Opinion
9:19-cv-1438 (LEK/TWD)
06-21-2022
MIGUEL DIAZ, Plaintiff, v. ERIC J. SMITH, et al., Defendants.
MIGUEL DIAZ Plaintiff, pro se. HON. LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. Attorney General for the State of New York DAVID C. WHITE, ESQ. Attorney for Defendants Ass't Attorney General.
MIGUEL DIAZ Plaintiff, pro se.
HON. LETITIA JAMES LAUREN ROSE EVERSLEY, ESQ. Attorney General for the State of New York DAVID C. WHITE, ESQ. Attorney for Defendants Ass't Attorney General.
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge.
I. INTRODUCTION
On November 20, 2019, pro se Plaintiff Miguel Diaz (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this 42 U.S.C. § 1983 action asserting his constitutional rights were violated at Upstate Correctional Facility (“Upstate”). (Dkt. No. 1.) The amended complaint was accepted for filing on August 4, 2021. (Dkt. Nos. 118, 119.)
Generally, Plaintiff's claims arise out of two separate documented use of force incidents that occurred on February 22, 2019. (Dkt. No. 119.) Construed liberally, Plaintiff brings: (1) Eighth Amendment excessive force and failure-to-intervene claims against Corrections Officer (“C.O.”) Adam J. Gallagher (“Gallagher”), C.O. Robert J. Lamica, II (“Lamica”), C.O. Eric J. Smith (“Smith”), C.O. Joshua Tulip (“Tulip”), C.O. James B. Trombley (“Trombley”), C.O. Bryan T. LeClair (“LeClair”), C.O. Eric E. Marshall (“Marshall”), C.O. Gabriel Obregozo (“Obregozo”), Sergeant Trevor Dunning (“Dunning”), Lieutenant (“Lt.”) Gary Gettmann (“Gettmann”), Lt. Steven Salls, Jr. (“Salls”), Captain Stacy Dominic (“Dominic”), Superintendent Donald Uhler (“Uhler”), and Nurse Geraldine Wilson (“Wilson”) (together, “Defendants”); (2) Eighth Amendment sexual abuse claim against Smith; and (3) Eighth Amendment medical indifference claim against Wilson. (Dkt. No. 118 at 5.) Defendants answered the amended complaint and discovery ensued. (Dkt. No. 145.)
Unless otherwise noted, page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
On November 1, 2021, Plaintiff moved for summary judgment. (Dkt. No. 156.) On January 31, 2022, Defendants opposed the motion and cross-moved for summary judgment. (Dkt. No. 166.) Plaintiff, in turn, filed a reply and opposed the cross-motion among other things. (Dkt. Nos. 169, 170, 171, 178, see also Docket Report.) The parties' motions for summary judgment are fully briefed and have been referred for a Report-Recommendation by the Hon. Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Plaintiff's motion includes a Notice for Summary Judgment (Dkt. No. 156) and Exhibits (Dkt. No. 156-1).
Defendants' cross-motion includes a Notice for Summary Judgment (Dkt. No. 166), Memorandum of Law (Dkt. No. 166-1), Statement of Material Facts (“SMF”) (Dkt. No. 166-2), Affidavit from Counsel, with Exhibit “A” - Transcript of Plaintiff's September 3, 2021, Deposition (“Dep.”) (Dkt. No. 166-3), and Declarations (Dkt. Nos. 166-4 through 166-17).
Plaintiff's submissions include a Reply (Dkt. No. 169), Response to Cross-Motion (Dkt. No. 170), Response Exhibits (Dkt. No. 171), and Response Memorandum of Law with Exhibits (Dkt. No. 178).
For the reasons set forth below, the Court recommends that Plaintiff's motion be denied, and Defendants' cross-motion be granted in part and denied in part.
II. BACKGROUND
It is undisputed that two separate documented use of force incidents occurred on February 22, 2019. However, the record and materials submitted in connection with the competing motions for summary judgment make clear that Plaintiff and Defendants allege significantly different narratives surrounding the incidents at issue. Their respective versions of events are set forth below.
A. Plaintiff's Version of Events
On or about February 8, 2019, Plaintiff filed a “PREA Complaint” against Smith for sexual harassment. (Dkt. No. 156-1 at 51.) He also asked for a “separation” order due to Smith's “continued harassment.” Id. Specifically, on February 8, 2019, Smith walked by Plaintiff's cell and “winked and blew a kiss.” Id. at 52. Plaintiff testified that for “several weeks” Smith “had been sexually harassing” him (i.e., “blowing kisses” and “licking at [Plaintiff] how a snake would move his tongue, putting his fingers on his mouth” and making “homosexual gestures”) and “violating his food” (i.e., droplets of Smith's saliva from the foregoing actions fell onto Plaintiff's breakfast and lunch trays). (Dkt. No. 166-3 (“Pl.'s Dep.”) at 21, 26, 29-30, 38-39.)
Page references to Plaintiff's deposition are to the original pagination.
On the morning of February 22, 2019, when Smith “did it again,” Plaintiff refused to return his breakfast tray and told Smith to “call the sergeant.” Id. at 40. “When the sergeant came around,” Plaintiff explained that Smith had been “sexually harassing” him and tampering with his food “for a good amount of time.” Id. Plaintiff asked for another breakfast tray and to be “removed” or “separated” from Smith, but the sergeant “storm[ed] off” and returned with an extraction team. Id. at 40-41.
Plaintiff admits he refused multiple direct orders to “cuff up” and exit the cell for a search. Id. at 41-43. Consequently, several applications of a chemical agent were administered and an extraction team, consisting of Lamica, Obregozo, Marshall, and Gallagher, entered the cell to remove Plaintiff. Id. at 16. Plaintiff claims, however, the extraction team subjected him to excessive force while Dunning, Salls, and Dominic failed to intervene. Id. at 16-17. To that end, Plaintiff states that his head was “banged” against the side of the shower, and he was “slammed” to the floor on his stomach. Id. Plaintiff maintains he was repeatedly kicked, stomped, and punched while the extraction team was within his cell and even after mechanical restraints were applied to his wrists. Id.
After this initial “beating,” Plaintiff was removed from his cell. Id. at 22. Plaintiff turned to Smith and said, “hey man, is that what it's all worth? Is this what it's all about?” Id. In response, Plaintiff was “slammed” to the floor on his face, which caused his “whole top mouth to shift.” Id. While on the ground and restrained, the officers proceeded to hit and kick Plaintiff a “couple” more times and then threw a spit net over Plaintiff's head, even though Plaintiff “didn't spit on nobody.” Id.
Plaintiff was escorted to medical and briefly examined by Wilson. Id. at 23. Plaintiff claims Wilson failed to properly document and treat his injuries. Id. Plaintiff claims that “even though his right eye was bleeding” and there was a “hole the size of nickel on his left eye,” Wilson documented “no injury” to Plaintiff's eyes. Id. at 24, 35.
Thereafter, during the morning rounds, Plaintiff proceeded to tell “everyone”, including a staff member of the Office of Mental Health (“OMH”), that he needed stitches for his eye injury, but was ignored. Id. Several hours later, Wilson stopped by Plaintiff's cell asking, “what's going on?” Id. at 25. Plaintiff showed Wilson his left eye, and she said, “Oh God, where'd that come from?” Id. Plaintiff replied, “Ms. Wilson, had you . . . checked me, you would have seen it. And I would have been sent to the hospital.” Id. Wilson walked away and mumbled, “well, let it dry.” Id.
