Opinion
9:21-CV-0814 (GTS/ML)
02-06-2024
CARLOS GARCIA, Plaintiff, v. ANDERSON, Correction Officer, Auburn Correctional Facility; CARSON, Correction Officer, Auburn Correctional Facility; JOHN DOE #2; Correction Officer, Auburn Correctional Facility; and FREDERICK, Correction Officer, Auburn Correctional Facility, Defendants.
CARLOS GARCIA, Pro Se Plaintiff, Upstate Correctional Facility. CAPEZZA HILL, LLP, Counsel for Defendants Anderson, Carson, and Frederick. THOMAS CAPEZZA, ESQ., ABBY McCORMICK-FOLEY, ESQ.
APPEARANCES:
CARLOS GARCIA, Pro Se Plaintiff, Upstate Correctional Facility.
CAPEZZA HILL, LLP, Counsel for Defendants Anderson, Carson, and Frederick.
OF COUNSEL:
THOMAS CAPEZZA, ESQ., ABBY McCORMICK-FOLEY, ESQ.
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, United States Magistrate Judge.
Currently before the Court, in this civil rights action filed by Carlos Garcia (“Plaintiff”) against defendants Anderson, Carson, John Doe #2, and Frederick (collectively “Defendants”) who are-or were at the relevant time-Correction Officers at Auburn Correctional Facility, is a motion for summary judgment pursuant to Fed.R.Civ.P. 56 filed by Defendants Anderson, Carson, and Frederick. (Dkt. No. 87.) For the reasons set forth below, I recommend that the motion for summary judgment filed by Defendants Anderson, Carson, and Frederick be granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
At this procedural posture, Plaintiff asserts the following three claims: (1) one claim of excessive force against Defendants Anderson, Carson, and Frederick in violation of the Eighth Amendment and 42 U.S.C. § 1983; (2) one claim of failure to intervene against Defendants Anderson, Carson, and Frederick in violation of the Eighth Amendment and 42 U.S.C. § 1983; and (3) one claim of deliberate medical indifference against Defendant John Doe #2 in violation of the Eighth Amendment and 42 U.S.C. § 1983. (Dkt. Nos. 1, 10.)
Plaintiff filed his complaint on or about July 19, 2021. (Dkt. No. 1.) In the more than two years that have passed since then, Plaintiff has not identified Defendant John Doe #2 and has not served process upon him. This failure is not the result of lack of opportunity. The undersigned has extended the discovery deadline twice. (Dkt. Nos. 39, 72.) Plaintiff has had more than two years, far more than the typical 120-day period, to identify and serve Defendant John Doe #2, and the Court is under no obligation to extend the deadline indefinitely. See Petway v. City of New York, 02-CV-2715, 2005 WL 2137805, at *5 (E.D.N.Y. Sept. 2, 2005) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the pro se plaintiff failed to serve John Doe defendants within roughly three years of filing complaint); Thomas v. Keane, 99-CV-4302, 2001 WL 410095, at *1, *5 (S.D.N.Y. April 23, 2001) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the pro se plaintiff failed to serve John Doe defendants within roughly two years of filing complaint); Cammick v. City of New York, 96-CV- 4374, 1998 WL 796452, at *1 (S.D.N.Y. Nov. 17, 1998) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the plaintiff failed to serve John Doe defendants within two years and five months of filing complaint); Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing a claim under Fed.R.Civ.P. Rule 4(m) where the pro se plaintiff failed to serve John Doe defendants within a year of filing his complaint). The undersigned, therefore, recommends sua sponte dismissal without prejudice of the claims against Defendant John Doe #2 for lack of timely service.
B. Defendants Anderson, Carson, and Frederick's Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendants Anderson, Carson, and Frederick in their Statement of Material Facts and not denied by Plaintiff in a response. (Compare Dkt. No. 87, Attach. 6 [Defs. Anderson, Carson, and Frederick's Statement of Material Facts], with Dkt. No. 95 [Pl.'s Resp.].)
1. Plaintiff is an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”).
Although Defendants failed to include a citation to the record in support of this asserted fact (Dkt. No. 87, Attach. 6 at ¶ 1), Plaintiff admits the fact (Dkt. No. 95 at ¶ 1), and thus, it does not appear to be in dispute.
2. The incidents at issue in this case began on July 25, 2018, at approximately 10:15 p.m., on C Block at Auburn Correctional Facility (“Auburn”).
