Opinion
9:15-CV-0065 (MAD/TWD)
08-19-2016
SHAHEAN ATKINSON, Plaintiff, v. HUNTINGTON, et. al., Defendants.
APPEARANCES: SHAHEAN ATKINSON Plaintiff pro se 13-A-3032 Wyoming Correctional Facility P.O. Box 501 Attica, NY 14011 LEMIRE, JOHNSON & HIGGINS LLC Counsel for the Defendants P.O. Box 2485 2534 Route 9 Malta, NY 12020 OF COUNSEL: Gregg T. Johnson, Esq. Bradley J. Stevens, Esq.
APPEARANCES: SHAHEAN ATKINSON
Plaintiff pro se
13-A-3032
Wyoming Correctional Facility
P.O. Box 501
Attica, NY 14011 LEMIRE, JOHNSON & HIGGINS LLC
Counsel for the Defendants
P.O. Box 2485
2534 Route 9
Malta, NY 12020 OF COUNSEL: Gregg T. Johnson, Esq.
Bradley J. Stevens, Esq. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION
This pro se civil rights action, commenced by Plaintiff Shahean Atkinson pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Glenn T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). Plaintiff claims that while he was confined at Warren County Correctional Facility ("Warren County C.F."), Defendants violated his Fourteenth Amendment rights. (See generally Dkt. No. 1.) Plaintiff seeks declaratory relief, injunctive relief and compensatory damages. Id. at 7-8.
Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 41, 51.) Plaintiff filed papers in opposition to the motion and cross moved to amend the complaint. (Dkt. No. 50.) For the reasons that follow, the Court recommends that the motion for summary judgment (Dkt. No. 41) be granted in its entirety and orders that plaintiff's cross motion to amend the complaint be denied.
I. FACTUAL BACKGROUND
On April 9, 2013, Plaintiff was booked into the Warren County C.F. after being charged with criminal possession of a controlled substance in the third degree. (Dkt. No. 41-2 at 3.) Upon intake, Plaintiff acknowledged, in writing, that he received a copy of the Warren County C.F. Inmates Rules and Regulations book, Inmate Orientation, and Housing Unit Orientation for Warren County C.F. Id. at 6, 8. During his confinement at Warren County C.F., Plaintiff filed ten to fifteen grievances. (Dkt. No. 52 at 54.)
Plaintiff was housed as a pretrial detainee. (Dkt. No. 41-19 at 6, n. 1.)
Citations to page numbers refer to the pagination generated by CM/ECF, not the page numbers generated by the parties.
On May 2, 2013, Defendant Corrections Officer Steven Huntington ("Huntington") transported Plaintiff, and other inmates, from Warren County C.F. to Glens Falls City Court. (Dkt. No. 41-16 at 2.) During the transport, Plaintiff argued with another inmate and laughed when Huntington told him to be quiet. (Dkt. No. 52 at 57.) Huntington told Plaintiff that he would write him a ticket if he did not keep quiet. (Dkt. No. 52 at 62.) Plaintiff asked Huntington how he would feel if Plaintiff called him a "cracker." Id. at 114.
It is at this point that the parties' versions of the relevant events diverge. Plaintiff maintains that Huntington threatened and harassed him during the transport to court. (Dkt. No. 52 at 55.) Plaintiff claims that when they arrived at the courthouse, Huntington punched him and "grabbed the back of his hair and slammed him into the wall." Id. at 59, 62, 65. Plaintiff asserts that he was handcuffed "too tightly" for two hours and despite his complaints, the restraints were not eased. Id. at 74. Plaintiff contends that Huntington assaulted him again upon their return to Warren County C.F. Id. at 71-72. Plaintiff "clenched" his fists while Huntington attempted to remove his handcuffs and maintains that Huntington used "body blows" to repeatedly strike Plaintiff's lower back and ribs causing him to bleed when he urinated. (Dkt. No. 52 at 55, 71-72, 75.)
Huntington, by contrast, submitted an affidavit in which he denies having assaulted Plaintiff. (Dkt. No. 41-16.) Huntington claims that he did not use any force during Plaintiff's transport to and from the Glens Falls City Court. Id. at 2. Upon returning to Warren County C.F., Huntington asserts that Plaintiff clenched his fists while he attempted to remove his handcuffs. Id. Huntington claims that Plaintiff's handcuffs were removed without force, however, Huntington prepared an Unusual Incident Report due to the fact that Plaintiff was attempting to intimidate him and "stare him down." Id.; Dkt. No. 41-3 at 2.
