The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff Francisco Molina, brought this action for relief under 42 U.S.C.§ 1983 alleging that defendants Cyril Stephens ("Stephens") and Arthur Myers ("Myers") used excessive force against him in violation of his Eighth Amendment rights.*fn1 Presently before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 37). Plaintiff has opposed the motion. (Dkt. No. 41).
At the time of the incident, plaintiff was 17 years old and a resident of the Louis Gossett, Jr. Residential Center ("Gossett Center") in the custody of the State of New York Office of Children and Family Services ("OCFS"). Defendant Stephens was the Administrator on Duty and was responsible for all staff and all units at the Gossett Center. Defendant Myers was a Level Three Youth Detention Aide ("YDA") responsible for the direct care of the residents.
On December 4, 2006, plaintiff was in the gymnasium at the Gossett
Center. Plaintiff, who was prohibited from taking part in gym
activities because he was on arm's length supervision,*fn3
began doing push-ups and was directed to stop by a
YDA.*fn4 Plaintiff continued to do
push-ups resulting in the YDA, "pushing the pin".*fn5
After Titus alerted the response team, Titus and Scott Pelky
("Pelky"), plaintiff's block officer, escorted plaintiff out of the
gymnasium. Plaintiff claims that he walked freely and was not arguing
with the officers. As a result of the pin push, a response team,
including defendants Stephens and Myers, arrived at the corridor
outside the gymnasium. Stephens arrived first and claims that
plaintiff's back was against a wall. Stephens claims that he heard
plaintiff cursing at the YDA and being "nasty and disrespectful", but
not physically acting out. Stephens claims that he stood six to seven
inches from plaintiff and told plaintiff to calm down and be
respectful. Plaintiff alleges that Stephens was screaming at him.
Myers arrived and saw Stephens attempting to "de-escalate" the
situation. Stephens and Myers claim that plaintiff became "aggressive"
and took a step towards Stephens with balled fists and attempted to
grab him. At that point, Stephens spun plaintiff around and attempted
to initiate a physical restraint technique and place plaintiff in a
single-man restraint tactic known as "high hooks".*fn6
Stephens claims that as he attempted this maneuver, he was "struggling
with the kid" but also testified that plaintiff, "wasn't kicking and
flailing like that, he was just tugging with me up on top". Myers
testified that plaintiff was "resisting" and, "thrashing back and
forth, trying to snatch his arms away. You know, grabbing pants and
clothes and things of that nature". Plaintiff claims he was not using
his feet or trying to get away. Stephens claims he, "got [plaintiff]
on the ground as quickly as possible". Myers testified that Stephens
and plaintiff fell to the floor but that the fall was not "hard",
rather, they didn't "transition the way I know a restraint's supposed
to transition". Plaintiff claims that he was "thrown" to the
Once on the floor, Stephens and plaintiff remained on the floor for fifteen to twenty seconds. Myers and Stephens testified that Myers offered to take over the "primary position" because Stephens was struggling to control plaintiff. Stephens also testified that he became "winded" and had to be accessible if another pin was pulled. Stephens transferred one of plaintiff's arms, and then the other, to Myers who then placed plaintiff in high hooks. During this transition, plaintiff claims he was yelling for the officers to get off of him and let him go. The transition from Stephens to Myers took approximately ten seconds. At that time, Myers testified that plaintiff's head was towards the middle of Myers' lower back, in his groin area. Myers claims he, "wasn't in the proper technique at that point. He was still resisting. He wasn't secure yet". Stephens claims that plaintiff was attempting to "grab Myers' testicles". Within seconds of Myers' taking over the hold, the parties heard a "pop". Myers released plaintiff's arm.*fn7
Plaintiff suffered a fracture to his right arm. Plaintiff was taken to Cayuga Hospital where x-rays were taken, his arm was casted and placed in a sling. Plaintiff returned to the Gossett Center later that same evening. The next morning, plaintiff returned to Cayuga Hospital and was admitted for three days. Plaintiff was discharged and returned to the Gossett Center.
Grievance Procedure and Investigation
OCFS provides a grievance procedure available to any resident wishing to formally complain about any aspect of their residency in an OCFS facility, including circumstances of a physical restraint. As an exhibit in support of the within motion, defendants provide The New York State Office of Children and Family Services Resident Manual for Non-Secure Facilities ("Manual"). The Manual provides:
RESIDENT GRIEVANCE PROGRAM
Reception Center Grievance Process
The OCFS Ombudsman Under the title, Resident Grievance Program, the Manual provides, in relevant part:
Resident grievance forms are located on each living unit and in an area of the facility generally used by residents.
To file a grievance, you fill out a grievance form and put the completed form directly into a locked grievance mailbox.
After your grievance has been date stamped and given a log number, a copy of the grievance will be given to you and the unit administrator. Within 7 days from the date stamped on your filed and logged grievance, you will receive a written decision on your grievance. Under the title, The OCFS Ombudsman, the Manual provides:
An OCFS ombudsman is a lawyer who specializes in juvenile law and the legal rights of young people. The ombudsman helps you with your legal problems or questions. The Office of the Ombudsman is part of the Commissioner's Office.
The Ombudsman hears concerns regarding the treatment of residents in the OCFS facilities. The ombudsman will also look into any complaint believed to be a violation of your legal rights. The ombudsman will also try to assist you with legal problems you may have which are unrelated to the facility. If you need the help of a judge, a lawyer, or community service worker to solve your problem, the ombudsman can assist you in contacting that person.
You may tell your concerns to the counselor assigned to your unit or to any other employee.
If you feel your concerns are not being addressed, you may fill out a Resident Grievance Form (See section on Resident Grievance Program to find out how to file a grievance).
Every OCFS facility employee is required to report suspected cases of abuse or maltreatment to the New York State Child Abuse Hotline. If a facility employee suspects that you have been abused or maltreated, the employee must see to it that a report is made to the hotline for investigation.
See Kerwin Aff., Ex. "D" at pps. 3-6.
Plaintiff claims that a few days after he was released from the hospital, he returned to the Gossett Center and filed a grievance form complaining that Stephens and Myers used excessive force. Plaintiff claims he, "filled it out and put it in the box, a little grievance box". Defendants claim that a search of the Grievance Log and all other relevant records failed to uncover any grievance filed by plaintiff in connection with the December 4, 2006 incident.
On December 18, 2006, plaintiff was interviewed by Annabelle Gardner, a Child Abuse Specialist employed by the OCFS Syracuse Regional Office.*fn8 Ms. Gardner states that she conducted an investigation into a report of possible child abuse made to the New York Statewide Central Register of Child Abuse and Maltreatment hotline on December 4, 2006 regarding an injury plaintiff received at the Gossett Center. Ms. Gardner interviewed witnesses, including plaintiff. Ms. Gardner prepared a report of her investigation and concluded that the accusation of possible child abuse was unfounded. The report, which lists the date of intake as December 5, 2006, indicates that, "[w]hile on another investigation at Louis Gossett Jr. Residential Center, this investigator was informed by Mr. Germano of this SCR report".
In "December 2006", Scot Lamphier, a Level 2 Youth Counselor employed by the OCFS at the Gossett Center and Assistant Director Ernie Germano conducted an internal investigation of the December 4, 2006 incident.*fn9 As part of the investigation, Mr. Lamphier interviewed witnesses, including plaintiff, defendants, Pelky, Titus and other Gossett employees including other YDA's in the gymnasium on the day of the incident. Annexed to Mr. Lamphier's ...