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Bilan v. Davis

United States District Court, Second Circuit

July 31, 2013

WARDEN DAVIS, et. al., Defendants.


JAMES L. COTT, Magistrate Judge.

Plaintiff Juan R. Mosquera Bilan brings this action under 42 U.S.C. § 1983 for alleged violations of his rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution during his incarceration at the George R. Motchan Detention Center ("GMDC") on Rikers Island. He contends that Warden J. Davis, Captain McKenzie, Correction Officer J. Roberts, Correction Officer Fernandez, Correction Officer Aikhuele, Captain Penick, and Captain Washington (collectively "Defendants") used excessive force against him, were deliberately indifferent to his medical needs, and retaliated against him by changing his housing assignment after he filed an incident report regarding the alleged excessive force used against him. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, I recommend that Defendants' motion be granted.


A. Facts

Bilan is currently incarcerated at Five Points Correctional Facility ("Five Points") in Romulus, New York. ( See Declaration of Assistant Corporation Counsel Shawn Raymond Clark, in Support of Defendants' Motion for Summary Judgment, dated December 14, 2012 ("Clark Decl.") (Dkt. No. 39), Ex. F (Deposition Transcript of Juan R. Mosquera Bilan, dated June 22, 2012 ("Bilan Tr."), at 34)). He initially filed this action pro se, but has been represented by counsel since February 2012. (Dkt. No. 23).[1]

Prior to his incarceration at Five Points, Bilan was in the custody of the New York City Department of Correction as a pre-trial detainee and was housed at GMDC for approximately one year. (Defendants' Statement Pursuant to Local Rule 56.1, dated December 14, 2012 ("Defs. 56.1") (Dkt. No. 41), at ¶ 3; Plaintiff's Statement Pursuant to Local Rule 56.1, dated February 15, 2013 ("Pl. 56.1") (Dkt. No. 48), at ¶ 3).[2] Bilan's claims arise from an incident at GMDC on November 5, 2010. On that day, two of Bilan's friends came to visit him at GMDC and Bilan spent about an hour talking with them in the Inmate Visiting Area. (Defs. 56.1 ¶ 4; Pl. 56.1 ¶ 4; Bilan Tr. at 40). After the visitation period was over, correction officers attempted to conduct a search of each prisoner in the visiting area waiting room. (Defs. 56.1 ¶ 6; Pl. 56.1 ¶ 6). However, an unidentified inmate, who is not a party to this action (the "non-party inmate"), refused to remove his socks. (Defs. 56.1 ¶ 7; Pl. 56.1 ¶ 7; Bilan Tr. at 47). This lack of cooperation from the non-party inmate led to an argument and then a physical struggle between the non-party inmate and an unidentified correction officer. (Defs. 56.1 ¶ 8; Pl. 56.1 ¶ 8; Bilan Tr. at 47-50).[3] Bilan asserts that the correction officer grabbed the non-party inmate from behind by placing both arms under the inmate's armpits and around his neck. (Bilan Tr. at 47-48). The non-party inmate continued to struggle and tried to force the officer away from his back. (Bilan Tr. at 49). Bilan testified that as the conflict escalated, between five and seven other correction officers "jump[ed] on" the non-party inmate and started "hitting him." (Bilan Tr. at 50).

According to Bilan, he was standing just to the right of the struggle between the nonparty inmate and the correction officers. (Bilan Tr. at 48). However, Bilan could not see what was happening because correction officers had ordered Bilan and the other prisoners in the waiting area to stand facing the wall with their hands up. (Bilan Tr. at 46; see also Complaint under the Civil Rights Act, 42 U.S.C. § 1983, dated July 26, 2011 ("Complaint" or "Compl.") (Dkt. No. 2) at 5)).[4] Thus, it was "impossible for [Bilan] to see what was going on [behind him]." (Compl. at 6-7). The struggle eventually spilled over to where Bilan was standing and he alleges that he was struck in the lower back near his left hip. (Bilan Tr. at 50; Compl. at 5). Bilan fell to the floor, and alleges that he was then hit in the shoulder. (Compl. at 5).

