The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Jermaine Lewis ("plaintiff" or "Lewis") brought suit against Eddie Mollette ("Mollette"), Michael Gavin ("Gavin"), John Bahret ("Bahret"), and Nate Lassic ("Lassic") (collectively "defendants") alleging a deprivation of his First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights; excessive force; failure to intervene; and supervisory liability all pursuant to 42 U.S.C. § 1983. The complaint also alleged claims against Felicia Keller ("Keller") however she has not been served and thus has not appeared in this action.*fn1
Defendants*fn2 moved for summary judgment to dismiss the complaint pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiff opposed. Oral argument was heard in Utica, New York on November 22, 2010.
The following facts are undisputed unless otherwise noted. In 2005 Lewis, then 15 years old, was an inmate at the Highland ("Highland") Office of Child and Family Services ("OCFS"). Plaintiff was incarcerated at Highland in 2004 after an arrest for robbery. Prior to his incarceration at Highland, Lewis spent time at similar detention facilities on charges of robbery, assault, and violation of release terms. At the time of the incident, plaintiff resided in a Mental Health Unit at Highland where Mollette, Gavin, Keller, Bahret, and Lassic were employed.*fn3
On the morning of July 21, 2005, Lewis was in his room at Highland when his unit was called to line up before being transported to school. Residents were permitted to go to their lockers to get materials they needed for school. The residents then got into a line and Mollette locked the doors to the residents' rooms. After Lewis lined up and the doors were locked, he realized he had his grandmother's address on a small piece of paper in his pocket. He requested that Mollette unlock the door to his room so he could put the address inside before going to school. Mollette refused to unlock the door and told plaintiff to slide the piece of paper under his door. Lewis refused and expressed concern that the paper could get lost if someone went into his room and accidently stepped on it. Mollette then told plaintiff he could put the address in his locker. Lewis refused because he was afraid the address might get stolen since the lockers were not locked and not a safe place to store items. He also refused to keep the address in his pocket because residents were subject to random searches and he was afraid that if a search was conducted, he would be forced to throw the address out.*fn4
Lewis began to express dissatisfaction with his options. He alleges that Mollette said "fuck it" and gave him an ultimatum -- either put the address somewhere or Mollette would leave him at the unit and he would be considered "AWOL." See Roberts-Ryba Affirm., Ex. A, Dkt. No. 33-3, 41:3-7 ("Lewis Dep."). Lewis claims that he chose to put the address in his locker, commented "this is bullshit," and as he walked back from his locker he was tackled by Mollette. Id. at 43:2-3, 43:21 - 44:14, 46:25 - 47:24, 48:14 - 49:16. He testified that at this time the other residents were beginning to depart the unit. Id. at 43:4-12.
Defendants dispute this and claim that after Lewis was given the ultimatum, he went into a rage and began to yell and curse. Mollette Dec., Dkt. No. 35-1, ¶ 6. Mollette claims that plaintiff started to throw himself violently into the lockers and threatened to assault other residents when he got to school. Id. He alleges that he tried to calm Lewis but he was hysterical and refused to listen. Id.
It is undisputed that thereafter, Mollette approached Lewis and initiated a two man Physical Restraint Technique ("PRT") on him.*fn5 Mollette took the primary position and attempted to restrain Lewis' arms while pulling him down to the floor. Keller took the secondary position and attempted to restrain Lewis' legs but was unable to do so because he was kicking and resisting the restraint. Bahret arrived on the scene and replaced Keller in the secondary position. He attempted to restrain Lewis' legs but had difficulty as Lewis continued to resist the PRT. Plaintiff claims that Mollette and Bahret had him under control at this point.
When Mollette initiated the PRT the other residents were "standing next to the front door, the exit, where you leave out the unit." Lewis Dep. at 44:15-25. Lewis testified that Keller was standing next to the line of residents and was in direct view of himself and Mollette. Id. at 45:5-14. Plaintiff also indicated that two other residents, Gasper Bishop and "Gzim" or "Gisasky," witnessed the incident. Id. at 45:15-20, 46:3-8. It does not appear statements were ever taken from these residents.
At the time of the incident, Gavin was working in a nearby unit and heard a loud noise coming from the Mental Health Unit and ran toward the noise. Gavin alleges that when he arrived on the scene, he saw Mollette trying to secure the primary position but that he was having difficulty restraining Lewis because he continued to twist and turn in resistance to the PRT. Gavin alleges that he then assisted in the PRT by securing Lewis' left arm and handing it Mollette. He claims that he was involved in the PRT for less than 30 seconds. Gavin Dec., Dkt. No. 35-6, ¶ 5-8.
Plaintiff disputes this and alleges that by the time Gavin arrived, Mollette held both of his arms and was not having any problems restraining him. Lewis maintains that at this point he was laying on the floor, crying, with his arms and legs restrained. Lewis Dep. at 58:2-6. He claims that while he was still laying flat on his stomach, Gavin took his left arm from Mollette who already had control of it and pulled it out and twisted it twice toward his back. Id. at 58:13-16, 59:13-23, 60:7-17, 62:19 - 63:3. Plaintiff claims that when Gavin did this, he "felt a snap" and "heard it go snap, snap, pop" and then his finger tips went numb. Id. at 58:15-17. After Mollette heard that plaintiff was in pain, he loosened the restraint. After plaintiff was released from the PRT, staff helped him to his feet.
Lassic arrived on the scene after Lewis' arm was injured and walked with him to the Central Services Unit. Plaintiff alleges that he told those present, including Lassic, that he could not move his arm. Lassic does not recall Lewis making any complaints about his arm while walking with him to the Central Services Unit. Lassic Dec., Dkt. No. 35-8, ¶ 7.
At the medical station, plaintiff complained of pain and swelling in his left arm. He was given ice and muscle rub was applied to his left shoulder. He claims that on the day of the incident, he told Dr. Shahbaz Mallick, Highland's psychologist, that Mollette caused his injury by initiating the restraint.*fn6
Lewis returned to the medical station the following morning, July 22, still complaining of pain in his left arm. He was taken to a hospital for an x-ray which showed a hairline fracture in his left arm. He was given a sling for his arm in and Tylenol with Codeine for the pain.*fn7
On July 22, the same day, Bahret spoke to plaintiff about the incident and wrote out a report. Lewis alleges that Bahret wrote out the statement for him but that he did not read it before he signed it. According to the statement, Lewis stated that he did not feel that any of the officers had intentionally hurt him or tried to abuse him. Lewis alleges that he never told Bahret that and if he "had read the last two sentences, [he] would not have signed the statement." Lewis Aff., Dkt. No. 45, ¶ 8.
According to Highland's facility director, Farooq Mallick, all OCFS facilities are required to report abuse allegations to the Institutional Abuse Bureau ("IAB"). The IAB then sends an investigator to the facility to interview parties involved in the incident. The IAB investigator must then issue a report within 90 days indicating its finding. See Mallick Aff., Dkt. No. 33-14, ¶ 10. By letter dated July 29 a Child Abuse Specialist from OCFS notified Farooq Mallick that Lewis was named in a report of suspected child abuse or maltreatment at Highland. Mollette and Gavin were listed as subjects of the investigation. The July 29 letter indicated that the report was received by the New York State Central Register of Child Abuse and Maltreatment on July 25 and was transmitted to the OCFS Yonkers Regional Office for commencement of an investigation and evaluation of the report.
On July 25, four days after the incident, the IAB started an investigation. See Roberts-Ryba Affirm., Ex. B, Dkt. No. 33-34 ("Investigation File"). During the investigation, an IAB investigator took statements from those involved, including the plaintiff, Gavin, and Mollette. Investigation File, 5. On July 28, one week after the incident, plaintiff told the IAB investigator that Gavin twisted his arm and broke it during the restraint. Id. at 12. Other residents who were interviewed indicated that they heard Lewis cursing and yelling and some witnessed the takedown. Id. at 13-14. However it appears that residents only witnessed a portion of the events because they were directed to face the wall while the incident was occurring. Id. at 6.
OCFS completed the investigation on October 19. OCFS determined the report of abuse to be unsubstantiated against Mollette but substantiated against Gavin. An October 24 letter to Farooq Mallick from the OCFS Yonkers Regional Office stated that "credible evidence has been found that has led us to conclude that the child named in the report has been abused or maltreated." Id. at 68. The letter noted that through interviews and review of the agency's records, OCFS identified the following problem: "On July 21st, 2005 Youth Division Aide ...