Plaintiff was seen by the Warren County medical staff for complaints of wrist pain related to his handcuffs. (Dkt. No. 52 at 76.) Plaintiff claims that he sustained "welts" and "lines" on his wrists, however, the nurse did not detect any injury to plaintiff's hands. (Dkt. No. 52 at 76.) Neither Plaintiff nor the nurse observed any other injury to his body. Id.
On May 2, 2013, Plaintiff filed a grievance (No. 2013-496) complaining that Huntington harassed him and threatened him. (Dkt. No. 41-6 at 3.) Plaintiff claimed that Huntington handcuffed his wrists too tightly, making his hands swell and wrists hurt. Plaintiff did not complain that Huntington punched him or otherwise used physical force. (Dkt. No. 52 at 82; Dkt. No. 41-6 at 4.)
On May 3, 2013, Plaintiff was interviewed by Sergeant Barrett E. Spring ("Spring") and Defendant Corrections Officer Bryan Rainville ("Rainville") regarding his grievance against Huntington. (Dkt. No. 52 at 83; Dkt. No. 41-17; Dkt. No. 41-18.) During the interview, Plaintiff told Spring and Rainville that he feared for his life and, in response, Plaintiff was placed in protective custody. (Dkt. No. 52 at 83, 95; Dkt. No. 41-18 at 3; Dkt. No. 41-17 at 2.)
Spring is not a named defendant herein.
Plaintiff and Defendants disagree on the events that transpired after Plaintiff was placed in protective custody. Plaintiff maintains that between 12:00 a.m. and 2:00 a.m. on May 4, 2013, Rainville and other unidentified officers, removed Plaintiff from his cell, "trashed" his cell, and forced Plaintiff to engage in an unhygienic strip search. (Dkt. No. 50 at 7; Dkt. No. 52 at 105-107.) Plaintiff claims that he was handcuffed and "sucker punched" in his right eye by Rainville. Id. at 107. Conversely, Rainville asserts that he never used physical force on Plaintiff. (Dkt. No. 41-17 at 3.)
The record does not contain clear, undisputed facts related to the date of this alleged incident. During Plaintiff's deposition, he testified that the incident occurred "a day or two after he went to PC." (Dkt. No. 52 at 106.) In opposition to Defendants' motion, Plaintiff now states, for the first time, that the incident occurred after he was placed in protective custody on May 3, 2013 during the "night between the hours of 12 am and 2 am." (Dkt. No. 50 at 7.) It is not clear whether the incident occurred on May 3, 2013, or May 4, 2013. For the purposes of this report, the court will assume that the incident occurred on May 4, 2013, between 12:00am and 2:00am.
On May 4, 2013, Plaintiff filed a grievance (No. 2013-501) complaining that he suffered from retaliation due to his prior grievance against Huntington. (Dkt. No. 41-6 at 12.) Plaintiff did not reference Rainville in the grievance. Id. at 12-13.
On July 9, 2013, Plaintiff was released into the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). (Dkt. No. 41-13 at 3.) On July 30, 2014, two investigators from the Inspector General's Office interviewed Plaintiff at Bare Hill Correctional Facility regarding his complaints of harassment against staff at Warren County C.F. (Dkt. No. 41-13.) The investigators reported that Plaintiff claimed that Rainville punched him in the face with closed fists and that Huntington "shoved" him. Id. at 3-4.
II. PROCEDURAL HISTORY
Plaintiff filed his Complaint and applied for leave to proceed in forma pauperis in this action on January 20, 2015. (Dkt. Nos. 1 and 6.) In a Decision and Order filed on February 9, 2015 (the "February Order"), the Court reviewed the Complaint in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. (Dkt. No. 8.) Upon review of the allegations, the Court directed Huntington and Rainville to respond to plaintiff's excessive force claims. (Dkt. No. 8 at 8, 13.) On December 14, 2015, Defendants filed the motion for summary judgment now before me for Report and Recommendation. (Dkt. No. 41.)
III. APPLICABLE LEGAL STANDARD
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine"if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "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, 585-86 (1986). The nonmovant must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (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).
