Opinion
9:21-cv-00372-MAD-TWD
06-22-2023
DAMILOLA ANIMASHAUN, Plaintiff, v. J.J. TOOHILL et al., Defendants.
DAMILOLA ANIMASHAUN Great Meadow Correctional Facility Plaintiff, pro se LETITIA JAMES STEVE NGUYEN, ESQ. Attorney General of the State of New York Assistant Attorney General The Capitol Attorney for Defendants
DAMILOLA ANIMASHAUN Great Meadow Correctional Facility Plaintiff, pro se
LETITIA JAMES STEVE NGUYEN, ESQ. Attorney General of the State of New York Assistant Attorney General The Capitol Attorney for Defendants
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). At all times relevant, Plaintiff was an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Upstate Correctional Facility (“Upstate”). (Dkt. No. 1.) On April 1, 2021, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983. Id. Plaintiff's second amended complaint was accepted for filing on November 18, 2021, which alleged Eighth Amendment excessive force and failure to intervene claims against Corrections Officer (“CO”) Tourville, CO J.J. Toohill, CO Davey, CO Patrick, CO B. Chevier, CO Z. Holmes, and CO W. Hoffnagle. (Dkt. No. 21.)
The defendants will be referenced henceforth by their last names. Hoffnagle indicates he was employed by DOCCS as a Sergeant at all relevant times. (Dkt. No. 54-11, ¶ 1.) The Court will refer to him as Sgt. Hoffnagle.
Currently before the Court is Defendants' motion for summary judgment. (Dkt. No. 54.) For the reasons set forth below, the Court recommends Defendants' motion be granted in part and denied in part.
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if “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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
The Second Circuit instructs that on summary judgment motions, “[t]he 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.” Jeffreys, 426 F.3d at 554 (emphasis in original). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment”).
III. BACKGROUND
A. Plaintiff's Contentions
Plaintiff's claims stem from an incident on April 9, 2018, at Upstate. He alleges that on April 9, 2018, at around 3:35AM, he became involved in an incident with his cellmate, which resulted in the cellmate having “a hold on” Plaintiff. (Dkt. No. 21 at 6.) At his deposition, Plaintiff testified he got up in the middle of the night to stretch for about eight to ten minutes. (Dkt. No. 54-3 at 75-76.) At some point, his cellmate came up and “grabbed” him in a hug-like fashion. Id. at 77. The cellmate kept him there until Plaintiff called out to the CO doing rounds, who turned out to be CO Toohill. Id. Plaintiff claims he protected himself by “watching his [cellmate's] hands” to ensure his cellmate did not punch him. Id. at 77-78. After he got CO Toohill's attention, CO Toohill called other officers to come to the cell and help separate Plaintiff and his cellmate. Id. at 85. CO Toohill then asked Plaintiff and his cellmate to separate “several times.” Id. at 86. Plaintiff claimed he could not separate from his cellmate because his cellmate was still holding on to him and he wanted the COs to come in and get his cellmate off of him. Id. at 86-87. Plaintiff explained that if someone started an altercation with him and he tried to protect himself, “some officers will . . . write that down as a fight or two inmates exchanging blows.” Id. at 87.
Plaintiff testified he did not remember being struck in the chest when the COs entered his cell. Id. at 90. Plaintiff claimed the only thing he remembered was the COs pulling him and his cellmate apart. Id. at 90-91. The COs had to use “more force” on the cellmate when he attempted to “jump over” the COs and “attack” Plaintiff-ending the incident. Id. at 90-91. Plaintiff testified once he was on the floor, one CO, who he later identified as CO Tourville, grabbed his left hand and “slammed it so hard” on the floor, he “felt it crack” and it was “unbearable.” Id. at 91.
A nurse examined Plaintiff at around 4:15AM and observed scrapes on Plaintiff's lefthand and right-hand knuckles, a round scrape on the left center of Plaintiff's forehead, a red spot on Plaintiff's back, and a split upper and lower lip. (Dkt. No. 21 at 7; Dkt. No. 54-3 at 8-9.) Two hours after he returned to his cell, Plaintiff's left hand swelled to the point where he could not move it. (Dkt. No. 54-3 at 98.) Plaintiff was taken to the hospital at Clinton Correctional Facility for a day where an x-ray was ordered for his hand. Id. at 102-03. He underwent surgery for his hand on or about April 20, 2018. Id. at 103. Plaintiff claims he did not sustain these injuries from his cellmate, as his cellmate only had a “tight hold” on him. (Dkt. No. 21 at 7.)
Plaintiff testified the pain in his left hand persists but has gotten better over time. (Dkt. No. 54-3 at 108.) He takes ibuprofen or Tylenol for the pain but also reported his psychiatric medications help with the physical and emotional pain resulting from the incident. (Dkt. No. 543 at 112-13, 122; Dkt. No. 21 at 15.) His left arm began going numb or feeling “paralyzed” about a year after the incident which Plaintiff claims did not occur prior to the incident. (Dkt. No. 54-3 at 115.) He also reported it is difficult to grab anything or write with his left hand but claimed he could lift weights and do pushups at the time of his deposition. Id. at 115-17. Plaintiff further testified he continues to have constant chest pain from being hit with the shield on April 9, 2018. Id. at 123-24.
B. Plaintiff's Tier III Disciplinary Hearing
Plaintiff was sanctioned for the April 9, 2018, incident on April 20, 2018. (Dkt. No. 21 at 8; Dkt. No. at 34.) At his Tier III Disciplinary Hearing, Plaintiff pled guilty to violent conduct and fighting. (Dkt. No. 54-3 at 36-37.) However, Plaintiff later testified at his deposition that he pled guilty to two charges at his Tier III Disciplinary Hearing because the Hearing Officer told Plaintiff off the record that if he pled guilty, he would receive less time in the SHU. Id. at 126-28.
The Court notes it is difficult to glean information from the Tier III Hearing transcript as much of the testimony is transcribed as “inaudible.” See generally Dkt. No. 54-3 at 34-54.
The Hearing Officer also ultimately found Plaintiff guilty of refusing a direct order but found him not guilty of interference. Id. at 50. At the hearing, Plaintiff stated he and his cellmate got into a fight but at some point, his cellmate began holding him tightly. Id. at 45, 46. Plaintiff then called out to CO Toohill to break up the fight but claimed he physically could not comply with CO Toohill's orders to break up, or “lock out,” because his cellmate was “holding on to” him. Id. at 45-47. Plaintiff asserted he “was already on the floor” when the COs entered his cell and, while handcuffing him, one of the COs, who he later identified as CO Tourville, “slammed [his] hand[] so hard on the floor that night [he] had to go to the hospital.” Id. at 48. At the end of the hearing, after Capt. Gravlin issued his opinion, Plaintiff continued to argue he could not lock out and therefore did not “refuse” to follow the order. Id. at 52-54. Capt. Gravlin explained he found this to be a “mitigating” circumstance and Plaintiff received a “considerable amount less [time in the SHU]” because he took ownership of his actions and “the other inmate (inaudible) [from Plaintiff's] point of view . . . didn't allow [him] (inaudible)” and that is why Capt. Gravlin “put the sanction in there like [he] did.” Id. at 52, 53.