After his eye injury was dismissed by Wilson, Plaintiff's desperation to receive medical attention “kicked in.” Id. at 56. Plaintiff started saying, “I'm going to hang up”, meaning, “like attempt to kill yourself and put something around your neck, to that nature.” Id. at 56-58. In response, a non-party C.O. called Dunning. Id. at 59. Dunning arrived and told Plaintiff, “we're going to get you to the infirmary,” but Plaintiff “knew” it “was just a brush off.” Id. When Plaintiff's cell door was opened, he tried “to get out” but he was stopped and subjected to excessive force. Id.
Plaintiff maintains Smith blocked the cell door opening and struck Plaintiff with a shield. Id. at 59, 116. Plaintiff was thrown down and “slammed” onto his stomach. Id. at 59. Thereafter, Tulip, Trombley, Lamica, and LeClair beat Plaintiff with their batons. Id. At 59, 61, 98-99, 102. Smith put Plaintiff in a chokehold and said, “I should kill you right now.” Id. at 60. Smith then proceeded to choke Plaintiff with his left hand, leaving marks around Plaintiff's neck. Id.
Even after Plaintiff was restrained and handcuffed, these Defendants continued to punch, kick, and beat Plaintiff with the shield and their batons “trying to kill” him. Id. at 60, 61. Throughout this beating, Dunning was “just sitting there, yelling, ‘stop resisting'” even though Plaintiff was not resisting. Id. at 64-65. Plaintiff was then forced to his feet with his arms restrained behind his back. Id. at 61. Smith “reached his left hand into Plaintiff's boxer shorts and pulled on Plaintiff's “scrotum sack and . . . penis” in a “nightmarish way, which is like he [was] trying to pull it off.” Id. Plaintiff was taken to the infirmary, and it was determined he needed further outside medical care. Id. at 67-68.
Several hours later, at approximately 4:00 p.m., Plaintiff was transported to the Alice Hyde Hospital. Id. at 71. There, he was diagnosed with a broken nose, major trauma to his mouth, bruised ribs, arm laceration, and bleeding fingers. Id. at 73. He received four stitches to his left eye. Id. Plaintiff testified that because of the foregoing incidents, he experienced, and continues to experience, “extreme” and “major” pain. Id. at 54, 78-79.
B. Defendants' Version of the Events
Defendants maintain that at approximately 7:30 a.m. on February 22, 2019, Smith was distributing breakfast and placed Plaintiff's tray in the feed-up hatch. (Dkt. No. 166-6 (“Smith Decl.”) at ¶ 6.) Plaintiff refused to bring his hands into the cell so that his feed-up hatch could be secured. Id. Smith notified Dunning, the area supervisor, who responded and gave Plaintiff several direct orders to bring his hands into the cell. (Dkt. No. 166-9 (“Dunning Decl.”) at ¶ 5.) Plaintiff did not comply. Id. Dunning ordered Plaintiff out of his cell for a cell search and Plaintiff continued to refuse. Id. Dunning contacted Gettmann, the watch commander, and informed him that Plaintiff had refused multiple direct orders and requested that a cell extraction team be gathered. (Dkt. No. 166-12 (“Gettmann Decl.”) at ¶¶ 10, 11; Dunning Decl. at ¶ 5.) Gettmann directed Salls to organize an extraction team to remove Plaintiff from his cell. (Gettmann Decl. at ¶ 12; Dkt. No. 166-17 (“Salls Decl.”) at ¶ 5.) Gettmann also contacted Uhler, the superintendent, who authorized the cell extraction and, if necessary, the use of chemical agents. (Gettmann Decl. at ¶ 13; Dkt. No 166-11 (“Uhler Decl.”) at ¶ 11.)
The Court notes Salls' Declaration, though signed, is not dated.
Dominic issued Plaintiff a final direct order to exit his cell for the cell search and advised Plaintiff that if he continued to refuse orders, force would be utilized. (Gettmann Decl. at ¶ 15; Dkt. No. 166-15 (“Dominic Decl.”) at ¶¶ 11, 12.) Plaintiff refused Dominic's final direct order. Id. Consequently, Dunning released chemical agents into Plaintiff's cell to gain compliance without the need for force. (Dunning Decl. at ¶ 6.) Trombley observed Dunning administer a burst of chemical agent into Plaintiff's cell five times. (Dkt. No. 166-16 (“Trombley Decl.”) at ¶ 12.) Plaintiff continued to ignore all directions and refused to leave his cell. Id. Trombley was directed by Dunning to manually open Plaintiff's cell door. Id. at ¶¶ 13, 14. Trombley opened and secured the cell door during the entirety of the documented use of force incident. Id.
According to Defendants, Lamica, Gallagher, Marshall, and Obregozo entered the cell and subdued Plaintiff using the minimal amount of force necessary and applied mechanical restraints. (Dunning Decl. at ¶ 7; Dkt. No. 166-4 (“Gallagher Decl.”) at ¶¶ 7, 9; Dkt. No. 166-8 (“Lamica Decl.”) at ¶¶ 8, 9; Dkt. No. 166-7 (“Obregozo Decl.”) at ¶¶ 7,8; Dkt. No. 136-5 (“Marshall Decl.”) at ¶ 7.) Plaintiff was then removed from his cell in a standing position with his hands in mechanical restraints behind his back. (Trombley Decl. at ¶¶ 15, 16.) After all necessary force ceased, Tulip arrived on the B gallery to escort Plaintiff to medical. (Dkt. No. 166-14 (“Tulip Decl”) at ¶ 11.)
However, during the escort, Plaintiff “aggressively” spit on Lamica. (Lamica Decl. at ¶ 10; Tulip Decl. at ¶ 12; Gallagher Decl. at ¶ 8.) As a result, Lamica brought Plaintiff to the ground and Tulip was instructed to retrieve a spit net. (Lamica Decl. at ¶ 10; Tulip Decl. at ¶ 12; Gallagher Decl. at ¶ 8.) The spit net was applied, Plaintiff was assisted to his feet, and he was escorted to medical without further incident. (Lamica Decl. at ¶ 10; Gallagher Decl. at ¶ 8.)
At approximately 9:50 a.m., Wilson reported to the 10 block holding pen. (Dkt. No. 16613 (“Wilson Decl.”) at ¶ 14.) When she arrived, she observed Plaintiff standing in the holding pen in his boxer shorts. Id. Plaintiff's vital signs were in the normal range for an adult male and she noted the following injuries: (1) missing front tooth from his upper gum from a previous injury; (2) a quarter of an inch bruise to Plaintiff's upper right lip; (3) a bruise on the side and under Plaintiff's left eye; (4) a one and a half inch scratch on Plaintiff's left shoulder; and (5) a scrape on Plaintiff's right middle finger with tearing of the skin which measured a quarter of an inch in length. Id. at ¶¶ 15, 16, 17. Wilson treated Plaintiff's open areas with Hibiclens and an antibiotic ointment. Id. at ¶ 18. She advised Plaintiff to keep the open areas clean and dry and to follow-up with DOCCS health services as needed. Id. at ¶ 19.