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 obliged 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); see also Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) ("pro se parties are to be given special latitude on summary judgment motions.") (citations and internal quotation marks omitted). However, "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of unpublished decisions cited herein will be mailed to Plaintiff as a pro se litigant. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
While courts are required to give due deference to a plaintiff's pro se status, 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 opposing Defendants' summary judgment motion, Plaintiff failed to respond to the Statement of Material Facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3). Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under N.D.N.Y. L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status, I have opted to review the entire record in determining if there are material facts in dispute.
L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. No. 41 at 2-5.)
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). Where, as here, the Court elects to conduct an independent review of the record on a motion for summary judgment, a plaintiff's verified complaint should be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
Plaintiff's Complaint was properly verified by declaration under 28 U.S.C. § 1746. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with 28 U.S.C. §1746).
Plaintiff's unsworn statements are generally inadmissible in opposition to a motion for summary judgment. See, e.g., Witzenburg v. Jurgens, No. CV-05-4827, 2009 WL 1033395, at *11 (E.D.N.Y. April 14, 2009) (holding that unsworn declarations are inadmissible for purposes of Rule 56 and cannot be considered by the court in deciding the motion for summary judgment). Even so, on summary judgment motions involving pro se plaintiffs, courts have been known to consider unsworn submissions in opposition. See, e.g., Hamm v. Hatcher, No. 05 Civ. 503, 2013 WL 71770, at *7 (S.D.N.Y. Jan. 7, 2013) (to afford pro se plaintiff special solicitude, the court considered unsworn statements in his opposition papers but only to the extent based on personal knowledge or supported by other admissible evidence in the record, on the assumption that if the allegations were sufficient to raise an issue of fact, plaintiff would be given the opportunity to submit an affidavit properly attesting to the allegations); Robles v. Khahaifa, No. 09CV718, 2012 WL 2401574, at *7 (W.D.N.Y. June 25, 2012). In deference to Plaintiff's pro se status, the Court will consider Plaintiff's unsworn affidavit. (Dkt. No. 50.)
IV. ANALYSIS
Defendants move for judgment as a matter of law and dismissal of all of Plaintiff's allegations. Defendants argue that Plaintiff's claims must be dismissed on multiple grounds: (1) failure to exhaust his administrative remedies; (2) the absence of any evidence from which a reasonable factfinder could conclude that Plaintiff sustained anything other than de minimis injuries as a result of alleged incidents in May 2013 involving Huntington; (3) the record evidence fails to give rise to a genuine dispute of material fact regarding whether Rainville violated Plaintiff's Fourteenth Amendment rights; and (4) qualified immunity. (See generally Dkt. No. 41-19.)
A. Exhaustion of Administrative Remedies
Defendants argue that the excessive force claims against Huntington and Rainville must be dismissed because Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). (Dkt. No. 41-19 at 15-16.)
Defendants do not argue that Plaintiff failed to exhaust his administrative remedy with respect to his excessive force claim based upon handcuffing. In Grievance # 2013-496, Plaintiff complained that his "handcuffs [were] so tight that my hands get swolled [sic] and my wrist hurts." (Dkt. No. 41-6 at 4.) The merits of that claim are discussed infra.
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2006). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)). If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 at 8.
Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03 CV 1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar.31, 2010); Bailey v. Fortier, No. 9:09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence); see also Andrews v. Whitman, No. 06 2447, 2009 WL 857604, at *6 (S.D.Cal. Mar.27, 2009) (defendant must prove non-exhaustion of administrative remedies by a preponderance of the evidence).
Here, Defendants preserved the exhaustion defense by asserting it in their answer. (Dkt. No. 15 ¶13.)
If a defendant meets that burden, however, a plaintiff's failure to exhaust does not end the review. For more than ten years, courts in this district have been guided by the Second Circuit's decision in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). Under Hemphill, the Second Circuit established a three-part inquiry to determine whether, inter alia, a plaintiff's failure to exhaust available administrative remedies could nevertheless be justified by "special circumstances." Hemphill, 380 F.3d at 686.
However, in Ross v. Blake, the Supreme Court rejected the "special circumstances" exception applied by many circuits, holding "[c]ourts may not engraft an unwritten 'special circumstance' onto the PLRA's exhaustion requirement." Ross, 136 S. Ct. at 1862; see Williams v. Corr. Officer Priatno, ___ F.3d ___, No. 14-4777, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016) ("[T]o the extent that our special circumstances exception established in Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004), and Hemphill, 380 F.3d at 689-91, permits plaintiffs to file a lawsuit in federal court without first exhausting administrative remedies that were, in fact, available to them, those aspects of Giano and Hemphill are abrogated by Ross.") (emphasis in original).
