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Warren Timothy Johnson v. the City of New York

March 18, 2011


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


Pro se Plaintiff Warren Timothy Johnson brings claims under (1) 42 U.S.C. § 1983 for violations of his Fourteenth Amendment rights, and (2) state law, for assault and battery. With respect to his federal claim, Johnson alleges that Defendants subjected him to excessive force -- while he was incarcerated at Riker's Island as a pre-trial detainee -- by applying tight handcuffs for approximately twenty minutes and by forcing him to sit in an air-conditioned bullpen for approximately forty minutes. Johnson further claims that he was deprived of personal property in violation of the Fourteenth Amendment. Defendants have moved for summary judgment as to all of Plaintiff's claims. (Docket No. 18) For the reasons stated below, Defendants' motion will be GRANTED.


In January 2009, Plaintiff Johnson was a pre-trial detainee housed in the Robert N. Davoren Center on Riker's Island. (Def. R. 56.1 Stat. ¶ 1) On January 16, 2009, at approximately 7:15 a.m., Department of Correction ("D.O.C.") personnel conducted a search of Plaintiff's housing area. (Id. ¶ 2) Correction Officer LaTeaisha Johnson entered Plaintiff's cell to search for contraband. (See id. ¶ 3) Inside Plaintiff's cell was a bag of clothes that Plaintiff was planning to donate to a religious organization. (Id. ¶ 4) Because Plaintiff's cell contained more clothing than the facility permits detainees to maintain, C.O. Johnson began placing both Plaintiff's personal items and the donated clothes into one bag, in preparation for removing these items from Plaintiff's cell. (Myerberg Decl., Ex. A (Johnson Tr.) at 69; Myerberg Decl., Ex. C (Property Receipt)) Plaintiff informed Officer Johnson that she was mixing his personal items with the donated clothing, but the officer simply told Plaintiff to remain quiet. (Myerberg Decl., Ex. A (Johnson Tr.) at 69) Plaintiff then complained to the unit supervisor, Captain Ernest Brown (id. at 69-70), but Brown told Plaintiff that he had excessive amount of clothing in his cell. (Def. R. 56.1 Stat. ¶ 5; see Myerberg Decl., Ex. A (Johnson Tr.) at 69-70)

After again being ordered to remain quiet during the search, Plaintiff became increasingly "irritated" when C.O. Johnson did not respond to his complaints. (Def. R. 56.1 Stat. ¶ 6-8) The exchange became heated and Plaintiff testified that he had to "catch" himself from physically striking Officer Johnson:

Q. So at any point did Correction Officer Johnson tell you to shut up?

A. No. She told me to shut the fuck up.

Q. What did you say back?

A. You bitch, you shut the fuck up. (Myerberg Decl., Ex. A (Johnson Tr.) at 106)

Q. Did you raise your voice?

A. Yes, I raised my voice. I'm a man, I'm going to raise my voice. .

Q. So Johnson said to you, no talking on the search, no talking on the search.

And what did you say back?

A. Basically I kept implying you are not listening to me. And I started to step in my cell but I caught myself.

Q. Why did you catch yourself?

A. Because I would have hurt that woman [C.O. Johnson] in my cell. I would have hurt that woman. Literally I would have hurt that woman in my cell. Because, like I said, she is not tough. Most of them in there is not tough. Actually, I feel, you know, I got real, I got strong confidence in myself and my fight game, my fighting ability. And stop shaking the tree because something might fall out there that you might not be able to handle. . . .

(Myerberg Decl., Ex. A (Johnson Tr.) at 98, 99-100)

During a previous search, Captain Brown had found a razor blade in Plaintiff's cell. (Def. R. 56.1 Stat. ¶ 19)*fn2 Observing the escalating situation between Plaintiff and C.O. Johnson, Brown attempted to handcuff Plaintiff. (Myerberg Decl., Ex. A (Johnson Tr.) at 99-100, 110, 115-16) However, Plaintiff resisted by pulling his wrists away, and another officer had to assist Brown in placing Plaintiff in plastic flex cuffs. (Def. R. 56.1 Stat. ¶ 12; Myerberg Decl., Ex. A (Johnson Tr.) at 116) Plaintiff was then brought to another part of the facility called the "day room." (Def. R. 56.1 Stat. ¶ 15) While in the day room, Plaintiff observed Correction Officer Sandra Brewster carry a bag containing items that had been removed from Plaintiff's cell during the search. (Id.) Captain Brown then placed Plaintiff in metal handcuffs and removed the plastic flex cuffs. (Id. ¶ 20)

Plaintiff was later brought to the "bullpen," which appears to be one of the four temporary holding areas where D.O.C. personnel process pre-trial detainees as they arrive in the housing unit. (Myerberg Decl., Ex. A (Johnson Tr.) at 124-25) The bullpen is air-conditioned and is known as the "cool off" pen. (Id. at 125, 126) Plaintiff was then dressed in shorts, a tank top, and shower shoes. After about twenty minutes, Plaintiff's handcuffs were removed, but he remained in the bullpen for a total of "about 40 minutes."*fn3 (Id. at 127, 129) Presumably to protect himself from the cold, Plaintiff wrapped his body and feet in toilet tissue he found in the bullpen. (See id. at 75, 127)

There is no evidence that Plaintiff reported any injuries, requested medical attention, or took any medication for any injuries after the incident. (Def. R. 56.1 Stat. ¶ 28) When Plaintiff was transferred to the Downstate Correctional Facility, he did not report any injuries when he met with medical staff as part of the intake process. (Id. ¶ 30) The only injuries Plaintiff mentioned at his deposition were abrasions to his wrists, which he testified were "minute" and did not cause him any pain once the handcuffs were removed. (Id. ¶¶ 31, 32; Myerberg Decl., Ex. A (Johnson Tr.) at 143, 146)

When Plaintiff was returned to his cell, he discovered that his clothing, watch, wedding ring, family pictures, and religious items had been removed. (Myerberg Decl., Ex. A (Johnson Tr.) at 132; Johnson Aff. II, ¶¶ 36, 43, 46)

Plaintiff received vouchers for the clothing and books that were removed during the January 16, 2009 search and was aware of the procedures for obtaining the return of property removed during a search. Plaintiff never attempted to reclaim any of the vouchered property, however. (Def. R. 56.1 Stat. ¶¶ 33-35; Myerberg Decl., Ex. A (Johnson Tr.) at 132; Ex. C (Property Receipt); Johnson Aff. I, ¶¶ 33-35) While Plaintiff claims that he never received any vouchers for his wedding ring or watch, he failed to file a grievance concerning this issue, and failed to request grievance forms to file such a grievance. (Def. R. 56.1 Stat. ¶¶ 37-39; Myerberg Decl., Ex. A (Johnson Tr.) at 139-40)*fn4

Plaintiff filed his complaint in this action on March 31, 2009.


Summary judgment is warranted when the moving party shows that "there is no genuine dispute as to any material fact" and that it "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). "'[W]here the nonmoving party will bear the burden of proof at trial, Rule 56 permits the moving party to point to an absence of evidence to support an essential element of the nonmoving party's claim.'" Watson v. Consol. Edison Co. of N.Y., Inc., 374 F. App'x 159, 161 (2d Cir. 2010) (quoting Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991)).

In deciding a summary judgment motion, the Court "'resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Spinelli v. City of New York, 579 F.3d 160, 166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001)). However, a "'party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . .[M]ere conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact where none would otherwise exist.'" Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which provides: "[e]very person who, under color of any statute . . . subjects, or causes to be subjected, any citizen of the United States or other person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."


A.Applicable Law

"A pretrial detainee who is subjected to excessive force may bring a claim under § 1983." Cunningham v. Rodriguez, No. 01 Civ. 1123 (DC), 2002 WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002). "The right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment."*fn5 United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). In determining whether a plaintiff has made out an excessive force claim under the Due Process Clause of the Fourteenth Amendment, courts apply the same standards applicable to excessive force claims brought by convicted inmates under the Eighth Amendment. Virella v. Pozzi, No. 05 CIV. 10460 (RWS), 2006 WL 2707394, at *3 (S.D.N.Y. Sept. 20, 2006) ("[t]he Second Circuit applies the same standard to excessive force claims brought under the Fourteenth Amendment as under the Eighth Amendment") (citations omitted)); see also Pearson v. Cantor, No. 08-CV-789 (NGG), 2010 WL 3420532, at *3 (E.D.N.Y. Aug. 26, 2010). Accordingly, the Supreme Court's analysis of the Eighth Amendment in Hudson v. McMillian, 503 U.S. 1 (1992), applies here. See Cunningham, 2002 WL 31654960, at *4.

Under Hudson, [t]o demonstrate a constitutional violation . . . , a plaintiff alleging a claim of excessive force must establish both an objective and subjective element. United States v. Walsh, 194 F.3d 37, 49-50 (2d Cir. 1999). The objective element requires that the force allegedly used was "sufficiently serious or harmful enough to be actionable." Id. at 50. The amount of force used must have been more than de minimis, unless it was "repugnant to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1, 9-10. The subjective element "requires a showing that the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000). The crucial question in this respect is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 21 (quoting Hudson, 503 U.S. at 7).

Pearson, 2010 WL 3420532, at *3; see also Cunningham, 2002 WL 31654960, at *4 (citing Walsh, 194 F.3d at 48); Virella, 2006 WL 2707394, at *3 ("To establish a constitutional violation, and hence a claim pursuant to section 1983, a plaintiff must meet both a subjective and an objective requirement." (citing Walsh, 194 F.3d at 48-49)). Where a plaintiff fails to satisfy either of these prongs, the defendant is entitled to summary judgment. See Cunningham, 2002 WL 31654960, at *1, *5 (granting summary judgment where "plaintiff [was] unable to satisfy either the objective or subjective prong of the Hudson excessive force test").

1.Objective Inquiry

To meet Hudson's objective prong, the plaintiff must show that the alleged use of force is "objectively sufficiently serious or harmful enough" to be actionable. A claim of excessive force may be established even if the victim does not suffer serious or significant injury, if plaintiff can demonstrate that the amount of force used is more than de minimis, or, otherwise involves force "repugnant to the conscience of mankind." The Second Circuit has held that not "every push or shove, even if it may later seem unnecessary in the peace of the judge's chambers, violates a prisoner's constitutional rights."

Cunningham, 2002 WL 31654960, at *4 (internal citations omitted).

The objective component is "context specific, turning upon 'contemporary standards of decency.'" Amaker v. Coombe, No. 96 Civ. 1622 (JGK), 2003 WL 21222534, at *7 (S.D.N.Y. May 27, 2003) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)).

With respect to the use of handcuffs, "[t]here is authority that the use of tightly fastened handcuffs that result in either no injury or only minor injuries is not an actionable use of excessive force." Brown v. Banks, No. 06 Civ. 14304 (LTS)(HBP), 2008 WL 3833227, at *2 (S.D.N.Y. Aug. 14, 2008); see, e.g., Warren v. Purcell, No. 03 Civ. 8736 (GEL), 2004 WL 1970642, at *8 (S.D.N.Y. Sept. 3, 2004) ("Although the use of excessively tight handcuffs can constitute a violation of the Eighth Amendment . . . it appears highly unlikely that . . . pain in [the plaintiff's] wrists and pain, numbness and swelling in his foot and ankle, would be considered sufficiently serious[, in the absence of evidence that the plaintiff suffered any lasting injury from the restraints,] to rise to the level of an Eighth Amendment violation." (citing Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994))); Sulkowska v. City of New York, 129 F. Supp. 2d 274, 292 (S.D.N.Y. 2001) (where the plaintiff testified that her "handcuffs were tight," the court noted that "[p]laintiff's restraint by handcuffs was merely an incident of her detention, and does not amount to the type of punishment that violates the Fourteenth Amendment").

As to exposure to cold temperatures, "[a]n Eighth Amendment claim may be established by proof that the inmate was subjected for a prolonged period to bitter cold," Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001), provided that the cell's conditions were "objectively, sufficiently serious that [the prisoner] was denied the minimal civilized measure of life's necessities." Id.

Gardner v. Mental Health Unit of, Sullivan Corr. Facility, No. 07 Civ. 5535(WHP), 2009 WL 1834382, at *3 (S.D.N.Y. June 17, 2009) (alteration in original).

In Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988), the Second Circuit reversed the grant of summary judgment in favor of defendants where there was evidence that the prisoner plaintiff had been deliberately exposed to bitter cold in his cell block for three months. SeealsoWright, 387 F.2d at 526 (vacating a dismissal on the pleadings where the complaint alleged that inmates were deliberately exposed to bitter cold and deprived of basic hygiene products while in solitary confinement). AccordDixon v. Godinez, 114 F.3d 640, 643-45 (7th Cir. 1997) (vacating summary judgment and remanding for determination of duration and severity of prisoner's exposure to cold); Chandler v. Baird, 926 F.2d 1057, 1065-66 (11th Cir. 1991) (vacating summary judgment where prisoner testified that he was denied basic sanitation items for two days and that his cell was frigid for 16 days during which he was denied bedding and all clothing except undershorts); Beck v. Lynaugh, 842 F.2d 759, 761 (5th Cir. 1988) (vacating summary dismissal of claim that prisoners were exposed to winter cold due to broken windows).

Gaston, 249 F.3d at 164-65.

Where inmates have not been exposed to cold temperatures for prolonged periods, however, their claims have been rejected. See, e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317, 358 (N.D.N.Y. 2010) ("Plaintiff alleges that 'on many occasions' he was exposed to 'below zero weather' for an hour at a time during recreation period. Although this hour was likely very uncomfortable and was repeated often, the evidence does not show that Plaintiff was ever exposed to bitter cold temperatures for the kinds of 'prolonged' periods described in Second Circuit precedent."); Gardner, 2009 WL 1834382, at *3 ("[Plaintiff's] allegation that he was 'very cold' is not objectively serious enough to constitute an Eighth Amendment violation, particularly when it lasted no more than seven days during the months of August and October.").

2.Subjective Inquiry

Where a plaintiff alleges excessive use of force by prison guards, the objective component does not require any particular "quantity of injury," for "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated." Hudson, 503 U.S. at 9. Thus, in cases of deliberate use of force, the subjective standard predominates: the "core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." 503 U.S. at 6-7.

Warren, 2004 WL 1970642, at *7. Accordingly, "the subjective requirement is satisfied if the defendant acted wantonly*fn6 with a 'sufficiently culpable state of mind.'" Cunningham, 2002 WL 31654960, at *4 (quoting Walsh, 194 F.3d at 49-50) (citing Hudson, 503 U.S. at 8). In order for this standard to be met, it is "necessary that the prison official 'knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw the inference."' Warren, 2004 WL 1970642, at *6 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

The Second Circuit has instructed lower courts to consider the following factors in making a determination as to ...

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