § 52-557n. Defendant Town of East Hartford argues that it is entitled to governmental immunity to the same extent that the individual defendants are entitled to such immunity on Ramos's negligence claim. The Court agrees See CONN. GEN. STAT § 52-557n(a)(2)(B); Cooper, 2009 WL 2163127.al *27. As noted above, the Defendants' actions are discretionary governmental acts, thus Defendant Town of East Hartford is immune for the acts or omissions of its officers unless an exception applies. The Court previously found that the identifiable person-imminent harm exception does not apply, and the Defendants are immune from Plaintiff's negligence claim. Therefore, Defendant Town of East Hartford's Motion for Summary Judgment on Plaintiffs' § 52-5570 claim is GRANTED
G. Count 9 - Conn. Gen Stat. § 7-465 Claim
1. By Ramos and the Estate Against Town of East Hartford
VI. Conclusion
Forthe foregoing reasons, Defendants' Motions for Summary Judgment are GRANTED IN PART and DENIED IN PART. Defendants' Motions for Summary Judgment are GRANTED are to the following claims: (1) unreasonable search and seizure by Ramos against Defendant Lis; (2) excessive force by Ramos against Defendant Lis; (3) failure to intervene by the Estate against Defendants Kaplan. Lis, and Cohen: (+) Monell by Ramos and the Estate against Defendants Town of East Hartford and Sansom; (5) Connecticut Constitution Articles 7 and 9 by Ramos and the Estate against all Defendants: (6) negligence by Ramos and the Estate against all Defendants: (7) wrongful death by the Estate against Defendants Town of East Hartford and Sansom; (8) false arrest by Ramos against Defendants Lis and Cohen: (9) Conn. Gen. Stat: § 52-557n by Ramos and the Estate against Defendant Town of East Hartford; and (10) Conn. Gen. Star § 7-465 by Ramos and the Estate against Defendant Town of East Hartford. The following claims remain for trial: (1) excessive force by the Estate against Defendants Kaplan, Lis, and Cohent; (2) deliberate indifference by the Estate against Defendants Kaplan, Lis, and Cohen; (3) wrongful death by the Estate against Defendants Kaplan, Lis, and Cohen, and (4) bystander emotional distress by Ramos against Defendants Kaplan, Lis, and Cohen:
#26 IT IS SO ORDERED
All Citations: Not Reported in Fed. Supp., 2019 WL 2785594
End of Document
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94

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 248 of 484
Walker v. Raja, Slip Copy (2020) 2020 WL 608788
2020 WL 606788
Only the Westlaw citation is currently available. United States District Court, E.D. New York.
Michael Tracy WALKER, Plaintiff, v.
Police Officer Taimur RAJA, Police Officer David Vazquez, Police Officer Estharlin Lopez, Police Officer Kyle Brown, Police Officer William Chow, Police Officer Elisa Battista, Sergeant Sazedur Rahman, and the City of New York, Defendants.
17-CV-5202 (PKC) (LB)
Signed 02/07/2020
Attorneys and Law Firms
Michmel Tracy Walker, Napanoch, NY pro sc.
Allyson Nicole Brown, Christopher Dominick DeLuca, New York City Law Department, New York. NY. for Defendants.
MEMORANDUM & ORDER
PAMELA R, CHEN, United States District Judge
*1 Plaintiff Michael Tracy Walker brings this pm se action against Defendants Police Officer Taimur Raja. Police Officer David Vazquez, Police Officer Estharlin Lopez, Police Officer Kyle Brown, Police Officer William Chow, Police Officer Elisa Battista. Sergeant Sazedur Rahman, and the City of New York, advancing multiple claims under 42 U.S.C. § 1983 and related claims under New York law, in connection with Plaintiff's January 2017 apprehension and arrest. Currently before the Coun are the parties' cross- motions for summary judgment. For the reasons stated below, Plaintiff's motion for summary judgment is denied in its entirety, and Defendants" motion for summary judgment is granted in part and denied in part
BACKGROUND
I. Facts
On January 8. 2017, Plaintiff entered Kangan Jewelers. located at 1058 Coney Avenue, Brooklyn, New York, at the corner of Foster Avenue and Avenue H. (Defendanis' Rule
56.1 Statement of Material Facis ("Defs" 56.1"), Dkt. 112. 1 1.) Plaintiff was carrying a fireami and intended to steal jewelry from the store at gunpoint. (Id .: see also Deposition of Michael Tracy Walker ("Dep. Walker"), Dkt. 114-1. at 43:5-17, 44:16-24 ) After entering the store, Plaintiff took jewelry while threatening the store owner, Mr Iqbal, and the store employee, Ms. Parveen, with the gun, (Defs. '56.1. Dk1. 112, " 2) In an attempt to restrain Plaintiff, Mr. Iqbal grabbed Plaintiff's upper body. (/d "| 3.) Plaintiff then used his firearm to strike Mr Iqbal in the head. (id [ 4.) Plaintiff fled the store by kicking and slamming his body against the locked glass door, causing it to shatter onto his body (d. 19 6-7.) Plaintiff exited the store with the jewelry and his fircarm (id: " 8), but Mr Iqbal followed Plaintiff and wrestled hin to the ground on the sidewalk outside (id { 9), Plaintiff and Mr. Iqbal struggled and exchanged blows until several civilian bystanders intervened, grabbed Plaintiff. hit him and positioned him face-down on the pavement, as he resisted Ilcir clToris to restrain lum (/d "1 10-12, Dep. Walker. Dki. 114-1, at 62:1-25.) In the meantime, Ms. Parveen and other civilians had called 911 to repon both the robbery and Mr. Iqbal's injuries (Defs' 56.1. DkL. 112. 1 5, 16.) AL abonl 8:26 pm, several police officers from the New York City Police Department ("NYPD") arrived at the scene. (ld *| 17.) NYPD officers, including Defendants Vazquez and Raja, held Plaintiff dowa and attempted to pull his hands behind his back in order to handcuff him, (7d. 1 18-20.) In an effort to subdue Plaintiff, an officer struck Plaintiff several times. d. 1/ 19-20.) Plaintiff testified that the first officer to approach him was a female officer- with a "ponytail [o]n the back of her head." who "began repeatedly punching" him in the face (Dep. Walker, Dkt. 114-1, al 65:18-20, 66:19-22. 67:2-4.) According lo Plaintiff, "multiple people |were] striking |him] at one time." (d. at 69:5-7.)
-
Unless otherwise noted, a standalone citation to a party's 56.1 statement denoles that this Count has deemed the underlying factual allegation undisputed. Any citation to a 56.1 statement incorporates by reference the documents cited therein; where relevant, however, the Court may cile directly to an underlying document. The Court has deemed facts averred in a party's 56.1 statement to which the opposing party cites no admissible evidence in rebuttal as undisputed See Lambermens Mot. Cas. Co. 1! Diew No: 06-CV-3881 (TCP), 2012 WL 4498827. #1 +2 1.2 (E.D.N.Y Sept 12: 2012)
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 249 of 484
Walker V. Raja, Slip Copy (2020)
2020 WL 608788
("Local Rule 56.1 requires ___ that disputed facts be specifically controverted by admissible evidence Mere denial of an opposing party's statement or denial by general reference to an exhibit or affidavit does not specifically controvert anything" (emphasis in original)). Additionally. to the extent a party's 56.1 statement "improperly interjects arguments and/or immaterial facts in response lo facts asserted by |the opposing party] without specifically controverting those facts," the Court has disregarded the statement. Risco it McHigh, 868 F. Supp. 2d 75. 85 n.2 (S.D.N.Y. 2012).
Although Plaintiff did not file a Rule 56.1 Counterstatement, as required by the local rules. in light of Plaintiff's pro se status, the Count overlooks this failure and examines the underlying factual exhibits submitted by the parties. See Onmirt v. Security. No. 12-CV-5425 (PKC). 2015 WL 13019584. at +1 (E.D.N.Y. Feb. 5, 2015) (citing Holtz y: Rockefeller de Co., 258 F.3d 62, 73 (2d Cir 20010)
2 While Defendants do not provide evidence that Defendant Battista is female, they do not dispute that "Defendants Rahman, Raja, Vazquez, Lopez, Brown, and Chow are not female." (d), 1 22.)
*2 Plaintiff was taken to the 70th Precinct and ultimately charged with, inter alia, Robbery, Assault, Grand Larceny, Criminal Possession of a Weapon, and Criminal Possession of Stolen Property (Defs.' 56.I. Dk1. 112. 1 24. 26,) Plaintiff subsequently pled guilty to the charge of Attempted Robbery in the Second Degree " and was sentenced to a term of 12 years to life, as a "Persistent Violent Felony Offender" along with a 20-year order of protection to refrain from contact with Mr Iqbal and Ms. Parveen, (Id. 11 28-29)
3 See N.Y. Penal Law § 160-10(2)(a)
Prior to January 8. 2017, Plaintiff had been diagnosed with advanced glaucoma and distorted vision. (id. * 15: Dep Walker, Dkt, 114-1, at 89;20-90:19.) On the night of the robbery, after his altercation with Mr. Iqbal and the group of civilians. Plaintiff's vision became more blurred (Defs. 56.1. Dki. 112, 5 13.) Sometime after January 8. 2017, Plaintiff's vision became totally impaired. (/d. 1 14.)
On or about May 12. 2017, Plaintiff filed a Notice of Claim with the New York State Office of the Comptroller concerning
state law claims arising from his January 2017 arrest. (Id. " 30.) The Comptroller's Office informed Plaintiff on or about May 24. 2017 that his claim was disallowed as untimely because it was not filed within 90 days from the date of his January 8, 2017 amrest. (d: 931.)
IL Procedural History
Plaintiff commenced this action on or about August 22, 2017 in the Southern District of New York. (Dkl. L.) Plaintiff's initial complaint alleged, inter alta, claims of' excessive force under $ 1983 and related state law claims against Defendants Raja, Vazquez, Lopez, Brown, and the City of New York (Complaint. Dkt. 2.) On September 5. 2017, the case was transferred to the Eastem District of New York. (Dki. 5.) The case was stayed by Order dated November 6, 2017. pending resolution of the Civilian Complaint Review Board's ("CCRB") investigation into the underlying incident. (Dkt. 21.) Plaintiff amended his initial complaint on November 13. 2017 to include claims of deprivation of federal civil rights, municipal liability, and failure to intervene. (Amended Complaint, Dkt. 22.) On August 7, 2018, the stay was lifted (Dkt. 51). and, as discovery progressed, Plaintiff submitted a "proposed amended complaint" on October 31. 2018, adding Sergeant Rahman and Police Officers Chow and Battista as Defendants (Dkts. 61, 62). Plaintiff fe-filed his proposed amended complaint as an amended complaint effectively his Second Amended Complaint-on November 26, 2018 (Second Amended Complaint ("SAC"), Dkt. 66.) Plaintiff was deposed on December 3, 2018. (Dep. Walker, Dk 114-LY
On January 3. 2019. Plaintiff filed his motion for summary judgment. (Plaintiff's Motion for Summary Judgment ("PL's Mot,"). Dkt. 73.) By Order dated January 4, 2019, the Court construed his motion as a request for a pre-motion conference Defendants, in tum: requested a pre-motion conference for their anticipated summary judgment motion on February 1. 2019. (Dkt. 83.) A pre-motion conference was held on March 6, 2019, at which the Court sct a briefing schedule for bothr partics' proposed motions for summary judgment, which were fully briefed on July 8, 2019. (Dkts 73, 110, 1175
STANDARD OF REVIEW
Summary judgment is appropriate where the submissions of the parties, takeu together, "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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Page 250 of 484
Walker v. Raja, Slip Copy (2020) 2020 WL 608788
to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-32 (1986) (noting that summary judgment inquiry is "whether the evidence presents a sufficient disagreement lo require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the noumoving party," Anderson, 477 U.S. at 248.
*3 The initial burden of "establishing the absence of any genuine issue of material faci" rests with the moving party. Załaski 1; City of Bridgeport Police Dep'ı, 613 F.3d 336, 340 (2d Cir. 2010). Once this burden is met. however, the burden shifts to the non-moving party to put forward some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli v. City of New York, 579 F.3d 160, 166-67 (2d Cir. 2009); see also Celotex Corp. v. Carrett, 477 U.S. 317. 322-23 (1986). A mere "scintilla of evidence" in support of the non-moving pany is insufficient; rather, "there must be evidence on which the jury could reasonably find for the [non-movant]," Hayut y State Univ. of N.Y., 352 F.3d 733 743 (2d Cir. 2003) (quoting Inderson, 477 U.S. at 252), In other words, "[t]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Caldarola : Calabrese. 298 F.3d 156, 360 (2d Cir. 2002) (internal quotation and emphasis omitred);
When assessing whether a genuine issue of fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party, Alfajor Tengue Baseball Props, Inc. k Salvino, Inc .. 542 F.3d 290, 309 (2d Cit. 2008). The Court also construies any disputed facts in the light most favorable to the non-moving party. See Adickes v. S. H. Kress & Co., 398 U S: 144, 157-59 (1970), However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48. "The same standard of review applies when the court is faced with [a] cross-motion[ ] for summary judgment" Lauria N. Heffernan, 607 F. Supp. 2d 403, 407 (E.D.N.Y. 2009) (internal quotation omitted), When evaluating cross-motions for summary judgment, the Count reviews cach party's motion on its own merits and draws all reasonable inferences against the party whose motion is under consideration. See Moraley %. Quinlel Enim't, Inc., 249 F,3d 115, 121 (2d Cir. 2001)
In considering a dispositive motion brought or defended by a pro se litigant. the Court must "liberally construe" the
pro se party's pleadings in his Favor and hold him to "less stringent standards than formal pleadings draftod by lawyers." Hughes w Rowe, 449 U.S. 5, 9-10 (1980) (internal quotation and ellipsis omitted), see also Bertin : United States, 478 F.3d 489, 491 (2d Cir, 2007) ("|The Second Circuit] liberally construc[s] pleadings and briefs submitted by pro se litigants. reading such submissions to mise the strongest arguments they suggest." (internal quotation and citations omitted)) Nonetheless, "[proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence, are insufficient to overcome a motion for summary judgment." Rodriguez v. Hahn, 209 F, Supp. 2d 344, 348 (S.D.N. Y. 2002) (internal quotation and citation omitted).
DISCUSSION
Both parties move for summary judgment on the following claims + : (1) excessive force (as to Defendants Raja, Vazquez Lopez, Brown, Chow, and Battista ? ): (2) failure to intervene (as to all individual Defendants); (3) denial of the right to a fair trial (as to Defendants Raja and Vazquez); (4) failure to supervise (as to Defendant Rahman): (5) violation of due process and equal protection (as to all individual Defendants); (6) qualified immunity (as to all individual Defendants): (7) municipal liability (as to the City of New York); and (8) state law claims (as to all individual Defendants)." (See PL's Mot ... Dkt. 73, at 5-12; Defs," Mot .. Dkt. 113, at 9-33.)
4 Because of Plaintiff's pro se status, the Court allowed Plaintiff's right to fair trial claim, alleged for the first time in Plaintiff's motion for summary judgment (Dkt. 73). to be added, in effect, to his Second Amended Complaint. (See Minute Entry March 6, 2019.)
Plaintiff's Second Amended Complaint did not explicitly allege excessive force as to Defendant Battista, which Plaintiff explained was because he had not yet viewed the widco of the underlying incident. (SAC. Dkt, 66, ** | 5, 13.) However, because PlaintilT's Second Amended Complaint alleged that Battista "was present during plaintiff]'s| assault and arrest" (id.), and because Plaintiff now asserts his excessive force claim as Io Defendant Battista in his motion for summary
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97

Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
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judgment (PL's Mot., Dkt. 73:1 7), the Court allows this claim to proceed as to Defendant Battista.
6- In both his Second Set of Supporting Facts (Dkt. 96) and his opposition to Defendants' motion for summary judgment (Dkl. 102), as well as unfinished or duplicate copies thereof (Dkts. 101. 106), Plaintiff raises, for the first time, allegations that (1) Defendants "doctored" the video evidence showing his January 8. 2017 apprehension and atTest: (2) Defendants and various non-parties lo the case engaged in spoliation of evidence and Brady violations; (3) Plaintiff's public defender provided ineffective assistance of counsel in his state criminal case; and (4) the Court prejudiced Plaintiff by granting Defendants a stay in this case for nine months during the CCRB review. (Plaintiff's Brief in Opposition of the Defendants Motion ("PL's Opp."), Dkt. 102. 14 2, 7-10, 13- 16.) Except as previously noted, the Court exercises its discretion not to consider allegations newly made in Plaintiff's various reply submissions. See DeFilippo. N.N. Y. State Unified Court Sys .. 223 F. App'x 45, 46 (2d Cir. 2007) (summary order) (holding that pro se plaintiff could not raise a due process claim for the first time in his opposition to defendants" summary judgment moron): Tramas 1: Egan. 1 F. App'x 52, 54 (2d Cir. 2001) (summary order) ("[I]t is inappropriate to raise new claims for the first time in submissions in opposition to a summary judgment motion.").
Even allowing brief consideration of these claims in light of Plaintiff's pro se status, the Court finds that they are not cognizable. First. Plaintiff offers no record evidence to suggest that the video evidence was doctored. Second. Plaintiff's claims against non-parties to this case (e.g., the Court, his public defender, Assistant District Attorney Michacl Jaffe, the CCRB), are not cognizable for their failure to meet fundamental pleading standards. Furthermore, Plaintiff's remaining claims for ineffective assistance of counsel and prejudice due to the carlier stay in this case are challenges to the validity and duration of his confinement, which may only be brought in this court pursuant to the federal habeas corpus statute. 28 U.S.C. § 2254. See NicKithen v Brown 481 F,3d 89, 100-01 (2d Cir 2007) (" "[Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of
his confinement and seeks immediate or speedier release." " (quoting Heck v. Humphrey, 512 U.S. 477,481 (1994))) Indeed. Plaintiff has asserted the samic claims in a separate habeas petition, filed on December 18, 2018, in this district. See Walker v Keiser, No. 18-CV-7227 (KAM) (LB).
I. Excessive Force
*4 "Which the parties disagree as to the existence of a genuine dispute of a material fact, the Court may consult incontrovertible video evidence to determine whether summary judgment is nevertheless appropriate." Wiles « City of New York, No. 13-CV-2898 (TPG), 2016 WL 6238609. all *3 (S.D.N.Y. Oct. 25. 2016) (citing Scott v, Harris, 550 LZS. 372, 379-80 (2007)). Here, Defendants have supplied video footage (the "Video") of Plaintiff's January 8, 2017 apprehension and arrest, recorded by a surveillance camera located outside Kangan Jewelers. (Defendants' Exhibit B ("Video"), Dkt. 114-2.) The Video shows that, shortly after civilians had subdued Plaintiff. six police officers arrived at the scene and took control of Plaintiff "by holding him down and attempting to pull his hands behind his back." (Defs." 56,1, Dkt. 112, " 18; Video, Dkt. 114-2, at 20:21:27-24:14.) One of these officers seems to match Plaintiff's description of a female officer wearing her hair in a ponytail. (Dep. Walker. Dkt. 114-1. 66:10-67:4; Video, Dkt. 114-2, at 20:21:27- 30.) The Video also shows nne police officer, who appears to be male, repeatedly administering blows to Plaintiff, although it is not clear which part of Plaintiff's body is being stnick (Video, Dkt. 114-2, at 20:21:48-22:03.) Plaintiff has lestified that "there were multiple people striking [me] at one time." (Dep. Walker, Dkt. 114-1, 69:5-7.) Due to the presence of other bystanders and the angle of the camera, the Video does not clearly show either the other officers' actions including those of the female officer (who Plaintiff claims struck him), or Plaintiff's movements, if any, while he was on the pavement. (See id at 20:21:20-24:13.)
A. Personal Involvement of Defendants Raja. Vazquez, Brown, Lopez, and Chow
Defendants argue that PlaintilT cannot demonstrate the personal involvement of Officers Raja, Vazquez, Brown, Lopez, and Chow in any alleged use of excessive force against him. (Defendants" Memorandum of Law in Support of Their Motion for Summary Judgment ("Defs. "Mot."), Dkt 113, at 9-10.] The Court disagrees, except as to Defendant Lopez.
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7 Defendants do not move for summary judgment on Plaintiff's excessive force claim as to Defendant Battista on this ground. In his deposition. Plaintiff identified Defendant Battista as the officer who kneeled over and struck Plaintiff repeatedly as he was being arrested (Dep, Walker, Dkt, 114-1, 66:17-22.) As discussed infro, Defendants instead argue that no jury could find that any force used by Battista, as well as the otlier officers, was excessive, and that, in any event, all Defendants are entitled to qualified immunity.
"An individual defendant is not liable under § 1983 absent personal involvement." Morris v. Eversley, 282 F. Supp, 2d 196, 202 (S.D.N.Y. 2003) (citing Wright v, Smith, 21 F.3d 496, 501 (2d Cir. 1994)). "A police officer is personally involved in the use of excessive force if the officer either; (1) directly participates in an assault, or (2) is present during the assault, and fails to intercede on behalf of the victim even though he had a reasonable opportunity to do so." Vesterhalt * City of New York, 667 F. Supp. 2d 292, 297 (S.D.N.Y. 2009) (quoting Ricciuti v. N.T.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)). Consequently, officers who are liable under a theory of direct participation in the use of excessive force cannot also be held liable for their failure to intervene, See Ross e City of New York, No 17-CV-3505 (PKC) (SMG). 2019 WL 4805|47, at *10 (E.D.N.Y. Sept 30. 2019); Jackson v: City of New York, 939 F. Supp. 2d 219, 232 (E.D.N.Y. 2013), Chepilko v. City of New York, No 06- ČV-5491 (ARR) (LB), 2012 WL 398700, at +& n.5 (E.D.N.Y Feb. 6. 2012] However, where a group of officers is involved in an alleged use of excessive force, "a plaintiff need not establish which officer ... directly participated in the attack and which officer failed to intervene." Serrata y: Givens, No 18-CV-2016 (ARR), 2019 WL 1597297, at *6 (E.D.N.Y. Apr 2019) (quoting Vesterluft. 667 F. Supp, 2d at 297).
A police officer "who does not personally inflict the injury at the core of an excessive use of force claim may still be liable under § 1983 if the officer was present at the assault. and fails to intervene to prevent the harm when the officer had a reasonable opportunity to do so." Raffaele v City of New York, 242 F. Supp, 3d 152, 156 (E.D.N.Y. 2017). Liability for failure to intervene under § 1983 may attach "only when (1) the officer had a realistic opportunity to intervene and prevent the harm: (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer does not take reasonable sieps to intervene." Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008) (citing ('Neill : Krzeminski, 839
F.2d 9. 11-12 (2d Cir. 1988)), see also Terchesi @ Torreso. 764 F.3d 217, 244 (2d Cir. 2014) ("Whether lan] officer hals| a 'realistic opportunity" to intervene is normally a question for the jury, unless, 'considering all the evidence. a reasonable jury could not possibly conclude otherwise." " (quoting Anderson v: Bremen, 17 F.3d 552, 557 (2d Cir.
*5 Here, the Court finds that, except as to Defendant Lopez- there remain factual disputes regarding what each of the Defendant Officers did during the struggle with Plaintiff and the degree of force each officer used, Owing to the fact that Plaintiff is incarcerated and proceeding pro se, a paucity of evidence has been generated in discovery: indeed, it appears that the only party deposed in this matter was Plaintiff. However, in their 56.1 Statement, Defendants admit that "several officers from the [NYPD] responded to the scene," including "Defendam[ ] Officers David Vasquez [sic] and Taimur Raja, as well as additional officers." (Def's.' 56.1. Dkr. 112. 15 17-18.) And while Defendants do not specifically state that Officers Lopez, Brown, and Chow were also at the scene, they do not dispute this assertion. In the absence of evidence that Officers Lopez, Brown. and Chow were not present-evidence that the Court presumes Defendants have access to and would have produced if it existed the Court finds that the presence of these officers is, at a minimum, disputed. &
8 Notably, Defendants have not proffered any affidavits, as part of their summary judgment briefing, attesting to whether they were at the scene or not, and what actions, if any, they took in restraining and/or arresting Plaintiff.
The video of the arrest shows a group of six officers participating in the struggle to restrain and handcuff Plaintiff. (Video, Dkt. 114-2. at 20:21:28-20:24:14.) It also shows one officer striking Plaintiff repeatedly somewhere on his body during the arrest (Id. at 20:21:48-20:22:03.) In fact. Defendants acknowledge that "an officer stnick plaintiff in order to gain compliance to put on the handcuffs," but do not identify the officer. (Defs.' 56.1. Dkt. 112, "| 20.) Plaintiff. however, in his deposition, identified the officer seen striking him in the Video as Defendant Battista. " (Dep. Walker, Dkr 114-1. at 66:17-22.) The precise actions of the other officers. who are seen surrounding and on top Plaintiff, are largely obscured by the camera angle, the presence of bystanders, and the crowded nature of the situation itself due to at least six
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
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because an answer has been filed, the showing necessary under Rule 21 is the same as that required under Rule 15(a) See Rissman v Cityof N.Y., No.01 Civ.6284(SHS)(DF), 2001 WL 1398655, at +1 (S.D.N.Y. Nov. 9. 2001).
The Supreme Court has interpreted Rule 15 to bar an amendment if the amendment would be futile. See Hemphill Schon, 141 F.3d 412, 420 (2d Cir 1998) (citing Foman * Daws, 371 U.S. 178, 182 (1962)). An amended claim is futile if it would not survive a motion to dismiss, See Ricciuti. 941 F.2d at 123. In this case. because the motion is unopposed, I have entered a separate order, bearing today's date, granting the motion to amend. As set forth below. however, the Defendants are entitled to summary judgment with respect to all but one of Djangmah's claims in the SAC, 5
6 As a matter of law, the SAC supersedes all of Djangmah's prior pleadings in this case. See Shields Citytrust Bancorp, Inc. 25 F,3d 1124, 1128 (2d Cir 1994); lat'l Controls Carp « Vesco, 556 F.2d 665. 668 (2d Cir. 1977), The Court previously cautioned Djangmah that this would be the effect of an amended pleading when he submitted a proposed FAC that contained no factual allegations and simply referred to his original complaint. (See ECF No. 13) ("[A]n amended complaint typically supersedes the original complaint and renders it of no legal effect. See Harris u City of N.E. 186 F.3d 243, 249 (2d Cir,1999) .... The plaintiff is cautioned that [his] amended complaint will completely replace his initial complaint.").
B. Motion for Summary Judgment
1. Standard of Review
Summary judgment is appropriate only when "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 moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celatex Corp. v Catren, 477 U.S. 317, 323 (1986). If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial. "' and summary judgment must be granted. Matsushita Elec. Indus. Co.v Zenith Rodio Carp 475-U.S. 574, 587 (1986) (quoting First Not'! Bank of Artz. v. Citles Serv. Co_ 391 U.S 253. 288 (1968)).
*5 In deciding a motion for summary judgment, the court must "construjej the evidence in the light most favorable to the non-moving party and draw | | all permissible inferences in its favor ." NY. Civil Liberties Union v, Grandeau, 528 F,3d 122. 128 (2d Cit.2008), The court must accept as truc the non- moving pany's evidence, if supported by affidavits or other evidentiary material. See Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 255 (1986). "Conclusory allegations, conjecture, and speculation, however, are insufficient to create a genuine issue of fact." Kerzer : Kingly Mfg., 156 F.3d 396. 400 (2d Cir. 1998)
In adjudicating a motion for summary judgment. "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl v. Armitage, 128 F.3d 50, 55 (2đ Cir.1997); see also Anderson, 477 U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge"). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Accordingly, "[i]f the evidence is merely colorable ... or is not significantly probative summary judgment may be granted ." Id. at 249-50 (citing Dombrowski v. Eastland, 387 U.S. 82, 84 (1967), Cities Serv (a, 391 U.S. at 290); see also Niagara Mohawk Power Corp. & Jones Chem., Inc. 315 F.3d 171, 175 (2d Cir:2003) (the) ** 'mere existence of a scintilla of evidence" ... is ... insufficient to defeat summary judgment") (quoting Anderson, 477 U.S. at 252).
Although the same summary judgment rules are applicable when a party is proceeding pro se, "special latitude" is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are worded inartfully. See Morris v. Citibank, NA, No 97 Civ. 2127(JGK), 1998 WL 386175, al +2 (S.D.N.Y. July 8. 1998); see also Estelle . Gumble, 429 U.S. 97, 106 (1976) (pro so complaint should be lield to a "less stringent standard| | than formal pleadings drafted by lawyers"); McPherson & Coombe, 174 F.3d 276, 280 (2đ Cir 1999) (pleadings should be read liberally and interpreted to "raise thic strongest arguments that they suggest") (quoting Bergus w Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). By the sante token. however, "a pro se party's 'bald assertion," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom y. Keane.
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No. 95 Civ.9941(SS). 1997 WL 576088. at =3 (S.D.N.Y.Sept, 17. 1997) (quoting Corey v. Crescenzi, 923 F.2d 18, 21 (2d Cir 1991)).
2. Section 1983
In Count I of the SAC, Djangmalı alleges that Falcione and the other Defendants "subjected [him] to sexual assault and physical harmı," in violation of Section 1983, through the use of excessive force and by failing to intervene. (SAC 91 48-50). Section 1983 provides a means by which a person alleging a constitutional deprivation may bring a claim. but does not itself create any substantive rights. Sykes v James, 13 F.3d 515. 519 (2d Cir. 1993), Accordingly, to state a claim under Section 1983, a plaintiff must allege that a defendant acting under color of state law has deprived him of a night, privilege, or immunity guaranteed by the United States Constitution, See 42 U.S.C. § 1983. Here, Djangmah alleges that the Defendants violated his rights under the Fourth. Fifth. Sixth, Eighth, and Fourteenth Amendments.