"Thus, post-Ross, the lone surviving exception to the PLRA's exhaustion requirement is that embedded in its text: that an inmate need only exhaust those administrative remedies that are 'available' to him." Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct. at 1862). To guide courts in this analysis, the Supreme Court identified three kinds of circumstances in which an administrative remedy, "although officially on the books," is not "available." Ross, 136 S. Ct. at 1859.
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." Ross, 136 S. Ct. at 1859. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id. at 1860. In light of the above, the Court must now consider whether Plaintiff exhausted his available administrative remedies before commencing this action.
Defendants have not presented any evidence about the existence or requirements of the administrative review process at Warren County C.F. Compare Sipe v. Harder, No. 9:08 CV 1365 (FJS/ATB), 2010 WL 3418382 (N.D.N.Y. Aug. 4, 2010) (Broome County Correctional Facility defendants moving for summary judgment on exhaustion grounds provided affidavit from administrator describing facility's grievance procedure). Rather, Defendants rely entirely on Plaintiff's admission in his deposition that there is a prisoner grievance procedure at the Warren County C.F. and that he had full knowledge of the process having filed approximately 15 grievances. (Dkt. No. 41-19 at 15-16; Dkt. No. 52 at 53-54, 82.)
Plaintiff acknowledged that he received a copy of Warren County C.F. Inmate Rules and Regulations upon entered Warren County C.F. (Dkt. No. 41-2.) During his deposition, Plaintiff testified that he did not receive a rule book but only signed the intake form because he was "under duress" (Dkt. No. 52 at 33.) Nevertheless, Plaintiff testified that "an older guy" explained the grievance procedure. (Id. at 53.) Moreover, on May 4, 2013, Plaintiff filed a grievance (No. 2013-501) and cited to the rule book. (Dkt. No. 41-6 at 12.)
Plaintiff admits that he did not accuse Huntington of using excessive force in his grievances but explains that his omission was due to threats on his life. (Dkt. No. 52 at 82.) Specifically, Plaintiff claims that C.O. Marlo Barboza ("Barboza") threatened his life. (Dkt. No. 52 at 82.) Plaintiff also maintains that he prepared a grievance against Rainville but that Rainville confiscated and destroyed the grievance. (Dkt. No. 52 at 109.) Defendants argue that there is no evidence that any of the Defendants took any action to inhibit or prevent Plaintiff from exhausting his available administrative remedies. The Court agrees.
Barboza is not a defendant herein.
Here, the record is devoid of evidence that Defendants "thwarted" Plaintiff "from taking advantage of a grievance process through machination, misrepresentation, or intimidation." See Ross, 136 S.Ct. at 1860. During his deposition, Plaintiff identified two grievances he wrote against Huntington and testified as follows:
Q. And did you ever write a grievance on Officer Huntington?
A. Yeah.
Q. How many?
A. To my knowledge, one, maybe two, maybe if that. I know I wrote one. I remember that first one.
Q. And what was the substance of those grievances?
A. About him [expletive] with me, him and that police guy Willette.(Dkt. No. 52 at 81-82.)
Q. And - -
A. With the little name-calling, racial statements and all that.
Q. So for the racial statements. Anything else?
A. No. I didn't put in the hit part, because they both said if I said something about the hit [expletive] she was going to make sure I leave in a pine box, and try to make it seem like I killed myself. So somebody - - I asked for a grievance and one of the COs called and told her I wanted a grievance. And she came to my dorm, like, Oh, you write a grievance. And she asked me what for. I told her. She's like, well, if you write a grievance, if you say anything about them putting their hands on you, believe you me, you're gonna leave in a small [expletive] body bag, I'm gonna guarantee you, make it look like you killed yourself.
Q. Who said that?
A. Barboza. She [threatened] my life on multiple occasions.
With respect to Rainville, Plaintiff claims that he attempted to file a grievance against Rainville for the use of excessive force but that Rainville confiscated and destroyed the grievance. (Dkt. No. 52 at 109). Plaintiff made no further attempts to grieve anything against Rainville because Barboza threatened his life. (Id. at 110.)
