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James J. Calderon v. Michael Nealon and John Doe(S

February 1, 2011




Plaintiff James Calderon ("plaintiff" or "Calderon"), a New York state prison inmate proceeding pro se and in forma pauperis, commenced this action on September 2, 2009, pursuant to 42 U.S.C. § 1983 and alleges that defendants violated his constitutional rights. Plaintiff asserts that defendants used excessive force in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff seeks monetary relief. On August 4, 2010, after the close of discovery, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendants argue that Calderon failed to exhaust his administrative remedies, the force used was reasonable, and that they are entitled to qualified immunity.

Plaintiffopposes the motion but fails to provide a memorandum of law outlining his legal arguments. Instead, plaintiff's response contains only a numbered response to defendants' Rule 7.1 statement-admitting or denying defendants' asserted facts-and five exhibits to support his claim. Defendants argue that this is an inadequate response and urge the court to deem admitted the assertions set forth in their statement of facts pursuant to Local Rule 7.1(a)(3). Because Calderon has sufficiently disputed defendants' statement of facts, defendants' assertions cannot be deemed admitted. However, plaintiff's failure to submit a memorandum of law countering defendants' legal arguments lightens defendants' burden regarding the motion such that they need only show that the motion has "facial merit." Cont'l Ins. Co. v. Coyne Int'l Enter. Corp., 700 F. Supp. 2d 207, 213 n.6 (N.D.N.Y. 2010) (Suddaby, J.).


On June 6, 2009, plaintiff-who was on parole at the time-spent a considerable portion of the day drinking alcoholic beverages with his brother. At approximately 8:30pm that evening, the Scotia Police Department responded to a report of a suspicious person wearing shorts and yelling obscenities. Upon arrival, police officers located plaintiff and his brother walking along a street. After identifying plaintiff, the officers attempted to place him in custody as there was an outstanding bench warrant for his arrest. The officers handcuffed Calderon and attempted to place him in the back of the patrol car. However, plaintiff reportedly became uncooperative, and the officers subdued him with a taser. As a result of this incident, plaintiff was charged with resisting arrest and false personation.*fn1 Plaintiff was subsequently transported to Schenectady County Jail and placed in a holding cell in the main booking area. What occurred next is in dispute.

A. Calderon's Version of the Incident

Plaintiff admits that he was intoxicated when he arrived at the Schenectady County Jail but denies being out of control or incoherent. Calderon also acknowledges that he was "loud" and called another inmate a "nigger" as that inmate was being escorted through the booking area. Calderon maintains that this was the only "belligerent" act or comment he made while in the holding cell. Plaintiff initiated a conversation with a female who was being housed in the holding cell across from his and attempted to flirt with or console her as she was visibly upset. This exchange between plaintiff and the female inmate bothered the jail staff, and Calderon was soon escorted to a "strip-frisk" room in the rear of the booking area by defendant Nealon, who was the on-duty sergeant, and at least three other officers. Once inside this room, defendant Nealon ordered plaintiff to "assume the position," and Calderon complied by placing his hands flat against the wall and spreading his feet apart while facing the wall. Without provocation, defendant Nealon then reached under plaintiff's right arm and sprayed pepper spray directly into his face. Nealon then sprayed directly up the right pant-leg of plaintiff's shorts, covering his genitals in pepper spray.

Defendants then turned plaintiff around, pulled his T-shirt over his face, and propelled him into a wall. Calderon's head struck the wall, and he sustained a one-inch "gash" on his forehead that bled profusely. Plaintiff was then escorted to an eyewash station located in the booking area and then brought to the medical department where he received treatment for his head laceration. Plaintiff denies ever being taken to the Special Housing Unit ("SHU") on the fourth floor of the facility or being washed down in a shower. Calderon maintains that he was cooperative throughout the entire booking process and adamantly denies making any threatening movements to necessitate the use of force against him.

B. Defendants' Version of the Incident

Defendants assert that Calderon was highly intoxicated and belligerent while being housed in the holding cell. In addition to "shaking" the bars of his cell while yelling racial slurs to another inmate, Calderon called the female inmate in the opposite cell a "crack whore." Plaintiff ignored several orders to stop yelling. Plaintiff was then escorted to the strip-frisk room and ordered to change out of his street clothes and into the jail uniform. Plaintiff became uncooperative and repeatedly questioned the officers' orders. Calderon then aggressively "lunged" at defendant Nealon, who responded by spraying plaintiff with pepper spray once in the face to subdue him. Plaintiff was then handcuffed and brought to the SHU on the fourth floor of the jail, where he was decontaminated in a shower while still wearing his street clothes. Plaintiff was then led out of the shower area, complained that he could not see, and "inexplicitly" ran head-first into a wall on his own account. Plaintiff then laughed and stated, "oh, that is the wall." Calderon was then brought to the medical department for evaluation and treatment. Defendants deny using any excessive force or propelling Calderon into the wall.

As a result of this incident, plaintiff was charged with several rule violations. At the subsequent disciplinary hearing, plaintiff was found guilty and sentenced to 30 days in "keep-lock" status.


A. Summary Judgment Standard

The entry of summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); seeCelotex Corp. v. Catrett,477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247, 106 S. Ct. 2505, 2509--10 (1986). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; seealsoJeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A ...

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