*6 Turning first to the Defendants other than Falcione, the statute of limitations for a Section 1983 claim arising in New York State is three years. Jaghory \ N.T.S. Dep't of Educ .. 131 F.3d 326. 331-32 (2d Cit. 1997) (citing Bd. of Regents of S.XX,N.Y. & Tomanio, 446 ULS. 478, 484 (1980)) Djangmah failed to name any identifiable defendants other than Falcione within three years after the incident-i.e., by December 13. 2010. Although the FAC was filed within the limitations period and named four "John Doe" defendants (but not the NYPD), ""John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a 'John Doe' with a named party in effect constitutes a change in the party sued" Aslanidis v (S Lines, inc. 7F.3d 1067, 1075 (2d Cir_1993) (citations omitted); accord Tapla-Ortiz v Doe, 171 F 3d 150, 152 (2d Cir. 1999) (affirming dismissal of plaintiff's claims against officers named only as "John Does" before statute of limitations expired); Barrow v. Wethersfield Police Dept, 66 F,3d 466, 470 (2d Cir 1995) (amended complaint adding individual police officers does not relate back to complaint naming "John Doc" officers). Accordingly, the Court should sua sponte dismiss any claims that Djangmah brings against the "John Doc" defendants.
Djangmah's attempt to add the NYPD as a defendant in the SAC is equally unavailing. At the outset, as a matter of law, the NYPD is not a suable entity. See Washington v City of" N.1., No. 11 Civ. 363(BSJ)(HBP). 2012 WL 4468163, at *3 IL 2 (S.D.N.Y. Sept. 18, 2012) (citing N. Y.C. Charter § 396). Additionally, even if his proposed Section 1983 claim against
the NYPD were to be construed as having been asserted against the City of New York, the delay in naming the City cannot be construed as a "mistake" about which the City reasonably should have known, See Fed.R.Civ.P. 15(c) (1) (CKIE). Indeed, the City would have had to be clairvoyant to anticipate that it would be named as a defendant more than four years after this suit was filed. It follows that any effort to name the City as a defendant in Count 1 of the SAC also would be barred by the tluce-year statule of limitations.
Falcione. of course, has been a defendant since this suit was commenced in 2009. The Section 1983 claim against Falcione therefore is timely, Liberally construed; that claim appears lo allege that Falcione violated Djangmah's constitutional rights by using excessive force to effectuate his arrest and by not intervening when other officers brutalized him, (See SAC 11 32-40)
The use of force by police officers is excessive, and therefore violates the Fourth Amendment. "if it is objectively unreasonable 'in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." " Maxwell v. City of N.L. 380 F 3d 106. 108 (2d Cir.2004) (quoting Giraham & Connor: 490 UJ.S. 386, 397 (1989)). By the same token, however, "[n]of every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers." violates the Fourth Amendment. Girahom, 490 U.S. at 396 (internal quotation omitted). As comtts recognize, "[o]ften, the use of some physical coercion is necessary and inevitable." Pierre-Antoine v. City of N.Y. No.04 Civ. 6987(GET), 2006 WL 1292076, at *3 (S.D.N.Y May 9. 2006). To prevail on an excessive force claim, a plaintiff consequently must allege more than a de minimis use of force, although he need not have suffered a severe injury
7 In the SAC, Djangmah contends that Falcione "slammed" his head into the hood of the police car. causing him considerable pain (SAC " 33). He further contends that he then was "slammed to the ground." despite being handcuffed, and that two other officers twisted his ankle and kicked him in his side at a time when he already was being restrained by Falcione and his partner. (ld") \ 35-36) Yet another officer allegedly trapped Djangmah's ankle between the door and frame of the police car, impelling him to react by "slamming] his head several times into the window of the police cruiser, causing the window to shatter and [his] head lo bleed." (ldl 38). Djangmah further alleges that a police supervisor then reached into the police car, placed his
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an opportunity to intervene), Younger & City of N.Y., 480 F.Supp.2d 723. 732-33 (S.D.N.Y.2007) (denying summary judgment because evidence left "substantial uncertainty with respect to whether |certain defendants] were in a position, during [plaintiff's] arrest, to intervene and attempt to stop ans alleged use of excessive force.").
3. Monell Claim
*9 In the Second Count of the SAC, Djangmalı seeks to assent a "Monell" claim against the NYPD and Falcione. (SAC 11 53-55). Quite apart from being timebarred, Djangmah's Afonell claim against the NYPD must be dismissed because the NYPD is not a suable entity. See Washington, 2012 WL 4468163, al +3 n. 2. Assuming the Second Count were liberally construed as a claim against the City of New York, rather than the NYPD, it still would be time-barred, See Jaghory, 131 F,3d at 331-32. Moreover, a complaint brought under Section 1983 alleging violations of a plaintiff's federally protected rights by a municipality mist include factual allegations suggesting the existence of an officially-adopted policy or custom of the municipality that caused the plaintiff's injury. See Bd. of Cnty. Comumn's of Bryan Chty., Okla. v. Brown, 520 U.S. 397, 403-04 (1997); Monell, 436 U.S. at 694. In the SAC, however, Djangmah has made only conclusory allegations regarding the existence of a policy or custom: (SAC 1)| 54-55), Accordingly, Djangmah's Monell claim cannot survive.
4. Negligent Infliction of Emotional Distress
In Count 3 of the SAC. Djangmahy seeks to add a new claim against all of the Defendants which alleges that they negligently inflicted emotional distress on him. As to the Defendants other than Falcione, this claim clearly is time- barred under the applicable three-year statute of limitations, See Jaghory 131 F.3d at 331-32. For the claim to be timely as to Falcione, the Court would have to find that it related back to a claim filed within the limitations period. Under Rule 15(c) of the Federal Rules of Civil Procedure, insofar as relevant, a pleading relates back to an carlier pleading when "the amendment asserts a claim ... that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading .. " Fed.R.Civ.P. 15(c).
Djangmah's negligent infliction of emotional distress claim against Falcione meets the requirements of Rule 15(e) since ut plainly arises out of the same conduct alleged in his two carlier complaints. Nevertheless, "[a] cause of action for negligent infliction of emotional distress arises only in
unique circumstances, when a defendant owes a special duty only to plaintiff ... , or where there is proof of a traumatic event that caused the plaintiff to fear for her own safety." Cucchi vị N.Y.C. Off Track Belling Corp., 818 F.Supp. 647. 656 (S.D.N.Y.1993) (citing Kelly y, Chase Manhattan Bank. 717 F.Supp. 227. 235 (S.D.N.Y.1989), and Ford v Village Imports, Ltd., 461 N.Y.S.20 108, 108 (4th Dep't 1983), Even then, for a plaintiff to recover damages for negligent infliction of emotional distress, the conduct must be "so extreme in degree and outrageous in character as to go beyond all possible bounds of decency. so as to be regarded as atrocious and utterly intolerable in a civilized community." Wolkstein v :. Morgenstern, 713 N.Y., S.2d 171, 172 (1 st Dep'] 2000) (quoting Hernandez v. City of N.Y .. 679 N.Y.5.2d 818 (1st Dep't 1998), and Naturman v. Crain Comme'ns, 628 N.Y.S.2d 281. 282 ( Ist Dep't 1995)), Furthermore, a claim of negligent infliction of emotional distress generally is not allowed if it is "essentially duplicative of tort or contract causes of action." Id. (citing Murphy v, Am. Home Products, 58 N.Y.2d 293, 303 (1983)).
10 Here, even accepting Djangmah's rendition of the events following the vehicle stop, the conduct of Falcione and the other officers, while reprehensible, was not so totally out of bounds as to meet the very high threshold for a negligent infliction of emotional distress claim. Moreover, that claim essentially duplicates Djangmali's excessive use of force claim against Falcione. It follows that even if Djangmah's claim relates back to his earlier pleadings, his attempt to amend to assert this claim must be rejected on futility grounds
5. Hourth Amendment Claim
In Count 4 of the SAC, Djangmah seeks to bring a claim that Falcione and the other officers "wantonly scizled| his person and his property without probable cause," in violation of Section 1983. (SAC ** 58, 59). This claim, too, is time- barred as against any defendant other than Falcione.
Although Djangmah refers to the allegedly improper seizure of his property, lus factual allegations in Count 4 relate solely to the seizure of his person." (See, e.g. SAC " 32) Liberally construed, Count 4 appears to allege that Djangmah was improperly stopped and falsely arrested. "An ordinary traffic stop constitutes a limited seizure within the meaning of [the Fourth Amendment]." United States v, Harrell. 268 F.3d 141, 148 (2d Cir2001) (quoting United States w. Scopo, 19 F.3d 777. 781 (2d Cir 1994)) (internal quotation marks
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Djangmah v. Falcione, Not Reported In F.Supp.2d (2013) 2013 WL 208914
an inference that the Defendants stopped and arrested him based on his race; instead, he relics on "bald assertions" that. as a matter of law. are insufficient to overcome a motion for summary judgment. See Odom, 1997 WL 576088, at +1 (quoting Carey M Crescenzi, 923 F .2d 18, 21 (2d Cir. 1995)), Second, as discussed above, Falcione had probable cause to stop and arrest Djangmah, and "the existence of probable cause .. is a complete defense to an action for false arrest under [Section| 1983." Weyer w Oksr, 101 F.3d 845. 852 (2d Cir.1996) (internal citations and quotations omitted), see Singer : Fulton Cary, Sheriff, 63 F.3d 110, 118-19 (2d Cir,1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause."). see also Toleman, 425 F.3d at 190 ('Whether probable cause or reasonable suspicion [to stop a vehicle] exists is an objective inquiry; the 'actual motivations of the individual officers involved" in the stop "play no mie' in the analysis.") (quoting Whren, 517 LLS. at 812).
IV. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty and to the chambers of the undersigned at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed R.Civ.P. 6(a), 6(d), 72(b) Any requests for an extension of time for filing objections must be directed to Judge Crotty. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas 1/ JIm, 474 U.S. 140 (1985).
All Citations
Not Reported in F.Supp.2d. 2013 WL 208914
End of Document
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Case 9:24-cv-00218-BKS-MJK Ridge v. Davis, Not Reported in Fed. Supp. (2022)
Document 58
Filed 11/13/25
Page 364 of 484
Thurmond v. Thomas-Walsh, Not Reported In Fed. Supp. (2019) 2019 WL 1429559
allegations that defendant received his letters, forwarded them to subordinates for investigation, and sent the plaintiff a response that he provided insufficient information to support his allegation. "prove only the scantest awareness of [the plaintiff's) claims" and failed to allege personal involvement (citation omitted) ); see also Keil v. Schun, No. 11-CV-138, 2014 WL 347053. at 7 (W.D.N.Y. Jan. 30. 2014) (declining to impose supervisory liability on a nurse administrator to whom the plaintiff had sent a letter complaining about intentional interference with his pain medication and who responded to the plaintiff that he was "scheduled to see a medical clinician to assess [his] medical concerns" because the nurse administrator's "generalized response lo [the] plaintiff's complaint |was| not sufficient to establish personal involvement"): Rosario v Fischer, No. 11-CV-4617. 2012 WL 4044901. at $5-6 (S.D.N.Y. Aug. 28. 2012), adopted by 2012 WL 6681695 (S.D.N.Y. 2012) (holding that a pro forma letter sent to the plaintiff in response to his complaints did not allege sufficient facts to establish personal involvement), 12
12 It appears that even before Iqbal's prohibition on the imposition of vicarious liability in § 1983 cases, courts in the Second Circuit declined to impose supervisory liability where a plaintiff made the conclusory allegation that he sent a letter lo a prison supervisor alleging a deprivation of a right, but failed to allege sufficient further facts about the contents of the letter or the supervisor's response. See, e.g., .Applegate v Anniect. No. 02-CV-276, 2008 WL 2725087, +18 (N.D.N.Y. July 10. 2008) (holding that letter written to superintendent. without response, was insufficient to find personal involvement or awareness on behalf of superintendent): \maker # Goord. No. 98-CV-3634, 2002 WL 523371, 16 (S.D.N.Y. Mar. 29; 2002) (holding that letters sent to commissioner, where letters were delegated to other prison officials, were insufficient to establish supervisory liability).
14 Drawing all reasonable inferences in favor of Plaintiff and reading his Complaint liberally, the Count concludes that Taken together, Plaintiff's detailed letter to Dr. Bernstein, and Dr. Bernstein's response, plausibly suggest that Dr. Bernstein "considered ... [Plaintiff's allegations and evaluated possible
responses." Mateo, 682 E. Supp. 2d at 430-31, and that Dr. Bemstein's letter was not just a pro forma response, see Burroughy v: Petron, 138 F. Supp. 3d 182. 221- 22 (N.D.N.Y. 2015) (imposing supervisory liability on a defendant the plaintiff sent a letter detailing the alleged retaliatory conduct where he attached a copy of the letter to his complaint, but declining to impose supervisory liability on the defendant that the plaintiff alleged responded to his complaint letter but failed to provide "any specific facis related to this alleged response"). Therefore, Plaintiff has plausibly alleged personal involvement by Dr. Bemstein and Defendants' Motion To Dismiss with respect to Plaintiff's First Amendment retaliation claim against Dr. Bernstein is denied.
IIL Conclusion
For the foregoing reasons, the Court grants Defendants' Motion To Dismiss with respect to Plaintiff's Eighth Amendment medical deliberate indifference claim, and denies the Motion with respect to Plaintiff's First Amendment retaliation claim. In light of Plaintiff's pro se status, and because this is the first adjudication of Plaintiff's claims his Eighth Amendment claim is dismissed without prejudice If Plaintiff wishes to file an Amended Complaint alleging additional facts and otherwise addressing the deficiencies identified above. Plaintiff must do so within 30 days of the date of this Opinion and Onder. Failure to do so will result in the dismissal of this claim with prejudice Plaintiff is advised that the amended complaint will replace, not supplement. the earlier complaint. The amended complaint must contain all of the claims against all Defendants. The Count will not consider factual allegations contained in supplemental letters. declarations, or memoranda
The Clerk of Count is respectfully direct to terminate the pending Motion, (see Dkt, No. 21), and mail a copy of this Opinion and Order to the Plaintiff.
SO ORDERED
All Citations
Not Reported in Fed. Supp., 2019 WL 1429559
End of Document
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All Citations

