Opinion
16 Civ. 4731 (VEC) (GWG)
06-29-2022
JAMIE PORTILLO Plaintiff, v. JENNIFER WEBB et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jamie Portillo brings this case against defendants Jennifer Webb, Manuel Aldir, and Lucyna Gasanov, alleging claims of excessive force, failure to intervene, and deliberate indifference to medical needs. See Second Amended Complaint, filed Nov. 28, 2017 (Docket # 37) (“Am. Comp.”), at *6.Defendants have moved for summary judgment dismissing all claims against them.For the reasons that follow, defendants' motion should be granted in part and denied in part.
“*__” denotes pagination assigned by the ECF system, which we employ where a document lacks its own pagination.
See Motion for Summary Judgment, filed Jan. 7, 2022 (Docket # 128); Defendants' Local Rule 56.1 Statement, filed Jan. 7, 2022 (Docket # 129) (“Def. 56.1 Statement”); Declaration of Mark Zuckerman, filed Jan. 7, 2022 (Docket # 130) (“Zuckerman Decl.”); Declaration of Manuel Aldir, filed Jan. 7, 2022 (Docket # 131) (“Aldir Decl.”); Declaration of Lucyna Gasanov, filed Jan. 7, 2022 (Docket # 132) (“Gasanov Decl.”); Declaration of Jennifer Webb, filed Jan. 7, 2022 (Docket # 133) (“Webb Decl.”); Declaration of Moira Carroll, filed Jan. 7, 2022 (Docket # 134) (“Carroll Decl.”); Declaration of Katherine Ajayi, filed Jan. 7, 2022 (Docket # 135) (“Ajayi Decl.”); Memorandum of Law in Support, filed Jan. 7, 2022 (Docket # 136) (“Def. Mem.”); Local Rule 56.2 Notice to Pro Se Litigants Opposing Motion for Summary Judgment, filed Jan. 7, 2022 (Docket # 137); Memorandum of Law in Opposition, filed Mar. 31, 2022 (Docket # 147) (“Pl. Mem.”); Affidavit of Jamie Portillo, filed Mar. 31, 2022 (Docket # 148) (“Portillo Aff.”); Reply Declaration of Mark Zuckerman, filed Apr. 18, 2022 (Docket # 151) (“Zuckerman Reply Decl.”); Reply Memorandum of Law, filed Apr. 18, 2022 (Docket # 152) (“Def. Reply”); Plaintiff's Affidavit in Support of Opposition to Summary Judgment, filed May 3, 2022 (Docket # 154) (“Portillo Supp. Aff.”); Defendants' Supplemental Brief in Support, filed May 6, 2022 (Docket # 157). Portillo submitted a second supplemental brief, see Plaintiff's Supplemental Brief in Support of Motion in Opposition of Motion for Summary Judgment, filed May 24, 2022 (Docket # 159), which defendants have requested to strike, see Letter from Mark Zuckerman, filed May 31, 2022 (Docket # 160). We see no need to rule on defendants' request because the arguments made in Portillo's second supplemental brief have no effect on our disposition of this matter.
I. FACTS
Except as otherwise noted, the following facts either have not been controverted by plaintiff with admissible evidence or represent plaintiff's version of events.
Portillo, a native of El Salvador, entered the United States in 1989. See Deposition of Jaime Portillo, annexed as Ex. A. to Zuckerman Decl. (Docket # 130-1) (“Portillo Tr. A”), 28. In April 2014, Portillo was incarcerated and placed in the custody of the New York City Department of Correction (“DOC”). See Id. 54. Portillo remained in DOC custody until 2016. See id. 56.
Before his incarceration, Portillo suffered at least two injuries that required hospitalization. First, in the late 1990s or early 2000s, Portillo was in a truck accident on the Long Island Expressway. See Deposition of Jaime Portillo, annexed as Ex. C to Zuckerman Decl. (Docket # 130-3) (“Portillo Tr. C”), 27-34. Portillo was driving when the truck hit a pole and flipped over. See id. Portillo was taken to the hospital, examined, and released. See id. 32. Second, on July 7, 2012, Portillo was injured when an eight-foot dresser fell on Portillo as he and a co-worker were attempting to carry it up stairs. See Portillo Tr. A 33, 42-44. Portillo was brought to the hospital, where he eventually underwent surgery on his left knee to repair his meniscus and was prescribed a cane. Id. 46, 52. Portillo also complained of pain to his neck, back, waist, right knee, and right ankle. See, e.g., id. 46-47, 53; Worker's Compensation File, annexed as Ex. D to Zuckerman Decl. (Docket # 130-4), at DEF2415-16. As a result of the furniture accident, Portillo underwent physical therapy and received Workers Compensation payments. See Portillo Tr. A 52-53.
When he entered DOC custody in 2014, Portillo was prescribed a cane and pain medication. See id. 54, 57-59. Portillo continued to complain of pain, visiting the DOC clinic “many times” in connection with his injuries. See id. 57-59, 61. Portillo also has type 2 diabetes, for which he takes medication. See id. 15-16. On June 16, 2015, while in DOC custody, Portillo slipped and fell on a wet floor. See Correctional Health Services Medical Record dated June 16, 2015, annexed as Ex. E to Zuckerman Decl. (Docket # 130-5), at DEF1975. Portillo complained of “throbbing pain all over” and was prescribed Tylenol. Id. at DEF1975-76.
On October 13, 2015, Portillo was incarcerated at the Anna M. Kross Center at Rikers Island (“AMKC”). See Portillo Tr. A 72. That morning, while Portillo was waiting in line to obtain his daily medications, “half” of his body “froze,” and he collapsed. Id. 73. Portillo blacked out and his entire body fell to the ground. See Deposition of Jamie Portillo, annexed as Ex. B to Zuckerman Decl. (Docket # 160-2) (“Portillo Tr. B”), 15. Portillo was placed on a stretcher and taken to the clinic. See Portillo Tr. A 74-76. Webb was the assigned Clinic Officer at AMKC on October 13, 2015. Webb Decl. ¶ 2. In that role, Webb was responsible for monitoring inmates in the clinic, ensuring that inmates were secured, and escorting inmates within the clinic and within the AMKC. See id. ¶ 3.At the clinic, Portillo was told by a doctor that he had suffered a “mini stroke” because Portillo could not feel the left side of his face and was “numb.” Portillo Tr. A 75. The AMKC clinic “referred” Portillo to Elmhurst Hospital. Id.