Bearing in mind that a dispute regarding 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, and that all ambiguities and inferences must be drawn in Plaintiff's favor, as the non-moving party, the evidence is insufficient to raise a triable issue of fact as to Plaintiff's failure to exhaust. The record lacks any facts related to the alleged threats by Barboza including where, when, and how many times Barboza allegedly threatened Plaintiff. Further, Plaintiff has failed to produce any evidence establishing when he attempted to file a grievance against Rainville or when Rainville confiscated the grievance. Despite Barboza's alleged threats of harm and Rainville's purported actions, Plaintiff continued to file grievances. (Dkt. No. 52 at 85, 87, 109; Dkt. No. 41-6 at 12-13.) Plaintiff attempted to file more grievances but was "forced" to void "four or five" grievances and claims that grievances are "missing" from the record before the Court. (Dkt. No. 50 at 5; Dkt. No. 52 at 86.) Plaintiff's actions and testimony indicate that he was not deterred from engaging in the grievance process at Warren County C.F. See, e.g., Winston v. Woodward, No. 05 Civ. 3385(RJS), 2008 WL 2263191, at *8 (S.D.N.Y. May 30, 2008) (rejecting inmate's allegations that the defendants' "threats and retaliation" rendered administrative remedies "functionally unavailable to him" where inmate was utilizing the inmate grievance procedure to file an appeal); cf. Ziemba v. Wezner, 366 F.3d 161, 162-64 (2d Cir. 2004) (district court directed to consider whether defendants were estopped from asserting exhaustion defense where inmate alleged that he was beaten, threatened, denied grievance forms, and transferred to another prison).
Here, because the Defendants' conduct did not "thwart" Plaintiff from filing his grievances, Plaintiff's administrative remedies were in fact, available. Cf. Shultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013) ("A remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy."); Tuckel v. Grover, 660 F.3d 1312, 1323 (11th Cir. 2011) ("[W]hen a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation, that process can longer be said to be 'available.'").
In light of the above, the Court finds that Plaintiff failed to exhaust his administrative remedies before commencing this action. Accordingly, the Court recommends granting Defendants' motion for summary judgment on this issue.
B. Excessive Force Claims
Even if Plaintiff had exhausted his administrative remedies, Defendants would be entitled to summary judgment dismissing the excessive force claims against them. Pretrial detainees, like other inmates, enjoy protection against the use of excessive force and may recover damages for its violation under 42 U.S.C. § 1983. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Fourteenth Amendment due process clause protects pretrial detainees from "the use of excessive force that amounts to punishment." Kingsley v. Hendrickson, ___U.S.___, 135 S.Ct. 2466, 2473 (June 22, 2015) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). To bring a claim of excessive force under section 1983, "a pretrial detainee must only show that the force purposely or knowingly used against him was objectively unreasonable to prevail on an excessive force claim." Kingsley,135 S.Ct at 2473. "[I]f the use of force is deliberate i.e., purposeful and knowing the pretrial detainee's claim may proceed." Id. Thus, a pretrial detainee can make a showing if the force "was taken with an expressed intent to punish" or "by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental purpose or that it is excessive in relation to that purpose." Id. at 2473 (citing Block v. Rutherford, 468 U.S. 576, 585-86 (1984) (additional citation omitted)).
In applying the due process standard, a Court "must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley, 135 S.Ct at 2473-74 (quoting Graham, 490 U.S. at 396). Additionally, "a court must take account of the legitimate interests in managing a jail, acknowledging as part of the objective reasonableness analysis that deference to policies and practices needed to maintain order and institutional security is appropriate." Id. at 2476. Despite the fact that
objective reasonableness depends on the facts and circumstances of each case, courts may consider a number of factors, including: The relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.Musaid v. Manka, 13-CV-7880, 2016 WL 540806, at *4 (S.D.N.Y. Feb. 9, 2016) (quoting Kingsley, 135 S.Ct. at 2473).
With respect to Plaintiff's claims related to handcuffing, "[w]hile handcuffs must be reasonably tight to be effective, overly tight handcuffing may constitute excessive force." See Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468 (S.D.N.Y. 2008). "[I]n evaluating the reasonableness of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the [plaintiff's] pleas that the handcuffs were too tight; and 3) the degree of injury . . . ." Id. (citations omitted). To sufficiently plead an excessive force claim based upon handcuffing, the plaintiff must allege more than a temporary injury. Jackson v. City of New York, 939 F. Supp. 2d 219, 231 (E.D.N.Y. 2013).