Not Reported in Fed. Supp., 2022 WL 357020

Footnotes

This action is before this Court for all purposes on the consent of the parties, pursuant to 28 U.S.C. § 636(c). (Docket
No. 87).

Plaintiff's response to Defendants' Rule 56.1 Statement is presented as an affidavit with numbered paragraphs that
address the factual contentions in each separately numbered paragraph in Defendants' Rule 56.1 Statement. (See Docket
Nos. 97; 100 at 1-2). Although the affidavit disputes several of Defendants' contentions, it does not explain the factual
bases for these disputes or cite to any supporting evidence. (See Docket No. 100 at 1-2). Therefore, Plaintiff has not
complied with Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts
of New York or Federal Rule of Civil Procedure 56(c) in that he failed to “include ... correspondingly numbered
paragraph[s] responding to each numbered paragraph in the statement of [Defendants],” and did not cite admissible
evidence following “each statement controverting [Defendants'] statements of material fact.” See Local Civil Rule

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Case FIN 00218 BKSMIKo2,Pocument 58 Filed 11/13/25 Page 460 of 484

epor

56.1(b), (d); see also Fed. R. Civ. P. 56(c). However, Plaintiff testified about the incident on which his lawsuit is based
in a deposition transcript attached by Defendants. (Docket No. 106-1). Plaintiff also references an exhibit attached to
the Amended Complaint in the legal argument section of his opposition. (Docket No. 100 at 7; see also Docket No.
37 at 9-10). In light of the “liberal treatment afforded [to] pro se litigants[,] ... particularly at summary judgment[,]”
the Court considers this evidence and the entire record to resolve Defendants' motion. See Aikens v. Jones, No. 12 Civ.
1023(PGG), 2015 WL 1262158, at 1 n.2 (S.D.N.Y. Mar. 19, 2015); see also Melendez v. DeVry Corp., No. 03-CV-1029
(NGG) LB, 2005 WL 3184277, 2 (S.D.N.Y. Nov. 29, 2005) (examining “the entire record[,] ... glean[ing] the material
facts therefrom, and decid[ing] the motion based on those facts” despite pro se plaintiff's failure to comply with Local
Rule 56.1).

At all times relevant to this action, all Defendants were employed by the Village of Monticello Police Department.
(Docket Nos. 97 [| 18-22; 100 4¥ 3, 6).

According to Plaintiff, he intended to load the copper into his car and use it for “scrap.” (Docket No. 106-1 at 29:3-13).
All page number citations to the record refer to the ECF page number unless otherwise noted.

Plaintiff testified that he ran away due to an existing warrant for his arrest. (Docket No. 106-1 at 36:22-23).

The Mountain Mall is a “strip mall” on East Broadway that contains various shops. (Docket Nos. 94-11 4] 3; 97 4 27).

Specifically, according to Defendants, Ottino was off duty on the date of the incident, and did not get involved until
after Plaintiff was arrested, when Davis requested that he work overtime at the police station to assist in gathering
and processing evidence. (See Docket No. 94-14 § 2). Defendants assert that Plaintiff was already in custody at the
police station when Ottino arrived. (Docket Nos. 94-12 5; 94-14 § 2; 97 | 44). According to a timesheet submitted
by Defendants, Ottino started working at approximately 3:00 p.m. and stopped at approximately 9:30 p.m. (Docket No.
94-5). As for Lindsay and Solomon, they maintain that they arrived at the Butcher Boys store when Plaintiff was already
in Leon-Martinez's vehicle. (Docket Nos. 94-11 4 4; 94-12 43; 97 4 43).

Plaintiff initially testified that he was tased specifically after he dropped to his knees in surrender. (Docket No. 106-1 at
50:5-11). However, in his deposition, Plaintiff stated that he “could have been” tased “while [he] was running, it could
have been while [he] was on [his] knees, but [he] believe[d] [he] was tased prior to the assault.” (/d. at 53:21-54:1).

Plaintiff explained that “[i]t felt like it was more than” one person assaulting him and “it was like a gang kind of
assault.” Ud. at 61:21-62:1).

According to Plaintiff, Davis stated: “[Y]ou shouldn't have made me run like that, asshole.” (/d. at 57:12-17).

According to Plaintiff, Lindsay and Solomon had caught up with Plaintiff by the time he reached the back of the store.
(Id. at 48:24-49:15).

Plaintiff alleges that Ottino “‘follow[ed]” him “across the street” toward the back of the store. (/d. at 62:12-19).

Leon-Martinez sustained a laceration above his left eyebrow that also needed treatment. (Docket Nos. 94-12 § 4; 94-13
4 4; 97 ¥ 46).

Plaintiff's “[c]hief [c]omplaint” was: “I want to know why I have been arrested!” (/d.).

A video of the interview at the precinct reflects that it began at 6:42 p.m. and concluded at 7:25 p.m. (Docket No. 94-8;
see also Docket No. 94 4 9). When the interview ended, Plaintiff spoke with his partner on the phone for approximately
nine minutes, until 7:34 p m. (Docket No. 94-8). This phone conversation was also captured on video. (/d.). An electronic
version of the video was delivered to the Court and served on Plaintiff. (Docket No. 95).

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Plaintiff also testified that he was shuffled back and forth between the holding cell and the interview room “at least two
or three different times,” and that he was placed in the holding cell after the interview. (Docket No. 106-1 at 72:19-73:3,
74:11-15).

In accordance with Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009) and Local Civil Rule 7.2 of the Local Rules of the
United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and any others cited
herein, only available by electronic database, accompany this Opinion and Order and shall be simultaneously delivered
to the pro se Plaintiff.

The rule seeks to prohibit “a party who has been examined at length on deposition [from] ... rais[ing] an issue of fact
simply by submitting an affidavit contradicting his own prior testimony” because “this would greatly diminish the utility
of summary judgment as a procedure for screening out sham issues of fact.” See Perma Research & Dev. Co. v. Singer
Co., 410 F.2d 572, 578 (2d Cir. 1969).

Although the booking photograph that Plaintiff references in support of this allegation is not clear enough to show any
scars, in light of Plaintiff's pro se status and the paucity of evidence in this record, the Court credits it for purposes of
the Motion because Plaintiff attested to the scarring under oath and a jury could observe the scars in court. (See Docket
Nos. 100 at 7; 37 at 9-10).

In light of the robust objective evidence that Ottino was off duty at the time of the arrest, no reasonable juror could find
that he was present behind the Butcher Boys store during the alleged excessive uses of force. (See Docket No. 94-5).
Therefore, Plaintiff's failure to intervene claim against Ottino is dismissed. See Demosthene v. City of New York, 831
F. App'x 530, 535 (2d Cir. 2020) (summary order) (upholding summary judgment as to excessive force and failure to
intervene claims where “a record of the line-up” during which alleged assault occurred “demonstrate[d] that [defendant]
was not present when the line-up was conducted”).

As set forth infra, because the record is insufficient to support the objective or subjective components of Plaintiff's
deliberate indifference claim, the Court does not reach the issue of qualified immunity. (See Docket No. 96 at 12-13 n.6).

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Pa KeyCite Yellow Flag
Distinguished by McLean v. Cottrell, N.D.N.Y., April 17, 2023

2021 WL 799263
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.

Anthony SANDERS, Plaintiff,
v.
TORRES, et al., Defendants.

No. 9:19-CV-697 (GTS/CFH)
|
Filed 02/08/2021

Attorneys and Law Firms
APPEARANCES:
Anthony Sanders, 17-A-5184, Elmira Correctional Facility, Elmira, New York 14902, Plaintiff pro se

Attorney General for the State of New York, Syracuse Regional Office, 300 South State St., Syracuse, New York 13202, Attorney
for Defendants, OF COUNSEL: AIMEE COWAN, ESQ., Assistant Attorney General

REPORT-RECOMMENDATION AND ORDER !
Christian F. Hummel U.S. Magistrate Judge

1 Plaintiff pro se Anthony Sanders (“plaintiff”), who was, at all relevant times, in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging
that defendants Correction Officer (“C.O.”) W. Torres (“C.O. Torres”); C.O. E. Sadowski (“C.O. Sadowski’); C.O. N.
Grzeskowiak (“C.O. Grzeskowiak’”’); and C.O. S. Skelly (“C.O. Skelly”) (collectively, where appropriate, “defendants”) —who,
at all relevant times were employed at Auburn Correctional Facility (“Auburn C.F.”)—violated his constitutional rights under

the Eighth Amendment through the use of excessive force. See Dkt. No. 1 (“Compl.”). 2
Presently pending before the Court is defendants’ motion for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure (“Fed. R. Civ. P.”). See Dkt. No. 19. Plaintiff opposed the motion, see Dkt. No. 24, and defendants filed a reply.

See 25. For the reasons that follow, it is recommended that defendants’ motion be granted in its entirety and that plaintiff's
Complaint be dismissed with prejudice.

I. Background

A. Facts

The facts are reviewed in the light most favorable to plaintiff as the non-moving party. See subsection III., infra. At all relevant
times, plaintiff was an inmate incarcerated at Auburn C.F.

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1. Plaintiff's Complaint

a. Incident Involving C.O.s Sadowski, Grzeskowiak, and Skelly

On May 12, 2019, at approximately 7:00 A.M., while C.O. Sadowski, C.O. Grzeskowiak, and C.O. Skelly were conducting a
frisk of plaintiff's cell, plaintiff alleges that C.O. Sadowski “assaulted” him by “striking [him] on the right side of [his] face for

no reason which lead to these officer's [sic] using excessive force violating [his] Amendment [sic].”” Compl. at 4.

b. Incident Involving C.O. Torres

Plaintiff alleges that, at approximately 7:49 A.M. on May 12, 2019, while “being frisked by [C.O.] Torre” “in SHU ... Hold,”
C.O. Torres asked plaintiff to “bend at the waist during a full strip frisk.” Id. Plaintiff contends that, when he complied with C.O.
Torres’ order, C.O. Torres “put [him] in a rear naked choke hold around [his] neck for supposedly trying to swallow something
(which nothing was found on contraband watch).” Id. Moreover, plaintiff alleges that he was “put to sleep by [C.O.] Torres”
and that he was “woken up by officers slapping [him] to wake up.” Id. Plaintiff avers that this incident was captured on camera
and witnessed by other inmates. See id. at 4-5. Plaintiff alleges that, as a result of C.O. Torres’ choke hold, he “sustained a 1
inch in length abrasion an [sic] another on [his] left arm,” but that he does not “know how many inches in length” the abrasion
on his left arm was. Id. at 5.

II. Present Motion
A. Defendants’ Motion for Summary Judgment: Arguments and Supporting Evidence

1. Exhaustion of Administrative Remedies

2 Defendants first contend that plaintiff's complaint must be dismissed for failure to exhaust his administrative remedies prior
to commencing this action, as required by the Prison Litigation Reform Act (“PLRA”). See Dkt. No. 19-28 at 10. In support of
their contention, defendants proffer the declaration and supporting documentation of Rachael Seguin (“Seguin”), the Assistant
Director of DOCCS’ Inmate Grievance Program (“IGP”), whose duties include maintaining records of the Central Office Review
Committee (““CORC’”), “the body that renders the final administrative decision under DOCCS’ [IGP] pursuant to 7 N.Y.C.R.R.
§ 701 et seg.” Dkt. No. 19-24 at 1 93. Seguin stated that, at all relevant times, “Auburn had a fully functioning inmate grievance
process available.” Id. at 3 §] 11. Based on her search of plaintiff's CORC records, Seguin stated that plaintiff filed two grievances
relating to the alleged May 12, 2019 excessive force incidents on May 28, 2019 (Grievance #AUB-76216-19) and June 5, 2019
(Grievance #AUB-76278-19). See id. 3 J 12; see also Dkt. No. 19-25 at 1 (plaintiff's CORC records listing plaintiff's May 28 and
June 5, 2019 grievances). Seguin explained that, “[a]t the time [plaintiff] filed his Complaint with the Court, the Superintendent
responses were still within the 25[-]calendar day[-]time limit outlined in 7 N.Y.C.R.R. § 701.8(f).” Id. at 3-4 § 14. Further,
Seguin noted that the Superintendent “denied plaintiffs grievances on July 3, 2019, after [p]laintiff filed his Complaint” in
this action on June 12, 2019, and that plaintiff “submitted appeals to CORC for both grievances on July 12, 2018, which were
received and processed by the IGRC office at Auburn on July 31, 2019.” Id. at 4 9 14, 15. As of the date of Seguin's declaration,
February 27, 2020, “[p]laintiff's CORC appeals [we]re pending and ha[d] not yet been heard or decided by CORC.” Id. at ¥ 16.