3. On July 25, 2018, Plaintiff was housed at Auburn on keeplock status in C Block, 12 company, the second floor of the gallery, cell 28. Keeplock is a disciplinary limitation on movement and privileges. Keeplocked individuals are largely confined to their cells, except for showers and daily recreation.
Defendants failed to include a citation to the record in support of the second and third sentences in this asserted fact. (See Dkt. No. 87, Attach. 6 at ¶ 3.) However, Plaintiff “agrees” with the fact as asserted and it does not appear to be in dispute. (Dkt. No. 95 at ¶ 3.)
4. Plaintiff testified during Defendant Carson's arbitration hearing that he was on keeplock status for being out of place when going to commissary.
5. On July 26, 2018, while Superintendent McCarthy and Deputy Superintendent for Security (“DSS”) Corey were making rounds, Plaintiff reported that on the previous night, he was sprayed with water from a fire extinguisher and that dry chemical from a fire extinguisher was discharged into the back of his cell.
6. DSS Corey observed white powder in the corner of Plaintiff's cell under the vent and in the vent. Photos were taken of the vent in the back of Plaintiff's cell and of the area outside the vent, inside the cell where Plaintiff's bed was normally positioned.
7. Superintendent McCarthy assigned the investigation to the Office of Special Investigations (“OSI”) investigator Gudyka on July 27, 2018.
8. On July 26, 2018, while inspecting the fire extinguishers in the normal course of his duties, Correction Officer Raymond discovered that the seals were missing on a water extinguisher and a dry chemical extinguisher in the housing block. He further noted that the gauges for each extinguisher were green, indicating that they were still full of water and dry chemical.
Plaintiff “questions the validity” of Correction Officer Raymond's testimony but fails to cite to any portion of the record to dispute the fact asserted. As a result, the undersigned deems this fact admitted. N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement of material facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”); Jamison v. Metz, 865 F.Supp.2d 204, 207 n.1 (N.D.N.Y. 2011) (Suddaby, J.) (“[W]herever [the Pro Se] Plaintiff has [willfully] failed to cite record evidence in support of his denials of properly supported facts . . . the Court has deemed such facts admitted to the extent that they are not clearly in dispute.”), rev'd in part on other grounds, 541 Fed.Appx. 15, 17-19 (2d Cir. 2013).
9. Based on his investigation, Investigator Gudyka concluded that the fire extinguishers had been used.
10. Plaintiff wrote two grievances dated July 25, 2018, titled “Denial of medical attention” and “Staff Misconduct.” DOCCS assigned these grievances the identifier AUB-746698-18. Plaintiff wrote that after an officer declined to pick up his legal mail, he began yelling for the area supervisor. Plaintiff alleged that three officers then came to his cell, and one of them carried a fire extinguisher. Plaintiff alleged that the officer who carried the fire extinguisher sprayed him, his cell, and his legal mail with water from the extinguisher. Plaintiff alleged that “they” then went to the catwalk at the back of his cell, turned off the power to his cell and sprayed an unidentified white substance through the vent. Plaintiff claimed to feel lightheaded and have trouble breathing. Plaintiff also alleged that he requested-of an officer on the next shift-medical attention but was told that the nurse would see him in the morning. Plaintiff alleged that he had “gathered a nice amount of this white substance that officers so contently sprayed into [his] cell, and [he is] forwarding it to the commissioner of DOCCS, Dept' [sic] of Health, the Office of O.S.I. and the Governor's Office.”
11. Plaintiff testified that once the power in his cell was cut, he was in “complete darkness.” Plaintiff testified that he heard a spraying sound near his air vent and when he went towards the vent his eyes, nose, and throat started burning so he threw water on to his face.
12. Plaintiff testified that after his cell was sprayed with water, he told other inmates who were located in close vicinity to his cell what happened. In addition, Plaintiff testified that he discussed the potential source of the spraying sound that he heard with other inmates.
13. Plaintiff wrote letters to the OSI and Superintendent McCarthy dated July 25, 2018. In his letter to Superintendent McCarthy, Plaintiff stated, “In the event that any attempt is made to move me out [of] the cell, to clean up the substance that is all in my cell. It would be fruitless for I have gathered enough to mail out of the facility, and sent them under other inmate's name . . .” Plaintiff's letter to OSI stated that if Plaintiff did not hear or receive a prompt response then “the substance collected will be sent to the following people under another name with a complaint attached by myself.” Plaintiff testified that he had no intention of mailing the powder. Plaintiff's letter to Superintendent McCarthy stated that Defendant Carson was the only involved officer he recognized. Plaintiff's letter to OSI did not identify any of the involved officers.