Plaintiff continued to complain of an eye injury. Id. at ¶ 20. Wilson closely examined Plaintiff's eye and, apart from bruising roughly the size of a pencil head, she did not observe any additional injuries. Id. Wilson then returned to the medical office to resume her assigned duties and Plaintiff was taken back to his cell. Id. at ¶ 21.
Not long thereafter, an OMH staff member advised Wilson that Plaintiff had a cut on his eye. Id. at ¶ 22. She responded to Plaintiff's cell and observed a cut on his left eye that was not present during her initial evaluation of Plaintiff. Id. at ¶¶ 24, 25. Wilson returned to the medical office on 10 block and contacted a non-party Physician's Assistant, who ordered that Plaintiff be escorted to Upstate's emergency room for evaluation. Id. at ¶ 24. Wilson then notified Dunning that arrangements were being made for further medical treatment. Id. at ¶ 25.
At approximately 12:30 p.m., Dunning was also notified by a non-party C.O. that Plaintiff was experiencing suicidal thoughts and was attempting to hang himself in his cell. (Dunning Decl. at ¶ 10.) Dunning responded and observed Plaintiff sitting on the bottom bunk with a headphone extension cord tied to the top bunk and around his neck. Id. Dunning gave Plaintiff several direct order to remove the cord from around his neck, but he refused; Plaintiff started slipping off the bottom bunk with the cord tightening around his neck. Id. As this represented an immediate threat to Plaintiff's health and safety, Dunning ordered that Plaintiff's cell door be opened and for staff to enter the cell. Id. at ¶¶ 10, 11.
As Trombley opened the cell door, Plaintiff removed the cord from around his neck and charged toward the opening. (Dunning Decl. at ¶ 11; LeClair Decl. at ¶ 10; Trombley Decl. at ¶ 23; Tulip Decl. at ¶ 19; Lamica Decl. at ¶ 13; Smith Decl. at ¶ 21.) Plaintiff then grabbed the cell door and prevented the officers from entering the cell. (Lamica Decl. at ¶ 13; LeClair Decl. at ¶ 13.) According to Defendants, minimal force was used to subdue and restrain Plaintiff. To that end, Lamica struck Plaintiff with his state-issued baton one time on the left hand. (Lamica Decl. at ¶ 13; LeClair Decl. at ¶ 14.) Plaintiff released his grip on the cell door and Smith, who was carrying a state-issued shield, struck Plaintiff with the shield in the upper body and used the shield to force Plaintiff to the floor. (Lamica Decl. at ¶ 13; LeClair Decl. at ¶ 15; Tulip Decl. at ¶¶ 20, 21; Trombley Decl. at ¶ 24.)
Once on the floor, Plaintiff used his right arm and grabbed Tulip around his left leg. (Trombley Decl. at ¶ 25; LeClair Decl. at ¶ 16.) Plaintiff continued to refuse directions and struggle with staff. (Tulip Decl. at ¶ 23, Trombley Decl. at ¶ 27; LeClair Decl. at ¶ 16.) Lamica then struck Plaintiff in the upper right arm three times with his baton, at which point Plaintiff released Tulip's leg. (Lamica Decl. at ¶ 13; Tulip Decl. at ¶ 24.) While Plaintiff was still on the floor, Tulip, LeClair, and Trombley used “body holds” on top of Plaintiff to maintain control and cease Plaintiff's resistance. (Tulip Decl. at ¶¶ 25, 26; LeClair Decl. at ¶ 17; Trombley Decl. at ¶¶ 28, 29.) Tulip secured Plaintiff's right arm; LeClair secured Plaintiff's left arm; Trombley secured Plaintiff's legs; and Tulip applied mechanical restraints to Plaintiff's wrists. (Tulip Decl. at ¶ 26; LeClair Decl. at ¶ 17; Trombley Decl. at ¶ 28.)
After the restraints were applied, Plaintiff became compliant, and all force ceased. (Tulip Decl. at ¶ 26; LeClair Decl. at 17; Trombley Decl. at ¶ 29.) Plaintiff was then escorted to the infirmary for evaluation without further incident. (Tulip Decl. at ¶ 27; LeClair Decl. at ¶ 18; Trombley Decl. at ¶ 30.)
III. STANDARD OF REVIEW
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (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. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that 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 Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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).
On summary judgment motions, the Second Circuit has held “[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 v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). “At the summary judgment stage, 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).
In applying the summary judgment standard, the 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) (credibility issues, which are questions of fact for resolution by a jury, are inappropriately decided by a court on a motion for summary judgment).
“Where, as here, the parties have cross-moved for summary judgment, a reviewing court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” United States v. Bedi, 453 F.Supp.3d 563, 570 (N.D.N.Y. 2020) (cleaned up). However, where the motion and cross-motion “seek a determination of the same issues,” as is the case here, the court considers them together. Gilani v. Teneo, Inc., No. 20-CV-1785 (CS), 2021 WL 3501330, at *10 (S.D.N.Y. Aug. 4, 2021). “In undertaking this analysis, it bears noting that a district court is not required to grant judgment as a matter of law for one side or the other.” Bedi, 453 F.Supp.3d at 570; see also Residential Mgmt. (N.Y.) Inc. v. Fed. Ins. Co., 884 F.Supp.2d 3, 7 (E.D.N.Y. 2012) (“Cross-motions for summary judgment do not alter the basic standard, but simply require the court to determine whether either of the parties deserves judgment as a matter of law on facts that are not in dispute.”).
IV. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Liberally construed, Plaintiff argues he is entitled to summary judgment because the record evidence establishes Defendants subjected him to excessive force and sexual assault, failed to intervene, and denied him medical care in violation of his Eighth Amendment rights. (Dkt. No. 156.) Defendants argue Plaintiff's motion is procedurally deficient and fails to demonstrate his entitlement to summary judgment on the merits. (Dkt. No. 166-1 at 23-25.) The Court agrees with Defendants.
A. Plaintiff's Failure to Submit a Statement of Material Facts
Local Rule 56.1(a) requires a party moving for summary judgment to file and serve a separate Statement of Material Facts. L.R. 56.1(a). “The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of each material fact about which the moving party contends there exists no genuine issue.” Id. “Each fact listed shall set forth a specific citation to the record where the fact is established.” Id. “Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.” Id. (emphasis in the original).
Plaintiff is aware the Local Rules are not “empty formalities,” and the“[f]ailure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.” (Dkt. No. 73 at 8 (denying Plaintiff's first motion for summary judgment for failure to comply with L.R. 56.1(a)).).