Moreover, pointing to Seguin's declaration, defendants contend that no exception to the mandatary exhaustion requirements
exists here, because the grievance procedure was “ ‘available’ ” to plaintiff at all times. Dkt. No. 19-28 at 11 (citing Dkt. No.

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Sandee as, 2.2 4iS¥ 098218 BES MI cdg ncument 58 Filed 11/13/25 Page 465 of 484

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Further, defendants submit the declaration of C.O. Sadowski, who explained that he assisted C.O. Grzeskowiak in frisking
plaintiff's cell on May 12, 2019, after plaintiff failed to produce his state-issued razor. See Dkt. No. 19-13 at 2 8-9. Pursuant
to protocol for cell frisks, C.0. Sadowski stated that “[p]laintiff was ordered to keep his hands in his pockets and face his cell to
observe the cell frisk.” Id. at § 11. However, C.O. Sadowski stated that “[p]laintiff turned towards [him] several times, shouting
in response to which C.O. Sadowski “order[ed] him several times to face his cell.” Id. at § 12. C.O.

999

‘what are you going to do,
Sadowski stated that “[p]laintiff appeared ... to be intoxicated, and [that] his pants were soaked with what appeared to be urine.”
Id. at § 14. Moreover, C.O. Sadowski explained that “[p]laintiff eventually turned in an aggressive manner and attempted to
strike [him] in the face with his right hand[,]” at which time “forced was used on [p]laintiff to gain compliance,” including the
use “of a body hold on plaintiff's upper body to force [him] to the ground.” Id. at §§ 14, 15. C.0. Sadowski stated that, “[a]t no
time did [he] ever strike [p]laintiff in any way, on any part of his body.” Id. at 3 ¥ 18.

Defendants also proffer the declaration of C.O. Skelly who stated that he was “asked to stand by at the end of the company”
during C.O. Grzeskowiak's May 12, 2019 cell frisk “in the event assistance was needed.” Dkt. No. 19-17 at 2 ¥ 8. C.O. Skelly
explained that, while C.O. Grzeskowiak was performing the cell frisk, “[p]laintiff became argumentative and [that he] observed
[p]laintiff attempt to strike [C.O. Sadowski with his right hand[,] at which time C.O. Skelly “approached [p]laintiff's cell to
assist.” Id. at { 9. C.O. Skelly further explained that “force was used on [p]laintiff to gain compliance[,]” which consisted of
“TC.O.s] Sadowski and Grzeskowiak us[e of] body holds to force [p]laintiff to the ground.” Id. at § 10. Once plaintiff was on the
ground, C.O. Skelly stated that he handcuffed plaintiff's hands behind his back, at which point plaintiff “became compliant.”
See id. at § 12. C.O. Skelly also observed that “[p]laintiff appeared to be under the influence of some form of intoxicant.” Id.

Following the incident, C.0.s Grzeskowiak and Skelly completed use of force memoranda, which recounted the foregoing facts,
including that the officers used body holds to subdue plaintiff after he attempted to strike C.O. Sadowski. See Dkt. Nos. 19-12 at
1-2; Dkt. No. 19-18 at 1-2. Further, defendants have submitted C.O. Sadowski's use of force memoranda in which he explained
that, after plaintiff attempted to strike him in the face, he “grabbed [plaintiff] by the upper body and forced him to the ground
and maintained ahold of him until assisting staff placed mechanical wrist restraints on him.” Dkt. No. 19-15 at 2. C.0. Sadowski
also drafted a memorandum on June 6, 2019, to Sgt. McCarthy relating to his investigation of plaintiff's May 28, 2019 grievance
(grievance #AUB-76216-19), in which he stated that “at no time did [he] assault [plaintiff]” and that “all forced used during
thle May 12, 2019] incident was necessary to gain compliance of an aggressive and combative inmate.” Dkt. No. 19-16 at 1.

4 Moreover, defendants proffer the DOCCS use of force report, which states that, during the May 12, 2019 cell frisk, plaintiff
appeared to be under the influence of an intoxicant and became aggressive, at which point C.O.s Sadowski, Grzeskowiak, and
Skelly used body holds and applied mechanical restraints to gain compliance, and that plaintiff was transferred to SHU following
the incident. See Dkt. No. 19-14 at 1-2. Defendants also submit Sgt. Cordway's memorandum dated May 12, 2019, concerning
the liquid substance recovered by C.O. Grzeskowiak from plaintiff's cell in which he stated, “[b]ased upon my experience, and
the circumstances under which the substance mentioned in the misbehavior report dated 5/12/19, was found, I believe that the
substance is, or was intended to be homemade alcohol.” Dkt. No. 19-3 at 32. In addition, defendants proffer Sgt. McCarthy's June
6, 2019 memorandum regarding his investigation of plaintiff's grievance (grievance #AUB-76216-19) in which he explained
that he interviewed plaintiff who “had nothing further to add to [his grievance] and provided two witnesses,” inmates Davis and
Lewis. Dkt. No. 19-3 at 9. Sgt. McCarthy explained that Sgt. Cordway interviewed inmates Davis and Lewis, and that neither
of those witnesses “want[ed] to provide a statement regarding [plaintiff's] grievance.” Id. Sgt. Cordway's memorandum, dated
June 13, 2019, to Captain Norris states that he “interviewed both inmates separately[,]” and “explained to both [that] they were
listed as witnesses by [plaintiff].” Id. at 10. Sgt. Cordway indicated that “[b]oth inmates declined to add any further information

in regard to [plaintiff's] complaint.” Id. Following a Tier III disciplinary hearing on June 15, 2019, plaintiff was found guilty
of violations of possession of alcohol or intoxicant (rule 113.13) and refusing a direct order (rule 106.10), but not guilty of
property damage or loss (116.10). See Dkt. No. 19-3 at 19.

b. C.O. Torres

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Defendants also controvert plaintiff's factual recitation with respect to the incident involving C.O. Torres. See Dkt. No. 19-28
at 22-23. In particular, defendants proffer the surveillance video footage of C.O. Torres’ encounter with plaintiff on May 12,
2019, in the Auburn C.F. SHU, and contend that the video evidence “directly contradicts [p]laintiff's version of events” and
entitles defendants to summary judgment dismissing plaintiff's excessive force claim against C.O. Torres. See Dkt. No. 19-28
at 22. Defendants also proffer C.O. Torres’ declaration in which he describes the events of May 12, 2019, during his strip
frisk of plaintiff in the Auburn C.F. SHU and refences the video footage. See Dkt. No. 19-19. C.O. Torres explained that, at
approximately 7:49 a.m. on May 12, 2019, plaintiff was admitted to the Auburn C.F. SHU where he was working. See Dkt.
No. 19-19 at 1 99/5, 6. C.O. Torres stated that, “[a]ny inmate [is] admitted to the SHU must first undergo a strip frisk[,]” which
“involves a search of the inmate's clothing and body, including a visual inspection of body cavities.” Id. at 1-2 9§ 7, 8. C.O.
Torres noted that, “[u]pon admission, [p]laintiff was brought to SHU cell P-3 for strip frisk. During his escort to P-3, [p]laintiff
“was yelling, swearing, and threatening[,]” and “appeared to be under the influence of an unknown intoxicant.” Id. at 2 § 9.
C.O. Torres notes that “[t]he entire incident inside cell P-3 [wa]s captured on video” without audio. Id. at § 10.

C.O. Torres stated that, when he began the strip frisk, “[p]laintiff was angry and belligerent but eventually complied with [C.O.
Torres’ ] instructions to remove his clothing and shoes.” Dkt. No. 19-19 at ¥ 11. However, when C.O. Torres instructed plaintiff
to bend at his waist so that he could visually inspect his buttocks, C.O. Torres “noticed an object in [plaintff's] buttocks area
that appeared to be white and shiny.” Id. at § 12. C.O. Torres stated that, at 3:59 of the video footage, he can be seen “leaning
over to [his] right and pointing to the unknown object[,]” and that, at 4:03, the officers standing outside of cell P-3 entered the
cell to assist him. Id. at 7 13. At 4:04 of the video footage, C.O. Torres stated that “[p]laintiff reached for the unknown item(s)
in his buttocks.” Id. at § 15. Further, C.O. Torres stated, at 4:05, plaintiff failed to comply with his direct order to “stop and
drop the item[,]” and “appeared to bring the object(s) up towards his mouth.” Id. at § 16. C.O. Torres explained that, “[iJn an
attempt to gain control of [p]laintiff and prevent him from swallowing the object he had just retrieved from his buttocks, [he]
put [p]laintiff in a body hold around his upper body” by “plac[ing] [his] arms around [plaintiff's] arms in an attempt to prevent
him from brining his hand up towards his mouth.” Id. at 2-3 4 17. At 4:09 of the video, C.O. Torres explained that he can be
seen placing plaintiff in a body hold and “forc[ing] [p]laintiff to the floor in order to gain control over [him,]” and that they
“both went down to the ground.” Id. at 3 § 17. Once on the ground, “[p]laintiff struggled to get free and [C.O. Torres] held onto
him while other staff members attempted to gain control of [p]laintiff by using body holds on his upper and lower body.” Id.
at | 18. C.O. Torres stated that “[p]laintiff was never unconscious or put to sleep while he was on the ground.” Id. at 3 ¥ 19.
Further, C.O. Torres noted that, at 4:25, 4:49, and 5:09 of the video, plaintiff can be seen moving, and that “[a]n officer grabs
his leg in order to bring [him] under control.” Id. After plaintiff was brought under control, he was escorted away from the area
and examined by medical staff. See id. at § 20.

5 Defendants also proffer C.O. Torres’ misbehavior report, which charged plaintiff with violating DOCCS rules by creating
a disturbance (rule 104.13), failing to comply with a direct order (rule 106.10), possessing contraband (rule 113.23), smuggling
(rule 114.10), and failing to comply with frisk and search procedures (rule 115.10). See Dkt. No. 19-20 at 1. C.O. Torres’
misbehavior report relayed the same version of events relating to the strip frisk as contained in his declaration, and added that,
following the incident, while plaintiff “was being escorted to contraband watch he kept yelling ‘free money’ — ‘yall aint gonna
[sic] find shit-Im [sic] too smooth.” Id. at 2. Further, defendants submit Sgt. McCarthy's use of force report dated May 12,
2019, see Dkt. No. 19-4 at 10-11, and the use of force staff memoranda authored by C.O. Torres and the correction officers
who assisted him during plaintiff's strip frisk—nonparty C.O.s Grennell, Sears, Delaney, Ray, Mitchell, and Lovejoy—which
convey the same version of events as stated by C.O. Torres. See id. at 12-13, 14-15, 16-17, 18-19, 20-21, 22-23, 25-25.

Defendants contend that the video footage refutes plaintiff's allegation that C.O. Torres “put [him] to sleep,” as it shows his leg
moving, which defendants aver “indicat[es plaintiff] was fully conscious.” Id. at 23. Further, defendants aver, the video footage
and plaintiff's medical records are inconsistent with the allegations in his complaint and his deposition testimony. See id. at 22.
In particular, defendants point to the portions of plaintiff's deposition testimony in which he stated that he “went to sleep” and/
or was rendered unconscious by C.O. Torres while he was on the floor in the SHU cell, and did not “remember most of” the
incident, that he “woke up in ... the deprivation room,” and that he was “unconscious from the time [he] hit the floor until [he
was] ina... different room.” Dkt. No. 19-2 at 72, 73. In particular, defendants note the portion of the video footage in which

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plaintiff walks out of the SHU cell, which they assert “shows that [p]laintiff was conscious after he was brought to his feet” and
“walk[ed] out of the room under his own power after he ha[d] been handcuffed.” Id. at 23.

Defendants also proffer plaintiff's medical records from the day of the incident, which state that plaintiff was observed as having

only a one-inch abrasion near his left eyebrow area with “no other injuries observed.” Dkt. No. 19-6 at 1; see Dkt. No. 19-4
at 7 (plaintiff's inmate injury report dated May 12, 2019, stating the same). Defendants also point to plaintiff's sick call notes
from June 7, 2019, in which plaintiff complained of “neck pain since 5/12/19 when says [sic] he was choked by CO.” Id. at
6. However, defendants note that plaintiff also stated that “[h]e d[id] not know if he had LOC [loss of consciousness], but was
not hospitalized” as a result of his encounter with C.O. Torres, which they contend evidences inconsistency with his allegations
concerning C.O. Torres using a chokehold to render him unconscious. Id. at 6.

In the alternative, defendants urge that, even without the video evidence, plaintiff's excessive force claim against C.O. Torres
should be dismissed because plaintiff has alleged only de minimis force that did not result in a sufficiently serious injury to rise
to the level of an Eighth Amendment violation. See Dkt. No. 19-28 at 25. Defendants reiterate that plaintiff's medical records
from May 12, 2019, indicate that he suffered only a one-inch abrasion near his right cheek, and that his medical evaluation from
May 13, 2019, indicated that plaintiff had “no medical complaints.” Dkt. No. 19-2 at 2. Defendants also note the portion of
plaintiff's deposition testimony in which he stated that the neck pain allegedly caused by C.O. Torres’ actions was “just like a
little bit” from “time to time.” Dkt. No. 19-2 at 78. In addition, defendants submitted six photographs of plaintiff wearing only
his underwear that were taken on May 12, 2019, the first of which contains a sign indicating that the photographs were taken
by (“PTB”) C.O. Lovejoy. See Dkt. No. 19-7 at 1. The last photograph in this series consists of a close shot of plaintiff's right
upper cheekbone area, which appears to be slightly swollen. See id. at 6.

