The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is the defendants' motion for summary judgment (Docket No. 49).
The plaintiff, Injah Tafari ("Tafari") filed the instant complaint originally asserting four claims, including First Amendment retaliation claims against defendants Robert Kyle ("Kyle"), Matthew Mann ("Mann"), Edward McEvoy ("McEnvoy"), Francis Dougherty ("Dougherty"), C.O. Turnbull ("Turnbull"), Michael Bishop ("Bishop"), E. Powell ("Powell"), Taylor Roberts ("Roberts") and Martin Kearney ("Kearney"); failure to protect claims against defendants Glenn Goord ("Goord"), Edward Donnelly ("Donnelly"), David Unger ("Unger"), Mary Dean ("Dean"),
G. Monahan ("Monahan") and Lt. Wanke ("Wanke"); due process claims against Susan Schumacher ("Schumacher") and Donald Selsky ("Selsky"); and an excessive force claim against defendants Kyle, Mann, McEvoy, Dougherty, Turnbull, Bishop, Gunn, Gibson and Zydel.*fn1 In an Order dated June 27, 2008, Tafari was directed to address various deficiencies in the complaint or to amend the complaint. (Docket No. 11). In response, the plaintiff advised the Court that he did not wish to amend his complaint and, instead wished to proceed only as to the excessive force claims against defendants Kyle, Mann, McEvoy, Dougherty, Turnbull, Bishop, Gunn, Gibson and Zydel. (Docket No. 12). The claims set forth in the complaint, with the exception of the excessive force claims, were dismissed. (Docket No. 13).
With respect to the excessive force claims, Tafari asserts that on May 26, 2003 he was ordered to the wall for a pat frisk by Kyle. Tafari states that "without warning, defendant Kyle punched the plaintiff in the right ear, causing bloody discharge." (Docket No. 1 at page 9). The plaintiff asserts that McEvoy then struck him in the lower leg with his baton; Kyle allegedly kicked Tafari in the head; Mann purportedly punched the plaintiff repeatedly in the right side of his face, McEvoy similarly allegedly punched Tafari in the face; while Dougherty is alleged to have been kicking Tafari in his legs. Defendants Kyle, Mann, McEvoy, Dougherty, Turnbull and Bishop are alleged to have continued to kick and stomp the plaintiff while he was handcuffed and laying on the floor. (Docket No. 1 at page 10). Zydel is alleged to have told the others, "that's enough" just before purportedly grabbing Tafari and punching him in the face. The plaintiff asserts that he was then escorted to SHU by Gunn and Gibson, who along the way, allegedly punched the plaintiff in the mid-section and slammed his head into the wall. (Docket No. 1 at page 10).
The defendants assert a different version of the May 26, 2003 incident. Turnbull states that he was Hall Captain on the date of the incident and that he notified B-Block officers to take Tafari out of his cell (he was in keeplock) for recreation. According to Turnbull, it is policy to frisk all keeplock inmates going to the yard for recreation. (Docket No. 59 at ¶ 9). Kyle ordered Tafari to go to the wall for a pat frisk. Tafari allegedly complied but began yelling profanities. (Docket No. 52 at ¶5). During the pat frisk, Kyle asserts that Tafari "removed himself from the wall and struck [him] in the left shoulder with his elbow." (Docket No. 52 at ¶ 6). Turnbull asserts that Tafari "aggressively resisted" Kyle's attempt to frisk him. (Docket No. 59 at ¶ 7). Turnbull states that he was not involved in the frisk or the process of restraining Tafari. (Docket No. 59 at ¶ 11). As Tafari and Kyle struggled, defendants allege that Mann, Dougherty and McEvoy came to assist Kyle in gaining control of Tafari. (Docket No. 52 at ¶ 9). Kyle asserts that he saw what appeared to be a homemade handcuff key fall from Tafari's hair. (Docket No. 53 at ¶ 11). Kyle states that he suffered injuries as a result of the incident, including abrasions on his elbow, a swollen right knee cap, and a stretched left Achilles tendon. (Docket No. 52 at ¶ 16). Bishop states that he also saw the object fall from Tafari's hair, and that he gained control of the object. (Docket No. 53 at ¶ 9). Bishop states that he was not involved in the frisk or in obtaining control of Tafari. (Docket No. 53 at ¶ 12). Dougherty asserts that he assisted the other officers in an effort to obtain control of Tafari. Dougherty asserts that he was injured during the incident, suffering back pain which radiated up to his right shoulder. (Docket No. 54 at ¶ 14). Mann asserts that he also came to the assistance of Kyle and helped to gain control of Tafari. (Docket No. 57 at ¶ 5-6). Mann asserts that Tafari bit his right thumb during the incident and that Mann had to strike the right side of Tafari's face to get Tafari to release his thumb from Tafari's teeth.
(Docket No. 57 at ¶¶8-10). McEvoy similarly states that he came to Kyle's assistance and helped to gain control of Tafari. He asserts that after issuing several orders for Tafari to release Mann's thumb from Tafari's clenched teeth, McEvoy struck Tafari in the left side of the face until he released Mann's thumb. (Docket No. 58 at ¶¶7-9). Zydel states that by the time he arrived, Tafari was on his back biting Mann. Mann and Kyle were able to gain control of the plaintiff's arms and guide them behind his back. At that point, according to Zydel, he placed handcuffs on the plaintiff and escorted him to SHU along with Gibson and Gann. (Docket No. 60 at ¶ 5-7). Gibson states that his only involvement was to escort Tafari to SHU after the incident. Gibson asserts that the escort occurred without incident. (Docket No. 55 at ¶ 5). Similarly, Gunn claims that his only involvement was to escort Tafari to SHU after the incident and that there was no confrontation with Tafari during the escort. (Docket No. 56 at ¶4). Each of the defendants deny that Tafari was assaulted or that excessive force was used.
The defendants have moved for summary judgment (Docket No. 49).
Summary Judgment Standard of Review
Summary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Port, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2d Cir. 1992) (citing Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The Court must draw all reasonable inferences in favor of the non-moving party and grant summary judgment only if no reasonable trier of fact could find in favor of the non-moving party. See Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991); Howley v. Town of Stratford, 217 F.3d 141 (2nd Cir. 2000). However, the non-moving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information, Co., 970 F.2d 1110, 1112 (2d Cir. 1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). A fact is material: when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."
General Electric Company v. New York State Department of Labor, 936 F.2d 1448, 1452 (2d Cir. 1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "The non-moving party must come forward with enough evidence to support a jury verdict . . . and the . . . motion will not be defeated merely . . . on the basis of conjecture or surmise." Trans Sport, 964 F.2d at 188 (citing Bryant v. Maffucci, 923 F.2d at 982). If undisputed material facts are properly placed before the court by the moving party, those facts will be deemed admitted, unless they are properly controverted by the non-moving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992) (citing Dusanenko v. Maloney, 726 F.2d 82 (2d Cir. 1984). The Court's responsibility in addressing a summary judgment motion is identifying factual issues, not resolving them. See Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 528 (2d Cir. 1990). However, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Nippon Fire & Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2d Cir. 2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Defendants Kyle, Mann, McEvoy, Dougherty, Turnbull, Bishop, Gunn, Gibson and Zydel argue that the plaintiff's Eighth Amendment rights were not violated during the ...