14. Plaintiff testified that he wrote the grievance and letters to OSI and Superintendent McCarthy with only the aid of a nightlight from a nearby cell.
15. Plaintiff knew Defendant Carson before July 25, 2018, because Defendant Carson worked with feed up porters to deliver him meals.
16. At his deposition in October 2022, Plaintiff denied knowing Defendant Anderson by name before the incident on July 25, 2018, and testified that he had not realized that Defendant Anderson had written him a misbehavior report. Plaintiff testified that some time after the incident on July 25, 2018, he reviewed the misbehavior report and identified Defendant Anderson's name.
17. Plaintiff first identified Defendant Frederick as the officer who sprayed him with water in a letter to Investigator Gudyka dated July 30, 2018, after other incarcerated individuals “took down his name down and sent it to [Plaintiff].”
18. Plaintiff testified that Defendant Frederick sprayed him and his legal mail with water. Plaintiff testified that his legal mail was soaked. In addition, Plaintiff testified that he changed his shirt and sopped up the water with a towel.
19. On July 27, 2018, Plaintiff gave a sworn statement to Investigator Gudyka in which, he stated that after he and his legal documents were sprayed with water, he attempted to shield his legal mail from additional water.
20. Plaintiff swore under penalty of perjury that “I cannot identify the officer that sprayed chemicals through my vent.” Moreover, Plaintiff testified at his deposition, “I can't see behind my cell, so whoever sprayed behind my cell, I can't say it was him, him, or him, I don't know, because I can't see behind my cell.”
Plaintiff “disagrees as to form” of this asserted fact and attempts to place the fact in context, which is improper. As a result, the undersigned deems this fact admitted. See Maioriello v. New York State Office for People With Developmental Disabilities, 272 F.Supp.3d 307, 311 (N.D.N.Y. 2017) (Suddaby, C.J.) (“[T]hroughout Plaintiff's Rule 7.1 Response, she ‘admits' many of the facts asserted by Defendants in their Rule 7.1 Statement but then includes additional facts and/or legal argument in those responses....Where this occurs, the Court will deem those facts admitted and disregard the additional factual assertions and/or argument that Plaintiff provides in her responses.”); Baity v. Kralik, 51 F.Supp.3d 414, 417 (S.D.N.Y. 2014) (holding that plaintiff's response to defendant's Rule 56.1 Statement failed to comply with the rule because “counsel neither admits nor denies a particular fact, but instead responds with equivocal statements such as: ‘Admit, but defendant omits the balance of plaintiff's testimony'”); Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1 Statement, in part, because plaintiff added “argumentative and often lengthy narrative in almost every case the object of which is to ‘spin' the impact of the admissions plaintiff has been compelled to make”).
21. Investigator Gudyka showed Plaintiff photographs of officers who had worked on C block on the night of July 25, 2018. Plaintiff was initially unable to identify anyone, but identified Defendant Carson after Investigator Gudyka told him to look at the photos again. Later, at a follow-up interview with Plaintiff, Investigator Gudyka showed Plaintiff a picture of Defendant Frederick, who Plaintiff identified as the one who sprayed water on him.
Plaintiff disagrees with this asserted fact by attempting to place it in context, which is improper. See, supra, note 5.
22. Plaintiff testified during his deposition that during that follow-up interview, Investigator Gudyka told Plaintiff that he had just been to Wyoming Correctional Facility and had spoken with an incarcerated individual there that corroborated Plaintiff's assertion that Defendant Frederick was the person who sprayed Plaintiff with water. Investigator Gudyka testified that he had not visited Wyoming Correctional Facility.
23. Plaintiff collected some of the white powder that was sprayed into his cell through the vent, in an envelope that he put in a plastic bag. He passed the container containing the white powder to another incarcerated individual the night of July 25, 2018, by handing it down the gallery, from cell to cell. Plaintiff gave the envelope to Investigator Gudyka on July 27, 2018.
24. Plaintiff testified that while collecting the powder, he wore a wet towel over his face and to protect him from suffering any ill effects from handling the substance. The record does not reflect that any other individuals suffered any ill effect from handling the envelope containing the substance.
25. Plaintiff testified at his deposition that he called out for medical attention after the dry chemical extinguisher was discharged but did not receive it. Plaintiff testified that he then caused a fire “to create a paper trail.”