Defendants argue that summary judgment is warranted due to Plaintiff's inconsistent and fabricated testimony. (Dkt. No. 41-19 at 18.) Defendants' arguments hinge on Plaintiff's credibility. In general, of course, "[c]redibility determinations . . . are jury functions, not those of judge." Anderson, 477 U.S. at 255, see also 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."). There is, however, a "narrow exception" to the general rule that credibility determinations are not to be made on summary judgment. Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005); Blake v. Race, 487 F.Supp.2d 187, 202 (E.D.N.Y. 2007). In Jeffreys, the Second Circuit held that in the "rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete," "the court may appropriately conclude at the summary judgment stage that no reasonable jury would credit the plaintiff's testimony." Jeffreys, 426 F.3d at 554. The Jeffreys exception is most applicable where the plaintiff's version of events is contradicted by defense testimony. Id. at 551-52. In this district, in order to apply the Jeffreys exception, a defendant must establish that: (1) the plaintiff relies "almost exclusively on his own testimony;" (2) the plaintiff's testimony must be "contradictory or incomplete"; and (3) the plaintiff's testimony must be contradicted by evidence produced by the defense. Benitez v. Ham, No. 9:04-CV-1159 (NAM/GHL), 2009 WL 3486379 at *20-21 (N.D.N.Y. Oct. 21, 2009).
Here, the only version of events that supports Plaintiff's claim is his own testimony and verified complaint. During his deposition, Plaintiff testified that he was assaulted by Huntington at Glens Falls City Court. Plaintiff alleges that Huntington punched him and "grabbed the back of his hair and slammed him into the wall." (Dkt. No. 52 at 59, 62, 65.) Plaintiff maintains that Huntington assaulted him again when they returned to Warren County C.F. (Id. at 55, 59, 72.) Plaintiff testified that Huntington "punched" him four or five times in the lower back, kidney and ribs and described the assault as a "body blows" causing him to bleed when he urinated. (Dkt. No. 52 at 55, 72, 123.)
Plaintiff's version of events in his testimony and allegations are contradicted by declarations provided by Defendants, declarations by witnesses, and, indeed, by his own grievances and opposition papers. In moving for summary judgment, Defendant Huntington declares that he did not utilize any force on Plaintiff during his transport to and from the Glens Falls City Court. (Dkt. No. 41-16 at 2.) Huntington avers that during the transport to court, Plaintiff began arguing with another inmate and ignored orders to stop. Id. Upon arriving at court, Plaintiff failed to follow Huntington's order to kneel on a bench so that the handcuffs and shackles could be removed. Id. Huntington removed the handcuffs and noticed that Plaintiff's fists were clenched and claims that Plaintiff "attempted to intimidate me by staring me down." Id. Defendant Rainville maintains that he interviewed Plaintiff regarding a grievance he filed against Huntington and discussed the need for protective custody. (Dkt. No. 41-17 at 2.) Rainville asserts that he never used any physical force on Plaintiff and did not observe any staff use excessive force. Id. at 3. Huntington and Rainville did not observe any injuries on Plaintiff. Id.; Dkt. No. 41-16 at 3. In further support of the motion, Spring provided an affidavit reporting that he interviewed Plaintiff after he returned from Glen Falls City Court after Huntington reported that Plaintiff was in a verbal altercation with another inmate during the transport and that Plaintiff attempted to intimidate Huntington with "closed fists." (Dkt. No. 41-18 at 2.) Spring interviewed Plaintiff and Plaintiff asked to see medical for pain in his wrists related to handcuffing. (Id. at 2-3.) Spring notified the nurse who reported that Plaintiff had already been examined and did not appear to have any abrasions or lacerations from the handcuffs or any other injuries. Id. at 3. Spring prepared an Unusual Incident Report (#2013-0603) related to the incident and noted that he observed no injuries. (Dkt. No. 41-18 at 3; Dkt. No. 41-13 at 10-11.) The next day, Spring, accompanied by Rainville, interviewed Plaintiff regarding the grievance. (Dkt. No. 41-18 at 3.) Spring did not observe any injuries on Plaintiff and did not observe any staff use any excessive force. Id. at 4. In further support of the motion for summary judgment, Defendants provided medical records maintained by Warren County C.F. (Dkt. No. 41-8.) There are no records indicating that Plaintiff required medical treatment around the time of the alleged incident. See id.