3. Qualified Immunity

6 Defendants argue that C.O.s Skelly and Grzeskowiak are entitled to qualified immunity as to plaintiff's Eighth Amendment
failure to intervene claims. See Dkt. No. 19-28 at 28. Defendants reason that “officers of reasonable competence could disagree
on the legality of [C.O. Skelly's and C.O. Grzeskowiak's] action in failing to intervene” to prevent C.O. Sadowski's alleged
action of striking plaintiff in the face where such purported conduct was “unexpected” and plaintiff “was not even entirely sure
as to where the other officers were at the time of the strike.” Dkt. No. 19-28 at 28 (internal quotation marks omitted). Further,
defendants contend that “it is not clearly established that the force used by [C.O.] Torres was excessive.” Id. In particular,
defendants argue that “reasonable officers could believe that [C.O.] Torres’ actions” of wrapping his arms around plaintiff's
upper body after plaintiff placed the object from his buttocks into his mouth in an attempt to prevent plaintiff from swallowing
potential contraband “were necessary under the circumstances presented to him.” Id. at 29.

B. Plaintiff's Opposition to Defendants’ Motion

1. Exhaustion of Administrative Remedies

In opposition to plaintiff's motion for summary judgment, plaintiff first argues that he filed the Complaint in the present action
while his grievances “were still pending because [he] did not believe either of those grievances ever reached the grievance
office for filing—hence, 2 identical grievances.” Dkt. No. 24 at 2. Plaintiff posits that “defendants were aware that [he] intended
to eventually pursue litigation, and so the SHU officers who collected mail were informing [him] that his mail was being
destroyed.” Id. at 2-3. Plaintiff avers that, “when [he] never received any acknowledgements with assigned grievance numbers
from the grievance office, as the same officers were in control of in[ ]coming mail as well and [he] was not receiving any of
his mail,” he became “frustrated.” Id. at 3. Plaintiff states that, “in utter desperation, believing that the officers were following
through with their threats to interfere with grievances/mail, plaintiff figured it was best to just go ahead and file suit before

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all was lost.” Id. at 3-4. Thus, plaintiff argues, he was “ ‘thwarted’ ” from exhausting litigation by defendants’ threats. Id. at
4 (citing Ross, 136 S. Ct. at 1862).

2. Eighth Amendment Claims

99 66

Plaintiff argues that “a group of officers
failure to produce his razor on May 12, 2019, “was just an opportunity to capitalize on for defendants [sic] and they took full

persecuted” him because they “‘assumed that he was a gang member,” and that his

advantage of it, fishing for gang information and making snide, hostile, presumptuous anti-gang comments.” Dkt. No. 24 at
5. Plaintiff posits that defendants sought to “provoke” him, but that when he “did not respond as expected,” they “became
frustrated, and without provocation or any genuine penological/security [sic] justifiable reason, [C.O.] Sadowski spontaneously
assaulted [him].” Id. at 6. Plaintiff states that “the other officers further escalated it all the way to SHU.” Id. “During the SHU
strip frisk,” plaintiff posits, apparently referring to C.O. Torres, “they also used an opportunity to do physical harm to plaintiff,
manufacturing a [illegible] contraband retrieval story to justify the SHU portion of the assault.” Id.

Plaintiff avers that defendants’ conduct “of May 12, 2019[,] should qualify as wanton infliction of pain ... and satisfy the first
prong of the unconstitutional excessive force test.” Dkt. No. 24 at 7. He posits that he “suffers post[-]traumatic stress symptoms
as a direct result of the May 12, 2019 excessive force incidents significant enough that he is now maintained on 2 psychiatric
medications,” but states that he is “not able to provide documentation since the defendants never supplied the mental health
records they were supposed to in discovery.” Id. at 9-10. He also argues that C.O. Torres’ use of force was not de minimis, as
it rendered him “unconscious by obstructing blood flow and oxygen to the brain” and, therefore, “constitutes injury significant
enough to satisfy” the objective prong. Id. at 8. Finally, plaintiff contends that defendants are not entitled to qualified immunity

because their conduct of “persecuting, then assaulting plaintiff for sport” “is so elementarily wrong” that “certainly no person
could have believed it was acceptable.” Id. at 10-11.

C. Defendants’ Reply

1. Exhaustion of Administrative Remedies

7 Defendants contend that plaintiff has failed to respond to their statement of material facts, despite twice being advised of the
consequences of failing to properly respond to their motion for summary judgment. See Dkt. No. 25 at 5. Therefore, defendants
request that the Court deem the allegations asserted in their statement of material facts as being admitted. See id. Further,
defendants aver that plaintiffs argument that he was thwarted from exhausting his administrative remedies based on purported
threats made by SHU officers is unpersuasive. See id. at 8. Defendants point to plaintiff's deposition testimony in which he
testified that he “receive[d] a response to [his] grievance,” and that he “appealed” the Superintendent's decision to CORC “the
same day” he received the Superintendent's decision. Dkt. No. 19-2 at 96, 97. Moreover, defendants proffer a memorandum
authored by Sgt. McCarthy at Auburn C.F., which states that, on June 6, 2019, he interviewed plaintiff concerning his May 28,
2019 grievance (Grievance # AUB-76216-19). See Dkt. No. 19-3 at 9. Thus, defendants posit, “[i]f [p]laintiff had been unclear
up to that point as to whether his grievances had been received, [he] was clearly on notice that his grievances had been received
at [the] time” of Sgt. McCarthy's interview. Dkt. No. 25 at 9. Moreover, defendants posit, had plaintiff been concerned as to
whether his grievances were received, he could have sent letter inquiries to Auburn's IGP office. See id. In any event, defendants
argue, even if plaintiff had not received responses to his grievances, he would still have been required to take an appeal. See id.

2. Eighth Amendment Claims

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Defendants argue that, plaintiff's assertions—made for the first time in opposition to defendants’ motion for summary judgment

99 66.

—that a “group of officers” “persecuted him” because they assumed he was in a gang are inconsistent with plaintiff's deposition
testimony in which he specifically stated that he never had any issues with C.O.s Grzeskowiak, Skelly, or Sadowski prior to
May 12, 2019. Dkt. No. 25 at 10 (quoting Dkt. No. 24 at 5); see Dkt. No. 19-2 at 21-23. Defendants further posit that plaintiff
has failed to respond to their contention that the use of force involved in the first of the May 12, 2019 incidents constituted
only de minimis force and has not responded to defendants’ arguments concerning his failure to intervene claims; therefore,
defendants argue, they are entitled to a lessened burden of proof as to those claims, which, they posit, they have met. See
id. at 11-12. Further, defendants reassert that the surveillance video footage contradicts plaintiff's allegations and establishes
defendants’ entitlement to summary judgment dismissing plaintiffs excessive force claim asserted against C.O. Torres. See
id. at 13. Moreover, defendants dispute plaintiff's claim—traised for the first time in opposition to the motion for summary
judgment—that he suffers from pos-ttraumatic stress disorder (“PTSD”) as a result of the May 12, 2015 incidents. See id. at 14.
Defendants argue that, “according to [plaintiff's] records from the New York State Office of Mental Health, no such diagnosis ...
exists.” Id. In any event, defendants argue, plaintiff's medical records establish only that, “‘[i]Jn November 2019, he was placed
on Zoloft© based on his own request to ‘restart’ taking it, as he had taken it in the past.” Id. (quoting Dkt. No. 27 at 22). Finally,
defendants incorporate by reference their arguments concerning qualified immunity as stated in their memorandum of law in
support of their motion for summary judgment. See id.

III. Legal Standard

Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if all the submissions taken together
“show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The
moving party has the burden of showing the absence of a genuine dispute of material fact by providing the Court with portions

of “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which support
the motion. Celotex, 477 U.S. at 322; see FED. R. CIV. P. 56(c). A fact is material if it “might affect the outcome of the suit,”
as determined by the governing substantive law; a “dispute about a material fact is ‘genuine’ ... if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

8 Ifthe moving party meets this burden, the nonmoving party must “set forth specific facts showing that there is a genuine
issue for trial.” Id. at 248, 250; see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment
motion, the district court must construe the facts in the light most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775,
780 (2d Cir. 2003). Still, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and cannot rely on “mere
speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire
Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp. (Motors Holding Div.), 758 F.2d 839, 840 (2d Cir.
1985) (per curtum)). Furthermore, “mere conclusory allegations or denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (brackets omitted) (quoting
Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See
Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to special solicitude, that
a pro se litigant's submissions must be construed liberally, and that such submissions must be read to
raise the strongest arguments that they suggest. At the same time, our cases have also indicated that we
cannot read into pro se submissions claims that are not consistent with the pro se litigant's allegations,

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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 471 of 484

Sandee as, 2.2 4iS¥ 098218 BES MI cdg ncument 58 Filed 11/13/25 Page 472 of 484

fo) porte’ ed.

Moreover, although it is not apparent from the record whether or when CORC issued a decision on plaintiff's appeals, courts
routinely dismiss claims for failure to exhaust administrative remedies under the PLRA even where CORC issues a decision
after the plaintiff filed a federal complaint. See, e.g., Scott v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139, at
*5 (N.D.N.Y. July 31, 2019) (“Receiving a decision from CORC after filing a federal lawsuit does not satisfy the PLRA's
requirement that administrative remedies be exhausted before filing suit, and any such action must be dismissed ....” (citation
omitted)), report and recommendation adopted, No. 9:16-CV-403 (TJM/CFH), 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019).
As the foregoing establishes, plaintiff failed to exhaust his administrative remedies before commencing the present action.

2. Availability of Administrative Remedies

*11 As an initial matter, plaintiff's vague and conclusory assertions that he was “frustrated” because he believed Auburn SHU
officers were tampering with his grievances, so he “figured it was best to just go ahead and file suit before all was lost,” did
not relieve him from his obligation of complying with the exhaustion requirement. Dkt. No. 24 at 3-4; see Animashaun, 470 F.
Supp. 3d at 296 (holding that the plaintiff's “bare allegation” that DOCCS personnel told him to “ignore the prison regulation
on administrative exhaustion and instead to go ahead and file the complaint” without receiving a decision from CORC was “not
enough to excuse the exhaustion requirement.”).

Further, defendants point to admissible documentary evidence, namely Sgt. McCarthy's memorandum regarding his interview
of plaintiff on June 6, 2019 concerning the May 28, 2019 grievance—which occurred only eight days after that grievance was
filed—and only one day after plaintiff's second grievance was filed with the Auburn IGP office. See Dkt. No. 19-3 at 9. As
defendants correctly observe in their reply to plaintiff's opposition, had plaintiff been unsure as to the status of his grievances,
Sgt. McCarthy's interview would have placed him on notice—by June 6, 2019, at the latest—that at least one of his two identical
grievances had been received and was being investigated. See id.; see also Dkt. No. 25 at 9. Moreover, insofar as plaintiff's

opposition may be liberally construed as contending that he filed his Complaint because the Superintendent's response to his
grievance came late on July 3, 2010—approximately 10 days after the end of the 25-calendar-day time period from the date of
receipt of the grievance under 7 N.Y.C.R.R. § 701.8(f)—his argument is unpersuasive. See Dkt. No. 24 at 2-4. As explained
above, plaintiff filed his Complaint during the 25-calendar-day period from the dates he filed his grievances. See Dkt. No.
19-25 at 1; Compl. at 1. Thus, the undersigned concludes that defendants have established, through admissible documentary
evidence, that administrative remedies were available to plaintiff with respect to his claims in this action, in opposition to which
plaintiff has failed to raise a material issue of fact through his conclusory assertions to the contrary, made for the first time in
opposition to defendants’ motion for summary judgment. See Batista v. Union of Needleworkers, No. 97-CV-4247 (HB), 2000
WL 1760923, at *3 (S.D.N.Y. Nov. 30, 2000) (holding that the plaintiff's “conclusory statements” offered “in response to [the]
defendant's evidence” were “insufficient as a matter of law to raise an issue of fact.”); see also Scott v. Coughlin, 344 F.3d 282,

287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment
when the moving party has set out a documentary case.”).

“Ordinarily, the proper remedy where a prisoner has failed to satisfy the exhaustion requirement is to dismiss the complaint
without prejudice, to give the inmate a chance to exhaust his administrative remedies and then refile his complaint.” Bennett
v. Columbe, No. 9:16-CV-653 (BKS/CFH), 2018 WL 5728042, at *5 (N.D.N.Y. July 17, 2018) (internal quotation marks and
citation omitted), report and recommendation adopted, No. 9:16-CV-0653 (BKS/CFH), 2018 WL 4627663 (N.D.N.Y. Sept. 27,
2018). However, for the reasons discussed below, because the undersigned concludes that defendants are entitled to summary

judgment on the merits, it is recommended that plaintiff's complaint be dismissed with prejudice.

B. Eighth Amendment Claims

Inmates enjoy an Eighth Amendment protection against the use of excessive force and may recover damages for its violation
under § 1983. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Eighth Amendment's prohibition against cruel and unusual

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punishment precludes the “unnecessary and wanton infliction of pain.” Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

1. Excessive Force: C.O. Sadowski

*12 To establish an Eighth Amendment excessive force claim, a plaintiff must satisfy both objective and subjective elements.
See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). The objective element is “responsive to contemporary standards

of decency” and requires a showing “that the injury actually inflicted [is] sufficiently serious to warrant Eighth Amendment
protection.” Hudson, 503 U.S. at 8 (internal quotation marks and citation omitted); Blyden, 186 F.3d at 262. “Not every push or
shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Sims,
230 F.3d at 22 (internal quotation marks, alteration, and citation omitted). However, “the malicious use of force to cause harm[ ]
constitute[s] [an] Eighth Amendment violation per se” regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263
(citing Hudson, 503 U.S. at 9). “The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes
from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the
conscience of mankind.” Hudson, 503 U.S. at 9-10 (internal quotation marks and citations omitted). “The absence of serious
injury is therefore relevant to the Eighth Amendment inquiry, but does not end it.” Id. at 7.

The subjective element requires a plaintiff to demonstrate the “necessary level of culpability, shown by actions characterized
by wantonness.” Sims, 230 F.3d at 21 (internal quotation marks and citations omitted). Thus, the key inquiry into a claim
of excessive force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically [to] cause[ ] harm.” Hudson, 503 U.S. at 7 (internal quotation marks and citations omitted); see also Wilkins v.
Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (Observing that the Supreme Court has emphasized that the nature of the force
applied is the “core judicial inquiry” in excessive force cases—“not whether a certain quantum of injury was sustained.”)
(internal quotation marks and citation omitted). In determining whether defendants acted in a malicious or wanton manner, the
Second Circuit has identified five factors to consider:

the extent of the injury and the mental state of the defendant[;] ... the need for the application of force;
the correlation between that need and the amount of force used; the threat reasonably perceived by the
defendants; and any efforts made by the defendants to temper the severity of a forceful response

Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (internal quotation marks and citations omitted).