26. Plaintiff testified that he wrapped a sheet around a broom, lit the sheet on fire, and set the burning sheet on his cell bars “so the smoke would make the bars black.” Plaintiff testified that when the smoke “filled out to the flats, they came running. They didn't have no fire extinguishers. Both of them were empty....so they came with a mop and bucket of water, and they threw it on the sheet. They picked it up with the broomstick, put it in a bucket, and they went home.”
27. Plaintiff swore under penalty of perjury in his supporting deposition that he set toilet paper on fire and did not mention a sheet.
28. During his deposition, Plaintiff stated that his supporting deposition did not mention that he set a sheet on fire because “I didn't look into the details at that stage right there. It was two days after the incident. I am not thinking of every little detail. I wasn't thinking lawsuit at the time.”
29. Plaintiff testified that he requested medical attention from an officer working the shift from July 25, 2018 at 11 p.m., to July 26, 2018 at 7 a.m., but did not tell the officer that he was suffering from the effects of the dry chemical extinguisher.
Although Plaintiff “disagrees” with the statement as asserted, he fails to cite to any portion of the record to support the dispute. In addition, a review of the record cited by Defendants Anderson, Carson, and Frederick supports the fact as asserted. As a result, the undersigned deems this fact admitted. See, supra, note 4.
30. In his testimony during Defendant Carson's arbitration hearing, Plaintiff testified that he did tell the officers working on the shift from July 25, 2018 at 11 p.m., to July 26, 2018 at 7 a.m., that his cell had been “sprayed” and he needed medical attention.
31. Plaintiff testified during Defendant Carson's arbitration hearing that he did not tell officers working on the shift from 7 a.m. to 3 p.m. on July 26, 2018, that he needed medical attention or that he had been sprayed because he slept from 7 a.m. until the Superintendent came to his cell in the afternoon around 2:00 p.m. During Plaintiff's deposition he denied sleeping from 7 a.m. until around 2:00 p.m. on July 26, 2018, and suggested that the transcript of his testimony in the arbitration hearing had been altered.
32. Plaintiff was medically examined on July 26, 2018. The inmate injury report stated, “no injuries noted. No redness to eyes, nose, or throat noted.” The ambulator health record from July 26, 2018, stated “no injuries noted no treatment required.”
33. In his sworn supporting deposition made on July 26, 2018, Plaintiff stated that he had “seen medical and appear to be alright (sic).”
34. Plaintiff saw medical again on August 7, 2018. The ambulatory health record progress note from Plaintiff's visit on August 7, 2018, states that Plaintiff's eyes were flushed for two minutes and he was given natural tears to take to his cell.
35. On October 13, 2022, Plaintiff was provided a copy of the transcript from his deposition and the supporting exhibits. Plaintiff did not make any corrections to the transcript.
Plaintiff “agrees” with the fact as asserted but then attempts to place it in context, which is improper. See, supra, note 5. As a result, the undersigned deems this fact admitted.
36. By letter dated February 16, 2023, which was received by Plaintiff on February 17, 2023, the arbitration testimony of Plaintiff, Defendant Carson, and Defendant Frederick, and Plaintiff's disciplinary records, were made available for Plaintiff to review. Plaintiff did not request to review any of those documents.
See, supra, notes 5, 8.
37. Defendants Anderson, Frederick, and Carson deny observing anyone spray Plaintiff with a fire extinguisher.
Plaintiff “emphatically disagrees” with the fact as asserted but failed to cite to any portion of the record to support the dispute. As a result, the undersigned deems this fact admitted. See, supra, note 7.
C. Parties' Briefing on Defendants Anderson, Carson, and Frederick's Motion for Summary Judgment
1. Defendants Anderson, Carson, and Frederick's Memorandum of Law
Generally, in support of their motion for summary judgment, Defendants Anderson, Carson, and Frederick assert the following two arguments: (1) the alleged discharge of water and dry chemical extinguishers were at most de minimis uses of force and thus cannot support an excessive force claim; and (2) in the alternative, Defendants Carson, Anderson, and Frederick are entitled to qualified immunity. (See generally Dkt. No. 87, Attach. 7.)