C. Use Of Force Report
Sgt. Hoffnagle documented the April 9, 2018, incident in a Use of Force Report. (Dkt. No. 54-3 at 8-9.) The report describes the events leading up to the application of force as follows. “INMATE ANIMSHAUN . . . WAS INVOLVED IN A CELL FIGHT WITH INMATE [REDACTED] THEY REFUSED TO COMPLY WITH STAFF DIRECTIONS TO STOP FIGHTING AND LOCK OUT. STAFF ENTERED THE CELL AND USED FORCE TO GAIN COMPLIANCE.” Id. at 8.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
Sgt. Hoffnagle described the “actual force used” as follows:
OFFICER PATRICK ENTERED THE CELL WITH THE SHIELD STRIKING INMATE ANIMSHAUN IN THE UPPER TORSO FORCING HIM TO THE FLOOR. OFFICER TOOHILL ENTERED THE CELL USING BOTH HANDS TO ANIMSHAUN'S SHOULDERS, HELD HIM TO THE FLOOR. OFFICER DAVEY ENTERED THE CELL USING BOTH HANDS SECURED THE INMATES RIGHT ARM. OFFICER TOURVILLE ENTERED THE CELL USING BOTH HANDS FORCED THE INMATES LEFT ARM BEHIND HIS BACK AND APPLIED MECHANICAL RESTRAINTS. ALL FORCE ENDED.(Dkt. No. 54-3 at 8.)
The same report includes a physical examination/treatment report. Id. at 9. Sgt. Hoffnagle noted on April 9, 2018, “AT APPROXIMATELY 4:15AM INMATE ANIMSHAUN WAS VIEWED IN LOWER HOLDING PEN ON 10 BLOCK. APPROXIMATELY 1 CM ROUND SCRAPE ON LEFT CENTER FOREHEAD, SCRAPES ON LEFT HAND- KNUCKLES, SCRAPES ON RIGHT HAND-KNUCKLES, A 2 CM RED SPOT ON BACK AND A SPLIT UPPER AND LOWER LIP. INMATE ADVISED TO CLEAN SCRAPES WITH SOAP AND WATER.” Id.
Sgt. Hoffnagle submitted the report on April 9, 2018, and it was reviewed by Lt. J. Mitchell the same day. Id. On July 10, 2018, Superintendent D. Uhler reviewed and evaluated the report and determined the force used was “appropriate.” Id.
D. Hallway Footage of April 9, 2018, Incident
Defendants provided the Court with footage of the hallway outside of Plaintiff's cell. (See Dkt. No. 56 containing Exhibit (“Ex.”) L.) The video lasts about 15 minutes. Although the video contains audio, it is not always clear what is being said. The Court will therefore describe the footage as accurately as possible given the audio limitations. At around the 1:45 timestamp mark (“mark”), CO Toohill stops and shines a flashlight into Plaintiff's cell. Id. As he walks away, someone from inside the cell calls him back, seemingly saying “get him out of here.” Id. At the 2:30 mark, CO Toohill radios someone about a fight. Id. A little less than a minute later, two more COs appear and ask “what's up?” into the cell. Id. The first CO, standing closest to the cell, then says “one of you come here” and “one of you's gotta lock out” while a second CO stands behind him shining a flashlight into the cell. Id. The first CO then goes “Break up or lock out right now. We're gonna come in there and break it off.” Id. The second CO leaves at around the 4 minute mark. Id. The first CO repeatedly states “break up or lock out” and “break it off, we're coming in there.” Id. There appears to be a dialogue of sorts between the first CO and those inside the cell, but it is not entirely clear what is being said.
It is unclear to the Court whether Defendants have provided Ex. L to Plaintiff to review.
At the 5:29 mark, CO Patrick brings over a shield and at the 6:04 mark the first CO says “let him go and lock out.” Id. A third CO comes into view and attaches handcuffs to the first CO's waistband. Id. At the 6:20 mark, the lights in the hallway go on and from the 6:30 to 7:30 mark CO Patrick and the third CO take turns speaking into the cell, saying “break it up,” “lock out . . . or we're coming in,” “hurry up,” “let him go and let him lock out,” and “let him go.” Id.
At the 7:35 mark, Sgt. Hoffnagle arrives and looks into the cell. Id. Sgt. Hoffnagle seemingly tells them to “Go lock out [inaudible] Hear me? Full lock out.” Id. Someone inside the cell says something back to Sgt. Hoffnagle and he replies “What's up?” Id. At around the 8 minute mark, either Sgt. Hoffnagle or CO Patrick says “just let him go before we'll have to come in there.” Id. Around 30 seconds later, either Sgt. Hoffnagle or CO Patrick again warns they will come into the cell. Id. Sgt. Hoffnagle or CO Patrick then has an exchange with someone inside the cell. Id. At the 9:08 mark, they again warn they will come into the cell. Id. At the 9:30 mark, six COs line up outside the cell door and at the 9:40 mark, the doors to the cell open. Id. Someone yells “get on the ground” and at around the 9:45 mark, the COs enter the cell. Id. There is yelling and banging coming from inside the cell. Id. At the 9:50 mark, Sgt. Hoffnagle stands just inside of the cell. Id. At the 10 minute mark, Sgt. Hoffnagle removes the shield from the cell while yelling continues coming from inside the cell. Id. At the 10:21 mark, Sgt. Hoffnagle backs up and stands right outside the doorway of the cell. Id. At the 10:48 mark, Plaintiff is taken out of his cell by three officers and frisked against the wall. Id. Plaintiff's shirt appears to be covered in blood. Id. He is then escorted out of the view of the camera. Id. At the 11:45 mark, Plaintiff's cellmate is taken outside of the cell and frisked against the wall. Id. The video ends a few minutes later with no further activity. Id.
E. Defendants' Contentions
Defendants argue the Court should grant summary judgment as to the Eighth Amendment excessive force and failure to intervene claims because Plaintiff cannot meet the subjective prong of the Eighth Amendment analysis. (Dkt. No 54-1 at 12-19.) Defendants claim the “force used was not malicious or sadistically inflicted, nor does any action demonstrate wantonness ....” Id. at 14. Because certain Defendants witnessed “the Plaintiff and his cellmate exchanging close[d] fist punches,” force “became necessary in order to gain control of the Plaintiff and his cellmate and force was ceased after compliance was gained.” Id. Further, Plaintiff “was given ample opportunities to step away from the cellmate, as exhibited in the surveillance video, yet he chose not to.” Id. at 15. Moreover, Plaintiff “was not struck, punched, kicked, or hit by any Defendant while attempting to quell the fighting happening in the cell.” Id.
