Opinion
6:16-CV-06286 EAW
2021-03-23
Nyjee L. BOYD, Plaintiff, v. Deputy Vincent PETRALIS, Deputy Adam Geiger, Major Horan, Captain Kennedy, Corporal Lopez, and Sargeant Latona, Defendants.
Nyjee L. Boyd, Stormville, NY, pro se. Adam M. Clark, Monroe County Department of Law, Rochester, NY, for Defendants.
Nyjee L. Boyd, Stormville, NY, pro se.
Adam M. Clark, Monroe County Department of Law, Rochester, NY, for Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Proceeding pro se , plaintiff Nyjee L. Boyd ("Plaintiff"), a former pre-trial detainee at the Monroe County Jail, commenced the above-captioned action against Defendants pursuant to 42 U.S.C. § 1983, alleging that they violated his right to be free from the use of excessive force, in violation of the Fourteenth Amendment. (Dkt. 1; Dkt. 61-1). Plaintiff also asserts a First Amendment retaliation claim relating to an assault he alleges took place after he filed grievances. (Id. ). Presently before the Court is a motion for summary judgment filed by defendants Kennedy, Horan, Latona, and Lopez. (Dkt. 117). For the following reasons, the motion is granted.
Defendants Petralis and Geiger have not moved for summary judgment, and the June 30, 2020 deadline for filing any such motion has expired. (Dkt. 116). In their memorandum of law, Defendants concede that although they dispute Plaintiff's account of the May 19, 2015 incident, "taking ... Plaintiff's allegations and testimony as true, there could be an issue of fact as to the excessive force allegations against Deputies Petralis and Geiger." (Dkt. 117-4 at 10).
BACKGROUND
The following facts are taken from Defendants’ Statement of Undisputed Facts (Dkt. 117-3), and the exhibits submitted in support of the motion, including Plaintiff's Examination Before Trial (Dkt. 117-5 at 395-550 ("Plaintiff's EBT")). Despite being afforded several extensions of time to file a response to Defendants’ motion, Plaintiff failed to submit an Opposing Statement of Material Facts. Therefore, to the extent supported by admissible evidence, the factual statements contained in Defendants’ Statement are deemed admitted for purposes of the motion. See L. R. Civ. P. 56(a)(2); see also N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 648-49 (2d Cir. 2005) ("district courts have the authority to institute local rules governing summary judgment submissions" although "[r]eliance on a party's statement of undisputed facts may not be warranted where those facts are unsupported by the record").
When referencing Plaintiff's EBT, the Court refers to the pagination generated from the CM/ECF filing as opposed to the transcript pagination.
Plaintiff was a pre-trial detainee at the Monroe County Jail ("MCJ") when an altercation with MCJ deputies occurred on May 19, 2015. (Dkt. 117-3 at ¶ 1; see also Plaintiff's EBT at 455). Plaintiff testified that prior to the incident, he brought a grievance against deputy Geiger for allowing Shane Maldonado, another inmate who served as the porter, to use a deputy's phone. (Plaintiff's EBT at 455-56). Plaintiff wrote the grievance because while Mr. Maldonado was permitted to use the deputy's phone, deputy Geiger was not allowing other inmates to use the phone. (Id. at 456). According to Plaintiff, deputy Geiger told Mr. Maldonado about Plaintiff's grievance, and deputy Geiger was also going to Plaintiff's cell and calling him a "snitch" and a "fagot ass bitch." (Id. ).
Plaintiff testified that following his grievance, "they" started "doing stuff" to his food, such as "spitting in [his] trays ... [and] put[ting] stuff in [his] food[.]" (Id. at 456-57). Plaintiff made a complaint to Captain Kennedy and informed him of what was occurring during one of his rounds. (Id. at 457-58). Plaintiff testified that he initially made his complaint orally, but then wrote Captain Kennedy a letter on a communication form after Capitan Kennedy instructed him to do so. (Id. at 458-59). Plaintiff had a copy of the letter but testified that it was destroyed when he was transferred. (Id. at 458). According to Plaintiff, Captain Kennedy informed him that he received the complaint and was investigating it. (Id. at 459).
Plaintiff testified that he was then put on "styro-wrapped trays," meaning that his trays came with saran wrap around them, so that the deputies could not tamper with his food. (Id. at 459-60). However, Plaintiff stated that deputy Geiger was taking the saran wrap off the tray, spitting in it, and then re-wrapping the tray. (Id. at 460). Plaintiff testified that he stopped eating his trays when deputy Geiger worked. (Id. ).