Defendants contend that Plaintiff's deposition testimony as at odds with his statements to the investigators. (Dkt. No. 41 at 17.) However, the record does not contain a declaration or affidavit from either investigator and the Incident Report prepared by the investigators is not in proper admissible form.
In opposition to the motion, Plaintiff maintains that the medical records submitted by Defendants in support of the motion are incomplete. (Dkt. No. 50 at 4-5.) Specifically, Plaintiff claims that missing medical records between May 2, 2013, and May 4, 2013, "around the time the plaintiff was assaulted," document injuries including headaches, dizzy spells, and blood in his feces. (Dkt. No. 50 at 5.) However, during his deposition, Plaintiff testified that at the time he was allegedly assaulted, he did not see any bruising on his back and did not suffer any other injuries as a result of the alleged assault. (Dkt. No. 52 at 75-77.)
Plaintiff's deposition testimony also conflicts with the grievances Plaintiff filed. As discussed supra, absent from the grievance that Plaintiff filed on the day of the incident is any claim that Plaintiff was punched, assaulted, or beaten. (Dkt. No. 41-6 at 3-4.) Plaintiff made no reference to any injury including blood in his urine. Id. Similarly, the grievance filed on May 4, 2013, lacks any reference to excessive force by Huntington or Rainville. (Dkt. No. 41-6 at 12-13.) Under Jeffreys, no reasonable juror would credit Plaintiff's testimony.
Summary judgment would be warranted even if the Jeffreys exception did not apply. By Plaintiff's own account, he did not suffer any injuries as a result of the alleged incident:
Q. Now, when you saw the nurse, you said the handcuffs were tight, was there any -- did it draw blood or anything?(Dkt. No. 52 at 75-77.)
A. No. It was just real red and it was welt up real bad. The lines was real bad.
Q. What do you mean by welt?
A. Like if somebody was to hit you with a belt, or something, you welt up.
Q. Okay. What did the nurse say about your injuries?
A. She's like, Oh, it will be all right. She looked at it. And said, It will be all right. She didn't even look. She glanced at it. Looking and glancing are two different things. He was right there. He was right there with here, right beside her.
Q. Did the nurse look at anything else on you?
A. No, because I looked -- when I was in the cell I looked at my back. I didn't see no bruises. I didn't see no bruises. So I really thought nothing of it. I'm like, Okay, he knew what he was doing. He must have knew what he was doing by hitting me where he was hitting me because no bruise did pop up.
Q. Did you say anything else to the nurse about any other injuries or conditions you had?
A. No. I was just upset. I was just upset, period. Like -- I'm just like, Oh, man, I don't even like living that day, man. I knew I had to prepare myself to relive that day, but every time I think about that shit, that shit its bad, like
Plaintiff has not produced any evidence of any injury. In opposition to the motion, Plaintiff annexed his medical records from February 2015 through January 2016, and argues that he sustained additional injuries as a result of the incident. The Court has thoroughly reviewed the submissions and even assuming the records were in admissible form, the records do not support Plaintiff's claim that his arthritis, pain in his wrist and right shoulder, headaches, and difficulty "using the bathroom" are causally related to the alleged incidents in 2013. (Dkt. No. 50-1; Dkt. No. 52 at 78, 122-123.) At best, the injuries that Plaintiff sustained are of the type that have been held to be de minimus and indicative that excessive force was not used. See Brown v. City of New York, No. 14 Civ. 2700, 2015 WL 427942, at *5 (E.D.N.Y. Feb. 2, 2015) (granting summary judgment dismissing excessive force claims after the plaintiffs conceded that they suffered no physical injuries); cf. Simpson v. Saroff, 741 F.Supp. 1073, 1078 (S.D.N.Y. 1990) (finding that handcuffing gives rise to a claim of excessive force where an individual suffers an injury as a result of being handcuffed).
Based upon the foregoing, the Court concludes that there is no evidence in the record upon which a jury could reasonably find that Huntington and Rainville violated Plaintiff's Fourteenth Amendment rights and recommends that Huntington and Rainville be granted summary judgment on this issue.
In light of my recommendations that Defendants' motion be granted in its entirety based on the merits, I find it unnecessary to address Defendants' alternative qualified immunity arguments.