According to Defendants, because the “alleged force occurred in the span of 60 seconds,” they “had no real opportunity to prevent the incident.” Id. at 17. Defendants further contend that “[a]part from simply placing the Plaintiff in mechanical restraints, Defendants did nothing other than secure the safety of the Plaintiff in the span of 60 seconds.” Id. at 19.
Defendants also assert Plaintiff's Eighth Amendment failure to intervene claims against CO Chevier, CO Holmes, and Sgt. Hoffnagle fail for lack of personal involvement. Id. at 19-25. Finally, in the alternative, Defendants argue they are entitled to qualified immunity. Id. at 25-28.
IV. DISCUSSION
Plaintiff asserts Eighth Amendment excessive force and failure to intervene claims against CO Tourville, CO Toohill, CO Davey, CO Patrick, CO Chevier, CO Holmes, and Sgt. Hoffnagle stemming from the April 9, 2018, incident.
A. Eighth Amendment Excessive Force Claims and Personal Involvement
“The Eighth Amendment prohibits the infliction of cruel and unusual punishments . . . including the unnecessary and wanton infliction of pain.” Giffen v. Crispen, 193 F.3d 89, 91 (2d Cir. 1999) (citation and quotation marks omitted). An Eighth Amendment excessive force claim has two elements-“one subjective focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect.” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)).
“The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct.” Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright, 554 F.3d at 268) (internal quotation marks omitted). The test for wantonness on an excessive force claim “is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id. (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (in determining whether defendants acted maliciously or wantonly, “a court must examine several factors including: the extent of the injury and mental state of the defendant, as well as 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.”) (citation and quotation marks omitted)). The objective component requires a showing that the “conduct was objectively ‘harmful enough' or ‘sufficiently serious' to reach constitutional dimensions.” Harris, 818 F.3d at 64 (citation omitted).
In addition, a corrections officer who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate in the use of force. See Tafari v. McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y. 2010); Cicio, 2010 WL 980272, at *13. Indeed, an official has an affirmative duty to intervene on behalf of an individual whose constitutional rights are being violated by other officers in his or her presence. Cicio, 2010 WL 980272, at *13. In order to establish liability under this theory, a plaintiff must prove that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Tafari, 714 F.Supp.2d at 342; Jean-Laurent v. Wilkinson, 540 F.Supp.2d 501, 512 (S.D.N.Y. 2008).
B. Analysis
The Court recommends (1) granting summary judgment as to the excessive force and failure to intervene claims against CO Chevier; (2) denying summary judgment as to the excessive force and failure to intervene claims against CO Toohill, CO Davey, and CO Patrick; (3) granting summary judgment as to the excessive force claims against CO Holmes and Sgt. Hoffnagle; (4) denying summary judgment as to the failure to intervene claims against CO Holmes and Sgt. Hoffnagle; and (5) denying summary judgment as to the excessive force claim against CO Tourville.
1. CO Chevier
The Court recommends granting summary judgment as to the excessive force and failure to intervene claims against CO Chevier for lack of personal involvement. CO Chevier stated that upon entering Plaintiff's cell, he used both hands to restrain Plaintiff's cellmate's left arm and applied mechanical restraints, ending the use of force. (Dkt. No. 54-9 at 2; Dkt. No. 54-3 at 23.) Id. CO Chevier brought the cellmate to his feet and, along with CO Patrick, escorted the cellmate to a holding pen to be seen by medical. (Dkt. No. 54-9 at 2.)
At his deposition, Plaintiff testified “I don't believe . . . Chevier touched me.” (Dkt. No. 54-3 at 139.) When asked how CO Chevier was involved in the use of force, Plaintiff responded “Chevier was there at the scene but he basically failed to . . . prevent the injury from happening by seeing that the officers . . . were extremely forceful upon me . . . . He didn't do anything to actually . . . prevent [that] from happening.” Id.
The record demonstrates CO Chevier never touched Plaintiff, and therefore he could not have been personally involved in any alleged use of excessive force on Plaintiff. See Columna, 2022 WL 767103, at *4 (granting summary judgment on excessive force claim where the defendants had no involvement in the force alleged); Vann, 2020 WL 3001072, at *5 (granting summary judgment on excessive force claim where the defendant “did not directly participate in the frisk” at issue and therefore “had no personal involvement in the alleged constitutional violation”). Therefore, as there is no question of material fact that CO Chevier was not personally involved in the alleged use of excessive force against Plaintiff, the Court recommends granting summary judgment as to this claim.
The Court also recommends granting summary judgment as to the failure to intervene claim against CO Chevier. As noted above, in order to establish liability for failure to intervene, a plaintiff must show that the defendant in question (1) possessed actual knowledge of the use by another correction officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Tafari, 714 F.Supp.2d at 342. “‘Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is a question of fact,' unless the evidence shows that ‘a reasonable jury could not possibly conclude otherwise.'” Toliver v. City of New York, No. 10 CIV. 5806 SHS JCF, 2013 WL 6476791, at *3 (S.D.N.Y. Dec. 10, 2013), report and recommendation adopted, No. 10 CIV. 5806 SHS, 2014 WL 549402 (S.D.N.Y. Feb. 11, 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). Moreover, “[w]hether 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, 825 F.3d 89, 107 (2d Cir. 2016).
Plaintiff alleges CO Chevier “failed to prevent the injury from happening” but did not provide any more detail. (Dkt. No 54-3 at 139.) CO Chevier reported that he went into Plaintiff's cell, restrained and handcuffed his cellmate, and escorted the cellmate out of the cell. (Dkt. No. 54-9 at 2; Dkt. No. 54-3 at 23.)
Plaintiff has failed to demonstrate that there is sufficient evidence to permit a jury to conclude CO Chevier had a realistic opportunity to intervene and prevent the harm to Plaintiff while he was restraining Plaintiff's cellmate and escorting him out of the cell. (Dkt. No. 54-3 at 23, 139.) Therefore, in this instance, the court recommends granting summary judgment as to the failure to intervene claim against CO Chevier. See Caravalho, et al. v. City of New York, et al., 13-cv-4174 (PKC)(MHD), 2016 WL 1274575, at *10 (S.D.N.Y. Mar. 31, 2016) (finding no personal involvement and granting summary judgment as to failure to intervene claims against defendants because plaintiffs did not “present facts showing that any of the named defendants directly participated in, or were in a position to effectively intercede in, the alleged uses of force”).