For her part, Webb has sworn that, “[t]o the best of [her] recollection,” she “did not have any physical interaction with [Portillo] on October 13, 2015, or at any other time.” Id. ¶ 6.
When the AMKC clinic refers an inmate to the hospital, EMS is activated, and correctional staff are assigned to escort the inmate to the hospital. See Aldir Decl. ¶¶ 4-5. Aldir and Gasanov were assigned to be “hospital run escort officers” in connection with Portillo's trip to Elmhurst Hospital on October 13, 2015. See id. ¶ 6; Gasanov Decl. ¶ 5. Accordingly, Aldir proceeded to the AMKC clinic, see Aldir Decl. ¶ 6, and according to defendants, Gasanov went to obtain a portable radio and other items required for the transport, see Gasanov Decl. ¶ 6. Gasanov states that she never entered the AMKC clinic on October 13, 2015. See id. Aldir arrived at the AMKC clinic at 10:25 a.m. See Aldir Decl. ¶ 7. According to defendants, Aldir applied a waist restraint, leg restraints, and handcuffs to Portillo. See id. ¶ 10. Portillo did not complain to anyone at the clinic about the restraints. See Portillo Tr. A 82. According to Webb, she did not assist Aldir in applying the restraints to Portillo, nor was Webb, as a Clinic Officer, ever responsible for applying such restraints in connection with an inmate's transport outside AMKC. See Webb Decl. ¶ 4. Portillo, in contrast, testified that Webb was the officer who placed the restraints on him, and both Aldir and Gasanov were present when that occurred. See Portillo Tr. A 78. Portillo subsequently submitted an affidavit asserting that “it was difficult for defendant Aldir to apply the restraints,” so “defendants Webb and Gasanov took turns, at one time or another, to assist Aldir in applying the restraints.” Portillo Aff. ¶ 5. According to Portillo, as they attempted to apply the restraints, all three defendants “yelled at” Portillo “and became more forceful in applying the restraints.” Id.
Once restrained, Portillo was placed on a stretcher and taken “directly” to an ambulance. Portillo Tr. A 77. Aldir followed Portillo into the back of the ambulance, where EMS personnel began attending to Portillo. See Aldir Decl. ¶ 12. EMS drove the ambulance to the front of the AMKC facility, where defendants state that they picked up Gasanov, who entered the ambulance and sat in the front passenger seat. See id. ¶ 13; Gasanov Decl. ¶ 9. DOC records reflect that Aldir and Gasanov accompanied Portillo to the hospital. See Hospital Run Logbook, annexed as Ex. A to Ajayi Decl. (Docket # 135-1).
Webb states that as Clinic Officer, she was never responsible for transporting inmates to an outside hospital and she served as a hospital run escort officer only once in her career, in 2003. See Webb Decl. ¶ 5. Webb states that she did not leave AMKC for any reason during her shift on October 13, 2015 and remained at the AMKC clinic the entire time. See id. As discussed below, Portillo disputes this.
Portillo arrived at Elmhurst Hospital at approximately 12:00 p.m. See Aldir Decl. ¶ 14; Gasanov Decl. ¶ 10. EMS personnel removed Portillo from the ambulance and rolled the gurney into the emergency room waiting area. See Aldir Decl. ¶ 14; Gasanov Decl. ¶ 10. Aldir and Gasanov followed. See Aldir Decl. ¶ 15; Gasanov Decl. ¶ 11. After approximately ten minutes, Portillo was assigned to a bed in the emergency room. See Aldir Decl. ¶ 16; Gasanov Decl. ¶ 12. EMS transferred Portillo from the stretcher to the emergency room bed. See Aldir Decl. ¶ 16; Gasanov Decl. ¶ 12. According to Portillo, he remained restrained in the emergency room bed in the same manner as before: handcuffs, along with waist and ankle restraints. See Portillo Aff ¶ 7 (“the restraints were never removed, and I was not secured to the hospital bed”); see also Portillo Tr. A 68-69 (Portillo describing the manner in which he was handcuffed). Aldir and Gasanov state that Portillo's handcuffs were removed from his right wrist and his left wrist was shackled to the hospital bed, while the ankle restraint from his left leg was removed and his right leg was shackled to the hospital bed. See Aldir Decl. ¶ 17; Gasanov Decl. ¶ 13.
At approximately 3:00 p.m., Portillo was examined by Dr. Moira Carroll. See Carroll Decl. ¶ 10. Dr. Carroll “examined plaintiff's face; head; eyes; ears; nose; throat; neck; respiratory system; cardiovascular system; musculoskeletal system; abdomen; and skin. [She] also performed a complete neurologic exam.” Id. ¶ 12. According to Dr. Carroll, Portillo “was mildly uncooperative during the examination and exhibited strange affect.” Id. Dr. Carroll's examination revealed that Portillo “had full strength in all extremities” and “did not have any indication of bruising or swelling to his body.” Id. Moreover, Portillo “was clinically stable, had normal vital signs, and did not present any evidence of having had a stroke.” Id. ¶ 13. Nevertheless, Dr. Carroll “ordered an EKG, blood tests[,] and several radiological tests, such as a chest x-ray[,] pelvis x-ray, and head CT scan.” Id. ¶ 14.
At some point during Dr. Carroll's examination, Portillo ended up on the floor of the examination room. It is this incident that is ta the center of Portillo's suit.
Portillo testified that during the examination, Portillo told Dr. Carroll that the left side of his body was “frozen” and Dr. Carroll subsequently asked Portillo to “get up.” Portillo Tr. A 68. Thereafter, Dr. Carroll and Webb, situated on either side of the hospital bed, each took Portillo by one arm and “dragged” him. Id.; see also Portillo Tr. B. 44-45; Portillo Aff. ¶¶ 7-8. Webb “pushed [Portillo] forward” and Portillo fell to the ground and “hit [his] face.” Portillo Tr. A 68. Webb “picked” Portillo up again, and “pushed [him] back to the ground.” Id. The entire time, Portillo was restrained. See Portillo Aff. ¶ 7; Portillo Tr. A 68-69. As this occurred, Aldir and Gasanov laughed. See Portillo Aff. ¶ 8. The entire incident took “seconds.” Portillo Tr. B 4546. At his deposition, Portillo testified that he did not “remember very well what happened next.” Id. 46. However, Portillo subsequently submitted an affidavit stating that after the assault by Webb, he “was then taken by stretcher to another examination room,” where “[d]efendants dropped [him] from the stretcher two more times.” Portillo Aff. ¶ 9.
According to defendants, Webb did not accompany Portillo to the hospital. See Aldir Decl. ¶ 23; Gasanov Decl. ¶ 20. And Portillo was not pulled, dragged, or lifted from the bed. Rather, Portillo simply “scooted” off the bed and “leapt” to the ground. In her sworn declaration, Dr. Carroll states:
[W]hile examining plaintiff, plaintiff scooted off the end of the hospital bed and leapt onto the floor. Plaintiff was handcuffed, landed on his left side[,] and had his arms covering his head. Plaintiff did not lose consciousness and did not hit his head. Although plaintiff stated that he fell because he was weak in his right leg, plaintiff had been moving his leg with normal strength before and after he scooted off the hospital bed and fell.”
Carroll Decl. ¶ 15. This statement is consistent with a contemporaneous notation from Dr. Carroll in Portillo's medical records from Elmhurst Hospital. See Elmhurst Hospital Records, annexed as Ex. A to Carroll Decl. (Docket # 134-1), at DEF1931.
In her declaration, Dr. Carroll goes on to state that neither she nor any correctional staff member asked Portillo “to stand or walk at any point” during the examination, nor did she or any correctional staff member “throw [Portillo] to the floor.” Carroll Decl. ¶¶ 17-20. Additionally, Dr. Carroll states:
During my examination of plaintiff, I did not solicit assistance from correction staff at any point. Correction staff did not have any physical interaction with plaintiff during my examination of plaintiff. Correction staff stood at a distance of approximately five to ten feet in observation while I examined plaintiff.Id. ¶ 21.
Both Aldir and Gasanov state that they did not observe, take part in, or laugh at the incident Portillo describes. See Aldir Decl. ¶¶ 24-26; Gasanov Decl. ¶¶ 21-23.
Aldir and Gasanov left Elmhurst Hospital at approximately 6:00 p.m. and had no subsequent interactions with Portillo. See Aldir Decl. ¶ 28; Gasanov Decl. ¶ 24. “In the early morning hours of October 14, 2015, [Portillo] was transferred to Bellevue Hospital for further monitoring.” Carroll Decl. ¶ 22.
Portillo testified that a number of injuries resulted from the alleged assault. See Portillo Tr. B 81-82. Specifically, Portillo complained of pain in his ankles, knees, spine, upper back, shoulders, hands, wrists, forehead, lower back, elbow, and stomach. See id. Portillo stated that it hurt to walk, as well as to sit down. See id. 81. Portillo “get[s] cramps in . . . both feet when [he is] sleeping,” and he experiences numbness in his right hand and fingers. Id. In August 2021, Portillo had surgery on his right elbow “because of the way [Webb] dragged [him].” Portillo Tr. C 11.
II. LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that a court shall grant summary judgment when “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). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, “[t]he evidence of the non-movant is to be believed” and the court must draw “all justifiable inferences” in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); accord Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001) (“[A]ll reasonable inferences must be drawn against the party whose motion is under consideration.”).
Once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, “the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original) (internal quotation omitted), and “may not rely on conclusory allegations or unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). See Fed.R.Civ.P. 56(c), (e). In other words, the nonmovant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Where “the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case.” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (punctuation and quotation omitted). Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case.” Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48); accord El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir. 2016).
Portillo is proceeding pro se and thus we must liberally construe his filings to raise the strongest arguments they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 47475 (2d Cir. 2006). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence are insufficient to overcome a motion for summary judgment.” Parker v. Fantasia, 425 F.Supp.3d 171, 183 (S.D.N.Y. 2019) (punctuation omitted) (quoting Houston v. Teamsters Local 210, 27 F.Supp.3d 346, 351 (E.D.N.Y. 2014)).
III. DISCUSSION
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 creates no substantive rights; rather, a plaintiff bringing a § 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979). Here, Portillo's claims fall into three categories: excessive force, failure to intervene, and deliberate indifference to medical needs. We address each in turn.
A. Excessive Force Claims
1. Applicable Law
“[T]he right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment.” United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)). At one time, a pretrial detainee asserting an excessive force claim had to satisfy a subjective and objective element similar to what is required to prove an Eighth Amendment claim. See id. at 47-49. Specifically, a plaintiff had to show that the alleged wrongdoing was “objectively sufficiently serious or harmful enough” to cause a constitutional violation, “contrary to contemporary standards of decency and repugnant to the conscience of mankind,” id. at 50 (citations and internal quotation marks omitted), and that the alleged wrongdoer subjectively “had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct,” Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (citations and internal quotation marks omitted).
In Kingsley v. Hendrickson, 576 U.S. 389 (2015), however, the Supreme Court held that when force is “purposefully or knowingly” used against a pretrial detainee, the detainee must show only that the force “was objectively unreasonable.” Id. at 396-97. Kingsley thus altered the test previously used in the Second Circuit for claims arising under the Fourteenth Amendment. See Ross v. Corr. Officers John and Jane Does 1-5, 610 Fed.Appx. 75, 76 n.1 (2d Cir. 2015) (summary order); Carmona v. City of New York, 2016 WL 4401179, at *2 (S.D.N.Y. Mar. 1, 2016); see also Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (recognizing that Kingsley has overruled Second Circuit law in the Fourteenth Amendment “deliberate indifference” context). Kingsley held that
objective reasonableness turns on the facts and circumstances of each particular case. 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. A court must also account for the legitimate interests that stem from the government's need to manage the facility in which the individual is detained, appropriately deferring to policies and practices that in the judgment of jail officials are needed to preserve internal order and discipline and to maintain institutional security.Kingsley, 576 U.S. at 397 (punctuation and internal citations omitted) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989); Bell, 441 U.S. at 540, 547). Factors to consider in judging the objective reasonableness of a use of force include:
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.Id.; accord Perez v. Ponte, 236 F.Supp.3d 590, 621 (E.D.N.Y. 2017); Carmona, 2016 WL 4401179, at *2.
2. Hospital Bed Incident
Portillo's first claim is that Webb used excessive force when she pulled him from the hospital bed and pushed him to the floor, twice.Defendants seek to dismiss these claims on three bases. First, defendants argue that Portillo's testimony on this point is so inconsistent and incredible that no reasonable factfinder could adopt his version of events. See Def. Mem. at 2529. Second, defendants maintain that Portillo has not established a genuine issue of material fact as to whether he suffered any injury proximately caused by the use of force of which he complains. See Def. Mem. at 29-31. Finally, defendants seek dismissal on the ground that the evidence does not establish Webb's personal involvement. See Def. Mem. at 31-32. We discuss each argument next.
Nothing in the record would allow a reasonable jury to conclude that Aldir or Gasanov used any force against Portillo in connection with the hospital bed incident. Nor is there any basis for imposing supervisory liability on either Aldir or Gasanov. See, e.g., Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020) (discussing ways in which a supervisor may be found to be personally involved in a constitutional violation). Thus, even if we viewed the excessive force claim as having also been brought against Aldir and Gasanov - which we do not - summary judgment would be appropriate on such claims in light of Portillo's inability to establish Aldir and Gasanov's personal involvement in the alleged constitutional violation.
i. Whether Portillo's Testimony Should be Rejected
Defendants' first argument is that Portillo's version of events should be rejected, relying on Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005). In Jeffreys, the Second Circuit affirmed a grant of summary judgment dismissing a plaintiff's excessive force claim where the plaintiff relied solely on his deposition testimony, which was wholly contradicted by his own previous admissions and devoid of specific details about the incident he alleged. Id. at 551-55. Specifically, while the plaintiff testified that police officers repeatedly struck him with a flashlight and threw him out of a third-story window, the plaintiff had previously admitted on at least three occasions that he jumped out the window. See id. at 551-52. Moreover, the plaintiff had not mentioned any supposed police misconduct to medical personnel or during the criminal proceeding that followed. See id. at 552. In fact, the plaintiff did not complain of excessive force until nine months after the supposed incident. See id. Accordingly, in light of the lack of evidence to support his claims besides the plaintiff's “own contradictory and incomplete testimony,” the Second Circuit held that no reasonable person could believe the plaintiff's version of events, and summary judgment was therefore proper. Id. at 555.
Subsequently, the Second Circuit has clarified that Jeffreys applies where there is a “real, unequivocal, and inescapable contradiction,” not merely where there is some factual variation throughout a plaintiff's many articulations of what took place. Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 16, 22-23 (2d Cir. 2014) (plaintiff's contradictory statements regarding how many times plaintiff was called a racial slur were inadequate to reject plaintiff's hostile work environment claim where another witness testified that slur was used outside of plaintiff's presence at least once); accord Frost v. N.Y.C. Police Dep't, 980 F.3d 231, 246 (2d Cir. 2020) (“[I]n the ordinary case where a district court is asked to consider the contradictory deposition testimony or declaration of a fact witness, or where the contradictions presented are not real, unequivocal, and inescapable, the general rule remains that a district court may not discredit a witness's deposition testimony or declaration on a motion for summary judgment, because the assessment of a witness's credibility is a function reserved for the jury.” (punctuation omitted) (quoting In re Fosamax Prod. Liab. Litig., 707 F.3d 189, 194 n.4 (2d Cir. 2013) (per curiam))). Although the testimony in Rivera was corroborated by another witness, see 743 F.3d at 16, we do not read Rivera as requiring such corroboration to survive summary judgment.
Defendants' argument, however, relies not solely on supposed contradictions within Portillo's own testimony, but also on alleged contradictions between that testimony and the documentary evidence in the record. Specifically, defendants assert “that when a plaintiff's version of events is so clearly contradicted by medical records or other evidence, summary judgment is proper.” Def. Mem. at 26. Defendants' citations to cases that have granted summary judgment in reliance on Jeffreys, see Id. at 26-27, are not necessarily helpful, because an analysis of whether testimony is irretrievably contradicted is highly fact-specific.
First, defendants insist that Portillo's account of the alleged assault at Elmhurst Hospital has been inconsistent. See id. at 28. This argument focuses on three points. First, that Dr. Carroll's description of the events, relayed in her declaration and in the Elmhurst records, contradicts Portillo's assertion that he was forced to the floor. See id. Second, that Portillo has alternatively included and omitted the allegation that a female doctor (presumably, Dr. Carroll) assisted in Webb's alleged assault. See id. Finally, that Portillo asserted in his Complaint and in his affidavit, but not in his deposition testimony, that following the initial assault by Webb, he was “rush[ed] down the hospital,” Am. Comp. ¶ VII, or taken “to another examination room” where he was “dropped . . . from the stretcher two more times.” Portillo Aff. ¶ 9. See Def. Mem. at 28; Def. Reply at 2-3. We address each argument in turn.
To the extent that defendants ask this Court to weigh Dr. Carroll's description of Portillo “scoot[ing]” off the hospital bed against Portillo's description of the alleged assault, Def. Mem. at 28, we decline to do so. A reasonable factfinder could accept Portillo's version, especially in light of the contradiction between defendants' statement that Portillo was restrained to the hospital bed and defendants' statement that Portillo scooted off the bed. See Aldir Decl. ¶ 17; Gasanov Decl. ¶ 13; Carroll Decl. ¶¶ 15-16; see also Def. 56.1 Statement ¶¶ 116, 145-46, 149. As Portillo points out, it is highly unlikely that both things are true, see Pl. Mem. at 2; Portillo Aff. ¶ 11; Portillo Supp. Aff. ¶ 17, and Dr. Carroll's declaration is silent on the manner in which Portillo was restrained, see Carroll Decl. ¶ 15 (stating only that “[p]laintiff was handcuffed”). Of course, Dr. Carroll is by no means a disinterested witness given Portillo's accusation that she assisted Webb in the initial assault. See Portillo Tr. A 68; Portillo Tr. B. 44-45; Portillo Aff. ¶ 7.
Defendants also point to the fact that Portillo's account of the manner by which Webb forced him to the ground has itself varied. See Def. Reply at 2-3. Defendants suggest that Portillo testified only that he was pushed and fell when Webb and a female doctor tried to make him walk, whereas Portillo has subsequently averred that he was “yanked off the bed” and dragged up before Webb “let [him] fall to the floor” again. Id. (quoting Portillo Aff. ¶ 8) (alteration in original). We do not view this variation as mandating a jury to discredit Portillo's account entirely. Portillo is consistent in asserting that Webb and Dr. Carroll removed him from the bed, and that Webb then forced Portillo to the ground, twice. See Portillo Tr. A 68; Portillo Tr. B 44-45; Portillo Aff. ¶¶ 7-8. Portillo is consistent in stating which side of his body Webb and Dr. Carroll were on. See Portillo Tr. B 44 (Webb on Portillo's right, doctor on his left); Portillo Aff. ¶ 7 (same). The effect of Portillo's variations in the descriptions of the manner by which Webb forced him to the ground (i.e., “yank[ing],” Portillo Aff. ¶ 7, or “push[ing],” Portillo Tr. A 68; Portillo Tr. B 45), is appropriately resolved by the factfinder, not the Court.
With respect to Dr. Carroll's involvement, we disagree with defendants' characterization of the Second Amended Complaint as alleging that only Webb was involved in the assault. Certainly, it alleges that Webb was involved. See Am. Comp. ¶ VI. But at no point does it affirmatively state that only Webb was involved. See id. Moreover, in his deposition testimony and affidavit, Portillo has been consistent in asserting that a female doctor, subsequently identified as Dr. Carroll, see Portillo Aff ¶ 6, was involved in the assault. See id. ¶¶ 6-8; Portillo Tr. A 68; Portillo Tr. B 44-45. We therefore find no inconsistencies on this point.
Next, although the alleged “rush[ing] . . . down the hospital,” Am. Comp. ¶ VII, and secondary assaults were not mentioned in Portillo's testimony, it is also the case that Portillo has at no point affirmatively stated that this did not happen, or as was true in Jeffreys, 426 F.3d at 552, that the injuries he alleges were caused thereby were the result of his own actions, rather than those of Webb. At most, Portillo testified that he did not “remember very well what happened” after the initial assault. Portillo Tr. B 46. Moreover, even if Portillo was in fact not “rush[ed] . . . down the hospital” following the assault, Am. Comp. ¶ VII, this obviously does not “unequivocal[ly] and inescapabl[y]” disprove his allegations regarding the initial assault. Rivera, 743 F.3d at 23. Further, we reject defendants' suggestion that this allegation is contradicted by Portillo's testimony that the assault only took “seconds.” See Def. Reply at 3 n.1. Portillo's “seconds” remark followed a question about the “interaction with the female doctor and . . . Webb,” Portillo Tr. B 45-46, and thus tells us nothing about the timing of any subsequent assault. Although Portillo's telling of the alleged secondary assault has varied somewhat, compare Am. Comp. ¶ VII, with Portillo Aff. ¶ 9, we do not view these inconsistencies as being sufficiently severe as to render unbelievable the entirety of Portillo's excessive force claim, with respect to which Portillo has been consistent on many points. A reasonable jury could reject Portillo's assertion that any second assault occurred and still find that the initial assault by Webb took place.
Defendants also highlight supposed inconsistencies with Portillo's description of his injuries. See Def. Mem. at 28; Def. Reply at 3-4. Portillo states that he experienced pain and required medication and a cane as a result of the alleged assault. See Portillo Tr. B 81-82; Portillo Aff. ¶ 7; Portillo Supp. Aff. ¶ 11; Am. Comp. ¶ IX. Defendants note that Portillo needed a cane and daily medication prior to the incident. See Def. Mem. at 28; Portillo Tr. A 57-58. But this testimony is not “unequivocally] and inescapably]” contradictory. Rivera, 743 F.3d at 23. Even if Portillo had a preexisting injury that required pain medications and a cane, a jury might conclude that throwing him to the ground twice could aggravate such an injury, and thus, Portillo's statements regarding his injuries are not contradictory. Separately, Portillo has been consistent in asserting that the assault caused pain, see, e.g., Portillo Tr. B 46-48, 81-82; Portillo Aff. ¶ 7, which in itself can constitute an injury sufficient to sustain a § 1983 excessive force claim. See Zhao v. City of New York, 656 F.Supp.2d 375, 390-91 (S.D.N.Y. 2009) (“transient pain” from having head pressed to table sufficient to proceed on excessive force claim where “the record reflect[ed] no reason for any use of force”).
Defendants also point to the lack of medical documentation of the injuries Portillo describes. See Def. Mem. at 28. But it is well-established that the use of gratuitous force against restrained, non-resisting persons violates the Constitution. See, e.g., Lennox v. Miller, 968 F.3d 150, 156-57 (2d Cir. 2020). Thus, a jury may find such force is excessive even if it does not cause significant injury. See. Zhao, 656 F.Supp.2d at 391. Accordingly, even if Portillo's injuries were not apparent to medical staff or were so minor as to not prompt a medical diagnosis or require treatment, the injuries could still form the basis for a damages award. See id.
In sum, we hold that the inconsistences identified by defendants “at most raise garden variety credibility issues” to be decided by the ultimate factfinder. Frost, 980 F.3d at 247.
ii. Proximate Cause
Defendants' next argument is that Portillo has not shown the existence of a genuine issue of material fact as to whether he suffered an injury proximately caused by the assault he describes. See Def. Mem. at 29-31; Def. Reply at 7-8. Defendants maintain that in light of the medical evidence regarding his preexisting injuries, Portillo cannot survive summary judgment without offering medical records or expert testimony to link the injuries of which he complains to the use of force that is the basis for this action. See Def. Mem. at 29-31 (citing cases); Def. Reply at 7 (same). We disagree.
“[T]o prevail on an excessive force claim, [a p]laintiff must have suffered an actual injury that resulted from [the d]efendant['s] use of force.” Youngblood v. City of Mount Vernon, 2017 WL 7804731, at *7 (S.D.N.Y. Dec. 29, 2017), adopted, 2018 WL 1114760 (S.D.N.Y. Feb 26, 2018); see also Wilkins, 559 U.S. at 37 (“An inmate who complains of a push or shove that causes no discernible injury almost certainly fails to state a valid excessive force claim.” (citation and internal quotation marks omitted)). Moreover, the Second Circuit “has long recognized that, in order to obtain compensatory damages, a plaintiff must prove that the use of excessive force was the proximate cause of an actual, compensable injury to the plaintiff.” Girbes-Pierce, 803 Fed.Appx. at 511 (citing Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir. 1994); Amato v. City of Saratoga Springs, 170 F.3d 311, 314 (2d Cir. 1999)). However, a nominal damages award may be appropriate where a plaintiff demonstrates “de minimis damages that lack monetary value.” Id. (citing Ali v. Kipp, 891 F.3d 59, 64 (2d Cir. 2018); Kerman v. City of New York, 374 F.3d 93, 123 (2d Cir. 2004)); see also Townes v. City of New York, 176 F.3d 138, 146 (2d Cir. 1999) (“In a § 1983 suit, constitutionally invalid police conduct that by itself causes little or no harm is assessed on ordinary principles of tort causation and entails little or nominal damages.”).
A plaintiff is not necessarily required to offer evidence of causation beyond his own testimony to survive summary judgment. See Fernandez v. City of New York, 2020 WL 3448019, at *2-4 (S.D.N.Y. June 24, 2020). Where “a lay juror could readily comprehend” how the force alleged could lead to the injuries complained of, no corroborative medical records or expert testimony are required. Id. at *4.