On May 19, 2015, deputy Geiger was working and when he brought Plaintiff his tray, Plaintiff refused it. (Id. ). Plaintiff stated that he stuck his left arm outside the food flap and told deputy Geiger that he wanted to speak to Corporal Shepard. (Id. at 461-62). According to Plaintiff, he knew if he stuck his arm out of the cell, deputy Geiger would notify Corporal Shepard that Plaintiff wanted to speak with him. (Id. at 461). Plaintiff testified that deputy Geiger pushed the tray over Plaintiff's arm into his cell, and then grabbed Plaintiff's arm. (Id. ). Thereafter, deputy Geiger "tried to start breaking [Plaintiff's] arm on the flap ... [by] trying to bend it on the flap." (Id. at 462). Although Defendants contend that Plaintiff refused orders to remove his arm (Dkt. 117-3 at ¶ 3), Plaintiff testified that deputy Geiger did not tell Plaintiff to put his arm back inside the cell but was trying to break his arm by twisting it up against the flap, and he also "maced him" through the flap with pepper spray (id. at 462-63). Plaintiff testified that he did not grab deputy Geiger's arm or leg "in any type of manner." (Id. at 463).
Plaintiff testified that deputy Geiger released his arm and he fell to the back of his cell, and deputy Petralis opened the cell door. (Id. at 464). When Plaintiff got up, deputy Petralis punched him in the nose. (Id. ). Plaintiff testified that he did not punch or hit deputy Petralis and had his hands behind his back because he thought they were going to cuff him. (Id. at 465). Plaintiff then turned around and tried to get out of his cell because he believed the deputies were going to assault him. (Id. ). Deputy Petralis placed Plaintiff in a "choke hold in the front," and Plaintiff's head was under deputy Petralis's armpit. (Id. at 466-67). Deputy Geiger punched Plaintiff in the ribs and back. (Id. at 467).
Plaintiff testified that he attempted to get out of his cell to get in front of the block camera. (Id. ). Plaintiff could not remember if the deputies said anything at the time, but remembered that they called the incident on the radio once they realized Plaintiff was trying to get out of his cell to the camera. (Id. at 467-68). Plaintiff escaped his cell to the block camera and collapsed, with Deputy Petralis still having him in a choke hold. (Id. at 468).
Plaintiff testified that deputy Geiger continued to kick him, and other COs came and began kicking him. (Id. at 469). Although the officers were telling Plaintiff to "stop resisting" and spraying him with pepper spray, Plaintiff testified that he was not resisting, and was instead trying to get out of the choke hold because he could not breathe. (Id. ). Plaintiff stated that right before he felt he was going to pass out, he was able to slip Deputy Petralis's arm from under his chin and remove himself from the choke hold. (Id. ). Plaintiff placed his hands behind his back and the officers cuffed him. (Id. ). Deputy Geiger continued to punch and kick Plaintiff in his face, which resulted in a chipped tooth. (Id. at 469-70). Plaintiff never received treatment for his chipped tooth but it caused him pain because his nerve was exposed, and therefore for one month, he had pain whenever he drank or ate. (Id. at 470).
Following the incident, the deputies took Plaintiff to medical to "decontaminate." (Id. at 471). A nurse examined him and took pictures of his injuries. (Id. ). Plaintiff testified that he could not recall anything else that occurred during the incident, but noted that he wrote grievances against deputy Geiger before he was attacked explaining that he feared deputy Geiger would attack him, that "Petralis and Geiger work[ed] together [and] they had a mutual relationship, so basically if [he] had an issue with Geiger [he] had issues with Petralis," and that he had written a grievance against deputy Petralis for denying him medical care when he passed out in his cell. (Id. at 471-72). Plaintiff further testified that he wrote complaints to Major Horan explaining that he believed deputy Geiger was threatening him, including making a complaint to Major Horan through an ICF, but that he never talked to Major Horan regarding his complaint. (Id. at 473-75).
Plaintiff testified that Corporal Lopez responded to the incident on May 19, 2015, but failed to intervene. (Id. at 476). When asked if he was aware if Corporal Lopez "personally did anything or if he was just observing it," Plaintiff said he was "really not sure," and because he had pepper spray in his eyes, he could hear Corporal Lopez's voice but did not specifically see him at any point. (Id. ). Plaintiff likewise testified that he did not see Sergeant Latona, but heard his voice, including that he directed the deputies to take Plaintiff to medical. (Id. at 476-77).