2. COs Toohill, Davey, and Patrick
i. CO Toohill
The Court recommends denying summary judgment as to the excessive force and failure to intervene claims against CO Toohill. Plaintiff alleges CO Toohill “had [him] on the ground face to the floor” with his hands on Plaintiff's shoulders. (Dkt. No. 57 at 5.) Plaintiff testified at his deposition, and has maintained in his submissions, he was on the floor and not resisting when he was handcuffed. (Dkt. No. 54-3 at 94-96; Dkt. No. 57 at 12-13.)
CO Toohill reported when he arrived at Plaintiff's cell, Plaintiff and his cellmate were “exchanging closed fist punches.” (Dkt. No. 54-5 at 2; Dkt. No. 54-3 at 10.) He “gave several direct orders” for the inmates to separate and they did not comply. (Dkt No. 54-5 at 2; Dkt. No. 54-3 at 10.) After Sgt. Hoffnagle arrived, “[s]everal more orders were given” and “they did not comply.” (Dkt. No. 54-3 at 10; Dkt. No. 54-5 at 2.) CO Toohill reported that “[a]t that time force was necessary to gain compliance.” (Dkt. No. 54-5 at 2.) Upon entering Plaintiff's cell, CO Toohill placed both of his hands on Plaintiff's shoulders holding him to the floor while “other officers put restraints on the Plaintiff.” (Dkt. No. 54-5 at 2; Dkt. No. 54-3 at 11.) He then assisted escorting Plaintiff and his cellmate to separate holding pens. (Dkt. No. 54-5 at 2; Dkt. No. 54-3 at 11.)
There is no dispute force was used to restrain Plaintiff on April 9, 2018, and that CO Toohill participated in the use of force. (Dkt. No. 54-3 at 8-9; Dkt. No. 54-5 at 2; Dkt. No. 54-3 at 11.) The DOCCS Use of Force Report describes the kind of force allegedly used to restrain Plaintiff and notes the resulting injuries to his forehead, lips, back, and hands. Id. Plaintiff also testified he sustained broken metacarpal bones in his left hand from the use of force. Id. at 97.
However, Plaintiff and Defendants have different accounts of what was occurring prior to the COs entering Plaintiff's cell and what happened after they entered the cell. For instance, Plaintiff claims his cellmate was holding onto him by the time the COs arrived at his cell. (Dkt. No. 54-3 at 86-87.). However, all of the Defendants reported either Plaintiff and his cellmate were in a fight (Dkt. No. 54-6 at 2; Dkt. No. 54-7 at 2; Dkt. No. 54-8 at 2; Dkt. No. 54-9 at 2; Dkt. No. 54-10 at 2) or were exchanging “closed fist” punches when they arrived at the scene. (Dkt. No. 54-5 at 2; Dkt. No. 54-11 at 2.) Yet, at the same time, multiple COs can be heard saying “let him go” into Plaintiff's cell throughout the video footage provided by Defendants. (Dkt. No. 56 at marks 6:30-7:30, 8.) CO Tourville, CO Davey, and Sgt. Hoffnagle all reported Plaintiff was on the ground by the time he was handcuffed. (Dkt. No. 54-6 at 2; Dkt. No. 54-7 at 2; Dkt. No. 54-11 at 2.) None of the Defendants claim Plaintiff was resisting while on the ground being handcuffed. Likewise, none of the Defendants, including CO Toohill, reported Plaintiff's left hand being slammed onto the floor while being handcuffed, whereas Plaintiff testified CO Tourville slammed his hand so hard onto the floor that he broke the metacarpal bones in his left hand. (Dkt. No. 54-3 at 91-93.) Moreover, while the footage provided by Defendants demonstrates what went on in the hallway outside the cell, it does not show any activity inside the cell. (See Dkt. No. 56.) It is therefore unclear what exactly occurred in Plaintiff's cell before and after the COs entered it; whether Plaintiff was resisting when he was restrained; and how he sustained his reported injuries. Id.
As a result of these differing accounts, questions of fact exist as to “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see Henry v. City of New York, No. 02 CIV. 4824 (JSM), 2003 WL 22077469, at *2 (S.D.N.Y. Sept. 8, 2003) (“[W]hen there is a factual dispute about the circumstances surrounding . . . the degree of force used, the Second Circuit requires a jury determination of the reasonableness of that force.”). Furthermore, the fact that CO Toohill “was physically involved in handcuffing plaintiff . . . gives rise to a plausible inference that he was the one who . . . broke plaintiff's hand.” Laster v. Mancini, No. 07 CIV. 8265 DAB, 2013 WL 5405468, at *29 (S.D.N.Y. Sept. 25, 2013) (quoting Jeffreys, 275 F.Supp.2d at 474) (denying summary judgment as to excessive force claim against officer involved in handcuffing plaintiff which allegedly resulted in plaintiff's broken hand.) Therefore, the Court recommends denying summary judgment to the extent it seeks to dismiss an excessive force claim against CO Toohill. See generally Abreu v. Farley, No. 6:11-CV-06251 EAW, 2019 WL 1230778, at *18 (W.D.N.Y. Mar. 15, 2019).
The Court also recommends denying summary judgment as to the failure to intervene claim against CO Toohill. See Buchy v. City of White Plains, No. 14 CV 1806 (VB), 2015 WL 8207492, at *3 (S.D.N.Y. Dec. 7, 2015) (allowing failure to intervene claim as an alternative to excessive force claim because a reasonable jury could find the defendant did not use excessive force against the plaintiff but failed to prevent another officer from doing so). “‘Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is a question of fact,' unless the evidence shows that ‘a reasonable jury could not possibly conclude otherwise.'” Toliver, 2013 WL 6476791, at *3. Moreover, as noted above, “[w]hether 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, 825 F.3d at 107.
Plaintiff and CO Toohill have differing accounts of what occurred in Plaintiff's cell on April 9, 2018, and it is unclear what exactly occurred in Plaintiff's cell and whether CO Toohill had a chance to intervene in and prevent any harm from the alleged use of excessive force while Plaintiff was being handcuffed. (Dkt. No. 54-5 at 1-3; Dkt. No. 54-3 at 91-93; Dkt. No. 56.) As this Court has held, “the weighing of such competing evidence, no matter how weak plaintiff's claim may appear, presents a question of credibility that must be left to the trier of fact.” Cirio v. Lamora, No. 08-CV-431 (GLS/DEP), 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010), report-recommendation adopted, 2010 WL 1063864 (N.D.N.Y. Mar. 22, 2010). “And while it is true that the only piece of evidence [Plaintiff] offers on this score is his own self-serving testimony, that ‘can establish a genuine dispute of fact so long as [it] does not contradict the witness's prior testimony.'” Waters v. Prack, No. 9:13-CV-1437 (LEK/DEP), 2017 WL 1187871, at *1 (N.D.N.Y. Mar. 30, 2017) (quoting Dye v. Kopiec, No. 16-CV-2952, 2016 WL 7351810, at *3 (S.D.N.Y. Dec. 16, 2016) (collecting cases)). Moreover, “Plaintiff ‘need not establish who, among a group of officers, directly participated in the attack and who failed to intervene' . . . to survive summary judgment.” Laster, 2013 WL 5405468, at *29 (quoting Jeffreys, 275 F.Supp.2d at 474). Drawing all reasonable inferences in Plaintiff's favor, Defendants have failed to demonstrate that a reasonable jury could not possibly conclude CO Toohill was not capable of or did not have time to intervene in the alleged use of excessive force against Plaintiff. See Toliver, 2013 WL 6476791, at *3; Major League Baseball Props., Inc., 542 F.3d at 309. Thus, the Court recommends denying summary judgment as to this claim.