More specifically, with respect to their first argument, Defendants Anderson, Carson, and Frederick argue that even assuming that the entire contents of the water fire extinguisher were discharged, it was a relatively minor inconvenience to Plaintiff. (Dkt. No. 87, Attach. 7 at 8-12.) Moreover, Defendants Anderson, Carson, and Frederick assert that Plaintiff's allegation that the entire water fire extinguisher was discharged is rendered impossible by his testimony of minimal cleanup and Corrections Officer Raymond's testimony that although the seal on the fire extinguisher was missing, it was still full. (Id.) Defendants Anderson, Carson, and Frederick argue that the dry chemical extinguisher was not sprayed onto Plaintiff but onto the floor of his cell and thus, no force was used on him at all. (Id.) Further, Defendants Anderson, Carson, and Frederick argue that Plaintiff again exaggerates the volume of material discharged from the extinguisher and his assertion that the substance injured him does not raise a material issue of fact. (Id.)
With respect to their second argument, Defendants Anderson, Carson, and Frederick argue that even if the Court were to determine that Plaintiff's allegations rise to the level of an Eighth Amendment violation, Defendants are entitled to summary judgment because it has not been clearly established that a single spray of water or the discharge of a dry chemical fire extinguisher onto an incarcerated individual's floor violates the Eighth Amendment. (Dkt. No. 87, Attach. 7 at 12-14.)
2. Plaintiff's Opposition
Generally, in opposition to Defendants Anderson, Carson, and Frederick's motion, Plaintiff argues that the motion should be denied because he has not been afforded a full and fair opportunity to conduct discovery. (See generally Dkt. No. 95, Attach. 1.)
Plaintiff then filed an additional memorandum of law in response to the motion for summary judgment. (Dkt. No. 101.) Generally, in the supplemental memorandum of law, Plaintiff asserts the following two arguments: (1) Plaintiff concedes that the use of the water extinguisher was de minimis and thus, cannot support his excessive force claim, but disputes Defendants Anderson, Carson, and Frederick's contention that their use of the dry chemical extinguisher sprayed into his cell through the air vent was insufficiently serious to constitute excessive force; and (2) Defendants Anderson, Carson, and Frederick are not entitled to qualified immunity. (See generally Dkt. No. 101.)
More specifically, with respect to his first argument, Plaintiff argues that the dry chemical extinguisher is a known carcinogen. (Dkt. No. 101 at 18-20.) Plaintiff argues that he was left in a contaminated cell for thirteen days and this prolonged exposure to the substance caused his eyes to become infected. (Id.) Moreover, Plaintiff argues that the law does not require the use of physical force on a person's body to establish an excessive force claim. (Id.) Further, Plaintiff argues that Defendants Anderson, Carson, and Frederick's comparison of the present matter to a case in which the substance used by the defendants could be wiped off, is illogical and not persuasive because here, Plaintiff could not wipe the air. Plaintiff argues that the contaminated particles in the air were toxic and can lead to cancer from prolonged exposure. (Id.)
With respect to his second argument, Plaintiff argues that Defendant Anderson has an arrest and conviction for a crime similar to the present action that also involved discharging a fire extinguisher. (Dkt. No. 101 at 20-27.) Plaintiff argues that Defendant Anderson, therefore, should have been on notice that his actions were violative of the law. (Id.) Moreover, Plaintiff argues that Defendants Anderson, Carson, and Frederick's conduct was so far beyond the bounds of decency that the unlawfulness was readily apparent, notwithstanding the lack of caselaw. (Id.) Further, Plaintiff argues that the Second Circuit held in Edrei v. Maguire, that a police department's use of a long range acoustic device to disperse a crowd of non-violent and nonthreatening protesters was an unnecessary and unreasonable use of excessive force. (Dkt. No. 101 at 21-22 [citing Edrei v. Maguire, 892 F.3d 525, 532 (2d Cir. 2018)].) Finally, Plaintiff argues that the testimony of Defendants Carson and Frederick during their arbitration hearings that they were not present and did not witness any spraying of Plaintiff or his cell, is inconsistent with their current argument that their actions were, at most, de minimis. (Dkt. No. 101 at 20-27.)
3. Defendants Anderson, Carson, and Frederick's Reply
Generally, in further support of their motion for summary judgment, Defendants Anderson, Carson, and Frederick assert the following two arguments: (1) Plaintiff is not entitled to stay their motion for summary judgment and re-open discovery because he waived any objections to the discovery order and his affidavit fails to explain how further discovery would likely lead to evidence that would raise a triable question of fact; and (2) Plaintiff fails to raise a triable question of fact in opposition to their prima facie showing of entitlement to summary judgment in their moving papers. (See generally Dkt. No. 102.)