In addition to his chipped tooth, as a result of the incident, Plaintiff testified that he sustained a "ring impression," abrasions to his side, leg pain, a swollen nose, knots on his head, and a dislocated right shoulder, which bothered him for a couple of months. (Id. at 479-85). Plaintiff also experienced psychological trauma, including that he was placed on suicide watch. (Id. at 487-90).
PROCEDURAL HISTORY
Plaintiff filed his complaint on May 4, 2016. (Dkt. 1). Defendants answered the complaint (Dkt. 7; Dkt. 10), and the case was referred to Judge Payson for discovery (Dkt. 8). On March 8, 2019, Judge Payson granted Plaintiff's motion to amend the complaint to the extent it added the Fourteenth Amendment as a basis for his claims, and to add First Amendment retaliation claims based on Plaintiff's allegations that the officers assaulted him after he filed grievances, which the undersigned adopted. (Dkt. 82; Dkt. 83; see also Dkt. 61-1). On June 29, 2020, defendants Kennedy, Horan, Lopez, and Latona filed a motion for summary judgment. (Dkt. 117). The Court issued a scheduling order for the motion, which set a response deadline for Plaintiff, and advised him that his failure to file a response supported by his own sworn affidavits or other documentary evidence could result in the dismissal of his claims. (Dkt. 118). Thereafter, between July 22, 2020 and November 9, 2020, Plaintiff filed extensions of time to file a response (Dkt. 120; Dkt. 123), which the Court granted. On January 4, 2021, the Court granted Plaintiff's third request for an extension of time to file a response to Defendants’ motion for summary judgment and advised him that no further extensions would be granted. (Dkt. 126). On January 14, 2021, the Court denied an additional request for an extension of time, explaining that it was Plaintiff's fourth request for an extension, Defendants’ motion had been pending since June 2020, and that under the circumstances, the February 3, 2021 response deadline was more than a sufficient opportunity for Plaintiff to file a response to the pending motion. (Dkt. 128). Plaintiff did not file a response to the motion for summary judgment. More recently, Plaintiff filed a motion for an extension of time to complete discovery (Dkt. 129); however, the discovery deadline expired over one year ago (Dkt. 108), and Plaintiff's motion in this regard does not justify deferring consideration of the pending motion for summary judgment.
DISCUSSION
I. Legal Standard for Motion for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "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). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
"The moving party bears the burden of showing the absence of a genuine dispute as to any material fact...." Crawford v. Franklin Credit Mgmt. Corp. , 758 F.3d 473, 486 (2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Johnson v. Xerox Corp. , 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc. , 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co. , 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown , 654 F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
II. Plaintiff's Claims against Captain Kennedy and Major Horan
Defendants argue that Plaintiff's claims against Captain Kennedy and Major Horan should be dismissed because they were not personally involved or responsible for causing Plaintiff's injuries. (Dkt. 117-4 at 8). As explained above, Plaintiff's claims against Captain Kennedy and Major Horan are based on their alleged failure to address Plaintiff's complaints to them regarding his concerns about deputy Geiger, which he contends resulted in his assault and injuries on May 19, 2015. (See Plaintiff's EBT at 457-59, 473-75; see also Dkt. 61-1 at 10, 20-21).
In support of their argument, Defendants offer evidence indicating that neither Captain Kennedy nor Major Horan were aware of Plaintiff's complaints about deputies Geiger or Petralis prior to the May 19, 2015 use of force incident. Specifically, Defendants submit the Declaration of Shaun D. Fennessy, a Corporal with the Monroe County Sheriff's Office. (See Dkt. 117-2 (the "Fennessy Decl.")). Corporal Fennessy is the grievance coordinator at MCJ and is responsible for supervising the grievance process and procedures for the Monroe County Sheriff's Office. (Id. at ¶¶ 2-3). He explained that during the time Plaintiff was at MCJ, Captain Kennedy and Major Horan would have been responsible for responding to ICFs that were addressed to them personally, but they would not have been responsible for directly responding to grievances, since grievances are handled through a Grievance System and the Grievance Coordinator, and are not the responsibility of individual Jail Officers. (Id. at ¶¶ 20-21). Upon Corporal Fennessy's review of the ICFs filed by Plaintiff, there were no ICFs prior to the May 19, 2015 incident addressed to Major Horan or Captain Kennedy complaining about deputy Geiger or deputy Petralis. (Id. at ¶ 22). Although there were ICFs filed about the May 19, 2015 incident after it occurred (see id. at ¶ 23; see also Dkt. 117-5 at 254-57 (ICF addressed to Captain Kennedy dated May 21, 2015, regarding May 19, 2015 incident); id. at 258-61 (ICF addressed to Major Horan dated May 21, 2015, relating to May 19, 2015 incident)), these communications post-date the May 19, 2015 incident, and therefore they do not support Plaintiff's assertion that Captain Kennedy and Major Horan were aware of Plaintiff's concerns relating to deputy Geiger prior to the incident.
The record does not contain any sworn testimony from Captain Kennedy or Major Horan. Although interrogatory responses are filed from these defendants on the docket indicating that they have no recollection as to whether Plaintiff made them aware of complaints prior to the incident (Dkt. 72 at 2 (Horan); Dkt. 74 at 2 (Kennedy); Dkt. 96 at 2 (Kennedy supplemental response)), none of the responses are answered under oath or signed by Horan or Kennedy contrary to the requirements of Federal Rule of Civil Procedure 33. Nonetheless, Corporal Fennessy's declaration is sufficient to establish the process that existed within the MCJ regarding grievances and ICFs, as well as the extent of any records that exist documenting any grievances or ICFs from Plaintiff.
Plaintiff did file grievances expressing concerns about deputy Geiger prior to the May 19, 2015 incident. (See Dkt. 117-5 at 137-38 (Grievance 15-153, dated May 12, 2015, explaining that Plaintiff witnessed deputy Geiger allow the "Hallway Floor Trustee Shane [to] use the Deputy Housing Phone on several different occasions," other inmates, including Plaintiff, were being discriminated against and treated unfairly by deputy Geiger because they were not permitted to use the phone, and the use of the phone by the Floor Trustee was in violation of jail policy); id. at 142-43 (Grievance 15-154, dated May 13, 2015, explaining that Plaintiff was "in fear of my safety for which [deputy Geiger] disclosed ... [information] to Shane, so he can assault me for being a ‘snitch.’ I have informed Corporal Sheppard of deputy Geiger harassing me.")). However, as explained by Corporal Fennessy, neither Captain Kennedy nor Major Horan was responsible for directly responding to those grievances (Fennessy Decl., at ¶ 24), and there is no proof in the record that Captain Kennedy or Major Horan had knowledge of those grievances prior to the May 19, 2015 incident. The only evidence in the record that either Captain Kennedy or Major Horan were aware of the situation prior to the incident was Plaintiff's testimony that he orally told Captain Kennedy about the situation involving the food tampering and then wrote an ICF (see Dkt. 117-5 at 458-59), but the documentary evidence in the form of an ICF to Captain Kennedy establishes that the only written communication to him occurred after the incident (see Dkt. 117-5 at 254-57). Likewise, the ICF to Major Horan is post-incident (id. at 258-261), and Plaintiff testified that the only means by which he communicated to Major Horan was in writing (Dkt. 117-5 at 474-75).
Grievance 15-153 was denied because it did not state a grieve-able issue, and Grievance 15-154 was investigated and denied, and an appeal was denied. (Fennessy Decl., at ¶¶ 25-26). The documents associated with the processing of these grievances, which were submitted by Defendants, also do not support that Capital Kennedy or Major Horan were aware of the grievances. (See Dkt. 117-5 at 139-40, 144-47).
"A defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority. Rather, the personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Victory v. Pataki , 814 F.3d 47, 67 (2d Cir. 2016) (internal alterations, quotations, and citations omitted). Although in Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995), the Second Circuit identified five categories of evidence that may establish the liability of a supervisory official, more recently, in Tangreti v. Bachmann , the Second Circuit held that, post-Iqbal , "there is no special rule for supervisory liability. Instead, a plaintiff must plead and prove that each Government-official defendant, through the official's own individual actions, has violated the Constitution." 983 F.3d 609, 618 (2d Cir. 2020). The Second Circuit explained that "[t]he factors necessary to establish a [ § 1983 ] violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary," and "[t]he violation must be established against the supervisory official directly." Id. (second alteration in original) (internal quotations and citations omitted).
Construing Plaintiff's claims in the light most favorable to him, he contends that Captain Kennedy and Major Horan failed to protect him from harm by deputies Geiger and Petralis. The Constitution imposes a duty on prison officials to "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan , 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotations and citation omitted). However, not every assault "translates into constitutional liability for prison officials responsible for the victim's safety." House v. City of N.Y. , No. 18 Civ. 6693 (PAE)(KNF), 2020 WL 6891830, at *11 (S.D.N.Y. Nov. 24, 2020) (citation omitted). Accordingly, "[t]o prevail on his claim, [Plaintiff] must show that, objectively, the challenged condition (here, the threat of harm at the hands of [the deputies]) was sufficiently serious to implicate a deprivation of the right to due process and that the officer ‘acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to [Plaintiff] even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.’ " Conquistador v. Adamaitis , No. 3:19-cv-430 (KAD), 2021 WL 810361, at *4 (D. Conn. Mar. 3, 2021) (quoting Darnell v. Pineiro , 849 F.3d 17, 29 (2d Cir. 2017) ).
Because he failed to respond to Defendants’ motion, Plaintiff has not offered evidence to rebut the information contained in the Fennessy Declaration establishing that Captain Kennedy and Major Horan did not have a role with respect to responding to any grievances that pre-dated the incident, and instead were the recipients of ICFs after the incident. Plaintiff's testimony that he sent written complaints to them prior to the incident does not create a genuine issue of fact in view of the documentary evidence establishing that those communications actually occurred post-incident. See, e.g., BanxCorp v. Costco Wholesale Corp. , 978 F. Supp. 2d 280, 299 (S.D.N.Y. 2013) (explaining that a self-serving, contradictory affidavit or deposition testimony fails to raise a triable issue of fact when it conflicts with documentary evidence); see also Flaherty v. Coughlin , 713 F.2d 10, 13 (2d Cir. 1983) ("mere conclusory allegations or denials are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case" (internal quotations and citation omitted)), overruled on other grounds, Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
Moreover, Plaintiff's vague testimony about an oral communication with Captain Kennedy concerning food tampering in advance of the incident is not only contradicted by the documentary evidence (since Plaintiff testified that he followed up with an ICF, and the only ICF to Captain Kennedy was generated after the incident), but in addition, even if Plaintiff had some type of oral communication with Captain Kennedy about food tampering beforehand, under the standard set forth by the Second Circuit in Tangreti , this evidence would not be sufficient to establish a constitutional violation on the part of Captain Kennedy. In other words, no reasonable jury could conclude that the oral communication to Captain Kennedy as described by Plaintiff established the requisite knowledge on the part of Captain Kennedy of a condition posing an excessive risk to Plaintiff's health or safety.
Accordingly, Plaintiff has failed to establish that Captain Kennedy or Major Horan knew or should have known of any threat of harm from deputies Geiger or Petralis. The evidence before the Court demonstrates that neither Captain Kennedy nor Major Horan was personally involved in the May 19, 2015 incident. Neither Captain Kennedy nor Major Horan was present during the attack and failed to intervene. Plaintiff makes no allegations, and the record does not support, that Captain Kennedy or Major Horan conspired with deputies Geiger and Petralis to mount an assault on Plaintiff. Rather, the evidence shows that they were not aware of Plaintiff's fear of an attack, or of any alleged plan by deputies Geiger and Petralis to attack Plaintiff, and did not learn of any complaints Plaintiff had against the deputies until after the incident in question. For those reasons, the Court grants summary judgment in favor of Capital Kennedy and Major Horan, and Plaintiff's claims against them are dismissed.
III. Plaintiff's Claims against Corporal Lopez and Sergeant Latona
Plaintiff also brings claims against Corporal Lopez and Sergeant Latona, who he alleges responded to the May 19, 2015 incident when deputies Geiger and Petralis radioed for assistance. (Dkt. 61-1 at 13-14). Defendants argue that Plaintiff's claims against Corporal Lopez and Sergeant Latona should be dismissed because there is no evidence that they participated in the use of force, or that they should have intervened in any use of force. (Dkt. 117-4 at 9).
At his deposition, Plaintiff testified that Corporal Lopez responded to the incident on May 19, 2015 but failed to intervene. (Plaintiff's EBT at 476). When asked if he was aware if Corporal Lopez "personally did anything or if he was just observing it," Plaintiff answered that he was "really not sure," and because he had pepper spray in his eyes, he could hear Corporal Lopez's voice telling him to stop resisting, but he did not specifically see him at any point. (Id. ). Plaintiff likewise testified that he did not see Sergeant Latona but heard his voice, including that he told Plaintiff to stop resisting and directed the deputies to take Plaintiff to medical. (Id. at 476-78). Plaintiff testified that he was unsure of how long Sergeant Latona was present at the scene before instructing the officers to take Plaintiff to medical:
I'm not sure. I'm not a, you know, it's so much going on that it's not like I can recollect that, how long he was there, but I know he was there because, you know, Corporal Gentile, Sergeant Latona, and other officers yelling at me to stop resisting, but, you know, I'm not resisting. You know, I was trying get out of the choke hold.
...
And once the cuffs was placed on me that's when I heard him say lift him up—after Geiger did what he did, told them to lift me up, take me to medical to decontaminate. So I assumed he had to play a role in that.... But I'm not positively sure.
(Id. at 478-79).
Plaintiff's failure-to-intervene claims against Corporal Lopez and Sergeant Latona are analyzed under the same standard as his claims against Captain Kennedy and Major Horan. That is, "failing to intervene is a Fourteenth Amendment violation where the officer acted with ‘deliberate indifference to a substantial risk of serious harm to an inmate.’ " Rosen v. City of N.Y. , 667 F. Supp. 2d 355, 359-60 (S.D.N.Y. 2019) (quoting Farmer , 511 U.S. at 828, 114 S.Ct. 1970 ). "Allowing an attack on an inmate to proceed without intervening is a constitutional violation in certain circumstances," and "[a]n officer displays deliberate indifference when he has adequate time to assess a serious threat against an inmate and a fair opportunity to protect the inmate without risk to himself, yet fails to intervene." Id. (alteration in original) (internal quotations and citations omitted).
Here, the only evidence that Plaintiff offers regarding Corporal Lopez's and Sergeant Latona's alleged failure to intervene is his testimony that he believed they were present during the May 19, 2015 incident because he heard their voices. Plaintiff testified that he did not know when they arrived at the scene, for how long they remained there or, more importantly, whether they had the opportunity to assess the level of the threat and their ability to intervene. No reasonable jury could conclude that Corporal Lopez and Sergeant Latona failed to intervene based simply on their presence at the scene. See Simms v. Durant , No. 3:20cv1719(KAD), 2021 WL 293567, at *4 (D. Conn. Jan. 27, 2021) (dismissing claim for failure to intervene, where the plaintiff alleged only that the officer was in the room at the time, but included no allegations that he had "the opportunity to assess and respond to the imminent threat or prevent or stop the assault"); Conroy v. Caron , 275 F. Supp. 3d 328, 354 (D. Conn. 2017) ("An officer's mere presence at the scene is not enough to establish liability for a failure to intervene."). Accordingly, the Court grants summary judgment in favor of Corporal Lopez and Sergeant Latona, and Plaintiff's claims against them are dismissed.
Like Captain Kennedy and Major Horan, Sergeant Latona and Corporal Lopez filed interrogatory responses, but their responses fail to comply with Rule 33. (See Dkt. 75; Dkt. 78). Nonetheless, the Court notes that Sergeant Latona's interrogatory responses state that the May 19, 2015 incident was over by the time he arrived on scene, and Plaintiff was handcuffed and laying on his side. (See Dkt. 75 at 5). Corporal Lopez's interrogatory responses state that he responded to the scene when he was contacted via the radio, and observed Plaintiff resisting deputies Petralis and Geiger. (Dkt. 78 at 5).
--------
IV. Plaintiff's First Amendment Retaliation Claims
In his amended complaint, Plaintiff asserts a First Amendment retaliation claim against all Defendants, based on the alleged excessive use of force against him by deputies Geiger and Petralis following the grievance he filed against deputy Geiger. (See Dkt. 61-1 at 8-9, 20). While Plaintiff has made some allegations that, if properly supported, could support a retaliation claim against deputies Geiger and Petralis, Plaintiff has not offered any evidence that Captain Kennedy, Major Horan, Corporal Lopez, or Sergeant Latona retaliated against him for filing grievances. For example, Plaintiff has not offered any evidence that they were aware of Plaintiff's grievances, or that they conspired with deputies Geiger and Petralis to assault Plaintiff in retaliation for filing grievances. Similarly, for the reasons articulated above, Plaintiff has not established any conduct by these defendants that amounted to their personal involvement in the deprivation of Plaintiff's constitutional rights. Accordingly, to the extent Plaintiff asserts First Amendment claims against Captain Kennedy, Major Horan, Corporal Lopez, or Sergeant Latona, any such claims are dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted, and Plaintiff's claims against defendants Kennedy, Horan, Lopez, and Latona are dismissed.
SO ORDERED.