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Vazquez v. Curcione

United States District Court, Second Circuit

September 25, 2013

Justin Vazquez, Plaintiff,
Paul Curcione et al., Defendants.


HUGH B. SCOTT, District Judge.

Before the Court is the defendant's motion for summary judgement (Docket No. 26). (Consent)[1]


The plaintiff, Justin Vazquez ("Vazquez") brings this action under 42 U.S.C. ยง 1983.[2] The plaintiff claims that while he was incarcerated at the Erie County Holding Facility ("Holding Center") on March 14, 2011, officers "Parsons, Gayz, McEwen, Hubert and Oroszi" refused to allow him to visit with his mother and that the officers "forcefully removed" him from the visiting area and used excessive force to his "head, hands, and limbs, causing [him] excessive pain and moderate bruising. He also states that unnamed "medical and security staff" refused him medical attention. (Docket No. 1 at page 5). Vazquez further claims that on April 12, 2011, officers Ladestro, Brigman, Piegza, Balys, DeJoseph Lysarz and Wilbus used excessive force on him by spraying him with mace and punching and kicking him. He asserts that the defendants put him in a strap chair for over 6 hours without decontaminating him causing him to experience burning for hours. (Docket No. 1 at page 6). Finally, Vazquez claims that on February 8, 2011 he was placed on a segregation block where he "wasn't supposed to be" and he was assaulted. The plaintiff's complaint does not assert which, if any, of the defendants were responsible for placing him on the segregation unit, or who assaulted him there. (Docket No.1 at page 6).

A deposition of Vasquez was conducted on July 29, 2011 in connection with a Notice of Claim that the plaintiff filed concerning several issues, including the February 8, 2011 and March 14, 2011 issues raised in the instant complaint. (Docket No. 26-5). The plaintiff stated that while he was out at a court appearance, an inmate named Daniel Ciracina went into Vasquez' cell, stole his commissary goods and trashed his cell. (Docket No. 26-5 at pages 15-16). According to the plaintiff, because of this incident he was placed in the segregation unit by Lysarz (Docket No. 26-5 at page 17-18, 20). Vasquez claims that it was wrong for Lysarz to place him in the segregation unit because that unit was intended for "high profile" inmates such as murderers. (Docket No. 26-5 at page 17). Vasquez acknowledged that he never had any problems with any other inmate or staff member prior to the incident with Ciracina. (Docket No. 26-5 at page 21).

Vasquez claims that on February 8, 2011, an inmate named Brian Talley[3] was reading the newspaper in the segregation unit's common area. Vasquez stated that he told Talley that he wanted to see the newspaper, and that Talley "threw the paper" at him. Vazquez stated that he felt disrespected by Talley and told Talley not to throw the newspaper at him because he was "not a punk." (Docket No. 26-5 at page 23). The plaintiff asserts that Talley then went into his cell, put on his sneakers, came back out and "sucker punched" the plaintiff. Vasquez stated that he proceeded to fight back and that after a "couple of minutes" Willigus arrived and told Vasquez and Talley to "break it up" at which point they stopped fighting. (Docket No. 26-5 at page 24-25).Vasquez asserts that Wiligus was not at her post when the fight began (Docket No. 26-5 at page 30) and argues that if she had been at her post, Talley would not have attacked Vasquez. (Docket No. 32 at page 13). Vasquez also feels that he was improperly disciplined as a result of the incident because Wiligus stated that Vasquez was the aggressor. (Docket No. 26-5 at page 30). The incident report filed by Lysarz stated that Vasquez, Talley and the other witnesses all agreed that the altercation was over the newspaper. Vasquez claimed that Talley hit him first; Talley claimed that Vasquez hit Talley first. Witnesses identified as "Ricardo McCray and Allen Tomaski"[4] informed Lysarz that Vasquez threw the first punch. (Docket No. 26-4). Vasquez suffered a few bruises and a split lip for which he was taken to the hospital for stitches. (Docket No. 26-5 at pages 25-26). He also claimed that he aggravated a back injury he originally sustained in a 2004 car accident. (Docket No. 26-5 at page 33). The plaintiff states that the 2004 car accident left his back "misaligned" and that he was issued a "no physical activity" order when he was incarcerated in 2006. (Docket No. 26-5 at page 36).

The plaintiff also testified that he was assaulted by inmate Robert Pope (Docket No. 26-5 at page 37-44); and that a Deputy Sheriff took his commissary goods from his cell (Docket No. 26-5 at pages 44-46). These claims are not asserted in the instant action.

Vasquez testified regarding the March 14, 2011 incident which is the basis of the plaintiff's first claim in this case. He claims he was denied a visit with his mother and assaulted by various defendants. According to the plaintiff, as he was entering the visitation room he was accused of talking to another inmate and told that his visit was going to be denied because "cross-talking" between inmates in the visitation room is prohibited. Vasquez claims that he was not talking to another inmate, but only talking to himself. When the officers told him to go back, Vasquez testified that he "told them I wasn't going back because I wasn't doing anything wrong." (Docket No. 26-5 at page 48). Vasques states that McEwen and Oroszi "grabbed [him] from the chair and dragged [him] to the back... and then started applying excessive force to my limbs." (Docket No. 26-5 at page 49). When asked to further describe what he meant be being "roughed up" by the deputies, Vasquez testified:

A: When they got me in there an shut the door they slapped me down on the bench that is in there and then they tried applying excessive force to my limbs, like pushing my legs, you know, towards, my back.... so I am down here, I was face first, So one was taking my legs and forcing them like, you know, over may back.
Q: Were you on your stomach then?
A: Yeah.
Q: Okay, On the bench or on the floor?
A: On the bench. And then as I was cuffed behind my back, they took my hands and twisted up, you know, pull the handcuffs up and ...

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