United States District Court, S.D. New York
REPORT AND RECOMMENDATION
HENRY PITMAN, Magistrate Judge.
TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,
By notice of motion dated August 30, 2013 (Docket Item 32) the City of New York, Correction Officer Tolliver and Captain Jean-Pierre move for an Order pursuant to Fed.R.Civ.P 56 granting them summary judgment and dismissing the complaint in its entirety. For the reasons set forth below, I respectfully recommend that the motion be denied to the extent that it seeks dismissal of plaintiff's excessive force claim against defendant Tolliver and granted in all other respects.
At all relevant times, plaintiff was a pretrial detainee in the custody of the New York City Department of Correction and was housed at Rikers Island. This action arises out of an incident that occurred on February 7, 2012 when defendant Tolliver, a Correction Officer on Rikers Island, sprayed plaintiff with pepper spray. There is no dispute that Tolliver sprayed plaintiff with pepper spray. The parties do, however, disagree concerning the circumstances under which Tolliver used the spray and the consequences of the incident.
A. Plaintiff's Version of the Relevant Events
According to plaintiff, he was sitting in a locked cell at approximately 11:45 A.M. when Tolliver approached the cell. Tolliver ordered plaintiff to remove a piece of paper that was partially blocking the window in the cell door. Plaintiff said he would do so, but did not actually remove the item. Tolliver repeated his order and plaintiff responded, in substance, that he would remove the paper later. The discussion between Tolliver and plaintiff grew heated, and plaintiff admits that he told Tolliver to "get the [fuck] away from the door" (Ex. B to the Declaration of Shawn R. Clark, dated Aug. 30, 2013, (Docket Item 34) ("Clark Decl."), at 15). Tolliver then sprayed plaintiff "through the cell" (Clark Decl., Ex B. at 13). Plaintiff claims that he was sprayed from a distance of approximately one foot, without warning, for approximately thirty seconds (Clark Decl., Ex B. at 16-17).
After Tolliver sprayed plaintiff, he caused plaintiff's cell to be opened. Plaintiff testified at his deposition that at that point he "tried to run pas[t] [Tolliver] to get away from the mace and that's when [Tolliver] actually got [plaintiff] in the face and the eye" (Clark Decl., Ex B. at 17). Plaintiff further testified that he was trying to run past Tolliver to get to the shower area to wash off the spray (Clark Decl., Ex B. at 17-18).
A "probe team" then arrived in the vicinity of plaintiff's cell, and after about twenty minutes, the probe team took plaintiff to the clinic area where a nurse examined plaintiff and concluded that he was fine (Clark Decl., Ex B. at 19). Plaintiff claims that he still suffers from blurred vision and swelling around his eye as a result of the incident (Clark Decl., Ex B. at 24).
B. Defendants' Version of the Relevant Events
The only evidence in the record that sets forth defendants' version of the events comes from an unsworn "Report and Notice of Infraction" prepared by defendant Tolliver:
On February 7, 2012 at approximately 1145 hours I CO Tolliver #17554 was assigned to the 2 upper C post on the 0700 × 1531 tour. The written instruct[ion] said inmate Wiggan, Damion B/C XXXXXXXXXX NYSID 00313414K 2 upper south cell 24 to remove an obstruction from the cell door window after he finishes his meal. Said inmate replied Fuck You Tolliver[;] stay away from my cell. Said inmate followed this writer down the tier yelling if you ever go near my cell again I'm gonna fuck you up. This writer gave several direct orders to back up and go in the dayroom. Said inmate refused to comply. This writer was in fear for my safety and as a result a one two [sic] second burst of oleoresin capsicum was utilized from approximately three feet to the facial area. PBA #115 was activated. Probe team arrived and escorted the inmate out of the area without further incident. Area supervisor was notified.
(Clark Decl., Ex C. at NYC 2).
C. Plaintiff's Claims and Defendants' Arguments
Read leniently,  the complaint alleges claims for excessive force based on Tolliver's use of pepper spray and deliberate indifference based on the allegedly deficient medical care plaintiff received after being sprayed.
