Opinion
09 Civ. 1916 (PAC) (THK).
July 15, 2010
Willie Butler, Rikers Island Correctional Facility, East Elmhurst, NY.
Assistant Attorney General, Donald Nowve, Esq., Office of New York State Attorney General, New York, NY.
MEMORANDUM OPINION AND ORDER Pro Se
In this prisoner's civil rights action, Plaintiff Willie Butler ("Plaintiff") claims that Defendants Correction Officers Julio Gonzalez ("Gonzalez") and Jean Richard ("Richard") (collectively, "Defendants") violated his constitutional rights under the Eighth Amendment. Defendants previously moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In a Report and Recommendation, dated May 18, 2010, this Court recommended that Defendants' motion be denied. (See Report and Recommendation, dated May 18, 2010 ("Report").)
Defendants have yet to file any objections to the Report, but instead, move this Court for reconsideration, or alternatively, request amendment of the Report. Defendants contend that certain information — that they did not previously provide to the Court — undermines the value of a medical record on which the Court relied in the Report. For the reasons that follow, the motion for reconsideration and the request to amend the Report are denied.
BACKGROUND
The facts underlying this action are more fully discussed in the Report. In this Opinion and Order, only those facts necessary to the disposition of the instant motion are set forth.Plaintiff is a prisoner incarcerated at the Sing Sing Correctional Facility ("Sing Sing"). Defendants are correction officers who worked at Sing Sing during the relevant period. Plaintiff contends that, on January 2, 2009, Officer Gonzalez beat him up, while Officer Richard failed to intervene. As a result, Plaintiff alleges that he sustained injuries to his right eye, back, and head. Plaintiff further contends that Defendants denied him medical care following the beating. (See Amended Complaint, dated June 29, 2009 ("Am. Compl."), at 3.)
Since the initial filing of a grievance on the date of the incident, Plaintiff has consistently told the same story: After Defendant Richard witnessed a conversation between Plaintiff and another correction officer, which Richard perceived as Plaintiff's "disrespecting" the officer, he took Plaintiff to a secluded stairwell at Sing Sing, where Defendant Gonzalez proceeded to beat Plaintiff with his fists, while Richard watched, taunted Plaintiff, and failed to intervene. After the beating was cut short by an unrelated Sing Sing alarm, Gonzalez left the area, and Richard returned Plaintiff to his cell, where he remained imprisoned for four days without medical attention. Plaintiff further claims that he received sutures for his injured eye at Westchester Medical Center ("WMC") on January 6, 2009, and returned to WMC on January 11 for a follow-up appointment.
Defendants, on the other hand, have never really articulated an alternative version of events. Rather, based on Plaintiff's medical file, Defendants simply argue that Plaintiff's story cannot be true, because there are no medical records of any sutures to Plaintiff's eye, or any visit to WMC on January 6. And, according to Defendants, Plaintiff's subsequent visit to WMC on January 11 was unrelated to any eye injury.
At the conclusion of discovery, which consisted primarily of Plaintiff's deposition testimony and the disclosure of his medical records, Defendants moved for summary judgment. Defendants argued that Plaintiff's claims were supported only by his deposition testimony, which they contended was "inconsistent," and unsupported by any objective medical evidence. Defendants also argued that Plaintiff's purported injuries were, at best, de minimis, and insufficient to support a claim for excessive force. Defendants made no arguments with respect to Plaintiff's claim for denial of medical care. Defendants, however, overlooked one particular medical record — aftercare instructions from Plaintiff's January 11 visit to WMC — that clearly supported Plaintiff's case. In that document, which Defendants themselves submitted to the Court, it was noted that "[t]he exam today shows a contusion (deep bruise) around the face or scalp." (See Declaration of Nurse Maria Jones, R.N., dated Jan. 19, 2010 ("Jones Decl."), Ex. A.) The document continued with instructions for how Plaintiff should treat his head injury.
Defendants have never been deposed in this action, likely due to Plaintiff's pro se status, nor have the officers ever submitted any affidavits to the Court setting forth their version of events.