More specifically, Defendants Anderson, Carson, and Frederick argue that Plaintiff is not entitled to re-open discovery because (a) Plaintiff failed to timely object to the undersigned's discovery order of November 15, 2022, (b) Plaintiff failed to diligently pursue any discovery he believes he is owed, (c) Plaintiff was permitted to review the arbitration transcripts-which are part of the OSI investigative file he reviewed for seven hours-appended to Defendants' motion, and (d) Plaintiff fails to identify what he expects to uncover that would raise a triable question of fact. (Dkt. No 102 at 4-8.)
Further, Defendants Anderson, Carson, and Frederick argue that Plaintiff fails to raise a triable question of fact in opposition to their motion for summary judgment because the force allegedly used was de minimis. (Dkt. No. 102 at 8-13.) Defendants Anderson, Carson, and Frederick argue that the alleged use of the dry chemical extinguisher was not force at all because it was sprayed through a vent onto the floor of Plaintiff's cell and not onto him. (Id.) Defendants Anderson, Carson, and Frederick argue that the only evidence of the alleged pervasive fumes from the dry chemical powder is Plaintiff's own testimony, which is too contradictory and implausible to raise a triable question of fact for trial. (Id.) Further Defendants Anderson, Carson, and Frederick argue that Plaintiff's alleged irritation that he experienced when cleaning up the dry chemical-which he was able to overcome by placing cloth over his face-is insufficient to raise a triable question of fact whether the use of force was de minimis. (Id.) Finally, Defendants Anderson, Carson, and Frederick argue that, in any event, they are entitled to qualified immunity because a reasonable person in their position could not have known that the acts alleged would violate Plaintiff's constitutional rights. (Id.)
II. RELEVANT LEGAL STANDARDS GOVERNING A MOTION FOR SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory 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) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding Pro Se .
Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
III. ANALYSIS
A. Whether Plaintiff Should Be Permitted to Re-Open Discovery
To the extent that Plaintiff's opposition is construed liberally as a request pursuant to Fed.R.Civ.P. 56(d), after carefully considering the matter, I answer this question in the negative for the reasons set forth in Defendants Anderson, Carson, and Frederick's reply memorandum of law. (Dkt. No. 102 at 4-8.) The following is intended to supplement, not supplant, those reasons.
Fed. R. Civ. P. 56(d), states that, “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may . . . (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). A party resisting summary judgment on the basis that it needs discovery must submit an affidavit showing the following: “(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir. 2003) (internal quotations and citation omitted). Relatedly, a discovery schedule set by the court can only be modified for good cause, which “depends on the diligence of the moving party.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).
Here, the Court ordered that discovery be completed by September 19, 2022, and that deadline was extended twice-the first time it was extended until November 18, 2022, and the second time it was extended until February 21, 2023. (Dkt. Nos. 23, 39, 86.) Plaintiff did not seek an additional extension of discovery. (See generally Docket Sheet.) Further, Plaintiff has not provided any plausible reason to believe that re-opening discovery would allow him to access to evidence reasonably expected to create a genuine issue of material fact. Under these circumstances, Plaintiff has not shown good cause for reopening discovery at this late stage.
Although, the undersigned recognizes that Plaintiff is appearing Pro Se, that does not excuse his failure to obtain discovery during the appropriate period. Moreover, as Defendants Anderson, Carson, and Frederick identify, the testimony from the arbitration hearings was attached to their motion for summary judgment. (Dkt. No. 87.)
Accordingly, Plaintiff's request must be denied. See Lundstedt v. JP Morgan Chase Bank, N.A., 853 Fed.Appx. 704, 708 (2d Cir. 2021) (upholding the district court's decision to not reopen discovery where the Pro Se plaintiff had “ample time to identify and disclose an expert witness during the discovery period”).
B. Whether the Alleged Discharge of a Dry Chemical Extinguisher Was, At Most, a De Minimis Use of Force
The parties agree that the discharge of a water extinguisher was, at most, a de minimis use of force and thus cannot form the basis of an excessive force claim. (Dkt. No. 87, Attach. 7 at 810; Dkt. No. 101 at 4-5.) As a result, to the extent that Plaintiff asserted claims of excessive force and failure to intervene based on Defendants Anderson, Carson, and Frederick's alleged use of the water fire extinguisher, I recommend that those claims be dismissed.
The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). This includes punishments that “involve the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth Amendment's prohibition against cruel and unusual punishment encompasses the use of excessive force against an inmate, who must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's actions violated “contemporary standards of decency.” Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotations omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)).