ii. CO Davey
The Court recommends denying summary judgment as to the excessive force and failure to intervene claims against CO Davey. Plaintiff testified CO Davey “participated in the use of force” and “caused the injuries” Plaintiff sustained. (Dkt. No. 54-3 at 136.) CO Davey reported when he arrived at Plaintiff's cell, Sgt. Hoffnagle was giving Plaintiff and his cellmate several direct orders to break and cease fighting. (Dkt. No. 54-7 at 2; Dkt. No. 54.3 at 16.) However, neither Plaintiff nor his cellmate complied, and Sgt. Hoffnagle ordered CO Davey and the other responding COs to go into the cell. (Dkt. No. 54-7 at 2.) Upon entering the cell, Plaintiff “was on the ground.” (Dkt. No. 54-7 at 2; Dkt. No. 54-3 at 17.) CO Davey secured Plaintiff's right arm “using a body hold with [his] right and left hands until mechanical restraints were applied” at which point “all force ceased.” (Dkt. No. 54-7 at 2; Dkt. No. 54-3 at 17.) He then stood Plaintiff up; escorted Plaintiff out of the cell where he was pat and frisked against the wall; and brought him to a holding pen to be seen by medical. (Dkt. No. 54-7 at 2; Dkt. No. 54-3 at 17.)
There is no dispute CO Davey participated in the use of force against Plaintiff on that day, and Plaintiff sustained injuries. (Dkt. No. 54-7 at 2; Dkt. No. 54-3 at 8-9; Dkt. No. 21 at 3538, 97.) However, as described above and in Section IV.B.2(i), supra, Plaintiff and Defendant have differing accounts of what occurred before and after the COs entered Plaintiff's cell. Thus, questions of fact exist as to “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; see Henry, 2003 WL 22077469, at *2 (“[W]hen there is a factual dispute about the circumstances surrounding . . . the degree of force used, the Second Circuit requires a jury determination of the reasonableness of that force.”). As with CO Toohill, the fact that CO Davey “was physically involved in handcuffing plaintiff . . . gives rise to a plausible inference that he was the one who . . . broke plaintiff's hand.” Laster, 2013 WL 5405468, at *29 (quoting Jeffreys, 275 F.Supp.2d at 474) (denying summary judgment as to excessive force claim against officer involved in handcuffing Plaintiff which allegedly resulted in Plaintiff's broken hand.) Therefore, the Court recommends denying the motion for summary judgment to the extent it seeks to dismiss the excessive force claim against CO Davey. See generally Abreu, 2019 WL 1230778, at *18.
In the alternative, for the same reasons as CO Toohill, the Court recommends denying summary judgment as to the failure to intervene claim against CO Davey. See Buchy, 2015 WL 8207492, at *3 (allowing failure to intervene claim as an alternative to excessive force claim); see also Toliver, 2013 WL 6476791, at *3 (finding whether an officer had sufficient time to intercede or was capable of preventing harm is a question of fact); Figueroa, 825 F.3d at 107 (finding whether a defendant had a realistic chance to intercede will turn on a number of different factors).
As referenced above, CO Davey held Plaintiff's right arm with a body hold as he was handcuffed. (Dkt. No. 54-7 at 2; Dkt. No. 54-3 at 11.) However, Plaintiff and CO Davey have differing accounts of what occurred before and after the COs entered his cell. See supra Section IV.B.2(i). Additionally, as noted above, it is unclear from the camera footage what exactly occurred in Plaintiff's cell and whether CO Davey had a chance to intervene in and prevent any harm from the alleged use of excessive force. (See generally Dkt. No. 56.) Thus, the Court recommends denying summary judgment as to this claim. See Cirio, 2010 WL 1063875, at *8 (finding the weighing of competing evidence presents a question of credibility for the trier of fact); Waters, 2017 WL 1187871, at *1 (finding plaintiff's self-serving testimony can establish a genuine issue of fact so long as it does not contradict his prior testimony) (citations and quotations omitted); Laster, 2013 WL 5405468, at *29 (finding it is not necessary for plaintiff to establish which officer participated in attack and who failed to intervene to survive summary judgment) (cleaned up); see also Toliver, 2013 WL 6476791, at *3; Major League Baseball Props., Inc., 542 F.3d at 309.
iii. CO Patrick
The Court recommends denying summary judgment as to the excessive force and failure to intervene claims against CO Patrick for similar reasons as COs Toohill and Davey. Plaintiff claims CO Patrick “entered the cell” and “struck [him] on the chest with the shield.” (Dkt. No. 54-3 at 137.) CO Patrick reported he responded to a cell fight at Plaintiff's cell on April 9, 2018, at approximately at 3:35AM. (Dkt. No. 54-8 at 2; Dkt. No. 54-3 at 19.) Sgt. Hoffnagle was present and gave “several direct orders for the individuals to cease fighting.” (Dkt. No. 54-8 at 2; Dkt. No. 54-3 at 19.) When “[b]oth individuals failed to comply,” Sgt. Hoffnagle ordered the officers to enter the cell. (Dkt. No. 54-8 at 2; Dkt. No. 54-3 at 19.) CO Patrick entered the cell with a shield “and struck the Plaintiff and his cellmate in the upper torso which forced them to the ground.” (Dkt. No. 54-8 at 2; Dkt. No. 54-3 at 20.) He “then used both hands to secure the right arm of the cellmate while he was on the floor” and CO Chevier applied mechanical restraints, ending the use of force. (Dkt. No. 54-8 at 2; Dkt. No. 54-3 at 20.) COs Patrick and Chevier then escorted Plaintiff's cellmate to a holding pen to be seen by medical. (Dkt. No. 54-8 at 2; Dkt. No. 54-3 at 20.)