Here, defendants have established entitlement to summary judgment dismissing plaintiff's Eighth Amendment excessive force
claim against C.O. Sadowski. See Compl. at 4. Even viewing the evidence in the light most favorable to plaintiff as the
nonmoving party, the documentary evidence establishes that, at most, C.0. Sadowski used de minimis force by allegedly
“striking [plaintiff] on the right side of [his] face for no reason which lead to these officer's [sic] using excessive force violating

[his] 8 th Amendment [sic].” Id.; see Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (holding that inmate's “allegations of
excessive force—that he was bumped, grabbed, elbowed, and pushed by [the defendant correction officers]|—do not approach
an Eighth Amendment claim. The force [the plaintiff] describes is not sufficiently serious or harmful to reach constitutional
dimensions); Mayo v. Lavis, No. 11-CV-869, 2016 WL 2756545, at *7 (W.D.N.Y. May 12, 2016) (holding that, “even if [the
plaintiff] properly exhausted his administrative remedies, his Eighth Amendment claim would fail because even assuming that
[the defendant] pushed [the plaintiff] onto the bench, punched him in the face, and threw him on the floor, the force used was
de minimis under the caselaw.”);

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fo) porte’ ed.

As defendants argue in reply to plaintiff's opposition, see Dkt. No. 25 at 11-12, plaintiff does not dispute their contention that
C.O. Sadowski's use of force was de minimis. See Dkt. No. 24 at 4-6. Indeed, plaintiff's response in opposition contends only that
C.O. Torres’ alleged chokehold constituted more than de minimis force—but does not address defendants’ arguments concerning
C.O. Sandowski other than reasserting, conclusorily, that C.O. Sandowski “spontaneously assaulted” him. Dkt. No. 24 at 6.
Further, a careful examination of the parties’ arguments and evidence reveals that plaintiff does not allege that he sustained any
injurie from C.O. Sadowski's alleged use of force. See Compl. at 4; Dkt. No. 24 at 6. Indeed, the only injuries and/or physical
pain that plaintiff alleges, or that his medical records support, are a one-inch abrasion on his right cheek and reported neck pain,
that were, by plaintiff's own admission, the result of his encounter with C.O. Torres and the assisting correction officers in SHU
—not his contact with C.O. Sadowski. See Compl. at 4; Dkt. No. 19-6 at 1, 6; Dkt. No. 19-4 at 7. The absence of injury or pain
indicates that the force alleged was insufficient to sustain a claim for excessive force under the Eighth Amendment. See Boddie,
105 F.3d at 862 (granting summary judgment in favor of the defendant correction officers as to the pro se inmate plaintiff's
Eighth Amendment excessive force claim where the plaintiff did “not maintain that he experienced any pain or injury as a result
of the physical contact.””). Moreover, even assuming plaintiff attributed the abrasion on his right check to C.O. Sandowski, such

injury is de minimis and insufficient to sustain an Eighth Amendment excessive force claim. > See Bermudez v. Waugh, No.
9:11-CV-0947 (MAD/DEP), 2013 WL 654401, at *5 (N.D.N-Y. Feb. 21, 2013) (holding that the plaintiff's allegations that the
defendant correction officer ran towards him and punched him in the chest resulting a “little red mark” or “red bruise” that was

“a couple centimeters across” was a “de minimis use of force ... [that wa]s clearly insufficient to satisfy the objective prong of
an excessive force claim.”); James v. Phillips, No. 05 Civ. 1539, 2008 WL 1700125, *4-5 (S.D.N.Y. Apr. 9, 2008) (finding de
minimis use of force when prison guard shoved inmate into door which resulted in temporary swelling of the inmate's chin).
Thus, plaintiff has failed to establish the objective prong for a claim of excessive force against C.O. Sadowski.

*13 In addition, aside from plaintiff's conclusory statements that C.O. Sadowski “maliciously” assaulted him “without
provocation or any genuine penological/security justifiable reason,” see Compl. at Dkt. No. 24 at 6, the record is devoid of
evidence indicating that C.0. Sadowski used force against plaintiff “maliciously and sadistically [to] cause[ ] harm.” Hudson,
503 U.S. at 7 (internal quotation marks and citations omitted). Rather, defendants’ admissible evidence establishes, at most,
that C.O. Sadowski, C.O. Grzeskowiak, and C.O. Skelly used de minimis force “in a good-faith effort to maintain or restore
discipline” after plaintiff failed to comply with C.O. Grzeskowiak's direct order to produce his razor and then “turned in an
aggressive manner and attempted to strike C.O. Sadowski” during the ensuing cell frisk. Id. (internal quotation marks and
citations omitted); see Dkt. No. 19-2 at 2 ¥ 15; Dkt. Nos. 19-12 at 2; Dkt. No. 19-18 at 2. Plaintiff's conclusory assertions to
the contrary are insufficient to raise a genuine issue of material fact. See Scott, 344 F.3d at 287; Batista, 2000 WL 1760923,
at *3; see also Zembko v. Northwestern Mut. Life Ins. Co., No. 3:05-CV-918 (AHN), 2007 WL 948323, at *4 n.1 (D. Conn.
Mar. 26, 2007) (“[A] nonmovant's self-serving conclusory statements that dispute the movant's evidence cannot create material

issues of fact to avoid summary judgment.” (internal quotation marks and citation omitted)). Accordingly, as plaintiff has failed
to establish the either prong for an Eighth Amendment excessive force claim against C.O. Sadowski, it is recommended that
this claim be dismissed with prejudice.

2. Failure to Protect: C.O. Grzeskowiak and C.O. Skelly

Correction officers may be held liable under Section 1983 for failing to intervene where another correction officer is violating
an inmate's constitutional rights. See Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. 2010). To establish a claim for

“eo

failure to protect, a plaintiff must demonstrate that “ ‘(1) the officer had a realistic opportunity to intervene and prevent the
harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated;
and (3) the officer does not take reasonable steps to intervene.’ ” Id. (quoting Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501,
512 (S.D.N.Y. 2008), aff'd sub nom. Jean-Laurent v. Wilkerson, 461 F. App'x 18 (2d Cir. 2012) (summary order)). “Whether

an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue

of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).

WESTLAW


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Sandee as, 2.2 4iS¥ 098218 BES MI cdg ncument 58 Filed 11/13/25 Page 476 of 484

Footage corroborates C.O. Torres’ declaration, as it shows C.O. Torres give plaintiff another verbal order and move closer to
plaintiff while other correction officers enter the strip frisk room, after which plaintiff can be seen turning to face his back
towards C.O. Torres and the other officers and moving his left hand up to his mouth. See id. at § 16; Video Footage at 4:05.

*15 The Video Footage also corroborates defendants’ documentary evidence concerning C.O. Torres’ use of force and
contradicts plaintiffs contention that C.O. Torres placed him in a “rear naked chokehold.” Compl. at 4. As discussed above,
the use of force report authored by Sgt. McCarthy and the use of force staff memoranda authored by C.O.s Torres, Grennell,
Sears, Delaney, Ray, Mitchell, and Lovejoy, all state that a “BODY HOLD” was used to obtain control over plaintiff in an
attempt to prevent him from placing the object he removed from his buttocks area into his mouth. See Dkt. No. 19-4 at 1,
12-13, 14-15, 16-17, 18-19, 20-21, 22-23, 24-25. At 4:05 of the Video Footage, while plaintiff is moving his left hand from his
buttocks towards his mouth, C.O. Torres is seen taking hold of plaintiff's upper body by placing his arms over plaintiff's arms,
and attempting to hold plaintiffs arms down away from his face, which corroborates C.O. Torres’ declaration that he used a
body hold in order to prevent plaintiff from bringing his left hand to his mouth. See Video Footage at 4:05; Dkt. No. 19-19 at
2-3 § 17. Further, although one of the officers can be seen placing his left hand on the back of plaintiff's neck/head momentarily,
that officer removes his hand immediately upon C.O. Torres placing his arms around plaintiff's arms, and neither C.O. Torres
nor any of the assisting C.O.s put their hands or arms around plaintiff's neck. See Video Footage at 4:05. The Video Footage
also corroborates the portion of C.O. Torres’ declaration in which he explained that, once he placed plaintiff in a body hold,
he forced plaintiff to the floor, where he held onto plaintiff while plaintiff continued to struggle to get free and the other C.O.s
attempt to gain control over plaintiff through the use of upper and lower body holds. See Dkt. No. 19-19 at 3 § 17-18; Video
Footage at 4:11-7:07. Thus, the Video Footage “blatantly contradict[s]’ plaintiff's version of events concerning the type of force
used, such “that no reasonable jury could believe” plaintiff's account of the incident. Scott, 550 U.S. at 380.

Further, although it is difficult to see plaintiff while he is on the ground because of the correction officers standing over him, the
Video Footage also corroborates C.O. Torres’ statement that he did not render unconscious or “put [him] to sleep,” as plaintiff
can be seen struggling and resisting the officers attempts to restrain him intermittently while on the floor. See Video Footage
at 4:11-4:15, 4:30-4:34, 4:49, 5:09; Dkt. No. 19-19 at 3 ¢ 19. In this regard, the Video Footage also “blatantly contradict[s]”
plaintiff's allegations that he was slapped awake by officers and that he was unconscious until he woke up in another room.
Scott, 550 U.S. at 380; see Compl. at 4. Rather, the Video Footage at 7:09 plainly shows correction officers assist plaintiff in
standing up off the floor, after which time plaintiff can be seen standing and conversing with the correction officers while C.O.

Lovejoy takes photographs of plaintiff. See Video Footage at 7:07-8:14 (plaintiff standing and conversing), id. at 8:15-9:35
(C.O. Lovejoy taking six photographs of plaintiff). Indeed, after standing up from the floor, plaintiff can be seen acting visibly
argumentative and physically resisting the correctional staff while C.O. Lovejoy takes his photographs. See Video Footage at
8:15-9:35. Moreover, at no point during the approximately 14 minutes that plaintiff was in the SHU strip frisk room did any
officers slap or strike plaintiff in any manner. See generally Video Footage. In addition, the Video Footage between 13:34-13:39
shows plaintiff walking backwards to exit the strip frisk room under his own power with a correction officer merely guiding
him with one hand on plaintiff's right arm. See Video Footage at 13:34-13:39.

Along with the Video Footage, the undersigned has also considered the de minimis nature of plaintiffs injuries. Plaintiff's
medical records from his evaluation at 8:00 a.m. on May 12, 2019—taken almost immediately after the incident involving C.O.
Torres—indicate that plaintiff sustained only a one-inch abrasion on his face, and that “no other injuries [were] observed.” Dkt.
No. 19-6 at 1. In addition, while plaintiff was on contraband watch on May 13 and 14, 2019, his medical records indicate “no
medical concerns.” Id. at 2-3. As discussed above in subsection IV. B. 1., supra, the one-inch abrasion on plaintiff's face is
clearly a de minimis injury. See Bermudez, 2013 WL 654401, at *5; James, 2008 WL 1700125, *4-5. Further, plaintiff's medical
records indicate that, on May 15 and 17, 2015—days after the May 12, 2019 incident with C.O. Torres—plaintiff informed a
nurse while one sick call that he had been suffering from a sore throat, neck, and jaw pain for two days, for which he was given
Motrin®. See Dkt. No. 19-6 at 4. On June 12, 2019, after plaintiff had filed his Complaint, he complained of “migraine” and
“neck pain since 5/12/19 when [he] sa[id] he was choked by C.O.” Id. at 6. Plaintiff's medical records also indicate that, on
May 17, 2019, plaintiff “confirm[ed] some improvement” with respect to his “sore throat [and] jaw tenderness.” Id. at 4. As
discussed above, the Video Footage and defendants’ documentary evidence contradict plaintiff's contention that he was choked

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fo) porte’ ed.

or grabbed by the neck. See Dkt. No. 19-19 at 3 § 25; Video Footage at 4:05. Moreover, neither plaintiff's medical records
or photographs taken immediately after the incident contain any indication that plaintiff experienced head and/or neck trauma
when C.O. Torres and the assisting correction officers used body holds on May 12, 2019. See Dkt. No. 19-6; Dkt. No. 19-7
at 1-6. In addition, as defendants point out, plaintiff's deposition testimony concerning his alleged neck pain was equivocal at
best, as he stated that sometimes ibuprofen “doesn't even do nothing,” but also testified that the pain in the back of his neck was
“Just like a little bit” and only occurred from “time to time.” Dkt. No. 19-2 at 78; see Dkt. No. 19-28 at 27. Thus, to the extent
alleges head or neck pain as a result of C.O. Torres’ use of force, plaintiff appears to allege, at most, a de minimis injury.