Although “a de minimis use of force will rarely suffice to state a constitutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the malicious use of force to cause harm constitutes an Eighth Amendment violation per se because in such an instance “contemporary standards of decency are always violated.” Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). 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, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
“To determine whether a defendant acted maliciously, several factors should be examined including, ‘the extent of the injury and the mental state of the defendant, as well as the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response.'” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (quoting Romano, 998 F.2d at 105).
I find that material issues of fact exist with respect to Plaintiff's excessive force claim related to the use of the dry chemical fire extinguisher pursuant to the Eighth Amendment. For example, Defendants Anderson, Carson, and Frederick's alleged decisions to discharge the dry chemical fire extinguisher in Plaintiff's cell as punishment for his demand that his legal mail be picked up, if proven, rises to the level of wantonness necessary to impose liability on them for their actions since discharge of the dry chemical fire extinguisher was not done as part of a goodfaith effort to restore discipline. Rather, Defendants Anderson, Carson, and Frederick allegedly sprayed Plaintiff's cell with a fire extinguisher in a malicious and sadistic manner because of their anger with him. See Beckford v. Portuondo, 151 F.Supp.2d 204, 216 (N.D.N.Y. 2001) (Kahn, J.) (denying the defendants' motion for summary judgment on the plaintiff's excessive force claim where the plaintiff asserted that he was sprayed with a fire extinguisher as punishment for his misbehavior and previous altercations with the defendants notwithstanding that the plaintiff did not suffer more than minor injury).
“As this Court has held, when a prison guard applies force against a prisoner that poses no reasonable threat simply because the guard loses his or her temper and wishes to wantonly inflict pain on the prisoner, a per se violation of the Eighth Amendment occurs.” Beckford, 151 F.Supp.2d at 216 (citing Romaine v. Rawson, 140 F.Supp.2d 204, 212-13 (N.D.N.Y. 2001) (Kahn, J.)). Further, to the extent that Defendants Anderson, Carson, and Frederick assert that summary judgment should be granted because Plaintiff did not suffer substantial injury, I reject that argument because the absence of a serious injury although relevant to the Eighth Amendment inquiry “does not end it.” Hudson v. McMillian, 503 U.S. 1, 8 (1992). There is sufficient evidence in the record to support Plaintiff's assertion that Defendants Anderson, Carson, and Frederick's use of the dry fire extinguisher in his cell was wanton and resulted in minor injury to him. (Dkt. No. 87, Attach. 1 at 45 [Plaintiff's testimony that after hearing “a poofing sound,” his eyes, nose, and throat started burning]; Dkt. No. 87, Attach. 1 at 47 [same]; Dkt. No. 87, Attach. 1 at 48 [Plaintiff's testimony that he felt lightheaded, was dizzy, and his chest felt “compressed”]; Dkt. No. 87, Attach. 1 at 49 [Plaintiff's testimony that upon smelling the substance his nose “started burning for real”]; Dkt. No. 87, Attach. 1 at 299 [Plaintiff's testimony that he could not breathe, felt lightheaded, and his eyes, nose, and throat burned]; Dkt. No. 87, Attach. 1 at 266 [Plaintiff's medical records indicating his eyes were red and irritated on August 7, 2018]); see also Santos v. N.Y.C. Dep't of Corr., 08-CV-8790, 2010 WL 1142066, at *10-11 (S.D.N.Y. Feb. 25, 2010) (finding that a prisoner established the existence of a serious medical need where he was sprayed with a fire extinguisher, which caused pain in his face and left eye).
Moreover, I reject Defendants Anderson, Carson, and Frederick's argument that they did not use any force at all because the fire extinguisher was allegedly sprayed through the vent in Plaintiff's cell as opposed to directly on Plaintiff. Courts have held that an excessive force claim may lie where the plaintiff was not the force's intended object. See c.f., Rodriguez v. City of New York, 14-CV-8647, 2016 WL 11483837, at *4-5 (S.D.N.Y. Aug. 2, 2016) (citing Santos v. N.Y.C. Dep't of Corr., 08-CV-8790, 2010 WL 1142066, at *5 (S.D.N.Y. Feb. 25, 2010) (denying the defendants' motion to dismiss where the correctional officer was alleged to have intentionally sprayed a fire extinguisher at one inmate, missing him but inadvertently injuring the plaintiff)) (sustaining the plaintiff's excessive force claim based on allegations that he suffered (1) emotional and mental distress after viewing an assault on another inmate, and (2) an asthmatic episode that caused him to choke after a chemical agent was used on another inmate).
As a result, I recommend that Defendants Anderson, Carson, and Frederick's motion for summary judgment arguing that use of the dry chemical extinguisher was de minimis, be denied.
C. Whether Defendants Anderson, Carson, and Frederick Are Entitled to Qualified Immunity
After carefully considering the matter, the undersigned answers this question in the negative.
Qualified immunity shields government employees from liability under Section 1983 in two circumstances: “(1) their conduct did not violate clearly established rights of which a reasonable person would have known, or (2) it was objectively reasonable to believe that their acts did not violate these clearly established rights.” Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir. 2010) (internal quotation marks, alteration, and citations omitted). “A right is clearly established when the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011) (internal quotation marks, alterations, and citation omitted).
Qualified immunity attaches if “officers of reasonable competence could disagree on the legality of the action at issue in its particular factual context.” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (internal quotation marks and citation omitted). In essence, the doctrine of qualified immunity provides protection to “all but the plainly incompetent or those who knowingly violate the law.” Dancy, 843 F.3d at 106 (citation omitted).
“It is indisputable that freedom from the use of excessive force is a clearly established constitutional right.” Atkins v. Cnty. of Orange, 372 F.Supp.2d 377, 401 (S.D.N.Y. 2005). “It is equally clear that a reasonable officer would have known that the malicious use of force for no penological purpose is unlawful.” Rodriguez, 2016 WL 11483837, at *10.
I find that at this juncture, the doctrine of qualified immunity does not bar Plaintiff's Eighth Amendment claim because, as explained above, there are unaddressed issues of fact with respect to events that took place on July 25, 2018. For example, it is unclear whether Defendants Anderson, Carson, and Frederick were involved in the spraying of a dry chemical fire extinguisher in the vent of Plaintiff's cell. (Compare Dkt. No. 87, Attach. 3 at ¶¶ 4-5 [Defendant Anderson's affidavit swearing that he did not enter the catwalk behind Plaintiff's cell on July 25, 2018, did not discharge dry chemical from a fire extinguisher into Plaintiff's cell or witness anyone else do so], Dkt. No. 87, Attach. 4 at ¶¶ 4-5 [same with respect to Defendant Carson], and Dkt. No. 87, Attach. 5 at ¶¶ 4-5 [same with respect to Defendant Frederick], with Dkt. No. 87, Attach. 1 at 45- [Plaintiff's deposition testimony describing events that occurred on July 25, 2018, including that Defendants Anderson, Carson, and Frederick walked behind his cell in the catwalk, he heard “something like a poofing sound” through his air vent, felt burning to his eyes, nose, and throat, then observed Defendants Anderson, Carson, and Frederick walking off the catwalk and head downstairs].) Moreover, to the extent that Defendants Anderson, Carson, and Frederick argue that, assuming Plaintiff's version of events as true, they are still entitled to qualified immunity because their unconstitutional use of force (spraying of the dry chemical fire extinguisher into the vent of Plaintiff's cell) had an unforeseen consequence (injury to Plaintiff), I reject that argument. Rodriguez, 2016 WL 11483837, at *10 (citing Robins v. Meacham, 60 F.3d 1436, 1442 (9th Cir. 1995) (“This situation presents no new principles of which the officers could not have reasonably been aware regarding the constraints which the Eighth Amendment places on the actions of prison officials.”)).
As a result, I recommend that Defendants Anderson, Carson, and Frederick's motion for summary judgment based on the doctrine of qualified immunity be denied.
ACCORDINGLY, it is respectfully
RECOMMENDED that to the extent Plaintiff's response (Dkt. No. 95) is construed as a request pursuant to Fed.R.Civ.P. 56(d), it be DENIED ; and it is further respectfully
RECOMMENDED that Defendants Anderson, Carson, and Frederick's motion for summary judgment (Dkt. No. 87) be GRANTED to the extent that it sought dismissal of Plaintiff's excessive force and failure to intervene claims against Defendants Anderson, Carson, and Frederick related to their alleged use of the water fire extinguisher, and DENIED to the extent that it sought dismissal of Plaintiff's excessive force and failure to intervene claims against Defendants Anderson, Carson, and Frederick related to their alleged use of the dry chemical fire extinguisher; and it is further respectfully
RECOMMENDED that Defendant John Doe #2 be sua sponte DISMISSED from this action without prejudice, due to Plaintiff's failure to identify and serve that defendant; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order 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).