In their motion, Defendants relied primarily on a line of cases which held that, although a court cannot ordinarily assess a plaintiff's credibility on a motion for summary judgment, there are "rare circumstance[s] where there is nothing in the record to support plaintiff's allegations, other than his own contradictory and incomplete testimony." Slacks v. Gray, No. 07 Civ. 510 (NAM) (GJD), 2009 WL 3164782, at *13 (N.D.N.Y. Sept. 29, 2009); see also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005); Shabazz v. Pico, 994 F. Supp. 460, 469-70 (S.D.N.Y. 1998).
In the Report, this Court recommended that Defendants' motion be denied. In doing so, the Court first distinguished the cases relied upon by Defendants:
Significantly, each of these cases contains three material distinctions from Plaintiff's case: (1) a plaintiff whose own story was internally inconsistent and changed throughout the proceedings; (2) substantial evidence undermining or directly refuting the plaintiff's version of events; and (3) defendants who submitted affidavits or declarations categorically denying the plaintiff's version of events.
(Report at 20-21 (internal citations omitted).) While recognizing that "Plaintiff's evidence is minimal," the Court went on to conclude that "Plaintiff's uncontroverted and sworn deposition testimony that Defendant Gonzalez physically assaulted him while Defendant Richard stood by idly — together with the January 11 aftercare instructions indicating a `deep bruise' on Plaintiff's face — is sufficient to establish an issue of material fact and defeat summary judgment." (Id. at 21.) In addition to Plaintiff's sworn testimony and the aftercare instructions, the Court also relied on the following: (1) Defendants' failure to submit their own affidavits to rebut Plaintiff's version of events; (2) the consistency of Plaintiff's story from the date of the incident to the present; and (3) Defendants' failure to put forth any evidence from either the specific doctor Plaintiff claims treated him on January 6 and 11, or any medical personnel who examined Plaintiff for any reason in January and could testify as to his physical condition. (See id. at 28.) The Court also noted that Defendants did not move for summary judgment on Plaintiff's deprivation of medical care claim. Thus, the Court declined to dismiss it. (See id. at 27.)
The Court also found that Plaintiff presented circumstantial evidence in support of his claim against Defendant Gonzalez — none of which was rebutted by Defendants. (See id. at 24 n. 12.)
In the instant motion, Defendants move for reconsideration of the Report, on the basis of certain information set forth in a declaration by Gigi Madore, M.D., an emergency room physician from WMC, who was the attending physician in the WMC emergency room on January 11. (See Declaration of Gigi Madore, M.D., dated May 26, 2010 ("Madore Decl.") ¶¶ 1-4.) Defendants submit no new evidence, per se, but rather, a newly-minted explanation of the January 11 aftercare instructions.
According to Dr. Madore, any aftercare instructions given to discharged patients at WMC are form documents, and selected from a computerized list that is generated alphabetically. (See id. ¶ 5.) She further contends — as Defendants previously argued — that Plaintiff was treated only for a finger injury on January 11, resulting from weight lifting, and not for any head injury or "facial and scalp contusions." (See id. ¶¶ 6, 8.) Thus, she opines that unidentified "medical personnel" erroneously printed out the aftercare instructions for "head" injuries actually given to Plaintiff, due to their alphabetical proximity to the instructions for "hand" injuries. (See id. ¶ 7.) Dr. Madore does not purport to be the person who actually printed the instructions, nor does she claim to have confirmed her theory with the person responsible for printing the instructions.
Dr. Madore does not proffer this statement based on her recollection of treating Plaintiff, but instead, "based on [her] review of the WMC Emergency Room records." (Madore Decl. ¶ 8; see also id. ¶ 4.)
In any event, because the Court relied on the aftercare instructions, at least in part, in recommending the denial of Defendants' motion, Defendants seek reconsideration of the Report. In the alternative, Defendants request that the Court amend the Report to reflect Defendants' contention that the medical record is not reflective of the treatment Plaintiff actually received on January 11 and was issued in error. Defendants also move for reconsideration of this Court's recommendation regarding Plaintiff's claim for deprivation of medical care, arguing that they intended to move for summary judgment on this claim when they referenced the Eighth Amendment in their original motion.
DISCUSSION
Motions for reconsideration are governed by Local Civil Rule 6.3 of the Southern District of New York ("Local Rule 6.3"). Local Rule 6.3 provides that a motion for reconsideration of a court order must be served with "a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Local Rule 6.3. "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); accord Cohen v. Federal Express Corp., No. 07 Civ. 01288 (RJH) (THK), 2007 WL 1573918, at *4 (S.D.N.Y. May 24, 2007) ("The law in this Circuit is clear: a party is not permitted to put forth new facts, issues or arguments that were not presented to the court on the original motion.") (internal quotation marks omitted); Levin v. Gallery 63 Antiques Corp., No. 04 Civ. 1504 (KMK), 2007 WL 1288641, at *2 (S.D.N.Y. Apr. 30, 2007) ("It is clear that the sole function of a proper motion for reconsideration is to call to the Court's attention dispositive facts or controlling authority that were plainly presented in the prior proceedings but were somehow overlooked in the Court's decision; in other words, an obvious and glaring mistake. Motions for reconsideration allow the district court to correct its own mistakes, not those of the Parties.") (internal quotation marks and citations omitted); Koehler v. The Bank of Bermuda Ltd., No. M18-302 (CSH), 2005 WL 1119371, at *1 (S.D.N.Y. May 10, 2005) ("It is implicit in [the] language [of Rule 6.3] that a motion for reconsideration cannot assert new arguments or claims which were not before the court on the original motion and consequently cannot be said to have been considered.") (emphasis in original).
Nowhere in Defendants' motion do they argue why the information they have belatedly provided meets the standard for granting a motion for reconsideration. Indeed, "a party is not permitted to put forth new facts, issues or arguments that were not presented to the court on the original motion." Cohen, 2007 WL 1573918, at *4. Defendants have not set forth any "matters or controlling decisions" that the Court has "overlooked." See Local Rule 6.3. In fact, it appears that it is Defendants who overlooked important evidence, and the Court therefore will not consider Dr. Madore's declaration. See Levin, 2007 WL 1288641, at *2 ("Motions for reconsideration allow the district court to correct its own mistakes, not those of the Parties.").
In any event, even if the Court were to consider Dr. Madore's declaration, the Court would still recommend denying Defendants' motion for summary judgment on Plaintiff's excessive force claim. Dr. Madore's declaration simply offers an explanation for a medical record that is contrary to the face of the document. At best, it creates an additional issue of fact. And, coincidentally, the purportedly erroneous medical record comports precisely with Plaintiff's version of events. Clearly, there is a genuine issue of material fact as to whether, as Plaintiff testified at his deposition and the aftercare instructions support, Defendants beat him up and injured his eye; or whether, as Defendants contend, the issuance of the aftercare instructions was in error. This is hardly a dispute that can be resolved on a motion for summary judgment as it goes directly to the credibility of the parties and the witnesses.
Indeed, Dr. Madore's explanation of the document leaves several unanswered questions. For example, her explanation that the computerized instructions for head injuries are adjacent to hand injuries fails to address: (1) why the category of care for head injuries describes the particular head injury Plaintiff claims he sustained, as opposed to the many other head injuries a patient could sustain; and (2) why instructions for care contained on a computerized form also contain a description of the head injury Plaintiff claims he sustained.
Defendants submit no affirmative evidence that they did not, in fact, have a physical altercation with Plaintiff.
Furthermore, even assuming arguendo that Dr. Madore's declaration conclusively established that Plaintiff was not treated for an eye injury on January 11, Defendants still may not prevail on summary judgment. As stated in the Report,
[A]ny inquiry into Plaintiff's credibility as to the extent of his injuries is inappropriate at this stage. . . . Ultimately, a jury may reject Plaintiff's contention that he received sutures to his right eye on January 6. But, such a determination does not necessarily require a conclusion that Defendants did not unjustifiably assault Plaintiff on January 2, or that he was not injured at all.
(Report at 23-24 (internal citation omitted).) Thus, even if Plaintiff did not have sutures to his eye, he could still prevail on his Eighth Amendment excessive force claim. As discussed in the Report, the absence of a serious injury does not preclude a finding that force was used maliciously and sadistically to cause harm. (See id. at 17-19.) As Defendants themselves have submitted no affidavits, they have failed to rebut Plaintiff's version of events. Unlike the plaintiffs' contradictory and incredible allegations in Jeffreys, 426 F.3d at 554, Slacks, 2009 WL 3164782, at *13, and Shabazz, 994 F. Supp. at 469-70, Plaintiff here has consistently told the same story from the date of the incident through the filing of this action. In addition, Plaintiff's sworn testimony at his deposition — which mirrored that of his grievance and the Amended Complaint — is sufficient to defeat summary judgment. See Rossi v. Stevens, No. 04 Civ. 01836 (KMK), 2008 WL 4452383, at *5 (S.D.N.Y. Sept. 30, 2008) ("Though Plaintiff's evidence is minimal — it consists primarily of his own testimony — it is nevertheless sufficient to indicate the existence of a disputed material fact as to whether the force allegedly applied to him was wanton and unnecessary."); see also Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) ("Although [plaintiff's] evidence may be thin, his own sworn statement is adequate to counter summary judgment in this case and must be weighed by a trier of fact."). Accordingly, Defendants' motion for reconsideration as to Plaintiff's excessive force claim is denied.
The Court further declines to amend the Report as the information provided to the Court was available to Defendants at the time of their original motion, and Defendants have given no explanation for its delayed submission. Indeed, Defendants themselves submitted the aftercare instructions in support of their original motion. It would appear that Defendants simply overlooked, or worse, tactically ignored, this medical record that undermined their case. Rather than submit affidavits from the officers themselves, attesting to the alleged non-occurrence of the incident Plaintiff describes in the Amended Complaint, Defendants relied entirely on the medical record. But, it did not fully support their case, and they now seek to explain away unhelpful evidence in the record. The Court will not amend the Report to correct Defendants' earlier missteps.
Finally, Defendants' contention that the Court should reconsider its recommendation as to Plaintiff's medical care claim is meritless. In the Report, the Court noted that "Defendants . . . have not moved for summary judgment on this claim. . . . In any event, Defendants do not contend that they offered Plaintiff any medical assistance." (Report at 27.) Defendants now contend that their motion for summary judgment was meant to encompass all of Plaintiff's claims brought under the Eighth Amendment. This argument is disingenuous.
In their original Memorandum of Law, Defendants made the following argument with respect to Plaintiff's Eighth Amendment claim: "Even if the Court determines that plaintiff's version of the incident presents triable issues of material fact, summary judgment should be granted in defendants' favor because plaintiff fails to allege facts sufficient to sustain an excessive use of force claim." (Defendants' Memorandum of Law in Support of Motion for Summary Judgment, dated Jan. 26, 2009, at 10 (emphasis added).) After enunciating the standard for an excessive force claim, Defendants concluded: "[P]laintiff fails to establish the objective prong necessary to sustain an Eighth Amdendment claim against Officers Richard and Gonzalez for excessive use of force at Sing Sing on January 2, 2009." (Id. at 11 (emphasis added).) Nowhere in any of their previous submissions did Defendants address Plaintiff's claim for deprivation of medical care. That Defendants mentioned the Eighth Amendment when moving for summary judgment with respect to Plaintiff's excessive force claim is insufficient. Accordingly, Defendants' motion for reconsideration as to Plaintiff's deprivation of medical care claim is also denied.
CONCLUSION
For the foregoing reasons, the Court denies Defendants' motion for reconsideration and declines to amend the Report. The parties are to file any objections to the original Report within fourteen (14) days of the date of this Opinion and Order, as directed by Judge Crotty. (See Docket Entry No. 37.) Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Paul A. Crotty, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Crotty. Failure to file objections will result in a waiver of those objections for purposes of appeal.See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
This Opinion and Order resolves Docket Entry No. 38.
SO ORDERED.