There is no dispute CO Patrick used force against Plaintiff on April 9, 2018, when he hit Plaintiff with the shield. (Dkt. No. 54-8 at 2.) However, since it is unclear exactly what was happening in Plaintiff's cell before and after the COs entered Plaintiff's cell, questions of fact exist as to “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; see Henry, 2003 WL 22077469, at *2 (factual dispute about the circumstances of the degree of force used requires a jury determination of reasonableness); see supra Section IV.B.2(i). Therefore, the Court recommends denying the motion for summary judgment to the extent it seeks to dismiss an excessive force claim against CO Patrick. See generally Abreu, 2019 WL 1230778, at *18.
In the alternative, the Court also recommends denying summary judgment as to the failure to intervene claim against CO Patrick. See Buchy, 2015 WL 8207492, at *3; see also Toliver, 2013 WL 6476791, at *3; Figueroa, 825 F.3d at 107. As previously described, CO Patrick struck Plaintiff with a shield, forcing him to the floor. (Dkt. No. 54-3 at 20.) However, as mentioned above, Plaintiff and CO Patrick have differing accounts of what occurred before and after the COs entered Plaintiff's cell. See supra Section IV.B.2(i). It is also unclear from the footage what exactly occurred in Plaintiff's cell and whether CO Patrick had a chance to intervene in and prevent any harm from the alleged use of excessive force. (See generally Dkt. No. 56.) Specifically, it is unclear if CO Patrick witnessed Plaintiff being restrained before he restrained Plaintiff's cellmate. (See generally Dkt. No. 54-3.) Thus, the Court recommends denying summary judgment as to this claim. See Cirio, 2010 WL 1063875, at *8; Waters, 2017 WL 1187871, at *1; Laster, 2013 WL 5405468, at *29; see also Toliver, 2013 WL 6476791, at *3; Major League Baseball Props., Inc., 542 F.3d at 309; Figueroa, 825 F.3d at 107.
3. CO Holmes
The Court recommends granting summary judgment as to the excessive force claim and denying summary judgment as to the failure to intervene claim against CO Holmes. Plaintiff alleges CO Holmes failed to intervene when CO Tourville, CO Davey, CO Toohill, and CO Patrick applied “very brutal” force against him. (Dkt. No. 21 at 10.) He further testified CO Holmes “didn't do anything to make sure . . . that no injuries happened.” (Dkt. No. 54-3 at 138.) However, Plaintiff admitted he did not “believe Holmes touched [him].” Id. at 139.
CO Holmes reported he responded to Plaintiff's cell where Sgt. Hoffnagle was giving “several direct orders” to Plaintiff and his cellmate “to stop fighting.” (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 25.) When “[b]oth individuals failed to comply,” Sgt. Hoffnagle ordered the COs into the cell. (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 25.) When CO Holmes entered the cell “the other officers had control of each incarcerated individual” and at that point, he “secured the shield used by C.O. Patrick and observed C.O. Chevier and C.O. Patrick restraining the cellmate.” (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 26.) After both inmates were removed from the cell, CO Holmes conducted a cell search where he found “drag lines” and disposed of them. (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 26.)
“Drag lines are made by incarcerated individuals and used to exchange materials between each other and their cells.” (Dkt. No. 54-1 at 4, n 2.)
First, the Court recommends granting summary judgment as to the excessive force claim against CO Holmes. CO Holmes and Plaintiff have both indicated that CO Holmes never touched Plaintiff, and therefore he could not have participated in any alleged use of excessive force against Plaintiff. See Columna, 2022 WL 767103, at *4 (granting summary judgment on excessive force claim where the defendants had no involvement in the force alleged); Vann, 2020 WL 3001072, at *5 (granting summary judgment on excessive force claim where the defendant “did not directly participate in the frisk” at issue and therefore “had no personal involvement in the alleged constitutional violation”). Therefore, as there is no question of material fact that CO Holmes was not personally involved in the alleged use of excessive force against Plaintiff, the Court recommends granting summary judgment as to this claim.
However, the Court recommends denying summary judgment as to the failure to intervene claim against CO Holmes. As previously described, when CO Holmes entered the cell, “the other officers had control of each incarcerated individual.” (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 26.) Moreover, he had time to observe “C.O. Chevier and C.O. Patrick restraining the cellmate.” (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 26.) However, as previously noted, it is unclear what exactly occurred in Plaintiff's cell, what CO Holmes observed, and whether CO Holmes had a chance to intervene in and prevent any harm from the alleged use of excessive force. (See generally Dkt. No. 56.) More specifically, it is unclear if CO Holmes witnessed Plaintiff being handcuffed, because CO Holmes did not elaborate on what he meant when he stated he saw that the other officers “had control” of Plaintiff and his cellmate and if this observation occurred before, after, or during Plaintiff being handcuffed. (Dkt. No. 54-10 at 2.) Drawing all reasonable inferences in Plaintiff's favor, Defendants have failed to demonstrate that a reasonable jury could not possibly conclude CO Holmes was not capable of or did not have time to intervene in the alleged use of excessive force against Plaintiff. See Toliver, 2013 WL 6476791, at *3; Major League Baseball Props., Inc., 542 F.3d at 309; Figueroa, 825 F.3d at 107. Thus, the Court recommends denying summary judgment as to this claim.
The Court also finds Defendants' argument that Plaintiff's failure to intervene claim against CO Holmes fails for lack of personal involvement to be unavailing. There is no dispute CO Holmes was physically present at the scene when the April 9, 2018, incident occurred. (Dkt. No. 54-10 at 2; Dkt. No. 54-3 at 25.) Further, Defendants have not presented undisputed evidence that no reasonable jury could conclude CO Holmes had a realistic opportunity to intervene while present at the incident. See, e.g., Snead v. City of New York, 463 F.Supp.3d 386, 400 (S.D.N.Y. 2020) (denying summary judgment where involvement in plaintiff's stop and arrest was disputed and officers not personally involved in arrest were “mere feet away” when plaintiff was arrested because defendants did not present undisputed evidence such that no reasonable jury could conclude they had a realistic opportunity to intervene), reconsideration denied sub nom. Snead v. LoBianco, No. 16-CV-09528, 2021 WL 861060 (S.D.N.Y. Mar. 8, 2021).
The Court likewise finds Defendants' argument that CO Holmes “had no real opportunity to prevent the incident” because the alleged use of force occurred in the span of 60 seconds to be unavailing. (Dkt. No. 54-1 at 17.) Although “officers generally ‘cannot be held liable for failure to intervene in incidents that happen in a matter of seconds,'” the issue of whether an officer had a reasonable opportunity to intervene “can be decided as a matter of law only if ‘considering all the evidence, a reasonable jury could not possibly conclude' that the officer had a reasonable opportunity to intervene.” Stroman v. Ranze, 18-CV-0149, 2019 WL 7494384, at *7-8 (N.D.N.Y. Dec. 13, 2019) report-recommendation adopted by 2020 WL 68610 (N.D.N.Y. Jan. 7, 2020) (citations and quotations omitted).
This Court and others within the Circuit have denied summary judgment on failure to intervene claims for assaults and other alleged unconstitutional incidents that occurred in less than 60 seconds. See Figueroa, 825 F.3d at 108 (finding that failure-to-intervene claims were for the jury to decide despite the fact that the assault in question lasted less than 20 seconds based on the close proximity of the defendant officers to the plaintiff at the time of the alleged assault in the back of a police cruiser); West v. Harkness, No. 9:17-CV-0621 (GTS/DJS), 2021 WL 4289515, at *14-15 (N.D.N.Y. Sept. 21, 2021) (finding an alleged illegal search that took place over a “short period” of only a few seconds and as long as 20 seconds “could permit a reasonable factfinder to conclude that the relevant defendant had a reasonable opportunity to intervene”) (cleaned up); Dollard v. City of New York, 408 F.Supp.3d 231, 236 (E.D.N.Y. 2019) (finding summary judgment to be inappropriate where a reasonable juror could find that an officer had a realistic opportunity to intervene to stop at least some of the alleged conduct in a physical encounter that lasted for approximately nine seconds).
Therefore, drawing all reasonable inferences in Plaintiff's favor, Defendants have failed to demonstrate that a reasonable jury could not possibly conclude CO Holmes was not capable of or did not have time to intervene in the alleged use of excessive force against Plaintiff. See Toliver, 2013 WL 6476791, at *3; Major League Baseball Props., Inc., 542 F.3d at 309; Figueroa, 825 F.3d at 107. Thus, the Court recommends denying summary judgment as to this claim.
4. Sgt. Hoffnagle
The Court recommends granting summary judgment as to the excessive force claim and denying summary judgment as to the failure to intervene claim against Sgt. Hoffnagle for similar reasons as CO Holmes. Plaintiff alleges Sgt. Hoffnagle failed to intervene when other COs allegedly used excessive force against Plaintiff. (Dkt. No. 21 at 10.) Specifically, Plaintiff alleges “the supervisor[] present at the incident did not ensure” that “safe techniques” were used “to avoid injuries since [Plaintiff] was not violent nor resisting during the apprehension.” (Dkt. No. 21 at 13.) Plaintiff testified Sgt. Hoffnagle “was there . . . at the scene of the use of force,” he “definitely” participated in it, and “he was involved in . . . the cause of the injuries.” (Dkt. No. 54-3 at 137.) However, he later testified he did not believe Hoffnagle touched him during the incident. Id. at 139. Plaintiff also alleges Sgt. Hoffnagle was inside his cell when the alleged excessive use of force occurred. Id. at 137-38.
Sgt. Hoffnagle reported he responded to Plaintiff's cell and observed Plaintiff and his cellmate “exchanging closed fist blows.” (Dkt. No. 54-11 at 2; Dkt. No. 54-3 at 32.) He “provided several direct orders for each individual to break” but “[a]ll orders were ignored.” (Dkt. No. 54-11 at 2; Dkt. No. 54-3 at 32.) Sgt. Hoffnagle then “directed staff to enter the cell and use necessary force to gain compliance.” (Dkt. No. 54-11 at 2; Dkt. No. 54-3 at 32.) Sgt. Hoffnagle described the incident as follows.
6. Officer Patrick entered the cell utilizing a state issued shield, he struck both incarcerated individuals in the upper torso forcing that to the floor. Officer Chevier entered the cell and using both of his hands restrained the cellmates left arm to the floor. Officer Patrick then used both of his hands to secure the cellmates right arm to the floor. Officer Chevier then applied mechanical restraints to the cellmate. Officer Patrick and Officer Chevier escorted the cellmate to the holding pen to be evaluated by medical staff (citation omitted).
7. Once the Plaintiff was forced to the floor by Officer Patrick, Officer Toohill entered the cell, using both of his hands forcing the Plaintiff's shoulders to the floor. Officer Davey entered, using both of his hands he secured the Plaintiff's right arm. Officer Tourville entered, using both of his hands he forced the Plaintiff's left arm behind his back and applied mechanical restraints. All necessary force ended at this point. Officer Tourville and Officer Davey escorted the Plaintiff to the lower holding pen to be seen by medical staff (citation omitted).(Dkt. No. 54-11 at 2-3.)
Sgt. Hoffnagle interviewed both Plaintiff and his cellmate about the incident. (Dkt. No. 54-11 at 3; Dkt. No. 54-3 at 32.) Plaintiff supposedly told Sgt. Hoffnagle “‘he fell out of the top bunk.'” (Dkt. No. 54-11 at 3; Dkt. No. 54-3 at 32.) When Sgt. Hoffnagle interviewed Plaintiff's cellmate, the cellmate said Plaintiff “‘can't live with anyone and they had to fight.'” (Dkt. No. 54-11 at 3; Dkt. No. 54-3 at 32.) Sgt. Hoffnagle reported digital photos were taken after the incident and all pertinent documentation was filled out and submitted. (Dkt. No. 54-3 at 32.)
Plaintiff testified he believed Defendants tried to send him the pictures taken at his medical screening on April 9, 2018, but he only received “a few black pages.” (Dkt. No. 54-3 at 99-100.)
First, the Court recommends granting summary judgment to Sgt. Hoffnagle as to the excessive force claim. Sgt. Hoffnagle and Plaintiff have both indicated that Sgt. Hoffnagle never touched Plaintiff. (Dkt. No. 54-11 at 2-3; Dkt. No. 54-3 at 139.) Moreover, the hallway footage shows that Sgt. Hoffnagle took only a few steps into Plaintiff's cell before backing up into the doorway of the cell. (See Dkt. No. 56.) Therefore, it is clear from the footage as well as Plaintiff and Sgt. Hoffnagle's accounts of the incident that Sgt. Hoffnagle was not personally involved in any alleged use of excessive force against Plaintiff. (Dkt. No. 54-11 at 2-3; Dkt. No. 54-3 at 139; Dkt. No. 56); see also Columna, 2022 WL 767103, at *4 (granting summary judgment on excessive force claim where the defendants had no involvement in the force alleged); Vann, 2020 WL 3001072, at *5 (granting summary judgment on excessive force claim where the defendant “did not directly participate in the frisk” at issue and therefore “had no personal involvement in the alleged constitutional violation”). Therefore, as there is no question of material fact that Sgt. Hoffnagle was not personally involved in the alleged use of excessive force against Plaintiff, the Court recommends granting summary judgment as to this claim.
However, the Court recommends denying summary judgment as to the failure to intervene claim against Sgt. Hoffnagle. As previously described, Sgt. Hoffnagle was in or around the doorway to Plaintiff's cell for the entirety of the incident. (See Dkt. No. 56.) While Sgt. Hoffnagle neatly describes how each CO applied appropriate force to Plaintiff, Plaintiff claims COs used excessive force against him and broke his hand in the process. (Dkt. No. 54-11 at 2-3; Dkt. No. 54-3 at 91-93.) It is also clear from the footage that Sgt. Hoffnagle watched the whole incident occur from Plaintiff's cell doorway. (See Dkt. No. 56.) Therefore, drawing all reasonable inferences in Plaintiff's favor, Defendants have failed to demonstrate that a reasonable jury could not possibly conclude Sgt. Hoffnagle was not capable of or did not have time to intervene in the alleged use of excessive force against Plaintiff. See Toliver, 2013 WL 6476791, at *3; Major League Baseball Props., Inc., 542 F.3d at 309; Figueroa, 825 F.3d at 107. Thus, the Court recommends denying summary judgment as to this claim. Finally, the Court finds Defendants' arguments regarding Sgt. Hoffnagle's alleged lack of personal involvement and the timing of the incident to be unavailing for the same reasons as CO Holmes. See supra Section IV.B.3.
5. CO Tourville
The Court recommends denying summary judgment as to the excessive force claim against CO Tourville. Plaintiff alleged after the COs entered his cell and he was on the floor, he felt CO Tourville slam “the back of [his] left hand on the hard floor of the cell” and “heard a loud cracking sound” before CO Tourville forced his left arm behind his back and into restraints. (Dkt. No. 21 at 7; Dkt. No. 57 at 14.) CO Tourville claims when he entered the cell, Plaintiff was on the ground and he “used force with both hands to bring the Plaintiff's left arm to the center of his back and applied mechanical restraints. At this time use of force ended.” (Dkt. No. 54-6 at 2.) CO Tourville further claims at all times during the events of April 9, 2018, he “only used force that was necessary to gain compliance” and at no time did he “use excessive force against the Plaintiff.” Id.
Plaintiff testified about two hours after the incident when he was already back in his cell, his left hand started swelling “to the point where [he] couldn't move it any longer.” (Dkt. No. 54-3 at 98.) On the same day, he had a follow up with medical where swelling was noted and an x-ray was ordered. Id. at 100-01. Plaintiff received surgery on his left hand at Clinton Correctional Facility on or around April 20, 2018. Id. at 103.
There is no dispute CO Tourville used force against Plaintiff on April 9, 2018, and Plaintiff suffered various injuries. (Dkt. No. 54-6 at 2; Dkt. No. 21 at 35-38; Dkt. No. 54-3 at 89.) However, Plaintiff and CO Tourville have differing accounts of what occurred on April 9, 2018, before and after the COs entered Plaintiff's cell. See supra Section IV.B.2(i). Given Plaintiff's injuries and the differing accounts of what exactly occurred in Plaintiff's cell, questions of fact exist as to “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992); Henry, 2003 WL 22077469, at *2; see also Cirio, 2010 WL 1063875, at *8; Waters, 2017 WL 1187871, at *1.
Therefore, the Court recommends denying the motion for summary judgment to the extent it seeks to dismiss an excessive force claim against CO Tourville. Hughes v. Nemier, No. 12-CV-6024-FPG, 2016 WL 7056540, at *3-4 (W.D.N.Y. Dec. 5, 2016) (denying summary judgment where Plaintiff's broken arm and testimony about his experience created a material issue of fact which could lead a reasonable jury to find the correction officer subjected Plaintiff to excessive force); Smalls v. Rathbum, No. 16-CV-6503-FPG, 2019 WL 2433892, at *3 (W.D.N.Y. June 11, 2019) (denying summary judgment where Plaintiff's two broken bones and the video depicting the incident established a triable question of fact as to whether the amount of force used was applied in a good faith effort to maintain or restore discipline); Laster, 2013 WL 5405468, at *27 (denying summary judgment as to excessive force claim against officer involved in handcuffing Plaintiff which allegedly resulted in Plaintiff's broken hand).
C. Qualified Immunity
In the alternative, Defendants assert they are shielded from liability based on qualified immunity. (Dkt. No. 54-1 at 19-22.) “‘It is well established that qualified immunity may operate as a defense to excessive force claims.'” Butchino v. City of Plattsburg, No. 8:20-CV-796 (MAD/CFH), 2022 WL 137721, at *5 (N.D.N.Y. Jan. 14, 2022) (quoting Betts v. Rodriquez, No. 15-CV-3836, 2017 WL 2124443, at *4 (S.D.N.Y. May 15, 2017)).
“Under the doctrine of qualified immunity, ‘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.'” Tracy v. Freshwater, 623 F.3d 90, 95-96 (2d Cir. 2010) (quoting Kelsey v. Cty. of Schoharie, 567 F.3d 54, 60-61 (2d Cir. 2009)) (cleaned up). The Court is mindful that qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation,” and that this privilege is “effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
The disputed amount and necessity of force in this case makes summary judgement on qualified immunity inappropriate. Frost v. New York City Police Dep't, 980 F.3d 231, 255 (2d Cir. 2020) (because a dispute of facts exists, summary judgment on the defendants' qualified immunity defense is unwarranted); Kerman v. City of New York, 261 F.3d 229, 240 (2d. Cir. 2001) (holding “[s]ummary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness”) (quotations omitted); Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (“[S]ummary judgment based either on the merits or on qualified immunity requires that no dispute about material factual issues remain ....”).
Construing the facts in Plaintiff's favor, Plaintiff did not resist as Defendants held Plaintiff to the ground and allegedly slammed his left hand so hard against the floor of his cell that they broke the metacarpal bones in Plaintiff's left hand. Even if Plaintiff did initially resist, it is equally well established that “gratuitous force after resistance has stopped and compliance has been secured is unreasonable.” Lee v. City of Troy, 520 F.Supp.3d 191, 207 (N.D.N.Y. 2021) (cleaned up). Accordingly, due to the factual dispute over the level of force used by Defendants and Plaintiff's level of resistance, as well as the timing of the alleged excessive force, the Court recommends denying Defendants' motion for summary judgment on the grounds of qualified immunity.
V. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 54-1) be GRANTED in part and DENIED in part as follows: (1) the Eighth Amendment excessive force and failure to intervene claims against CO Chevier be dismissed; (2) the Eighth Amendment excessive force and failure to intervene claims against CO Toohill, CO Davey, and CO Patrick proceed to trial; (3) the Eighth Amendment excessive force claims against CO Holmes and Sgt. Hoffnagle be dismissed; (4) the Eighth Amendment failure to intervene claims against CO Holmes and Sgt. Hoffnagle proceed to trial; and (5) the Eighth Amendment excessive force claim against CO Tourville proceed to trial; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and ReportRecommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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 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)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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. Fed.R.Civ.P. 6(a)(1)(C).
SO ORDERED.