Here, Plaintiff's motion for summary judgment blends a notice of motion with a memorandum of law and requires the Court and Defendants to “look” at the attached exhibits as “evidence” of his claims. (Dkt. Nos. 156, 156-1.) Because Plaintiff has not complied with L.R. 56(1)(a) by including the required Statement of Material Facts, the Court recommends denying Plaintiff's motion for summary judgment. (See, e.g., A'Gard v. Locke, No. 14-CV-0613 (GTS/DEP), 2016 WL 8735653, at *4 (N.D.N.Y. June 24, 2016) (denying summary judgment motion because the pro se plaintiff did not comply with the applicable local rules governing motion practice by including a Statement of Material Facts) (citing Riley v. Town of Bethlehem, 5 F.Supp.2d 92, 93 (N.D.N.Y. 1998) (dismissing summary judgment motion based on moving party's failure to file a properly supported Statement of Material Facts as required under the Local Rules)), report-recommendation adopted by 2016 WL 5137273 (N.D.N.Y. Sept. 21, 2016); see also Cusamano v. Sobek, 604 F.Supp.2d 416, 426-27 & n.4 (N.D.N.Y. 2009) (Suddaby, J.) (“As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.”) (collecting cases).
As pointed out by Defendants, because Plaintiff failed to submit the required Statement of Material Facts, they were unable to respond. (See Dkt. No. 166-1 at 23-25; Dkt. No. 166-2 at 1.)
B. Merits
Even if the Court overlooked Plaintiff's failure to comply with the Local Rules, see Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001), Plaintiff's motion is legally deficient and is replete with conclusory allegations and, as noted, directs the Court to “look” at the “massive amounts of evidence” that allegedly support his claims. (Dkt. No. 156 at 3; see also id. at 78-79.)
As set forth in Part V.C., infra, the Court finds no reasonable factfinder could conclude Wilson was deliberately indifferent to Plaintiff's serious medical needs. Thus, Plaintiff is not entitled to summary judgment on the medical indifference claim.
Moreover, although Plaintiff claims he was “haynessly [sic] and brutally assaulted” and “sexually violated” on February 22, 2019, construing the evidence in the light most favorable to the nonmoving party, Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 621-22 (2d Cir. 2008), the two documented use of force incidents resulted from Plaintiff's non-compliance with staff directives and attempted self-harm. (See generally Dkt. No. 166-2 (“Defs.' SMF”) at ¶¶ 11-31 36-44.) Indeed, as set forth in Part V.D., infra, Defendants have submitted declarations detailing their involvement, if any, in each of the documented use of force incidents at issue, to wit: they either did not participate in or observe the actual force at issue and/or the minimal force was reasonably applied in response to Plaintiff's own actions and in a good-faith effort to maintain or restore discipline. Furthermore, though Plaintiff has presented evidence that tends to support his allegation that he was injured during the incidents as issue, questions of material fact remain as to whether Defendants acted wantonly and in bad faith. Thus, Plaintiff is not entitled to summary judgment on the excessive force, failure-to-intervene, and sexual assault claims.
Accordingly, the Court recommends denying Plaintiff's motion for summary judgment in its entirety.
V. DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT
Defendants cross-move for summary judgment and seek dismissal of the amended complaint in its entirety with prejudice on the following grounds: (1) Uhler, Gettmann, and Wilson were not personally involved in the alleged excessive force incidents; (2) Plaintiff's medical indifference claim against Wilson fails on the merits; (3) Plaintiff's excessive force, failure-to-intervene, and sexual assault claims fail on the merits; and (4) Defendants are entitled to qualified immunity. (Dkt. No. 166-1 at 6-25.) Plaintiff opposed the motion. (Dkt. Nos. 169, 170, 178.) For the reasons discussed below, the Court agrees Uhler, Gettmann, and Wilson are entitled to summary judgment, but otherwise finds questions of material fact preclude dismissal of Plaintiff's Eighth Amendment excessive force, failure-to-intervene, and sexual assault claims.
A. Plaintiff's Response to Defendants' Statement of Material Facts
As required by the Local Rules, Defendants submitted a Statement of Material Facts and advised Plaintiff of the consequences of failing to file a response. (Dkt. No. 166 at 3.) Although Plaintiff opposed Defendants' cross-motion, he failed to do so in the manner required under the Local Rules. (Dkt. Nos. 169, 170, 178.) “This requirement is not a mere formality; rather ‘this and other local rules governing summary judgment are essential tools intended to relieve the district court of the onerous task of hunting through voluminous records without guidance from the parties.'” Cao-Bossa v. New York State Dep't of Lab., No. 18-CV-0509 (GTS/TWD), 2021 WL 3674745, at *1 (N.D.N.Y. Aug. 19, 2021); see Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003).
Local Rule 56.1(b) 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 a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” L.R. 56.1(b).
Where, as in this case, a party has failed to respond to the movant's Statement of Material Facts in the manner required under Local Rule 56.1(b), the facts in the movant's statement to which the nonmovant has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that 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).
Accordingly, the facts set forth in Defendants' Statement of Material Facts that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified amended complaint and opposition papers will be accepted as true. See McAllister v. Call, No. 10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts . . . supplemented by Plaintiff's verified complaint . . . as true.”). As to any facts not contained in Defendants' Statement of Material Facts, the Court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
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 [the] burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained 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).
B. Personal Involvement
Defendants contend Plaintiff fails to establish the personal involvement of Uhler and Gettmann in any Eighth Amendment violation. (Dkt. No. 166-1 at 6-10.) Similarly, Defendants argue insofar as Plaintiff intended to bring an excessive force or failure-to-intervene claim against Wilson, the claim must be dismissed for lack of personal involvement. Id. at 12. The Court agrees.
1. Legal Standards
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Recently, the Second Circuit concluded “there is no special rule for supervisory liability” and held that a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). To avoid summary judgment, a plaintiff must establish the defendant violated the constitution by his or her “own conduct, not by reason of [the defendant's] supervision of others who committed the violation” and cannot “rely on a separate test of liability specific to supervisors.” Id. The “factors” necessary to plead and establish a § 1983 violation “‘will vary with the constitutional provision at issue' because the elements of different constitutional violations vary.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
Briefly, to establish an Eighth Amendment excessive force claim, a plaintiff must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's actions violated “contemporary standards of decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotation marks omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). To establish liability based on the failure to intervene, a plaintiff must show that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know the victim's constitutional rights were being violated; and (3) the officer d[id] not take reasonable steps to intervene.” Tafari v. McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y. 2010).
2. Analysis
The record evidence establishes neither Uhler, Gettmann, or Wilson were present for, or participated in, the use of force incidents at issue. (Defs.' SMF at ¶ 44; Uhler Decl. at ¶¶ 12, 23, Gettmann Decl. at ¶¶ 16, 27; Wilson Decl. at ¶¶ 13, 26; Pl.'s Dep. At 12-19, 105-07, 107-110, 112.) In short, the Court agrees with Defendants that Gettmann's and Uhler's involvement in this action was limited to their supervisory roles as the watch commander and superintendent, respectively, while Wilson's role was limited to her medical care after the first incident. (Dkt. No. 166-1 at 8, 12.)
The watch commander and superintendent are supervisory officials in the chain of command at the facility whom lower-level officials must contact to authorize and facilitate cell extractions and the use of chemical agents. (Getttmann Decl. at ¶ 8.)
