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Toliver v. City of New York

United States District Court, Second Circuit

December 10, 2013

MICHEL TOLIVER, Plaintiff,
v.
THE CITY OF NEW YORK, COMMISSIONER OF THE DEPT. OF CORRECTIONS, CHIEF OF THE DEPT. OF CORRECTIONS, WARDEN OF G.R.
v.
C., D.O.C. CAPTAIN PRESSLEY # 1176, D.O.C. CAPTAIN BANKS #819, D.O.C. OFFICER BURTON # 14371, D.O.C. OFFICER McARDLE # 17893, Defendants.

REPORT AND RECOMMENDATION

JAMES C. FRANCIS, IV, Magistrate Judge.

Michel Toliver brings this action pro se pursuant to 42 U.S.C. § 1983 against Captain Pressley, Captain Banks, Correction Officer Burton[1], and Correction Officer McArdle.[2] Mr. Toliver alleges that the defendants violated his civil rights by subjecting him to excessive force, failing to provide for his medical needs, and destroying his property, all while he was detained at George R. Vierno Center ("GRVC") on Rikers Island in May 2010. The defendants concede that there is a dispute of material fact pertaining to Mr. Toliver's claim of excessive force against Officer Burton. The defendants move for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all other claims. For the following reasons, I recommend that the motion be granted in part and denied in part.

Background

A. Facts

The following facts are taken from the parties' statements pursuant to Rule 56.1 of the Local Rules of the Southern and Eastern Districts of New York ("Local Civil Rules") and the accompanying affidavits and exhibits. (See Defendants' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ("Def. 56.1 Statement"); Plaintiff's Answer to Defendants' Undisputed Facts to Local Civil Rule 56.1 ("Pl. 56.1 Statement"); Plaintiff's Second Amended Complaint ("2d Am. Compl.")). The following facts are viewed in the light most favorable to the plaintiff.[3]

On May 11, 2010, Captain Pressley, Captain Banks, Officer Burton, and Officer McArdle approached Mr. Toliver while he was locked in his cell at GRVC. (2d Am. Compl. at 7).[4] The captains ordered that Mr. Toliver's cell be opened and informed him that they were going to conduct a "routine search." (2d Am. Compl. at 7). The captains then ordered the officers to strip search Mr. Toliver, and after he had re-dressed, the officers began to search his cell. (2d Am. Compl. at 7, 11). During the search, Officer Burton allegedly "tore up most of [Mr. Toliver's] legal work... and flushed it down the toilet[, ] and threw the rest of [his] files outside the cell so that sanitation could sweep it up and destroy it." (2d Am. Compl. at 11; Def. 56.1 Statement, ¶ 5). The legal papers included sworn affidavits of witnesses in Mr. Toliver's criminal case, pictures, statements, copies of letters he had sent to government agencies, transcripts, notices of claim, documents from the City of New York, documents from a commissioner's office, and answers to complaints. (Def. 56.1 Statement, ¶ 7). When Mr. Toliver complained, he was ordered to "shut up'... or [he] would be dropped to the floor[, ]' handcuffed[, ] and escorted outside the cell." (2d Am. Compl. at 11). Officer McArdle allegedly threatened Mr. Toliver, telling him, "I will drop your fucking Homo faggottay [sic], snitching Ass on the floor [if you] say one more word." (2d Am. Compl. at 11).

After the search was completed, the captains ordered Mr. Toliver to sit on the bed in his cell, and Captain Pressley ordered Officer Burton to remove his handcuffs. (2d Am. Compl. at 12). Officer Burton then "punched and slapped [Mr. Toliver] in the face [while he] was still handcuffed, " and "[n]either captain responded to the assault." (2d Am. Compl. at 12). According to Mr. Toliver, the two blows occurred in quick succession. (Def. 56.1 Statement, ¶ 12). As a result of the incident, Mr. Toliver "suffered significant bruises to [his] jaw and face", and afterward, he was denied immediate treatment for his injuries despite asking Captain Banks, Captain Pressley, and several other officers for medical attention. (2d Am. Compl. at 12; Def. 56.1 Statement, ¶ 16-17). Mr. Toliver asserts, "I am an overt homosexual and because of my sexual orientation this was done to me along with my filing complaints and grievances." (2d Am. Compl. at 12). Mr. Toliver ultimately received medical attention three days later, after he met with investigators. (Def. 56.1 Statement, ¶ 17). At that time he received antibiotic ointment and painkillers. (Def. 56.1 Statement, ¶ 22).

B. Procedural History

Mr. Toliver filed his 2d Am. Compl. on February 17, 2012, and in response to the defendants' motion, the Honorable Sidney H. Stein, U.S.D.J., issued an Order on January 14, 2013, dismissing the claims against the City of New York, the Commissioner of the Department of Correction, the Chief of the Department of Correction, and the Warden of GRVC.

On July 31, 2013, the remaining defendants, Captain Pressley, Captain Banks, Officer McArdle, and Officer Burton, filed the instant motion for partial summary judgment.

Discussion

A. Standard of Review

Summary judgment is appropriate where "the movant shows 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); accord Doninger v. Niehoff , 642 F.3d 334, 344 (2d Cir. 2011). A dispute regarding a material fact is "genuine" where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party, " Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); accord SCR Joint Venture L.P. v. Warshawsky , 559 F.3d 133, 137 (2d Cir. 2009), and a material fact is one that "might affect the outcome of the suit under the governing law, '" Roe v. City of Waterbury , 542 F.3d 31, 35 (2d Cir. 2008) (quoting Anderson , 477 U.S. at 248). "In deciding whether a genuine dispute exists, a court must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'" Seeman v. Local 32B-32J, Service Employees Union , 769 F.Supp.2d 615, 620 (S.D.N.Y. 2011) (quoting Dallas Aerospace, Inc. v. CIS Air Corp. , 352 F.3d 775, 780 (2d Cir. 2003)).

The moving party bears the initial burden of identifying those portions of the record that demonstrate "the absence of a genuine issue of material fact, " Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), following which the opposing party must come forward with specific facts showing a genuine issue for trial. The parties can support their claims with discovery materials, stipulations, affidavits, or other evidence, see Fed.R.Civ.P. 56(c)(1)(A); however, "only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment, '" Presbyterian Church of Sudan v. Talisman Energy, Inc. , 582 F.3d 244, 264 (2d Cir. 2009) (quoting Raskin v. Wyatt Co. , 125 F.3d 55, 66 (2d Cir. 1997)). Thus, the parties cannot rely on "conclusory allegations or unsubstantiated ...


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