The parties do not agree as to whether the person who allegedly struck Bilan can be identified. Bilan contends that there were between 10 and 15 correction officers in the visiting area waiting room, including Defendants Captain McKenzie ("McKenzie"), Officer Fernandez ("Fernandez"), and Officer Aikhuele ("Aikhuele"). (Bilan Tr, at 46). In his Complaint, Bilan does not identify the person who struck him; rather, he asserts that he was suddenly kicked from behind, and he saw that Fernandez was the officer standing closest to him. (Compl. at 5). However, Bilan is more definitive in both his deposition and in his opposition papers to the motion, claiming that it was Fernandez who struck him. (Plaintiff's Memorandum of Law in Opposition to Summary Judgment Motion, dated February 15, 2013 ("Pl. Mem.") (Dkt. No. 49) at 5; Bilan Tr. at 71). In contrast, Defendants argue that Bilan has failed to demonstrate that Fernandez was personally involved in the alleged use of force. ( See Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment, filed December 14, 2012 ("Defs. Mem.") (Dkt. No. 40), at 5-6; see also Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment, dated March 1, 2013 ("Defs. Reply Mem.") (Dkt. No. 51), at 4-5).

Following the incident, Bilan told McKenzie that he was experiencing sharp pain in his lower back and could not get up off the floor. (Bilan Tr. at 70). McKenzie and Officer Roberts ("Roberts") contacted the facility's medical clinic, and within a few minutes of the call, clinic staff arrived and transported Bilan to the clinic on a stretcher. (Defs. 56.1 ¶¶ 9-10; Pl. 56.1 ¶¶ 9-10; Bilan 71-72, 76). Bilan was treated at the clinic by Dr. Brown, but it is unclear exactly what treatment Bilan received. ( See Bilan Tr. at 71-72, 76). A nurse at the clinic also gave Bilan pills for his pain. (Bilan Tr. at 76, 78). After Bilan was treated at the clinic, he was able to walk and returned to his housing area. (Defs. 56.1 ¶ 11; P1. 56.1 ¶ 11; Bilan Tr. at 78).

Bilan testified at his deposition that he has continued to experience back pain in the months following the incident. (Bilan Tr. at 81, 87). The cause of Bilan's back pain is disputed. Bilan alleges that he has received conflicting medical reports from different doctors, including one which diagnosed him with a fracture. ( See Bilan Tr. at 87). Bilan also asserts that at least one doctor recommended surgery after viewing his MRI results, and this recommendation was never acted on. (Pl. Mem. at 8; Bilan Tr. at 87). Defendants assert that some or all of Bilan's back problems are the result of a 2007 car accident. (Defs. 56.1 ¶ 1-2; see also Pl. 56.1 ¶ 1-2; Bilan Tr. at 18, 20). Defendants also point out that when Bilan was most recently treated at Bellevue Hospital, he was diagnosed with arthritis. (Defs. 56.1 ¶ 13; see also Pl. 56.1 ¶ 13; Bilan Tr. at 81, 87).

On November 9, 2010, four days after the incident, Fernandez allegedly notified Bilan that he was being moved to a different housing unit. (Compl. at 7). Bilan alleges that he was moved to "Crypts Gang House" in retaliation for having filed a report about the incident. (Compl. at 7; see also Pl. 56.1 ¶ 15).

B. Procedural History

On July 26, 2011, while proceeding pro se, Bilan filed his complaint against Defendants. (Dkt. No. 2). Defendants filed two separate answers: Defendants Aikhuele, Davis, Fernandez, and Roberts filed their answer on November 30, 2011 (Dkt. No. 16), while Defendants McKenzie, Penick, and Washington filed their answer on December 21, 2011 (Dkt. No. 19).[5]

As discussed above, Bilan retained counsel in February 2012 and has been represented since that time. (Dkt. No. 23). Following the close of discovery, Defendants moved for summary judgment on December 14, 2012. (Dkt. No. 38). Bilan filed opposition papers to Defendants' motion on February 15, 2013. (Dkt. No. 49). Defendants filed a reply on March 1, 2013. (Dkt. No. 51).


A. Standard of Review

Defendants have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Under Rule 56, summary judgment may be granted when the record demonstrates that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Ccarett, 477 U.S. 317, 322-23 (1986). A dispute of fact is material if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The evidence of the party opposing summary judgment is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Anderson, 477 U.S. at 255), see also Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

The moving party bears the initial burden of establishing that there are no genuine disputes as to any material fact. See Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 323-25. If the moving party meets its initial burden, the nonmoving party must then cite specific facts in the record to establish that there are material disputes of fact requiring a trial. See Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998) (citing Celotex Corp., 477 U.S. at 322). To defeat summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A party opposing summary judgment "is not entitled to rely solely on the allegations of [his] pleading, but must show that there is admissible evidence sufficient to support a finding in [his] favor on the issue that is the basis for the motion." D'Attore v. City of New York, No. 10 Civ. 6646 (WHP), 2013 WL 1180395, at *3 (S.D.N.Y. Mar. 15, 2013) (quotation omitted), 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[.]" Matsushita Elec. Indus. Co., 475 ...

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