Defendants contend that they are entitled to summary judgment because (1) plaintiff's excessive force claim fails as a matter of law; (2) defendant Tolliver is entitled to qualified immunity with respect to plaintiff's excessive force claim; (3) plaintiff cannot show that defendants were deliberately indifferent to any serious medical needs; (4) plaintiff's claims against defendant Jean-Pierre should be dismissed because the complaint contains no substantive allegations against him; (5) the complaint does not state a Monell claim against the City of New York, and (6) to the extent the complaint alleges supplemental state law claims, they should be dismissed to the extent the pertinent federal claims are dismissed.
A. Applicable Legal Standards
1. Summary Judgment Standard
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party... is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To grant the motion, the court must determine that there is no genuine issue of material fact to be tried. Celotex Corp. v. Catrett , 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue derives from the "evidence [being] such that a reasonable jury could return a verdict for the nonmoving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual argument based on "conjecture or surmise, " Bryant v. Maffucci , 923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court teaches that "all that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co. , 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie , 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). It is a settled rule that "[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl v. Armitage , 128 F.3d 50, 55 (2d Cir. 1997).
McClellan v. Smith , 439 F.3d 137, 144 (2d Cir. 2006); accord Hill v. Curcione , 657 F.3d 116, 124 (2d Cir. 2011); Jeffreys v. City of New York , 426 F.3d 549, 553-54 (2d Cir. 2005); Powell v. Nat'l Bd. of Med. Exam'rs , 364 F.3d 79, 84 (2d Cir. 2004).
"Material facts are those which might affect the outcome of the suit under the governing law, ' and a dispute is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Coppola v. Bear Stearns & Co., Inc. , 499 F.3d 144, 148 (2d Cir. 2007), quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); accord McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 202 (2d Cir. 2007). "[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta , 507 F.3d 778, 788 (2d Cir. 2007), quoting Readco, Inc. v. Marine Midland Bank , 81 F.3d 295, 298 (2d Cir. 1996).
Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). "In such a situation, there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra , 477 U.S. at 322-23, citing Fed.R.Civ.P. 56.
As noted in McClellan v. Smith, supra , 439 F.3d 137, a court cannot make credibility determinations or weigh the evidence in ruling on a motion for summary judgment.
[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Lytle v. Household Mfg., Inc. , 494 U.S. 545, 554-555 (1990); Liberty Lobby, Inc., supra, at 254; Continental Ore Co. v. Union Carbide & Carbon Corp. , 370 U.S. 690, 696, n.6 (1962). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Liberty Lobby, supra, at 255. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id., at 300. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150-51 (2000); accord In re Dana Corp. , 574 F.3d 129, 152 (2d Cir. 2009); Tolbert v. Queens Coll. , 242 F.3d 58, 70 (2d Cir. 2001).
2. Standards Applicable to the Legal Issues in this Matter
a. Excessive Force Claim
Section 1983 imposes liability on individuals who, while acting under the color of state law, deprive another person of "any rights, privileges, or immunities secured by the Constitution." 42 U.S.C. § 1983; see Graham v. Henderson , 89 F.3d 76, 79 (2d Cir. 1996); Johnson v. Bendheim, 00 Civ. 720 (JSR), 2001 WL 799569 at *5 (S.D.N.Y. July 13, 2001) (Rakoff, D.J.).
The Eighth Amendment protects sentenced prisoners and prohibits "cruel and unusual punishments, " U.S. Const. amend. VIII, including the "unnecessary and wanton infliction of pain." Gregg v. Georgia , 428 U.S. 153, 173 (1976). The Due Process Clause of the Fourteenth Amendment provides identical protection to pretrial detainees such as plaintiff. Weyant v. Okst , 101 F.3d 845, 856 (2d Cir. 1996).
When excessive force is alleged, "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." Hudson v. McMillian , 503 U.S. 1, 7 (1992); accord Green v. McLaughlin , 480 F.Appx. 44, 48 (2d Cir. 2012). To establish a violation of the Eighth Amendment based on a claim of excessive force, a prisoner must satisfy "(1) a subjective component which focuses on the defendant's motive for his conduct; and (2) an objective component which focuses on the conduct's effect." Jeanty v. Cnty. of Orange , 379 F.Supp.2d 533, 540 (S.D.N.Y. 2005) (Conner, D.J.), citing ...