As to the 9:20 a.m. incident, Gettmann approved Dunning's request for an extraction team after being informed that Plaintiff was refusing multiple direct orders from staff to bring his hands into the cell, return his breakfast tray, and exit his cell, while Uhler approved the cell extraction and use of chemical agents to assist in the removal of Plaintiff from his cell, if necessary. (Gettmann Decl. at ¶¶ 10, 11; Uhler Decl. at ¶ 11.) With respect to the 12:30 p.m. incident, Gettmann and Uhler were not contacted prior to the use of force because the incident arose from a perceived medical emergency. (Defs.' SMF at ¶ 40, Dunning Decl. at ¶ 10; Pl.'s Dep. at 59-60 (Plaintiff testifying that he threated to “hang up” for attention).) As to Wilson, it is undisputed that she was not present for either use of force incident. (Wilson Decl. at ¶¶ 13, 26.)
Thus, the Court finds there is no showing that Uhler, Gettmann, or Wilson had the necessary level of culpability to satisfy the subjective component of Plaintiff's excessive force claim and failure-to-intervene claim. See Scarbrough v. Thompson, No. 10-CV-901 (TJM/CFH), 2012 WL 7761439, at *10 (N.D.N.Y. Dec. 12, 2012) (granting summary judgment to supervisory officials who authorized the use of chemical agents but were not present for the cell extraction for lack of personal involvement); Reeder v. Bell, No. 15-CV-01078 (MAD/TWD), 2019 WL 2997513, at *8 (N.D.N.Y. May 7, 2019) (same); see also Ridge v. Davis, No. 18-CV-8958, 2022 WL 357020, at *10 (S.D.N.Y. Feb. 7, 2022) (granting summary judgment to certain defendants in a § 1983 suit bringing excessive force claims where “the record fails to establish that [these defendants] were directly involved in the alleged assault of [the] plaintiff”); Allah v. Annucci, No. 16-CV-1841, 2020 WL 3073184, at *8 (S.D.N.Y. June 10, 2020) (granting summary judgment to a § 1983 defendant where the record did not establish the defendant's personal involvement).
Accordingly, the Court recommends granting Defendants' cross-motion for summary judgment to Uhler, Gettmann, and Wilson on this ground.
C. Medical Indifference
Defendants contend Plaintiff fails to demonstrate Wilson was deliberately indifferent to his serious medical needs. (Dkt. No. 166-1 at 6-10.) The Court agrees.
1. Legal Standard
“In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove ‘deliberate indifference to [his] serious medical needs.'” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This standard contains objective and subjective components. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures the defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing, inter alia, Chance, 143 F.3d at 702).
To satisfy the objective element, the alleged deprivation must be “sufficiently serious.” Salahuddin, 467 F.3d at 279 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Determining whether a deprivation is sufficiently serious involves two inquiries. Id. The first question is whether the plaintiff was deprived of adequate medical care. Id. Prison officials who act “reasonably” in response to the inmate's health risk will not be found liable under the Eighth Amendment because the official's duty is only to provide “reasonable care.” Id. (citing Farmer, 511 U.S. at 844-47); see Spavone v. New York State Dep't of Corr. Svcs., 719 F.3d 127, 123 (2d Cir. 2013) (“A prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment.”).
The second question is whether the purported inadequacy in the medical care is “sufficiently serious.” Salahuddin, 467 F.3d at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Id. (citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)). If the “unreasonable care” consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is “sufficiently serious.” Id. (citing Smith, 316 F.3d at 185-86). A condition is “sufficiently serious” in objective terms if it presents “a condition of urgency, one that may produce death, degeneration, or extreme pain ....” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: “(1) whether a reasonable doctor or patient would perceive the medical need in question as ‘important and worthy of comment or treatment,' (2) whether the medical condition significantly affects daily activities, and (3) ‘the existence of chronic and substantial pain.'” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (quoting Chance, 143 F.3d at 702).
“Where a plaintiff alleges that inadequate care was provided-instead of alleging a failure to provide any treatment-the inquiry focuses on ‘the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract.'” Revels v. Corr. Med. Care, Inc., No. 17-CV-0088 (MAD/TWD), 2018 WL 1578157, at *4 (N.D.N.Y. Mar. 28, 2018) (quoting Smith, 316 F.3d at 186); Salahuddin, 467 F.3d at 280 (noting that although courts speak of a “serious medical condition” as the basis for a constitutional claim, the seriousness of the condition is only one factor in determining whether the deprivation of adequate medical care is sufficiently serious to establish constitutional liability) (citation omitted).
To satisfy the subjective element, the plaintiff must demonstrate the defendants had “the necessary level of culpability, shown by actions characterized by ‘wantonness.'” Blyden, 186 F.3d at 262. “In medical-treatment cases . . . the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health.” Salahuddin, 467 F.3d at 280. “Deliberate indifference,” in a constitutional sense, “requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result.” Id.; see also Farmer, 511 U.S. at 837 (“[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”). “Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law.” Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40). Therefore, “the defendant's belief that his conduct posed no risk of serious harm ‘need not be sound so long as it is sincere,' and ‘even if objectively unreasonable, a defendant's mental state may be nonculpable.'” Wright v. Genovese, 694 F.Supp.2d 137, 154-55 (N.D.N.Y. 2010) (quoting Salahuddin, 467 F.3d at 281).
2. Analysis
Here, no reasonable jury could find Wilson deprived Plaintiff of adequate medical care. The record establishes Wilson examined Plaintiff after the 9:20 a.m. incident. (Defs.' SMF at ¶¶ 32, 33, 34.) As set forth herein, Wilson checked Plaintiff's vital signs, all of which were in the normal range for an adult male. (Wilson Decl. at ¶¶ 14, 15, 16.) She evaluated Plaintiff for any injuries and observed a missing front tooth from his upper gum from a previous injury; a quarter of an inch bruise to Plaintiff's upper right lip; a bruise on the side and under Plaintiff's left eye; a one and a half inch scratch on Plaintiff's left shoulder; and a scrape on Plaintiff's right middle finger with tearing of the skin which measured a quarter of an inch in length. Id. at ¶ 17. In her sworn declaration, Wilson states she did not observe any open wounds on Plaintiff's left eye during her initial examination. Id. at ¶¶ 17, 23. She treated Plaintiff's open areas with Hibiclens and an antibiotic ointment, advised him to keep the areas clean and dry, and to follow-up with DOCCS health services as needed. Id. at ¶¶ 18, 19.
Not long after, Wilson was informed Plaintiff had a cut on his eye. Id. at ¶ 22. She responded to Plaintiff's cell at which time she observed a cut that was not present during her initial evaluation of Plaintiff. Id. at ¶ 23. This was Wilson's last interaction with Plaintiff on February 22, 2019. Id. She returned to her office to arrange for additional treatment at Upstate's emergency room. Id. At approximately 12:20 p.m., Plaintiff threatened self-harm, which resulted in the 12:30 p.m. use of force incident. See id. ¶¶ 24, 25, 28. Thus, the record evidence demonstrates Plaintiff's medical needs were reasonably treated and monitored by Wilson.
Even assuming Plaintiff could satisfy the objective prong, the Court finds no reasonable jury could find Wilson acted with a sufficiently culpable state of mind. Here, Plaintiff claims that after the 9:20 a.m. incident, Wilson “sent [him] back to [his] cell when [he] should have [gone] to the hospital” because there was “a hole in [his] eye lid the size of a nick[el] bleeding[.]” (Dkt. No. 119 at 6; see also Pl.'s Dep. at 24, 35.) However, disagreements over medication, diagnostics, forms of treatment, and the need for specialists are not adequate grounds for a § 1983 claim since those issues implicate medical judgment and at worst negligence constituting malpractice. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001); see also Polletta v. Farinella, No. 11-CV-660, 2012 WL 6115101, at *2 (D. Conn. Dec. 10, 2012) (“That Plaintiff did not receive the treatment of his choice, i.e., being taken to an outside hospital, is insufficient to state a claim for deliberate indifference.”). Thus, while Plaintiff takes issue with the medical treatment he received from Wilson after the 9:20 a.m. incident, such claims do not rise to the level of a constitutional violation. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) (holding an inmate does not have the right to treatment of his choice); Washington v. Westchester Cty. Dep't of Corr., No. 13-CV-5322, 2014 WL 1778410, at *6 (S.D.N.Y. Apr. 25, 2014) (“[I]t is well-settled that the ultimate decision of whether or not to administer a treatment or medication is a medical judgment that, without more, does not amount to deliberate indifference.” (citation omitted)).
Additionally, the record demonstrates that at approximately 4:00 p.m., Plaintiff was transferred to the Alice Hyde Hospital where he was examined and received four stiches to his left eye. (Pl.'s Dep. at 71-73.) Even assuming Wilson failed to initially observe and/or treat Plaintiff's eye injury, “negligence in diagnosing or treating an inmate's medical condition does not constitute deliberate indifference.” Ahlers v. Kaskiw, No. 12-CV-501 (GLS/ATB), 2014 WL 4184752, at *7 (N.D.N.Y. Aug. 21, 2014) (citing Farmer, 511 U.S. at 835).
Moreover, “a delay in treatment does not violate the constitution unless it involves an act or failure to act that evinces a conscious disregard of a substantial risk of serious harm.” Pabon v. Wright, No. 99-CV-2196, 2004 WL 628784, at *8 (S.D.N.Y. Mar. 29, 2004) (citation and quotation marks omitted), aff'd, 459 F.3d 241 (2d Cir. 2006). That is, “denying or delaying needed treatment for a serious medical condition constitutes deliberate indifference for Eighth Amendment purposes only if,” for example, the “official[ ] delayed care as a form of punishment, ignored a life-threatening and fast-degenerating condition for several days, or delayed major surgery.” Myrie v. Calvo, 615 F.Supp.2d 246, 248 (S.D.N.Y. 2009) (citation omitted); see also Perez v. Hawk, 302 F.Supp.2d 9 21 (E.D.N.Y. 2004) (treatment of a plaintiff's medical conditional generally defeats a claim of deliberate indifference). The record is devoid of any such evidence.
Accordingly, based on the foregoing, the Court recommends granting Defendants' crossmotion for summary judgment to Wilson on this ground.
D. Excessive Force, Failure-to-Intervene, and Sexual Assault
Defendants contend Plaintiff's excessive force, failure-to-intervene, and sexual assault claims fail on the merits because, as detailed herein, Defendants maintain they either did not participate in or observe the force used and/or that such force was applied in response to Plaintiff's own actions and in a good-faith effort to maintain or restore discipline. (Dkt. No. 1661 at 14-21.) Alternatively, Defendants maintain they are entitled to qualified immunity. Id. at 22-23. The Court disagrees and finds questions of material fact preclude granting summary judgment in Defendants' favor.
1. Legal Standards
“A prison official's use of force violates the Eighth Amendment when, objectively, ‘the alleged punishment [was] . . . sufficiently serious,' and, subjectively, ‘the prison official . . . [had] a sufficiently culpable state of mind.'” Torres v. City of New York, No. 17-CV-06604, 2019 WL 7602181, at *6 (S.D.N.Y. Aug. 14, 2019) (quoting Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (alterations in original)), report-recommendation adopted by 2019 WL 4784756 (S.D.N.Y. Sept. 30, 2019). “The objective component of a claim of cruel and unusual punishment focuses on the harm done, in light of ‘contemporary standards of decency.'” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (quoting Hudson, 503 U.S. at 8). This objective component requires, in the abstract, “that the conduct was objectively harmful enough or sufficiently serious to reach constitutional dimensions.” Bradshaw v. City of New York, 855 Fed.Appx. 6, 9 (2d Cir. 2021) (quoting Harris v. Miller, 818 F.3d 49, 64 (2d Cir. 2016)). The subjective component, on the other hand, 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.'” Randolph v. Griffin, 816 Fed.Appx. 520, 523 (2d Cir. 2020) (quoting Harris, 818 F.3d at 63). “[T]he test for wantonness is whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Fabricio v. Annucci, 790 Fed.Appx. 308, 310 (2d Cir. 2019) (quoting Harris, 818 F.3d at 63).
In evaluating an excessive force claim, courts must bear in mind that “[n]ot every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (internal quotation marks omitted), and “not . . . every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. “The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10 (internal quotation marks omitted).
Still, “[w]hen prison officials maliciously and sadistically use force to cause harm, a plaintiff need not demonstrate significant injury because, in those circumstances, contemporary standards of decency always are violated. Thus, the malicious use of force to cause harm constitutes an Eighth Amendment violation per se.” Greenburger v. Roundtree, No. 17-CV-03295, 2020 WL 6561598, at *4 (S.D.N.Y. Jan. 16, 2020) (internal citations and quotation marks omitted), report-recommendation adopted by 2020 WL 4746460 (S.D.N.Y. Aug. 16, 2020); see also Wright, 554 F.3d at 269 (“[W]here a prisoner's allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically, our Court has reversed summary dismissals of Eighth Amendment claims of excessive force even where the plaintiff's evidence of injury was slight and the proof of excessive force was weak.”); White v. Marinelli, No. 17-CV-01094 (LEK/ATB), 2019 WL 1090802, at *10 (N.D.N.Y. Mar. 8, 2019) (“[P]hysical assaults by guards to humiliate an inmate, or in retaliation for past conduct, violate the Eighth Amendment.”).
“The Eighth Amendment [also] requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. New York City Dept. of Corrs., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, 511 U.S. at 832). Prison officials can be held liable under § 1983 for failing to intervene when another official violates an inmate's constitutional right in their presence. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). As set forth above, in order to establish liability for failure to prevent another officer from committing a constitutional violation, a plaintiff must show that “(1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's position would know that the victim's constitutional rights were being violated; and (3) the officer d[id] not take reasonable steps to intervene.” Tafari, 714 F.Supp.2d at 342.
Moreover, “[b]ecause sexual abuse of a prisoner by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims.” Boddie, 105 F.3d at 861. “A corrections officer's intentional contact with an inmate's genitalia or other intimate area, which serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or humiliate the inmate, violates the Eighth Amendment.” Crawford v. Cuomo, 796 F.3d 252, 25657 (2d Cir. 2015).
“The doctrine of qualified immunity shields officers from civil liability so long as their conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” City of Tahlequah v. Bond, 142 S.Ct. 9, 11 (2021) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). In examining whether a right is clearly established, courts look to prior precedent to determine if is “it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 7 (2021) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)). “It is not enough that a rule be suggested by then-existing precedent; the ‘rule's contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'” City of Tahlequah, 142 S.Ct. at 11 (quoting District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018) (citations and internal quotations marks omitted)). While prior caselaw need not be “directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Rivas-Villegas, 142 S.Ct. at 7-8 (quoting White v. Pauly, 137 S.Ct. 548, 551 (2017) (internal quotations marks omitted)).
2. The Morning Incident
Generally, as to the 9:20 a.m. incident, Defendants contend Dominic, Trombley, Tulip, Dunning, and Smith are entitled to summary judgment for lack of personal involvement, while Lamica, Gallagher, Marshall, Obregozo, and Salls are entitled to summary judgment because only minimal force was used to maintain order. (Dkt. No. 166-1 at 16-18.) However, as discussed below, the Court finds there are genuine issues of fact precluding the grant of summary judgment.
Defendants submit evidence demonstrating Smith was not a part of the extraction team and did not use or witness any physical force against Plaintiff and that Smith's only involvement was interacting with Plaintiff during the breakfast run and reporting Plaintiff's failure to remove his hands from the feed-up hatch. (Smith Decl. at ¶ 8.) Similarly, Dominic asserts he did not participate in the cell extraction or use any physical force against Plaintiff and his role was limited to negotiating with Plaintiff. (Dominic Decl. at ¶¶ 11, 12, 14.) Trombley avers his only role in the cell extraction was to manually open Plaintiff's cell gate and secure it while the extraction took place. (Trombley Decl. at ¶¶ 10, 13, 14.) Dunning's involvement was limited to the application of chemical agents prior to the cell extraction. (Dunning Decl. at ¶ 6.) Both Dominic and Dunning state once the extraction team entered the cell, they could no longer see inside of Plaintiff's cell and, therefore, they did not possess actual knowledge of any force used nor did they have a realistic opportunity to intervene in any alleged excessive force. (Dominic Decl. at ¶ 17; Dunning Decl. at ¶ 17.) Tulip avers he did not observe the cell extraction and arrived after Plaintiff was restrained and removed from the cell. (Tulip Dec. at ¶ 12.)
“The use of chemical agents alone does not represent ‘malicious or sadistic' actions.” Flemming v. Kemp, No. 09-CV-1185 (TJM/DRH), 2012 WL 4094196, at *13 (N.D.N.Y. Aug. 30, 2012), report-recommendation adopted by 2012 WL 4094009 (N.D.N.Y. Sept. 17, 2012); see also Reeder v. Hogan, No. 09-CV-520 (NAM/ATB), 2013 WL 2632600, at *5 (N.D.N.Y. June 11, 2013) (use of chemical agent constituted force that was necessary “to restore discipline and subdue plaintiff, who was aggressively refusing to comply with orders” to exit cell peacefully); cf. Reeder v. Artus, No. 09-CV-0575 (DNH/DRH), 2010 WL 3636138, at *9 (N.D.N.Y. July 27, 2010) (“[T]he deployment of chemical weapons solely for the purposes of harming an inmate who had planned to cooperate and voiced such intentions to multiple parties represents a malicious use of force which would constitute a per se Eighth Amendment violation.”), report-recommendation adopted, 2010 WL 3636132 (N.D.N.Y. Sept. 9, 2010). Here, there is no dispute that Plaintiff refused multiple direct orders to exit his cell and was advised that if he continued to use refuse order, chemical agents would be administered. (Defs.' SMF at ¶¶ 11-28.)
Defendants also submit evidence that Lamica, Gallagher, Marshall, and Obregozo, under the direction of Salls, used only the minimal force necessary to maintain the safety and security of the facility and to protect staff and other incarcerated individuals. (Dunning Decl. at ¶ 7; Lamica Decl. at ¶¶ 8, 9, 10; Gallagher Decl. at ¶¶ 7, 9; Marshall Decl. at ¶¶ 7, 9; Obregozo Decl. at ¶¶ at 7, 8; Salls Decl. at ¶¶ 6, 7, 9.)
To be sure, based on the foregoing, Defendants have marshalled evidence demonstrating minimal force was used only after Plaintiff refused multiple opportunities to comply with directions. Nevertheless, Plaintiff testified under oath that Lamica, Gallagher, Marshall, and Obregozo struck him while he was face down, already subdued, and defenseless, while Salls failed to intervene. (Pl.'s Dep. at 16-19.) He also claims he was attacked, while restrained, under the pretext he spit at Lamica. Id. at 22. Accordingly, when viewed in the light most favorable to Plaintiff, summary judgment is not warranted as to Lamica, Gallagher, Marshall, Obregozo, and Salls.
Defendants' reliance on Reeder v. Hogan is misplaced. (See Dkt. No. 166-1 at 19.) In Reeder v. Hogan, summary judgment was granted to the defendant corrections-officers where “[t]he defendants used necessary force to restore discipline and subdue plaintiff, who was aggressively refusing to comply with orders” because no reasonable finder of fact would credit the plaintiff's claims that he was compliant with orders to exit his cell peacefully where video evidence corroborated the defendants' version of events. Reeder v. Hogan, 2013 WL 2632600, at *5. Here, unlike in Reeder v. Hogan, Defendants have not submitted video evidence of the cell extraction at issue.
Moreover, on this record, questions of fact remain as to the personal involvement of Dominic, Dunning, Trombley, Tulip, and Smith. To that end, Plaintiff testified Dominic and Dunning were present during the cell extraction and the record demonstrates Trombley was present, manually opened Plaintiff's cell gate and secured it while the extraction and alleged excessive force took place. (Pl.'s. Dep. at 16-18.) Additionally, Plaintiff testified Smith and Tulip were present when he was slammed on his face, kicked, and punched while restrained under the pretext he spit on Lamica. Id. at 22. Therefore, viewed in the light most favorable to Plaintiff, a question of fact remains whether Dominic, Dunning, Trombley, Smith, and Tulip could have intervened in the foregoing alleged excessive force. See Terebesi v. Torreso, 764 F.3d 217, 244 (2d Cir. 2014) (cleaned up) (“Whether the officer had a realistic chance to intervene is normally a question for the jury, unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.”); see also Mason v. Moore, No. 17-CV-1086 (GLS/DJS), 2020 WL 555943, at *5 (N.D.N.Y. Jan. 13, 2020) (rejecting the defendant officers' argument that because the excessive force incident in question lasted only approximately fifteen to twenty seconds, summary judgment was appropriate on the ground that the defendants would not have had an opportunity to intervene), report-recommendation adopted by 2020 WL 554816 (N.D.N.Y. Feb. 4, 2020).
In short, the record evidence provides differing accounts of what transpired on the morning of February 22, 2019, and resolving what happened is a question for the jury. “While the weight of the evidence may favor [Defendants], the evidence is not so conclusive that a reasonable jury could not believe Plaintiff's assertions.” Lewis v. Hanson, No. 18-CV-0012 (LEK/DJS), 2022 WL 991729, at *9 (N.D.N.Y. Mar. 31, 2022) (citing Franklin v. Oneida Corr. Facility, No. 03-CV-1452 (LEK), 2008 WL 2690243, at *9 (N.D.N.Y. July 1, 2008) (“As tempting as it may be to conclude that defendants will ultimately prevail at trial, defendants' invitation to make a credibility determination and reject plaintiff's version of the events on motion for summary judgment is plainly unwarranted.”)); see, e.g., Cicio v. Lamora, No. 08-CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010), report-recommendation adopted by 2010 WL 1063864 (N.D.N.Y. Mar. 22, 2010) (“Plaintiff's testimony that he was beaten by [Defendant] stands in contrast to the seemingly overwhelming evidence that it did not occur as he alleges. Nonetheless, 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.”); see also Harris v. Miller, 818 F.3d 49, 65 (2d Cir. 2016) (holding summary judgment is inappropriate where “a prisoner's allegations and evidentiary proffers could reasonably, if credited, allow a rational factfinder to find that corrections officers used force maliciously and sadistically . . . [even where] the proof of excessive force [is] weak.”).
Relatedly, the Court finds Defendants are not entitled to qualified immunity at this stage of the proceeding. See Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (“[S]ummary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness.”); see also Gjenashaj v. City of New York, No. 19 Civ. 4142, 2020 WL 7342723, at *4 (S.D.N.Y. Dec. 14, 2020) (denying summary judgment on defendants' qualified immunity claim because material facts remain in dispute as to plaintiff's excessive force claim); Bennett v. Falcone, No. 05 Civ. 1358, 2009 WL 816830, at *6 (S.D.N.Y. Mar. 25, 2009) (“For the same reasons Plaintiff's excessive force claim survives summary judgment, the Court holds Defendants' qualified immunity claim insufficient.”).
In sum, as to the 9:20 a.m. incident, Defendants have not met their burden of showing there is no genuine issue of material fact as to Plaintiff's excessive force and failure-to-intervene claims. Accordingly, the Court recommends denying Defendants' cross-motion for summary judgment to Dominic, Trombley, Tulip, Dunning, Smith, Lamica, Gallagher, Marshall, Obregozo, and Salls on these grounds.
3. The Afternoon Incident
Defendants maintain LeClair, Trombley, Tulip, Lamica, Smith, and Dunning are entitled to summary judgment as to the 12:30 p.m. incident because they used minimal force in an emergency to protect Plaintiff from harming himself. (Dkt. No. 166-1 at 20-21.) Again, the Court finds there are genuine issues of fact precluding the grant of summary judgment.
In support of their motion, Defendants have submitted evidence demonstrating LeClair, Trombley, Tulip, Lamica, Smith, and Dunning responded to a call that Plaintiff was experiencing suicidal thoughts and was found with a cord tied to the top bunk and around his neck. (Dunning Decl. at ¶ 10; LeClair Decl. at ¶ 10; Trombley at ¶ 22; Tulip Decl. at ¶ 18; Lamica Decl. at ¶ 12; Smith Decl. at ¶ 11.) Plaintiff also refused several direct orders to remove the cord from around his neck. (Dunning Decl. at ¶ 10.) As a result, Dunning directed Plaintiff be immediately removed from his cell. Id. According to Defendants, once Plaintiff's cell door was opened, Plaintiff removed the cord from around his neck and charged at the officers, at which point minimal force became necessary to subdue and restrain Plaintiff. (Dunning Decl. at ¶ 11; LeClair Decl. at ¶ 10; Trombley Decl. at ¶ 23; Tulip Decl. at ¶ 19; Lamica Decl. at ¶ 12; Smith Decl. at ¶ 21.) Once Plaintiff became compliant, all force ceased. (Dunning Decl. at ¶ 11; LeClair Decl. at ¶ 18; Trombley Decl. at ¶ 29; Tulip Decl. at ¶ 26; Lamica Decl. at ¶ 13; Smith Decl. at ¶ 13.) Defendants deny subjecting Plaintiff to excessive force or failing to intervene. Id. Smith also denies sexually assaulting Plaintiff. (Smith Decl. at ¶ 13.)
However, Plaintiff testified Tulip, Trombley, Lamica, and LeClair repeatedly beat him with batons. (Pl.'s Dep. at 59, 60, 99.) He testified Smith choked him and said, “I should kill you right now.” Id. at 60. Notably, even after Plaintiff was facedown, subdued, and restrained, Plaintiff's avers they continued to punch, kick, and beat Plaintiff with the shield and their batons. Id. at 60, 61. Additionally, Plaintiff testified Dunning witnessed the foregoing and failed to intervene. Id. at 64-65. Plaintiff was then forced to his feet with his arms restrained behind his back. Id. at 61. Smith proceeded to reach his left hand into Plaintiff's boxer shorts and pulled on Plaintiff's “scrotum sack and . . . penis” in a “nightmarish way, which is like he's trying to pull it off.” Id.
Considering the foregoing, this Court cannot conclude that no rational jury could find in favor of Plaintiff and, therefore, summary judgment is not appropriate. See, e.g., Dallio v. Sanatamore, No. 06-CV-1154 (GTS/DRH), 2010 WL 125774, at *9 (N.D.N.Y. Jan. 7, 2010) (denying summary judgment due to hesitancy to resolve credibility issues and weighing evidence on summary judgment where the plaintiff alleged that he was repeatedly kicked and punched after he was subdued and restrained by correction officers, despite both evidence showing minor injuries the plaintiff suffered and defendant's contrary evidence); Cicio, 2010 WL 1063875, at *7-8 (denying summary judgment on excessive force claim despite “seemingly overwhelming” contradictory evidence, including plaintiff's very minor injury). Moreover, because material issues of fact exist, Defendants are not entitled to summary judgment on the merits or qualified immunity at this stage of the proceeding. See Thomas 165 F.3d at 143.
In sum, as to the 12:20 p.m. incident, Defendants have not met their burden of showing that there is no genuine issue of material fact as to Plaintiff's excessive force, failure-to-intervene, and sexual assault claims. Accordingly, the Court recommends denying Defendants' cross-motion for summary judgment to LeClair, Trombley, Tulip, Lamica, Smith, and Dunning on these grounds.
VI. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, the Court recommends denying Plaintiff's motion for summary judgment and granting in part and denying in part Defendants' cross-motion for summary judgment. If this recommendation is accepted and adopted, Plaintiff's Eighth Amendment excessive force and failure-to-intervene claims against Dominic, Trombley, Tulip, Dunning, Smith, Lamica, Gallagher, Marshall, Obregozo, and Salls, and Eighth Amendment sexual assault claim against Smith remain for trial.
WHEREFORE, it is hereby
RECOMMENDED that Plaintiff's motion for summary judgment (Dkt. No. 156) be DENIED; and it is further
RECOMMENDED that Defendants' cross-motion for summary judgment (Dkt. No. 166) be GRANTED IN PART AND DENIED IN PART as follows: (1) granted insofar as it seeks dismissal of Plaintiff's Eighth Amendment excessive force and failure-to-intervene claims against Uhler, Gettmann, and Wilson for lack of personal involvement; (2) granted insofar as it seeks dismissal of Plaintiff's Eighth Amendment medical indifference claim against Wilson on the merits; and (3) denied in all other respects; and it is further
RECOMMENDED that the Clerk be directed to terminate Uhler, Gettmann, and Wilson from this action; and it is further
ORDERED that the Clerk provide a copy of this Report-Recommendation and Order to the parties in accordance with the Local Rules of Practice, along with copies of the unpublished decisions cited herein in accordance with 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); 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).
IT IS SO ORDERED.