The cases cited by defendants, see Def. Mem. at 29-30; Def. Reply at 7, are distinguishable. First, none of these cases involved allegations of excessive force or battery. Second, many of the causal issues presented by these cases were far more complex than the instant case. Willis v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir. 2004), required inquiry into whether certain toxins were the source of the plaintiff's cancer. Sanders v. Fireline, Inc., 295 Fed.Appx. 373, 374 (2d Cir. 2008) (summary order), concerned the manner “in which ceramic cups fracture.” Margrave v. British Airways, 643 F.Supp. 510, 512-14 (S.D.N.Y. 1986), required a determination of the cause of a bone fracture. Obviously, these are issues that could not be unilaterally resolved by a layperson.
Smith v. Gray, 2021 WL 3603588, at *6-7 (E.D.N.Y. Aug. 13, 2021), involved an allegation that the plaintiff had suffered a “qualifying serious injury” from a car accident, for which New York law required corroborative medical evidence in light of the plaintiff's preexisting injuries. See id. at *6; accord Kang v. Romeo, 2020 WL 4738947, at *7-8 (E.D.N.Y. Aug. 14, 2020) (citing cases). As noted, there is no such requirement in excessive force cases. See Fernandez, 2020 WL 3448019, at *2-4.
Here, by contrast, “a lay juror could readily comprehend,” Fernandez, 2020 WL 3448019, at *4, how Portillo's preexisting injuries could be reaggravated upon Portillo having been forcibly dragged to his feet and shoved to the ground by Webb, twice. And a layperson is capable of assessing how an assault of the type Portillo describes could cause Portillo pain - a cognizable injury under § 1983. See generally Maxwell, 380 F.3d at 108-09; Blackwell, 2017 WL 1157168, at *10-11; Zhao, 656 F.Supp.2d at 390-91.
Thus, defendants' request for summary judgment on this basis should be denied.
iii. Personal Involvement
Defendants argue that Portillo has failed to establish Webb's personal involvement in the assault he describes. See Def. Mem. at 31-32; Def. Reply at 8-9.
“It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citing cases); see also Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (“[I]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.”) (citation omitted); Green v. Dep't of Educ. of N.Y.C., 2019 WL 3432306, at *8 (S.D.N.Y. July 31, 2019).
Here, defendants' argument pits Portillo's consistent testimony that Webb was personally involved in the incident at the hospital against Webb's (and Aldir and Gasanov's) insistence that Webb was not at Elmhurst Hospital that day, Webb's assertion that she did not regularly accompany inmates to the hospital as part of her duties and had only once served as a hospital run escort officer, as well as a DOC record listing Aldir and Gasanov, but not Webb, as having transported Portillo to Elmhurst Hospital on the date in question. See Webb Decl. ¶ 5; Aldir Decl. ¶ 23; Gasanov Decl. ¶ 20; Hospital Run Logbook.
While the evidence of Webb's involvement relies entirely on Portillo's testimony, we view the testimonial conflict between the parties as inappropriate for resolution on summary judgment. It is undisputed that Portillo and Webb were simultaneously present at the AMKC Clinic, see Webb Decl. ¶ 2; Def. 56.1 Statement ¶ 63, and thus Portillo had a clear basis from which to recognize Webb if she did in fact accompany him to the hospital. Although defendants have submitted evidence that the “Hospital Run Logbook” was prepared in the ordinary course of business, see Ajayi Decl. ¶¶ 2-3, the evidence is unclear as to whether the Hospital Run Logbook necessarily reflects that another officer did not accompany a prisoner. The document itself only has room to list two correctional officers. See Hospital Run Logbook. If, as Portillo states, three officers went to Elmhurst Hospital on the day in question, the Hospital Run Logbook would not have had room to list all three officers. See id. Moreover, defendants have submitted no evidence indicating that Rikers or AMKC has an organizational practice of assigning exactly two correctional officers to every hospital escort. See Fed.R.Evid. 406. Katherine Ajayi, whose declaration attaches the Hospital Run Logbook, does not claim to possess any personal knowledge regarding Rikers' or AMKC's routine practices with respect to hospital escorts. See generally Ajayi Decl. We thus do not view this document as conclusive evidence that Webb was absent during the incident in question. We additionally note that Dr. Carroll's declaration is silent on the number of correctional officers who accompanied Portillo to Elmhurst Hospital on the date in question. See generally Carroll Decl. We therefore believe that the issue of Webb's presence or absence at Elmhurst Hospital on October 13, 2015, is a genuine dispute of fact properly decided by a factfinder at trial.
Accordingly, Webb's request for summary judgment on the excessive force claim against her should be denied.
3. Improper Use of Restraints
The Second Circuit has “recognized that excessively tight handcuffing that causes injury can constitute excessive force.” Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015) (citing cases); accord Cugini v. City of New York, 941 F.3d 604, 612-13 (2d Cir. 2019). When evaluating the reasonableness of an excessive force claim based on improper use of restraints, we consider three factors: “(1) [whether] the [restraints] were unreasonably tight; (2) [whether] the defendants ignored the [plaintiff's] pleas that the [restraints] were too tight; and (3) the degree of injury” sustained as a result. Cugini, 941 F.3d at 612; accord Griffin-Robinson v. Warhit, 2020 WL 2306478, at *6 (S.D.N.Y. May 6, 2020). Importantly, “[t]he question is whether the officers' actions are ‘objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham, 490 U.S. at 397; accord Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005). Moreover, an excessive force claim based on improper use of restraints cannot be sustained unless the restraints “cause[d] some injury beyond temporary discomfort or bruising.” Griffin-Robinson, 2020 WL 2306478, at *6 (citing cases).
Defendants argue that Portillo “cannot demonstrate any injury resulting” from the restraints used on October 13, 2015. Def. Mem. at 37. We agree. Portillo has not identified any evidence of injury, much less evidence of an injury serious enough to permit this claim to survive summary judgment. Notably, although Portillo's affidavit states that defendants' application of the restraints was “forceful,” Portillo Aff. ¶ 5, it offers nothing to suggest that Portillo was injured as a result, see id. Accordingly, any separate claim regarding excessively tight restraints should be dismissed.
B. Failure to Intervene
“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). As such, an officer who fails to intervene where he or she observes or has reason to know that excessive force is being used or a constitutional violation has been committed by a fellow officer is liable for the preventable harm caused by that officer. Anderson, 17 F.3d at 557; accord Porter v. Goord, 467 Fed.Appx. 21, 23 (2d Cir. 2012) (summary order); Baines v. City of New York, 2017 WL 3425746, at *2 (S.D.N.Y. Aug. 9, 2017). Although liability may attach only where there was “a realistic opportunity to intervene to prevent the harm from occurring,” Anderson, 17 F.3d at 557, “[w]hether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise,” id.; accord Terebesi, 764 F.3d at 243-44; Stephens v. Venettozzi, 2016 WL 929268, at *11 (S.D.N.Y. Feb. 24, 2016). To evaluate “whether a defendant had a realistic chance to intercede,” courts consider “the number of officers present, their relative placement, the environment in which they acted, [and] the nature of the assault,” among other considerations. Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016).
Here, defendants assert that in light of Portillo's testimony that the incident took only “seconds,” no reasonable factfinder could conclude that Aldir or Gasanov, who were “standing between 5-10 feet away from” Portillo, had “a realistic opportunity” to intervene. Def. Mem. at 35-36. Certainly, certain assaults “occur[] so quickly that the defendant officers lack[] time to intercede as a matter of law.” Figueroa, 825 F.3d at 108; see, e.g., id. at 107 (“the assault's duration will always be relevant and will frequently assume great importance”); Johnson v. White, 725 Fed.Appx. 868, 878 (11th Cir. 2018) (per curiam) (explaining that “[i]nstances of force that occur within seconds do not place officers in a realistic position to intervene” and affording qualified immunity because forced removal of plaintiff from a vehicle and subsequent handcuffing “lasted only a few seconds and evolved rapidly once the car door was opened” such that neither defendant “had an opportunity or was in a position to intervene”); Ontha v. Rutherford Cnty., 222 Fed.Appx. 498, 506-07 (6th Cir. 2007) (defendant-officer, a passenger in police vehicle, had no opportunity to intervene when officer driving vehicle, without warning, accelerated and steered towards fleeing suspect, all of which occurred “[w]ithin a span of a few short seconds”); Wardlaw v. Pickett, 1 F.3d 1297, 1304 (D.C. Cir. 1993) (granting summary judgment on failure to intervene claim where plaintiff rushed down stairs towards officers while shouting at them and officer hit plaintiff three to four times “in rapid succession,” explaining that “[t]he entire confrontation lasted approximately ten to fifteen seconds” and “[e]ven if [defendant] had attempted to intervene, he might not have succeeded in separating [plaintiff] and [his fellow officer] any faster than their own actions and reactions did”).
Yet merely showing that an incident took “seconds” is insufficient to obtain summary judgment. In Figueroa, 825 F.3d at 108, the Second Circuit denied summary judgment on failure intervene claims based on two officers' failure to stop an assault by another officer that occurred in the backseat of a police vehicle where the defendants were in the driver and passenger seats, respectively. The Second Circuit held:
even assuming that the assault lasted less than twenty seconds[,] .... [n]othing in the record suggest[ed] that [the defendants] would have for any reason found it difficult to reach into the backseat, exit the vehicle to assist [the plaintiff], or communicate with the officer who committed the assault. Yet - according to [the plaintiff] - both officers sat passively through the entire event.Id.
Here, two officers, Aldir and Gasanov, were present during the alleged assault. Defendants admit that Aldir and Gasanov were only 5-10 feet away from Portillo, see Def. 56.1 Statement ¶ 160; Carroll Decl. ¶ 21; Aldir Decl. ¶ 18; Gasanov Decl. ¶ 14, which is certainly close enough to observe the alleged assault and to either physically or verbally attempt to stop it given sufficient time to do so. Although Portillo testified that the incident took only “seconds,” Portillo Tr. B 45-46, there was no follow-up questioning indicating how many “seconds” were being referred to. See Id. Additionally, Portillo describes being pulled up under the arms, shoved to the ground, dragged back up, and shoved to the ground again. See Portillo Tr. A 68; Portillo Tr. B. 44-45; Portillo Aff. ¶¶ 7-8. All the while, Portillo was restrained at the wrists, waist, and ankles. See Portillo Aff. ¶ 7; Portillo Tr. A 68-69. We cannot rule as a matter of law that a jury would be required to find that there was no opportunity for Aldir or Gasanov to intervene, especially following the first shove. Our result might be different if only one shove were involved. But even if the first shove was unexpected, a jury might reasonably find that Aldir and Gasanov should have been alerted to the possibility of a subsequent one. As already noted, the law is clear that the gratuitous use of force against restrained, non-resisting persons is prohibited. See, e.g., Lennox, 968 F.3d at 156-57. A jury might conclude that Aldir and Gasanov should have immediately recognized the use of force Portillo describes was unlawful and taken steps to protect him.
Accordingly, whether Aldir and Gasanov had a sufficient opportunity to intervene is not an issue that can be decided at this stage, and summary judgment on the failure to intervene claims should be denied.
C. Deliberate Indifference to Medical Needs
As the Second Circuit has held, “[a] pretrial detainee's claims of unconstitutional conditions of confinement are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eight Amendment.” Darnell, 849 F.3d at 29 (citations omitted). Under the Fourteenth Amendment, “[a] pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the officers acted with deliberate indifference to the challenged conditions.” Id. To prevail on his failure to protect claim, Portillo must satisfy a two-prong standard. See id.; Scott v. Westchester Cnty., 434 F.Supp.3d 188, 198 (S.D.N.Y. 2020).
First, Portillo “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 833 (1994); Scott, 434 F.Supp.3d at 198. Those conditions must be “sufficiently serious to constitute objective deprivations of the right to due process.” Darnell, 849 F.3d at 29. A “sufficiently serious” medical need is “a condition of urgency, one that may produce death, degeneration, or extreme pain.” See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citation and internal quotation marks omitted). “Factors that have been considered include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations, alterations, and internal quotation marks omitted).
Second, Portillo must establish that defendants acted with “deliberate indifference.” Darnell, 849 F.3d at 29. Although the Eighth Amendment requires actual knowledge to satisfy this “mens rea prong,” Darnell, 849 F.3d at 29, 32, a pretrial detainee need only show that a defendant “should have known” of “an excessive risk to [inmate] health or safety,” id. at 35 (“Unlike a violation of the Cruel and Unusual Punishments Clause, an official can violate the Due Process Clause of the Fourteenth Amendment without meting out any punishment, which means that the Due Process Clause can be violated when an official does not have subjective awareness that the official's acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.”). There is no “liability for negligently inflicted harm,” however. Kingsley, 576 U.S. at 396 (emphasis omitted) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)); accord Darnell, 849 F.3d at 36.
Because Portillo cannot satisfy the second prong, we do not reach the first. Assuming Portillo suffered a “sufficiently serious” injury, there is no basis to conclude that defendants were deliberately indifferent to Portillo's injury. “[T]here can be no claim of deliberate indifference where plaintiffs receive prompt medical treatment.” Dunham v. City of New York, 2021 WL 918373, at *10 (S.D.N.Y. Mar. 10, 2021); see also Ridge v. Davis, 2022 WL 357020, at *16 (S.D.N.Y. Feb. 7, 2022); Boyd v. Deasis, 524 F.Supp.3d 128, 148-49 (W.D.N.Y. Mar. 9, 2021); Ward v. Coley, 2019 WL 977887, at *6 (S.D.N.Y. Feb. 28, 2019).
As was true in Dunham, 2021 WL 918373, at *10, where EMS was called within minutes and the plaintiff was examined at the scene before being taken to the hospital, here, the record shows that Portillo “receive[d] prompt medical treatment.” Id. Following his initial fall in the pharmacy line, Portillo was immediately brought to the AMKC clinic, where he was evaluated and referred to Elmhurst Hospital. See Portillo Tr. A 72-75. In fact, it was Aldir and Gasanov who brought Portillo to the hospital, and once there, stood guard while Portillo was evaluated by Dr. Carroll, see Aldir Decl. ¶¶ 14-21; Gasanov Decl. ¶¶ 10-17, who herself ordered multiple additional tests, despite finding no “evidence [that Portillo] had a stroke,” Carroll Decl. ¶¶ 13-14. Portillo continued to receive treatment after Aldir and Gasanov left Elmhurst Hospital, as he was subsequently moved to and treated at Bellevue Hospital, and once released from Bellevue Hospital, treated at Rikers. See, e.g., Carroll Decl. ¶ 22; Portillo Tr. B 47, 50-51, 58, 61; Bellevue Hospital Records, annexed as Ex. F. to Zuckerman Decl. (Docket # 130-6). There is no evidence in the record that this treatment was in any way inadequate, much less that Aldir and Gasanov should have known as much. See Darnell, 849 F.3d at 35.
To the extent Portillo bases this claim on inadequate or delayed treatment of any injuries from Webb's assault, it likewise fails. Portillo was in the care of Elmhurst Hospital during and immediately after the alleged assault and there is no suggestion that defendants in any way impeded Portillo's ability to receive treatment at Elmhurst. Further, Portillo did not complain about any such injuries until he was transferred to Bellevue Hospital, see Portillo Tr. B at 47-48, which occurred after Aldir and Gasanov had left Elmhurst, see Aldir Decl. ¶ 28; Gasanov Decl. ¶ 24; Carroll Decl. ¶ 22. Accordingly, no reasonable factfinder could find that Aldir or Gasanov were deliberately indifferent to Portillo's medical needs, and summary judgment is therefore appropriate on these claims.
D. Qualified Immunity
Finally, defendants seek summary judgment on the basis of qualified immunity. See Def. Mem. at 37-40; Def. Reply at 11. Because all other claims fail on the merits, we consider this argument only with respect to the excessive force and failure to intervene claims. Under federal law, “[q]ualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam) (internal quotation omitted). A court's qualified immunity analysis must address two questions. First, did the defendant violate a statutory or constitutional right? Second, was the right “clearly established” at the time of the challenged conduct? See Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020) (quoting Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016)); accord Gordon v. Drummond ; 2021 WL 5314604, at *10 (S.D.N.Y. Nov. 16, 2021). Courts retain discretion to address these questions in whichever order they see fit. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
We have already addressed the first question in the previous sections. As to question two, the Supreme Court has explained that a right is “clearly established” if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). While such rights “should not be defined ‘at a high level of generality,'” White, 137 S.Ct. at 552 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), “the very action in question [need not have] previously been held unlawful,” Anderson, 483 U.S. at 640 (internal citation omitted). Rather, “in the light of pre-existing law[,] the unlawfulness must [have been] apparent.” Id. This does not require “a case directly on point.” White, 137 S.Ct. at 551 (citation omitted). But it does require a precedent “clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018). “In other words, existing law must have placed the constitutionality of the officer's conduct ‘beyond debate.'” Id. at 589 (quoting Ashcroft, 563 U.S. at 741). Defendants who violate “clearly established” rights “may nonetheless establish immunity by showing that reasonable persons in their position would not have understood that their conduct was within the scope of the established prohibition.” In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996) (citations omitted). However, “[a]bsent ‘extraordinary circumstances,' ‘[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.'” Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013) (second alteration in original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)).
The factual disputes regarding what exactly occurred at Elmhurst Hospital prevent us from granting summary judgment on the basis of qualified immunity. See Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (“Because summary judgment based either on the merits or on qualified immunity requires that no dispute about material factual issues remain, the district court erred by entering summary judgment in favor of Officer Schott.”). Critically, if Portillo's version of events is believed, qualified immunity is inappropriate.
Prior to the incident at issue, it was clearly established in the Second Circuit that law enforcement may not use “significant force” against a restrained individual who is not resisting and poses no threat to officers. Jones, 963 F.3d at 225 (citing cases). Likewise, it was clearly established that “law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Terebesi, 764 F.3d at 243 (citation omitted). Although these authorities were decided under the Fourth Amendment, and involved arrestees rather than pretrial detainees, these differences are immaterial because the “objective reasonableness” standard employed in the Fourth Amendment context mirrors the framework used to evaluate excessive force claims brought by pretrial detainees under the Fourteenth Amendment. See Kingsley, 576 U.S. at 397 (citing Graham, 490 U.S. at 396). In light of these precedents, no reasonably competent correctional officer in Webb's position on October 13, 2015 would believe that repeatedly shoving an injured, shackled, non-resisting detainee to the ground was lawful. See In re State Police Litig., 88 F.3d at 123. Similarly, no reasonably competent officer in Aldir or Gasanov's position would believe that standing idle while a fellow officer repeatedly shoves an injured, shackled, non-resisting detainee to the ground was lawful. See id. Thus, defendants' request for summary judgment on the basis of qualified immunity should be denied.
IV. CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment should be granted in part and denied in part. All claims should be dismissed with the exception of the excessive force claim premised on Webb's alleged assault at Elmhurst Hospital, and the failure to intervene claims premised on Aldir and Gasanov's failure to intercede during Webb's alleged assault.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Caproni. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).