*16 In any event, even assuming plaintiff's complaints of migraines or neck pain constitute a sufficiently serious injury, his
Eighth Amendment excessive force claim against C.O. Torres still fails because he cannot establish the subjective prong (i.e.
that C.O. Torres applied force maliciously and/or sadistically for the purpose of causing pain). See Hudson, 503 U.S. at 7; see
also Joseph v. Annucci, No. 18-CV-7197 (NSR), 2020 WL 409744, at *7 (S.D.N.Y. Jan. 23, 2020) (“For a prisoner to prevail
on a claim asserting that he was subjected to cruel and unusual punishment, he must prove both ‘an objective element ... and

9099

a subjective element.’ ” (emphasis added) (quoting Farmer, 511 U.S. 825 at 834 (additional citation omitted))). Here, contrary
to plaintiff's assertion that defendants “manufactured a security contraband retrieval story to justify the SHU portion of the
assault” and used force against him “for sport,” Dkt. No. 24 at 6, 7, the Video Footage and supporting documentary evidence,
including C.O. Torres’ declaration and Sgt. McCarthy's use of force report, clearly establish that C.O. Torres and the assisting
correction officers applied body holds “in a good-faith effort to maintain [and] restore discipline” when plaintiff, an intoxicated
and noncompliant inmate, was attempting to ingest potential contraband—not “maliciously and sadistically [to] cause[ ] harm.”
Hudson, 503 U.S. at 7; see Scott, 344 F.3d 291. Indeed, defendants have established that the use of foree—which consisted of
restricting plaintiff's movement through the use of upper and lower body holds—was proportional to the force needed to prevent
plaintiff from swallowing the object in light of the reasonably perceived threat that he would ingest contraband. See Scott, 344
F.3d 291. Further, plaintiff proffers no allegations whatsoever concerning C.O. Torres’ mental state, aside from the conclusory
assertions that unnamed correctional staff targeted him because, according to plaintiff, “a group of officers ... assumed that
he was a gang member.” See Dkt. No. 24 at 5; Compl. at 4-5; see Scott, 344 F.3d at 291. Such conclusory and self-serving
statements, made for the first time in opposition to defendants’ motion for summary judgment, fail to raise a genuine dispute
of material fact. See Dkt. No. 24; See Scott, 344 F.3d at 287; see also McKinney v. Dzurenda, 555 F. App'x 110, 111-12 (2d
Cir. 2014) (summary order) (“[V]iewing the video footage together with the other evidence, no reasonable fact-finder could

conclude that the defendants used force against [the plaintiff] maliciously or sadistically to cause harm.”); Houston v. Horn, No.
09-CV-801 (DLC), 2010 WL 1948612, at *12 (S.D.N.Y. May 13, 2010) (concluding that the plaintiff failed to satisfy subjective
element of excessive force claim where he failed to submit proof that contradicted evidence that correction officers used force
only in order to restore discipline after the plaintiff failed to comply with an officer's order.).

As a final matter, defendants have established entitlement to summary judgment insofar as plaintiff alleges that he suffers from
PTSD as a result of the May 12, 2019 incidents. See Dkt. No. 24 at 9; Dkt. No. 25 at 14. Although plaintiff's medical records
indicate that he requested to resume the use of Zoloft© in November 2019, his medical records are devoid of treatment or
diagnosis for PTSD and make no reference to the May 12, 2019 incidents; rather, plaintiff's medical records indicate only that
he was placed on psychiatric medication after being admitted to DOCCS to cope with anxiety, depression, anger, and sleep
issues. See Dkt. No. 27 at 9, 22, 28. Indeed, aside from plaintiff's conclusory and self-serving allegations made in opposition to
defendants’ motion, the record before the Court is devoid of any causal link between the May 12, 2019 incidents and plaintiff's
request to be restart his regimen of psychiatric medication. See id. Based on the foregoing, it is recommended that plaintiff's
Eighth Amendment excessive force claim against C.O. Torres be dismissed with prejudice.

In sum, the undersigned concludes that defendants have established entitlement to summary judgment based on plaintiff's failure
to exhaust administrative remedies and failure to establish claims for Eighth Amendment excessive force or failure to intervene.
Consequently, it is recommended that defendants’ motion be granted in its entirety and plaintiff's Complaint be dismissed in
its entirety with prejudice. Based on the foregoing, the undersigned declines to consider the parties’ alternative arguments
addressing qualified immunity.

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Sandee as, 2.2 4iS¥ 098218 BES MI cdg ncument 58 Filed 11/13/25 Page 478 of 484

ot Reporte ed.

V. Conclusion

WHEREFORE, based on the findings set forth above, it is hereby:

RECOMMENDED, that defendants’ Motion for Summary Judgment (Dkt. No. 19) be GRANTED IN ITS ENTIRETY and
that plaintiff's Complaint (Dkt. No. 1) be DISMISSED IN ITS ENTIRETY WITH PREJUDICE; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance
with Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections
to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan vy. Racette, 984 F.2d 85, 89 (2d
Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED

R. CIV. P. 6(a), 6(e), 72.8

All Citations

Not Reported in Fed. Supp., 2021 WL 799263

Footnotes

1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).

2 Following initial review of plaintiffs Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b), Chief United States District Court Judge Glenn T. Suddaby dismissed, without prejudice, plaintiff's only
other claim for Eighth Amendment deliberate medical indifference. See Dkt. No. 5 at 9. Plaintiff did not file an amended
complaint in this action.

3 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided
to plaintiff.
4 “Courts within this Circuit are split as to whether a delay by CORC constitutes unavailability that would excuse a

plaintiffs failure to exhaust his administrative remedies.” Lovell v. McAuliffe, No. 9:18-CV-0685 (TJM/CFH), 2019
WL 4143361, at *6 (N.D.N.Y. May 1, 2019), report and recommendation adopted, No. 9:18-CV-0685 (TJM/CFH), 2019
WL 4142593 (N.D.N.Y. Aug. 30, 2019); see Houston v. Coveny, No. 14-CV-6609 (FPG), 2020 WL 2494439, at *3
(W.D.N.Y. May 14, 2020). However, the undersigned need not reach that issue here, as there had been no delay by CORC
at the time plaintiff brought this action and plaintiff filed his Complaint before having even filed his administrative
appeal to CORC. See Compl. at 1; Dkt. No. 19-25 at 1; Dkt. No. 19-26 at 1.

5 There are simply no facts upon which the undersigned can plausibly infer that plaintiff attributes his alleged neck pain
to C.O. Sadowski. See Compl. at 4; Dkt. No. 24 at 6.

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Sandee as, 2.2 4iS¥ 098218 BES MI cdg ncument 58 Filed 11/13/25 Page 479 of 484

6 The undersigned notes that plaintiff did controvert defendants’ argument that C.O. Torres’ use of force was de minimis
in his opposition in response to defendants’ motion for summary judgment. See Dkt. No. 24 at 8. Therefore, contrary to
defendants’ contention, defendants are not entitled to a lesser burden of proof as to this claim. See Dkt. No. 25 at 11-12.
However, as discussed herein, the undersigned concludes that defendants have met their burden of proof on summary
judgment with respect to plaintiff's Eighth Amendment excessive force claim against C.O. Torres.

7 The surveillance video footage from the Auburn SHU cell in which plaintiff's interaction with C.O. Torres and nonparty
C.O.s Grennell, Sears, Delaney, Ray, Mitchell, and Lovejoy is on file with the Clerk's Office. See Dkt. No. 21. Citations
made thereto are designated “Video Footage,” and the corresponding numbers reference the time from the beginning
of the video recording.

8 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-
day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed
to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday,
Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or
legal holiday. Id. § 6(a)(1)(C).

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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Washi ese nAdsCVoP PZB BKAMAK Document 58 ‘Filed 11/13/25 Page 480 of 484

708 Fed.Appx. 705
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.

Donald WASHINGTON, Plaintiff-Appellant,

Vv.

Dale ARTUS, Mike Sedar, Lisa Lapenna, Nancy Lias, William Scott, & Peter Nigro, Defendants-Appellees. °

16-1034-pr
|
September 7, 2017

Synopsis

Background: Prisoner brought § 1983 action against prison officials and nurses, asserting claims for unconstitutional conditions
of confinement and deliberate indifference to his serious medical needs in violation of Eighth Amendment. The United States
District Court for the Western District of New York, Arcara, J., adopted report and recommendation of Hugh B. Scott, United
States Magistrate Judge, granting prison officials' and nurses' motions for summary judgment and denying prisoner's motion
for reconsideration of court's earlier denial of his motion for appointment of counsel. Prisoner appealed.

Holdings: The Court of Appeals held that:
[1] wet mess hall floor did not objectively pose sufficient risk of inmate harm;

[2] approximate four hour lapse between time prisoner broke ankle and his arrival in emergency room did not constitute
sufficiently serious deprivation of medical care;

[3] prison officials were not deliberately indifferent to prisoner's pain; and

[4] district court did not abuse its discretion in denying prisoner's motion seeking appointment of new pro bono counsel.

Affirmed.

Procedural Posture(s): On Appeal; Motion for Reconsideration; Motion for Summary Judgment; Other.
West Headnotes (4)

[1] Prisons @ Working conditions

Sentencing and Punishment @ Work and labor

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Washi ese nAdsCVoP PZB BKAMAK Document 58 ‘Filed 11/13/25 Page 481 of 484

[2]

[3]

[4]

Wet mess hall floor in prison did not objectively pose sufficient risk of inmate harm, and thus prisoner could not prevail
on his Eighth Amendment § 1983 conditions of confinement claim alleging that he was forced to work in unsafe
conditions, on slippery floor, which resulted in his breaking his ankle, absent evidence that wet floor had resulted
in prior accidents causing serious injuries to other inmates, or that prison officials intentionally disregarded the risk
posed by slippery conditions. U.S. Const. Amend. 8; 42 U.S.C.A. § 1983.

49 Cases that cite this headnote

Prisons @ Particular Conditions and Treatments
Sentencing and Punishment @ Medical care and treatment

Approximate four hour lapse between time prisoner broke his ankle, upon slipping on wet floor in prison mess hall,
and his arrival in emergency room, did not constitute sufficiently serious deprivation of medical care sufficient to
establish deliberate indifference to serious medical needs in violation of Eighth Amendment, in prisoner's § 1983
action against prison officials; officials carried prisoner to infirmary soon after the incident, treated his broken ankle
with a splint and ice, and arranged to have him transported to the emergency room after consulting with an outside
doctor. U.S. Const. Amend. 8; 42 U.S.C.A. § 1983.

65 Cases that cite this headnote

Prisons @ Particular Conditions and Treatments
Sentencing and Punishment @ Medical care and treatment

Prison officials were not deliberately indifferent to prisoner's pain, in violation of Eighth Amendment, when they
discontinued his prescription-strength pain reliever, in prisoner's § 1983 claim against officials; prisoner was informed
that he would no longer have access to prescription-strength painkillers if he was transferred from prison infirmary
back to his regular cell, he chose to be discharged from infirmary anyway, and he did not complain of any significant
pain thereafter. U.S. Const. Amend. 8; 42 U.S.C.A. § 1983.

1 Case that cites this headnote

Civil Rights @= Criminal law enforcement; prisons

District Court did not abuse its discretion in denying prisoner's motion seeking appointment of new pro bono counsel
in his § 1983 action against prison officials, asserting claims for unconstitutional conditions of confinement and
deliberate indifference to his serious medical needs in violation of Eighth Amendment; prisoner's claims lacked merit.
U.S. Const. Amend. 8; 42 U.S.C.A. § 1983.

50 Cases that cite this headnote

Appeal from a judgment of the United States District Court for the Western District of New York (Arcara, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the
district court is AFFIRMED.

Attorneys and Law Firms

FOR PLAINTIFF-APPELLANT: Donald Washington, pro se, Alden, New York.

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Washi ese nAdsCVoP PZB BKAMAK Document 58 ‘Filed 11/13/25 Page 482 of 484

FOR DEFENDANTS-APPELLEES: Frederick A. Brodie, Assistant Solicitor General, Barabara D. Underwood, Solicitor
General, Victor Paladino, Assistant Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York,
Albany, New York.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

*706 SUMMARY ORDER

Plaintiff-appellant Donald Washington, a prisoner proceeding pro se, appeals the judgment of the district court entered February
29, 2016, in favor of various prison officials and nurses of the Wende Correctional Facility, dismissing his complaint alleging
claims for unconstitutional conditions of confinement and deliberate indifference to his serious medical needs, pursuant to 42
U.S.C. § 1983. By Decision and Order dated February 25, 2016, the district court granted defendants’ motion for summary
judgment, adopting the Report and Recommendation of United States Magistrate Judge Hugh B. Scott, and denied Washington’s
motion for reconsideration of the court’s earlier denial of his motion for the appointment of counsel. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.

This matter arises from a slip-and-fall incident that occurred while Washington was working in the prison mess hall. Washington
alleges that he was forced to work in unsafe conditions—on a slippery floor—which resulted in his breaking his ankle. He also
alleges that the medical department took four hours to send him to the emergency room for treatment and subsequently denied
him proper pain medication.

We review de novo the district court’s grant of summary judgment, with the view that “[s]ummary judgment is appropriate
when there is ’no genuine dispute as to any material fact’ and the moving party is ’entitled to judgment as a matter of law.’
” Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 192 (2d Cir. 2014) (quoting
Fed. R. Civ. P. 56(a)). “There is no ’genuine’ dispute when ’the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.’ ” Jd. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Upon review, we conclude that the district court correctly granted defendants’ motion for
summary judgment and affirm for substantially the reasons stated by the district court 708 and set forth in the Magistrate
Judge’s Report and Recommendation.

I. Conditions of Confinement

To prevail on an Eighth Amendment challenge to conditions of confinement, a plaintiff must prove that “(1) objectively, the
deprivation the inmate suffered was sufficiently serious that he was denied the minimal civilized measure of life’s necessities,
and (2) subjectively, the defendant official acted with a sufficiently culpable state of mind, such as deliberate indifference to
inmate health or safety.” Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (internal quotation marks and alteration omitted).
We conclude that Washington failed to raise a genuine issue of fact as to either element.

[1] Washington failed to present evidence sufficient to raise an issue of fact as to whether the wet mess hall floor objectively
posed a sufficient risk of inmate harm. Although he asserts in his appellate brief that the wet floor had resulted in prior accidents
causing serious injuries to other inmates, he presented no such evidence below. He testified only that other inmates had “tripped
over like holes in the floors and stuff like that.” App’x 41. But even assuming this included slip-and-fall incidents, Washington
proffered no evidence that the prior incidents led to any injuries, much less that the wet mess hall floor posed the type of risk
that society considers “to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such
a risk.” See Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).

Washington also failed to present evidence from which a reasonable jury could find that prison officials subjectively acted with
the culpable state of mind necessary for an Eighth Amendment violation. Although he contends on appeal, and contended in his

WESTLAW


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Case 9:24-cv-00218-BKS-MJK Document 58 Filed 11/13/25 Page 483 of 484

Washi ese nAdsCVoP PZB BKAMAK Document 58 ‘Filed 11/13/25 Page 484 of 484

We have considered Washington’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.

All Citations

708 Fed.Appx. 705

Footnotes

 The Clerk of Court is respectfully directed to amend the official caption to conform to the above.

1 On one occasion, Washington complained only of an itchy left foot, left ankle discomfort, and stomach discomfort.

End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.

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