C. Plaintiff's Cross Motion to Amend the Complaint
In his opposition to Defendants' motion, Plaintiff asks the Court for permission to amend the Complaint to include a cause of action against Barboza and Glens Falls Police Officer Gerald Willette ("Willette"). (Dkt. No. 50 at 8.) Plaintiff claims, without support, that Barboza and Willette assaulted him. Id. Plaintiff also seeks to add a claim for deliberate indifference to his serious medical needs against the Warren County C.F. staff. Id.
Federal Rule of Civil Procedure 15(a) provides that the court should grant leave to amend "freely . . . when justice so requires." Fed.R.Civ.P. 15(a)(2). The decision to grant or deny a motion to amend is committed to the sound discretion of the trial court. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). An amendment which is futile, such as a proposed amended complaint seeking to assert claims barred by the statute of limitations, must be denied. See Malesko v. Corr. Servs. Corp., 229 F.3d 374, 382 84 (2d Cir. 2000), rev'd on other grounds, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). Similarly, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend." Ruffolo, 987 F.2d at 131 (citing Foman, 371 U.S. at 182).
As the Second Circuit has stated, "[w]e review denial of leave to amend under an 'abuse of discretion' standard . . . When the denial of leave to amend is based on a legal interpretation, such as a determination that amendment would be futile, a reviewing court conducts a de novo review." Hutchison v. Deutsche Bank Securities Inc., 647 F.3d 479, 490 (2d Cir. 2011) (citation omitted).
Plaintiff's original Complaint named Barboza and Willette as Defendants. (Dkt. No. 1.) In the February Order, the Court dismissed Plaintiff's claims against Barboza and Willette. (Dkt. No. 8.) Plaintiff was advised that should he seek to pursue one or more claims dismissed by the Court, he must file an amended complaint. (Dkt. No. 8 at 13, n. 7.) Despite that Order, Plaintiff never moved to amend his pleadings to assert the aforementioned claims until faced with a summary judgment motion and, indeed, only filed the within request on the day that his response to the summary judgment motion was due. See Porter v. Selsky, 287 F.Supp.2d 180, 188 (W.D.N.Y. 2003) (finding undue prejudice to the defendants if the plaintiff's motion to amend, made on the day that the response to a summary judgment motion was due, was granted). Accordingly, due to the prejudicial impact on Defendants, Plaintiff's cross motion to amend to include Barboza and Willette as defendants is denied.
As to Plaintiff's deliberate indifference claims related to his medical needs, Plaintiff fails to identify any specific individual as personally involved in these alleged constitutional deprivations. Consequently, the proposed amendment would be subject to dismissal for failure to give notice and identify facts that would entitle Plaintiff to relief. This portion of Plaintiff's motion is denied as futile. See Federal Rule of Civil Procedure 8(a)(2).
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 41) be GRANTED ; and it is further
ORDERED that Plaintiff's cross motion to amend the complaint (Dkt. No. 50) be DENIED ; and it is further
ORDERED that in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam), the Clerks Office provide Plaintiff with copies of the following unpublished decisions: Cole v. Artuz, 1999 WL 983876 (S.D.N.Y. Oct. 28, 1999); Witzenburg v. Jurgens, 2009 WL 1033395, (E.D.N.Y. April 14, 2009); Hamm v. Hatcher, 2013 WL 71770 (S.D.N.Y. Jan. 7, 2013); Robles v. Khahaifa, 2012 WL 2401574 (W.D.N.Y. June 25, 2012); Murray v. Palmer, No. 9:03 CV 1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar.31, 2010); Bailey v. Fortier, 2012 WL 6935254 (N.D.N.Y. Oct. 4, 2012); Andrews v. Whitman, 2009 WL 857604, at *6 (S.D.Cal. Mar.27, 2009); Williams v. Corr. Officer Priatno, 2016 WL 3729383 (2d Cir. July 12, 2016); Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL 3948100 (S.D.N.Y. July 19, 2016); Sipe v. Harder, 2010 WL 3418382 (N.D.N.Y. Aug. 4, 2010); Winston v. Woodward, 2008 WL 2263191 (S.D.N.Y. May 30, 2008); Musaid v. Manka, 2016 WL 540806 (S.D.N.Y. Feb. 9, 2016); Benitez v. Ham, 2009 WL 3486379 (N.D.N.Y. Oct. 21, 2009); Brown v. City of New York, 2015 WL 427942 (E.D.N.Y. Feb. 2, 2015).
Pursuant to 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); Fed. R. Civ. P. 72, 6(a). Dated: August 19, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge