Opinion
9:18-CV-149 (GLS/TWD)
12-13-2019
ISAAC K. STROMAN, Plaintiff, v. SCOTT RANZE, et al., Defendants.
APPEARANCES: ISAAC K. STROMAN Plaintiff, pro se 11-A-0292 Riverview Correctional Facility P.O. Box 247 Ogdensburg, New York 13669 HON. LETITIA JAMES Attorney General of the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: RYAN L. ABEL, Esq. ADRIENNE J. KERWIN, Esq. HELENA O. PEDERSON, Esq. Assistant Attorney Generals
APPEARANCES: ISAAC K. STROMAN
Plaintiff, pro se
11-A-0292
Riverview Correctional Facility
P.O. Box 247
Ogdensburg, New York 13669 HON. LETITIA JAMES
Attorney General of the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: RYAN L. ABEL, Esq.
ADRIENNE J. KERWIN, Esq.
HELENA O. PEDERSON, Esq.
Assistant Attorney Generals THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Isaac Stroman ("Stroman" or "Plaintiff") commenced this civil rights action under 42 U.S.C. § 1983 regarding alleged violations of his constitutional rights. (Dkt. No. 1.) According to Stroman, several correctional officers ("C.O.") at Coxsackie Correctional Facility ("Coxsackie") beat him on February 9, 2015, after he took a shower causing injuries to his head, hand, face, and ribs. (Dkt. No. 1.) Based on these events, Stroman raises the following claims: (1) Eighth Amendment excessive force claims against defendants C.O. Tirigllio ("Turriglio"), C.O. Bence ("Bence"), C.O. Steele ("Steele"), and Scott Ranze ("Ranze"); (2) Eighth Amendment failure to intervene claims against C.O. Pasqurillio ("Pasqurillio") and Sgt. Bailey ("Bailey"); and (3) First Amendment retaliation claims against Turriglio and Bence. (Dkt. No. 29.)
The Court notes Defendants refer to this Defendant as Turriglio. (Dkt. No. 41-2 at 6; Dkt. No. 41-14, 41-15.) The Court assumes this is the correct spelling of this Defendant's name and therefore adopts this spelling and directs the Clerk of the Court to amend the caption accordingly.
Defendants now move for summary judgement relative to Stroman's (1) excessive force claims against Steele and Ranze; (2) failure to intervene claims against Pasqurillio and Bailey; and (3) retaliation claim against Bence. (Dkt. No. 41-2.) For the reasons that follow, the Court recommends granting Defendants' motion with respect to Plaintiff's retaliation claim against Bence and excessive force claim against Steele and denying the motion in all other respects. I. FACTUAL BACKGROUND AND THE CURRENT DISPUTE
Defendants' statement of material facts largely omits the background of this case presumably because they concede these facts are in dispute. Thus, the following facts are drawn from Stroman's verified complaint. The Court will treat the complaint as an affidavit for purposes of this motion and consider the factual allegations therein to the extent they are nonconclusory. See Jackson v. Onondaga Cty., 549 F. Supp. 2d 204, 210 (N.D.N.Y. 2008) (citations omitted). Where relevant, the Court will indicate facts Defendants assert are material to their motion and undisputed. (See Defendants' Statement of Material Facts, Dkt. No. 41-9; Plaintiff's Response to Defendants' Statement of Material Facts, Dkt. No 48-6.)
Plaintiff was a prison inmate being held in Coxsackie at the time the actions in the complaint occurred. (Dkt. No. 1 at ¶ 2.) On or about February 1, 2015, Plaintiff was locked in his cell when Turriglio approached him. Id. at ¶ 15. Turriglio questioned Plaintiff about grievances filed against other officers and threatened that Plaintiff would be leaving the facility in a body bag if the grievances were not retracted. Id. Plaintiff contacted the area supervisor to make him aware of Turriglio's threats. Id. at ¶ 16. Plaintiff was then moved from 2 Company, where he was housed, to 3 Company. Id.
On February 9, 2015, Bence asked Plaintiff if he would like his keep-lock shower. Id. at ¶ 17. Plaintiff stated that he would. Id. Bence then asked Plaintiff if he knew Turriglio. Id. Plaintiff confirmed that he did and asked why Bence wanted to know. Id. Bence responded "Because that's my brother. That's why." Id. Plaintiff was then released from his cell to take his shower. Id. at ¶ 18.
Plaintiff entered the caged-in shower stall which Steele had opened. Id. at ¶ 19. Later, Bence entered the shower area and stated that showers were over. Id. at ¶ 21. Bence and Steele proceeded to release the other inmates from their showers. Id. Bence and Steele then re-entered the shower area to release Plaintiff. Id.
Bence raised his hand and arm towards Plaintiff's torso, effectively blocking Plaintiff's attempt to leave the caged-in shower. Id. at ¶ 22. Plaintiff then took two steps back into the shower. Id. Bence followed Plaintiff into the shower stall and began taunting him. Id. at ¶ 23. Bence stated Plaintiff was a "pussy" for writing grievances against fellow officers and that Plaintiff would take a swing at Bence now if he was not a "pussy." Id. Plaintiff responded that if Bence swung first, he would defend himself. Id. Bence then pushed Plaintiff. Id. at second ¶ 23. Plaintiff dropped his towel, soap and clothing in his hands to the floor and informed Bence that if he put his hands on him again that Plaintiff would give Bence what he was looking for. Id.
Bence responded by head-butting Plaintiff, resulting in a laceration on Plaintiff's forehead. Id. Plaintiff then swung and hit Bence in the jaw, causing Bence to fall to the ground. Id. Steele entered and attempted to strike Plaintiff. Id. at ¶ 24. Plaintiff threw two punches at Steele causing Steele to fall to the floor. Id. Plaintiff was the first to strike Steele. (Dkt. No. 41-9 at ¶ 34.) While falling, Steele grabbed onto Plaintiff's shorts. (Dkt. No. 1 at ¶ 24.) Plaintiff struggled to prevent Steele from removing his shorts to avoid being naked and feeling defenseless. Id. at ¶ 25. Bence then struck Plaintiff in the shoulder and the chin. Id. Steele grabbed Plaintiff by the hair and pulled him to the ground. Id. at ¶ 26. Bence got on top of Plaintiff and struck him several times in the abdomen before continuing to strike Plaintiff in the facial area while Steele held down Plaintiff's arms. Id. In fear of becoming unconscious, Plaintiff turned over onto his stomach as Bence and Steele continued to strike him. Id. at ¶ 27.
A "response team" including Defendants Pasqurillio, Bailey and Turriglio, then arrived and entered the shower area. (Dkt. No. 41-11 at 58; Dkt. No. 1 at ¶ 28.) Turriglio shouted, "This grievance writing mother-fucker" and proceeded to kick Plaintiff under his right eye and in his facial area. Id. On the third kick Plaintiff raised his right hand, which was struck by the kick, causing his hand to fracture. (Dkt. No. 1 at ¶ 28.) Plaintiff is not sure whether Pasqurillio or Bailey ever entered the shower stall where the assault occurred but remembers Bailey saying "that's enough" "seconds" after the response team arrived. (Dkt. No. 41-9 at ¶¶ 19-20.)
Plaintiff was handcuffed and ordered to stand up by Pasqurillio. (Dkt. No. 1 at ¶ 28.) Turriglio used Plaintiff's towel to wipe the blood from Plaintiff's face. Id. at ¶ 29. Defendants told Plaintiff he was lucky they did not kill him and that Plaintiff would not be so lucky next time. Id. Defendants then twisted Plaintiff's arm, while he was cuffed behind his back, and took him to the infirmary. Id.
At the infirmary Ranze had Plaintiff's handcuffs removed and ordered Plaintiff to put both hands on the wall. Id. at ¶ 30. Plaintiff informed Ranze that he could not raise his arms high enough to do so. Id. Ramsey told Plaintiff he had better find a way. Id.
Dr. Miller entered the room to examine Plaintiff. Id. Dr. Miller informed Ranze that Plaintiff needed to be taken to an outside hospital based on the seriousness of his injuries. Id. Dr. Miller was then escorted out of the examination room. Id. at ¶ 31.
Ranze again ordered Plaintiff to place his hands on the wall. Id. Plaintiff informed Ranze that he still was not capable. Id. Ranze instructed the other Defendants to close the door first and followed by instructing the other Defendants to "beat him down but don't hit him in the face." Id. Turriglio and another unidentified individual hit Plaintiff on his back and legs. Id. After a few seconds, Plaintiff fell to the floor. Id. Ranze then ordered the other Defendants to stop. Id.
Plaintiff was handcuffed and taken to Albany Medical Center where it was determined that he suffered from multiple lacerations, contusions and fractured bones. Id. at ¶ 32. Plaintiff was given a CAT scan for his shoulder, neck, head and back. Id.
Plaintiff filed a grievance related to this incident on March 12, 2015. (Dkt. No. 41-9 at ¶ 10; Dkt. No. 41-4.) His grievance does not allege Bailey, Pasqurillio, or Bence retaliated against him for filing grievances. (Dkt. No. 41-9. at ¶¶ 13, 16, 17, 30).
As discussed above, Plaintiff raises the following claims: (1) Eighth Amendment excessive force claims against defendants Turriglio, Bence, Steele, and Ranze; (2) Eighth Amendment failure to intervene claims against Pasqurillio and Bailey; and (3) First Amendment retaliation claims against Turriglio and Bence. (Dkt. No. 29.) Defendants presumably concede there are material factual disputes regarding Plaintiff's excessive force and retaliation claims against Turriglio and excessive force claim against Bence. However, Defendants move for summary judgment as to the other claims.
Specifically, Defendants contend there is no dispute that Plaintiff hit Steele first and Ranze never laid his hands-on Plaintiff. (Dkt. No. 41-2 at 18-19.) Thus, according to Defendants, Plaintiff's excessive force claims fail. Id. Furthermore, Defendants assert Plaintiff's grievance did not alert prison officials to the nature of his retaliation claim against Bence and his failure to intervene claims against Pasqurillio and Bailey. Id. at 8-10, 13-14. Therefore, Defendants argue the Court should dismiss these claims because Plaintiff failed to exhaust his administrative remedies. Id. In any event, Defendants contend Plaintiff's retaliation claim and his failure to intervene claims are meritless. Id. at 10-13, 14-17.
Plaintiff responded, asserting he exhausted his claims and they have merit. (Dkt. No. 48.) However, Plaintiff acquiesced to the dismissal of his retaliation claim against Bence. Id. at 16.
II. DISCUSSION
a. Standard of Review
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); 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, no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). "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).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and quotation marks omitted). A verified complaint, as Plaintiff has filed in this case (Dkt. No. 1), is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
b. First Amendment Retaliation
As noted above, Stroman concedes his retaliation claim against Bence should be dismissed. (Dkt. No. 48 at 16.) The Court, likewise has considered this claim and finds Bence is entitled to summary judgment on Stroman's retaliation claim because there is no evidence imputing a retaliatory motive to Bence's actions. (See, e.g., Dkt. No. 41-9 at ¶ 31 (Plaintiff admitting he had never encountered or communicated with Bence prior to the date of the incident).) Accordingly, the Court recommends granting Defendants' motion for summary judgment with respect to Plaintiff's retaliation claim against Bence.
c. Eighth Amendment Excessive Force
1. Applicable Legal Principles
To state an excessive force claim, a prisoner must allege "two elements, one subjective and one objective." Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (per curiam) (citation omitted). "The subjective component of the claim requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (internal quotation marks omitted) (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). For excessive force claims, "the 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.'" Harris, 818 F.3d at 49 (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)).
"Second, [the inmate] must allege that the conduct was objectively 'harmful enough' or 'sufficiently serious' to reach constitutional dimensions." Harris, 818 F.3d at 64 (citations omitted). "The objective component of the Eighth Amendment test is also context specific, turning upon 'contemporary standards of decency.'" Id. (citations omitted). But "certain actions, including the malicious use of force to cause harm, constitute Eighth Amendment violations per se." Id. (citations omitted).
2. Steele
Defendants' main argument is focused on the subjective prong of an excessive force claim and asserts Steele did not use excessive force against Stroman because Stroman admits he hit Steele first. (Dkt. No. 41-9 at ¶¶ 33-34.) However, summary judgment does not turn simply on whether Steele was punched first but rather whether—granting Plaintiff's version of events as true—Steele's reaction was reasonable. As Defendants appear to concede, there is a material dispute as to how the incident started, i.e., whether Bence threatened and then headbutted Plaintiff. According to Stroman, he was protecting himself from Bence's aggression and Steele subsequently lunged towards him to help Bence.
Nonetheless, Plaintiff has not alleged Steele ever struck him or did anything but attempt to get him under control. The key inquiry into a claim of excessive force is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973). The undisputed facts establish Steele only helped subdue Plaintiff and did not apply unnecessary or wanton force. Indeed, Plaintiff's grievance does not even allege Steele hit Plaintiff, only that Steele was holding onto Plaintiff during the altercation with Bence. (Dkt. No. 41-4 at 4.) Thus, the Court finds no reasonable juror could conclude Steele possessed the requisite culpability to have violated Plaintiff's rights. Accordingly, the Court recommends granting Steele's motion for summary judgment.
As Defendants note, Plaintiff did not specifically address Defendants' arguments with respect to the merits of his excessive force claim against Ranze. However, given Stroman's pro se status, the Court has undertaken an independent review of his claim against Ranze.
The allegations in the complaint and Plaintiff's deposition transcript create a dispute of fact with respect to whether Ranze was involved in the use of force incident alleged to have taken place in the infirmary. In the relevant sense, "personal involvement" is defined as "personal participation by one who has knowledge of the facts that rendered the conduct illegal," or indirect participation, such as "ordering or helping others to do the unlawful acts, rather than doing them him- or herself." Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001).
Here, Stroman alleges Ranze facilitated his beating in the infirmary. Specifically, Stroman recalls Ranze telling Turriglio to "close the door" and not to hit Plaintiff in the face before giving Turriglio a "nod" before he kneed Plaintiff in the back of the leg and then beat him. (Dkt. No. 41-11 at 76-79.) Thus, contrary to Defendants' suggestion and granting all reasonable inferences in Plaintiff's favor, the evidence establishes Ranze was involved and arguably ordered the attack in the infirmary. If proved, this would render Ranze liable for an excessive force claim as an indirect participant. See Provost, 262 F.3d at 155. Accordingly, the Court recommends denying Ranze's motion for summary judgment.
d. Eighth Amendment Failure to Intervene
1. Exhaustion
The Prison Litigation Reform Act, ("PLRA"), 42 U.S.C. § 1997e(a), requires an inmate-plaintiff to exhaust all available administrative remedies prior to bringing a federal civil rights action. The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)).
In New York, the inmate grievance procedure ("IGP") is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee ("IGRC"). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). At step-two, an inmate may appeal an adverse decision of the IGRC to the Superintendent of the Facility. Id. at § 701.5(c). Finally, at step-three, an inmate may appeal adverse decisions at the Superintendent's level to the Central Office Review Committee ("CORC"). Id. § 701.5(d). Grievances involving claims of excessive force, such as the grievance at issue in this case, are subject to an expedited procedure. Id. § 701.8; Torres v. Carry, 691 F. Supp. 2d 366 (S.D.N.Y. 2009). In those cases, the IGRC step is skipped and the Superintendent is required to investigate and render a decision on the grievance within twenty-five calendar days. N.Y. Comp. Codes R. & Regs., tit. 7 § 701.8.
In this case, Stroman completed the relevant steps as outlined above. He filed a grievance the Superintendent denied. (Dkt. No. 41-5.) He then appealed to CORC, and, similarly received an unfavorable decision. (Dkt. No. 41-6.)
Defendants do not argue Stroman failed to appropriately go through each of the steps. Rather, Defendants contend Stroman did not exhaust his administrative remedies with respect to his failure to intervene claims against Bailey and Pasqurillio because his grievance did not mention Bailey and did not state Bailey or Pasqurillio failed to prevent the use of force against Plaintiff. (Dkt. No. 41-2 at 9-10.) Thus, according to Defendants, "the grievance satisfied none of the purposes of the exhaustion requirement." (Dkt. No. 54-3 at 5.) The Court finds Defendants' arguments relative to exhaustion meritless.
As noted above, exhaustion through the PLRA is a function of state law. In other words, to successfully exhaust administrative remedies, the inmate-plaintiff must adhere to the state's procedure. Thus, for example, if the state requires grievances be served within a certain time-frame, compliance with those rules is necessary to properly exhaust state remedies. The appropriate query for the Court in this case, therefore, is to consider whether New York state regulations require an inmate-plaintiff to name each defendant and state each putative legal theory.
The Second Circuit has previously considered the IGP and held it does not require a prisoner's grievance to name the responsible party or identify relevant legal theories. See Espinal v. Goord, 558 F.3d 119, 124, 127-28 (2d Cir. 2009). Indeed, New York's regulations specifically provide only that "the grievance should contain a concise, specific description of the problem and the action requested and indicate what actions the grievant has taken to resolve the complaint[.]" N.Y. Comp. Codes R. & Regs., tit. 7 § 701.7(a)(2). Furthermore, as Plaintiff argues (Dkt. No. 48 at 6), the form provided to inmates to file grievances (Form 2131) merely provides a small space to describe the "Problem" and advises the author to "be as brief as possible." (Dkt. No. 41-4.)
Thus, far from imputing a name-all-defendants-and-legal-theories requirement, "a prisoner must [only] allege facts sufficient to alert corrections officials 'to the nature of the claim,' and 'provide enough information about the conduct' at issue 'to allow prison officials to take appropriate responsive measures.'" Wright v. Potter, No. 914CV01041, 2016 WL 5219997, at *5 (N.D.N.Y. June 28, 2016), report and recommendation adopted, No. 914CV1041, 2016 WL 5173283 (N.D.N.Y. Sept. 21, 2016) (citing Singh v. Lynch, 460 Fed. Appx. 45, 47 (2d Cir. 2012) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)). For example, in Espinal, the plaintiff's grievance alleged the participation of "countless other security officers" in addition to alleging the involvement of two named correctional officers. Espinal, 558 F.3d at 127. The plaintiff's grievance in Espinal also included the specific date, time, and location of the incident. Id. The Second Circuit found the grievance gave officials the necessary information to investigate the complaints and which officers were involved in the incident. Id.
Here, the Court is satisfied that Plaintiff's grievance, as well as the other relevant evidence, reveals he properly exhausted his failure to intervene claims against Pasqurillio and Bailey. Indeed, it strains credulity to argue, as Defendants do, that Stroman's grievance did not alert prison officials to the nature of his claims. Stroman's grievance describes that a "response team" arrived including one unnamed officer and Turriglio. (Dkt. No. 41-4 at 4-5.) It also asserts Turriglio, who was the "second" officer in the response team, said "this grievance writing mother fucker" as soon as he arrived and right before he kicked Plaintiff in his face and hand several times. Id. Defendants rightfully concede that Stroman named Pasqurillio as one of the individuals in the response team. Such an acknowledgement is grounds enough to deny Pasqurillio's motion for summary judgment because he was identified as an individual who was present during an allegation of excessive force. Similarly, the Court finds it would have taken little effort to identify Bailey as a member of the response team on the scene during the assault. Indeed, the prison initiated a Tier III disciplinary proceeding where Bailey and Pasqurillio were called as witnesses to the incident. (Dkt. No. 54-1 at 5.)
This case is decidedly different than the case Defendants principally rely upon, Wright v. Potter, 2016 WL 5219997. In Potter, the plaintiff never mentioned the relevant doctor's name—but more importantly—never stated he received negligent medical treatment. In other words, the entire basis for the claim was left out of the grievance. Here, in stark contrast, Plaintiff's grievance accuses Bence of headbutting him after which a response team arrived to apply more force and simultaneously allowed the assault to continue. (Dkt. No. 41-4.) Plaintiff's grievance sufficiently alerts prison officials that Bence and Turriglio applied excessive force and other members of the response team failed to intervene.
Accordingly, the Court recommends denying Defendants' motion for summary judgment on exhaustion grounds.
2. Merits
A prison official who is present while an assault upon an inmate occurs may bear responsibility for any resulting constitutional deprivation, even if he did not directly participate. See, e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y. 2010); Cicio v. Graham, No. 9:08-CV-534 (NAM/DEP), 2010 WL 980272, at *13 (N.D.N.Y. Mar. 15, 2010.). To establish liability under a failure to intervene theory, a plaintiff must prove the use of excessive force by some other individual, and that the defendant under consideration: (1) possessed actual knowledge of the use by another of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force. Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). Thus, mere inattention or inadvertence does not rise to a level of deliberate indifference sufficient to support liability for failure to intervene. Cicio v. Lamora, No. 9:08-CV-431 (GLS/DEP), 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (citations omitted). Indeed, officers generally "cannot be held liable for failure to intervene in incidents that happen in a 'matter of seconds.'" Henry v. Dinelle, No. 9:10-CV-0456 (GTS/DEP), 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) (quoting Parker v. Fogg, No. 85-CV-177 (NPM), 1994 WL 49696, at *8 (N.D.N.Y. Feb. 17, 1994)).
Moreover, an officer cannot be held liable for failure to intervene if there was not a "reasonable opportunity" to stop the alleged use of excessive force. Cusamano v. Sobek, 604 F. Supp. 2d 416, 429 n. 9 (N.D.N.Y. 2009); Parker, 1994 WL 49696 at *8. However, this issue can be decided as a matter of law only if "considering all the evidence, a reasonable jury could not possibly conclude" that the officer had a reasonable opportunity to intervene. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Here, the primary issue with respect to the failure to intervene claims centers on Bailey and Pasqurillio's ability to stop Trugillio's alleged assault. As set forth above, Plaintiff claims while he was on the ground a "response team," including Defendants Pasqurillio, Bailey and Turriglio, arrived and entered the shower area. (Dkt. No. 1 at ¶¶ 27-28, 39, 42.) Turriglio shouted, "this grievance writing mother-fucker" and proceeded to kick Plaintiff under his right eye and in his facial area. Id. at ¶ 28. On the third kick Plaintiff raised his right hand, which was struck by the kick, causing Plaintiff's hand to fracture. Id. For the purposes of this motion, the Court assumes Turriglio's conduct occurred and it constitutes excessive force. The question is thus, whether Bailey and Pasqurillio had an opportunity to recognize and stop Turriglio's assault.
Defendants argue Stroman's failure to intervene claims fail on the merits because Plaintiff cannot establish they had an opportunity to stop Turriglio's use of force. The Court disagrees. Plaintiff alleges Pasqurillio and Bailey arrived at the shower area at the same time as Turriglio who made a defamatory comment before kicking Plaintiff in the face. Upon hearing Turriglio state "this grievance writing mother-fucker," Pasqurillio and Bailey would have been alerted to Turriglio's malicious motive. Thus, there is a triable issue of fact regarding whether Pasqurillio and Bailey had an opportunity to stop the alleged assault—at the moment they heard Turriglio's comments. Furthermore, considering Turriglio was able to kick Plaintiff multiple times, both Pasqurillio and Bailey had a realistic opportunity to intervene and prevent harm from occurring. Though the Court recognizes the incident was over quick and Plaintiff alleges Bailey gave an order to stop, the evidence—viewed in Plaintiff's favor—raises an inference that Bailey and Pasqurillio sat idly during at least part of Turriglio's assault. Accordingly, the Court recommends denying Defendants' motion for summary judgment on these grounds.
III. CONCLUSION
For the reasons stated above, the Court recommends granting Defendants' motion for summary judgment in part and denying it in part. If the Court accepts the foregoing recommendations, the following claims would remain for trial: (1) Eighth Amendment excessive force claims against Ranze, Turriglio, and Bence; (2) First Amendment retaliation claim against Turriglio; and (3) Eighth Amendment failure to intervene claims against Pasqurillio and Bailey.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 41) be GRANTED in part with respect to Plaintiff's retaliation claim against Bence and his excessive force claim against Steele; and it is further
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 41) be denied in all other respects; and it is further
RECOMMENDED that the Court appoint Plaintiff pro bono trial counsel to assist in the preparation for a trial; and it is further
ORDERED that the Clerk amend the caption of this case to reflect the correct spelling of Defendant Turriglio; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: December 13, 2019
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).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge