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Brooks v. Brennan

United States District Court, N.D. New York

November 17, 2014

DERRICK BROOKS, Plaintiff,
v.
RYAN P. BRENNAN, Secure Care Treatment Aide, CNYPC; CHRISTOPHER D. SMITH, Secure Care Treatment Aide, CNYPC; LAURA SMITH-CREASER, R.N., Ward Nurse/Supervisor for Ward 605, CNYPC; and BRETT DAVIS, Secure Care Treatment Aide, CNYPC, Defendants.

DERRICK BROOKS, Plaintiff Pro se, #172542, Central New York Psychiatric Center, Marcy, New York.

CATHY Y. SHEEHAN, ESQ., Assistant Attorney General. HON. ERIC T. SCHNEIDERMAN, Attorney General for the, State of New York, Attorney for Defendants Ryan Brennan, Christopher D. Smith, Laura Smith-Creaser, The Capitol, Albany, New York 12224-0341.

ARMOND J. FESTINE, ESQ., Attorney for Defendant Brett Davis, Utica, New York 13502.

REPORT-RECOMMENDATION AND ORDER[1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Derrick Brooks, who is currently involuntarily committed as a patient at the Central New York Psychiatric Center ("CNYPC"), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Brett Davis, Ryan P. Brennan, Christopher D. Smith - Secure Care Treatment Aides ("SCTA") at CNYPC - and Laura Smith-Creaser, ward nurse/supervisor at CNYPC, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). In a Report-Recommendation and Order of this court dated June 19, 2013 (Dkt. No. 26), defendants' motion to dismiss (Dkt. No. 21) was granted insofar as (a) the Eleventh Amendment bar for claims against the individual defendants in their official capacities; (b) defendants Hogan, Bosco, Nowicki, and Maxymillian's personal involvement defense; and (c) the Eighth Amendment verbal threat claims against defendants Brennan and Smith; and (2) denied as to the Eighth Amendment (a) excessive force claims against defendants Brennan and Smith; and (b) failure to protect claims against defendants Davis and Smith-Creaser. Dkt. No. 26, at 18-19; Dkt. No. 28. Presently pending are (1) defendant Davis's motion for summary judgment (Dkt. No. 39), and (2) defendants Brennan, Smith, and Smith-Creaser's motion for summary judgment (Dkt. No. 41), all pursuant to Fed.R.Civ.P. 56.

I. Failure to Respond

The Court notified Brooks of the response deadline. Dkt. No. 42. Defendants Brennan, Smith, and Smith-Creaser also provided notice of the consequence of failing to respond to the motion for summary judgment. Dkt. No. 41-1. Despite this notice, Brooks did not respond.

"[S]ummary judgment should not be entered by default against a pro se plaintiff who has not been given any notice that failure to respond will be deemed a default." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). Thus, "[t]he fact that there has been no response to a summary judgment motion does not... mean that the motion is to be granted automatically." Id. at 486. Even in the absence of a response, defendants are entitled to judgment only if the material facts demonstrate their entitlement to judgment as a matter of law. Id .; FED. R. Civ. P. 56 (c). "A verified complaint is to be treated as an affidavit... and therefore will be considered in determining whether material issues of fact exist...." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (internal citations omitted); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004) (same). The facts set forth in defendants' Rule 7.1 Statements of Material Facts (Dkt. No. 39-2; Dkt. No. 41-3) are accepted as true as to those facts that are not disputed in Brooks's complaint. N.D.N.Y.L.R. 7.1 (a) (3) ("The Court shall deem admitted any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.").

II. Background

A. Brooks's Version of Events

The facts are reviewed in the light most favorable to Brooks as the non-moving party. See subsection II(A) infra. At all relevant times, Brooks was involuntarily committed in CNYPC's Sex Offender Treatment Program ("SOTP"). Compl. ¶ 1. On May 24, 2011, Brooks alleges that, pursuant to the facility policy, he asked defendant Davis to notify the nurse administrator that he wanted to switch wards because he feared for his safety. Compl. ¶ 17. Davis told Brooks that he would not notify the nurse administrator of his request. Id . Subsequently, defendant Smith-Creaser came out of the nurse's station and told Brooks that there was no nurse administrator available and that she would not contact one for him. Id . ¶ 19. Defendant Brennan, who had overheard the discussion between Brooks and Smith-Creaser, came out of the break room and ordered Brooks to go into the "side room" - a room "used to temporarily separate one resident from the others" -and Brooks complied. Compl. ¶ 20; Dkt. No. 39-3, at 2. Brennan then made a phone call to another ward, and five minutes later, defendant Smith arrived at the side room and spoke with Brennan. Compl. ¶ 20. Brooks alleges that defendants Brennan and Smith then "jumped" him by knocking him to the floor, and punching and kicking him in the head, shoulders, arms, and sides. Id .; Dkt. No. 1-2, at 2.[2] Brooks further alleges that the assault took place in the presence of defendants Brooks and Smith-Creaser, and lasted for 15 minutes before Smith-Creaser requested assistance by "drop[ping] the Red-Phone."[3] Compl. ¶ 21; Dkt. No. 25, at 6-7.

Brooks's complaint suggests that Brennan was the aggressor and does not discuss whether he used force against either defendant. Compl. ¶ 21. However, the record provides that Brooks pleaded guilty to assault in the third degree in violation of New York State Penal Law § 120.00 for assaulting defendant Brennan during this incident. Dkt. No. 41-6, at 2.[4] After accepting the guilty plea, Brooks was granted a conditional discharge if he followed CNYPC's rules and stayed out of trouble for one year. Id . The record provides that at an appearance on the revocation of the conditional discharge, Brooks conceded that he assaulted Brennan on May 24, 2011, but contended that he was acting in self-defense. Dkt. No. 47-1, at 58.

Brooks contends that Smith-Creaser gave him a physical examination the same day as the alleged assault. Compl. ¶ 22. He also states that a representative from the office of risk management interviewed him and took pictures of his "injuries and bruises." Id . Brooks alleges that he suffered cuts; bruises; swelling of the eyes, face, and mouth; headaches; pain in the neck, back, arms, and hands; and had difficulty moving his arms. Dkt. No. 25, at 6, 9.

After the May 24 incident, Brooks was placed on a "one on one level."[5] Compl. ¶ 23. Smith-Creaser did not provide Brooks with an explanation for the designation. Id . In addition, Brooks alleges that, despite an order of separation instructing defendants Brennan and Smith to avoid contact with Brooks, Smith would come to Brooks's ward and would "mak[e] jokes" about the May 24 incident and threaten him by telling him "this is not over." Id . ¶ 24. Defendant Smith told Brooks that he would "kill [his] black ass." Id . ¶¶ 24-25, 27.

Brooks seeks declaratory and injunctive relief and compensatory and punitive damages. Compl. at 8-9.

B. Defendants Smith and Brennan's Version of Events

Defendants Smith and Brennan contend that, during dinner on May 24, 2011, Brooks threatened a resident after he refused to give Brooks his tray of food. Dkt. No. 41-2, at 1. Defendant Brennan told Brooks that such conduct was inappropriate. Id .; Dkt. No. 1-1, at 17. Shortly thereafter, Brooks took a bag of clean personal clothing from another resident's room. Dkt. No. 1-1, at 17. Brennan asked Brooks why he had the clean clothing when it was not his laundry day. Id . Brooks replied, "mind your own fucking business bitch." Dkt. No. 41-2, at 1. Brennan told Brooks that his actions were "inappropriate and would be documented." Id . Within five minutes of the laundry incident, Brennan observed Brooks taking a radio from another resident's room. Id . When Brennan told Brooks that his conduct was in violation of CNYPC's policy and ordered him to return the radio, Brooks stated, "yo man why you ducking with me. I ain't gonna take this shit much longer, treating me like a bitch nigga." Id .; Dkt. No. 1-1, at 17. Brennan alleges that Brooks then raised his voice at staff and clenched his fists, so Brennan directed Brooks to go to the side room. Dkt. No. 41-2, at 2. Brooks entered the side room, mumbling words under his breath, and ignored orders to sit in a chair in the back of the side room. Id . Instead, Brooks stood in the doorway of the side room and yelled "your [sic] all pussys" to staff down the hall. Id . Brennan approached Brooks and told him to sit in the blue chair at the back of the side room, to which Brooks responded, "ya know... you're a bitch nigga." Id.

Thereafter, Brooks "charged Defendant Brennan, throwing multiple punches at Defendant Brennan's face and head areas." Dkt. No. 41-2. at 2. In response, Brennan "attempted multiple punch defections and then wrapped [Brooks's] upper body to prevent plaintiff [from] striking him anymore." Id .; Dkt. No. 1-1, at 17. The struggle resulted in Brooks and Brennan falling into the right side of the door frame. Id . Once Brooks and Brennan were on the ground, Brooks "continued to smash Brennan's body into the side room door frame and wall." Dkt. No. 41-2, at 2. Thereafter, "extra staff" came to the side room to assist Brennan. Id . Brennan, along with "[a]nother [SC]TA performed a two person manual removal placing... Brooks back into the side room." Id . During this struggle, Brooks tripped Brennan and punched him in the neck and shoulder. Id. at 3. Brennan then left the side room. Id.

Dr. Joseph Colosi, director of CNYPC's medical department, also examined Brooks on May 24. Dkt. No. 41-3. Medical records taken that day reveal that Brooks's injuries were: a small abrasion to the left side of his head with mild tenderness; left elbow pain; minimal swelling of the elbow; some "facial bone tenderness"; and pain in the fourth and fifth knuckles of his left hand, with "some swelling and tenderness noted." Dkt. No. 41-4, at 2; Dkt. No. 41-3, at 1-2. X-rays of Brooks's left hand came back negative. Dkt. No. 41-2, at 3. Dr. Colosi opined that Brooks's injuries were more consistent with a struggle than being punched or kicked. Dkt. No. 41-3, at 2. Dr. Colosi also noted that, shortly after the alleged assault, Brooks was seen punching a wall with the hand he claimed was injured by defendants. Dkt. No. 41-4, at 2.

C. Defendant Davis's Version of Events

Defendant Davis contends that on the evening of May 24, 2011 Brooks witnessed a conversation between defendants Brennan and Smith-Creaser by the nurses' station, wherein Brennan told Smith-Creaser that he observed Brooks in the dining area bullying other residents. Dkt. No. 39-3, at 2. Davis also "vaguely recall[ed]" a conversation about Brooks taking clean laundry belonging to other residents. Id . After witnessing this conversation, Davis went to the day room, which was at the other end of the hall from the nurses' station. Id. at 3. "Very shortly after" going to the day room, Davis "became aware that someone had dropped a red phone, ' as [he] heard the sound of people walking quickly, doors opening and closing... The residents in the day room that were then under [his] supervision became aware that something was amiss...." Id . Davis contends that he "did not witness the incident as occurring between [Brooks] and defendants Brennan and... Smith. [He] was some 50-60 feet away, at another end of the ward" and that he "at all times remained in the day room supervising those residents who were present therein." Id.

III. Discussions[6]

Brooks argues that defendants Brennan and Smith violated the Eighth Amendment's prohibition on cruel and unusual punishment by using excessive force against him. He further contends that defendants Smith-Creaser and Davis violated the Eighth Amendment by failing to protect him from Brennan and Smith's assault.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was supported by affidavits or other suitable evidence, and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by providing the court with portions of pleadings, depositions, and affidavits which support the motion. FED. R. Civ. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial, and must do more than show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude, "... that a pro se litigant's submissions must be construed "liberally, "... and that such submissions must be read to raise the strongest arguments that they "suggest, ".... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, ... or arguments that the submissions themselves do not "suggest, "... that we should not "excuse frivolous or vexatious filings by pro se litigants, "... and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law....

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir.2008).

B. Eighth Amendment

Brooks contends that defendants Smith and Brennan violated the Eighth Amendment prohibition on cruel and unusual punishment because they maliciously and sadistically used excessive force against him. He further asserts that defendants Smith-Creaser and Davis violated the Eighth Amendment for failing to protect him from the abuse. In response, defendants contend that only minimal force was used as was necessary to control Brooks after he attacked defendants Brennan and Smith. Although Brooks raises his excessive force claim under the Eighth Amendment, because he had been released by the New York State Department of Corrections and Community Supervision to CNYPC upon the completion of his prison term, remaining at CNYPC as a civilly-committed sex offender, his claims predicated on violations of the Eighth Amendment will be analyzed under the Due Process clause of the Fourteenth Amendment. See, e.g., Yeldon v. Sawyer, 10-CV-266 (TJM/RFT), 2012 WL 1995839, at *4 (N.D.N.Y. Apr. 26, 2012) (holding that an involuntarilycommitted individual's allegations of cruel and unusual punishment "are instead analyzed and evaluated under the due process clause of the Fourteenth Amendment") (citations omitted); Lane v. Carpinello, 07-CV-751 (GLS/DEP), 2009 WL 3074344, at *18, *22 (N.D.N.Y. Sept. 24, 2009) (citing Youngberg v. Romeo, 457 U.S. 307, 312 (1982)). In general, however, the standards to evaluate excessive force involve the same analysis under both the Eighth and Fourteenth Amendments. See Groves v. Davis, 11-CV-1317 (GTS/RFT), 2014 WL 4684998, at *8, citing Youngsberg, 457 U.S. at 315-16 (additional citations omitted).

1. Excessive Force

A plaintiff seeking to demonstrate a claim of excessive force must demonstrate both objective and subjective components. The subjective component focuses on the defendant's motive for his or her conduct ( Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)), and requires a showing that the defendant "had the necessary level of culpability, shown by actions characterized by wantonness" in light of the particular circumstances surrounding the challenged conduct. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999) (quoting Wilson v. Seiter, 501 U.S. 294, 299 (1991)); see, e.g., Sims v. Artuz, 230 F.3d 14, 21 (2d Cir.2000); Davidson v. Flynn, 32 F.3d 27, 30, n.2 (2d Cir.1994). The objective component focuses on the effect of the conduct, or the "harm done, in light of contemporary standards of decency." See Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (quoting Hudson, 503 U.S. at 7-8).

In addressing excessive force claims for civilly-committed plaintiffs, the Second Circuit has stated that a reviewing court is to consider:

the need for the application of force, the relationship between the need and amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.... [I]f the force was maliciously or sadistically [employed] for the very purpose of causing harm in the absence of any legitimate government objective and it results in substantial emotional suffering or physical injury, then the conduct is presumptively unconstitutional.... [M]alicious and sadistic abuses of government power that are intended only to oppress or to cause injury and serve no legitimate government purpose unquestionably shock the conscience.... [C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.

Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 251-52 (2d Cir.2001) (internal quotation marks and citations omitted).

Here, Brooks argues that defendants Brennan and Smith used excessive force because they ambushed him, apparently without provocation, and then beat him throughout his entire body for a period of fifteen minutes, resulting in injuries. Compl. ¶ 21. Conversely, defendants insist that they used only the force necessary to control Brooks after he assaulted Brennan, and that any injures Brooks suffered are de minimis. Dkt. No. 41-8, at 4. In support of this claim, defendants submit a CNYPC internal report describing the incident; Dr. Colosi's report concluding that Brooks's injuries were likely from a struggle, rather than an assault; and Brooks's plea colloquy wherein he pleaded guilty to assaulting defendant Brennan. Dkt. No. 1-1, at 17; Dkt. No. 41-3, at 6-9; Dkt. No. 41-6.

a. Estoppel

Although defendants have not explicitly raised an estoppel argument in their motion for summary judgment, they have contended that Brooks's assault conviction requires dismissal of his excessive force claim on the merits. To properly address such argument, it appears appropriate to the undersigned to assess what consequences, if any, the assault conviction may have on Brooks's excessive force claim.

An assault conviction does not bar an individual from bringing a claim for excessive force under section 1983, even where the conviction arises out of the same occurrence and involves the same defendants if excessive force was not relevant to, and not raised in, the criminal action. See Jeanty v. County of Orange, 379 F.Supp.2d 533, 544 (S.D.N.Y. 2005) (holding that the plaintiff's conviction for assaulting a corrections officer did not collaterally estop the plaintiff's later excessive force claim brought under section 1983 where the criminal court "did not find that [the] plaintiff was not assaulted nor that [the] plaintiff was not subjected to unnecessary and wanton infliction of pain."). Moreover, Brooks's section 1983 claim is not barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that

in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

Id. at 486-87. If Brooks succeeded in his excessive force claim, the success would not necessarily demonstrate the invalidity of his conviction for assault in the third degree. In Douglas v. Smith, the court concluded that if the plaintiff were successful on his excessive force claim, his second degree assault conviction would be invalidated because, as part of the assault plea, the plaintiff admitted that he assaulted the defendant with the intent to disrupt the officer from his lawful duties and cause injury. No. 05-CV-1000, 2009 WL 789450, at *2 (N.D.N.Y. Jan. 26, 2009). Since disruption of lawful duties was an element of the second degree assault charge to which the plaintiff had pleaded guilty, the court concluded that his contradictory argument in his 1983 claim could invalidate that criminal conviction if accepted by the court. Id . By contrast, in Caban v. Hendry, the plaintiff's assault plea did not necessarily require him to contend that he prevented the defendant from performing his lawful duty. 09-CV-1227 (DNH/GHL), 2011 WL 2600620, at *4 (N.D.N.Y. Jun. 2, 2011). Thus, the court concluded that a successful excessive force claim would not invalidate the assault conviction. Id.

Like in Caban, Brooks's plea to Penal Law § 120.00 did not require him to admit that he attempted to prevent Brennan from exercising his lawful duties. Id .; Penal Law § 120.00. Further, it can be true that Brooks assaulted defendant Brennan and that, in response, defendants Brennan and Smith utilized force maliciously and sadistically. Indeed, Brooks contends that defendants beat him for a period of fifteen minutes and that the assault continued even after he collapsed to the floor. Dkt. No. 25, at 6, 11. Further, even if, arguendo, Brooks' excessive force claim would be barred due to the assault conviction against defendant Brennan, there is no assault conviction arising out of this incident with respect to defendant Smith.

Here, based on the record provided, it appears that when Brooks pleaded guilty to assault in the third degree, the only issue raised was whether he assaulted defendant Brennan. It does not appear that the court addressed whether Brooks used force on defendant Smith, whether either defendant used excessive force on Brooks, or if it decided which party was the aggressor. Further, although Brooks later stated that he assaulted Brennan in self-defense, he conceded that he pleaded guilty to the assault. Dkt. No. 47-1, at 58.

Therefore, the fact that Brooks pleaded guilty to assaulting Brennan in connection with the May 24 incident does not mean that Brooks is precluded from bringing his excessive force claim against Brennan and others.

b. Merits of Excessive Force Claim

Affording Brooks due solicitude, if Brooks's recitation of the facts are proven, the severity of Brennan and Smith's use of force in response to Brooks's assault on Brennan was unreasonable. In Jeanty, the court provided that, "whether the individual defendants were justified in using force... to restrain the plaintiff after he assaulted [the officer] is analytically different from whether they used appropriate amount of force.... particularly where [the] plaintiff alleges that they continued to beat him after he was subdued." 379 F.Supp.2d at 545. Although Brennan and Smith contend that Brooks was the aggressor and only minimal force was used during this period, Brooks claims that defendants punched him in the face, eyes, nose, mouth, ears, head, neck, back, arms, side, stomach, and chest for period fifteen minutes, and continued to do so even after he collapsed to the floor. Dkt. No. 25, at 6, 9, 11. It is not entirely clear from Brooks's complaints and submissions whether he was restrained at the time he fell to the floor. However, viewing the facts in the light most favorable to Brooks, defendants' use of force in excess of what was needed to maintain control and order serves no legitimate governmental purpose and is in violation of the Fourteenth Amendment. Johnson, 239 F.3d at 251-52.

Thus, there are several issues of material fact that preclude summary judgment on this ground. Even acknowledging Brooks's assault conviction, the parties dispute the amount of force used by defendants, whether defendants' use of force was reasonable in relation to the need to maintain control over Brooks, and whether defendants or Brooks acted as the aggressor. Where "competing evidence rests on the credibility of [the plaintiff] on one hand and defendants on the other... the governing law that the evidence must be viewed in the light most favorable to the non-moving party, leaves no choice but to credit [the plaintiff's] version of events...." Espinosa v. McCabe, 2012 WL 4108884, *9 (N.D.N.Y. Aug. 28, 2012). Further, in a cause of action for excessive force, "[r]esolution of credibility conflicts and the choice between these conflicting versions are matters for the jury and [are] properly not decided by the district court on summary judgment." Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987).

Accordingly, because material issues of fact exist, it is recommended that Brennan and Smith's motion for summary judgment be denied on this ground.

2. Failure to Protect

Brooks alleges that defendants Davis and Smith-Craser failed to protect him because (1) they ignored his request to switch wards out of his fear for his personal safety, and (2) they failed to immediately intervene to protect him from Brennan and Smith's assault. Like a claim of excessive force, an involuntarily civilly-committed plaintiff's failure to protect claims are analyzed under the Fourteenth Amendment; however, the court notes that the "Second Circuit has yet to address the correct standard to be applied when evaluating a failure to protect claim arising out of an involuntary commitment, and there appears to be some uncertainty regarding the matter." Lane, 2009 WL 3074344, at *18.

Courts in this circuit have acknowledged that it is unclear whether a failure to protect claim set forth by a civilly-committed individual should be analyzed under a "substantial departure standard, " a general substantive due process analysis, or under the less burdensome standard of deliberate indifference. See Yeldon, 2012 WL 1995839, at *7. The substantial departure standard requires the plaintiff to demonstrate that an official's decision was a "substantial departure from accepted professional judgment, practice or standards" Vallen v. Carrol, 02-Civ-5666 (PKC), 2005 WL 2296620, *8 (S.D.N.Y. Sept. 20, 2005), (quoting Youngberg, 457 U.S. at 323). A general substantive due process analysis would ask the plaintiff to show that the defendant "intended to injure [plaintiff] in some way unjustified by [any]... governmental interest and most likely rise to the conscience-shocking level." Id . (quoting County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)). Finally, a deliberate indifference analysis requires the plaintiff to demonstrate that prison officials acted with "deliberate indifference" in failing to protect the inmate from harm. See Farmer v. Brennan, 511 U.S. 825, 834.

Courts that have addressed which standard is most appropriate to apply to an involuntarily-committed plaintiff's failure to protect claims have indicated, in dicta, that the substantial departure standard and the general substantive due process standard are inapplicable to an analysis of involuntarily-committed plaintiff's failure to protect claim. McChesney v. Hogan, 08-CV-0563 (NAM/DEP), 2010 WL 3613806, at *5 (N.D.N.Y. Aug. 11, 2010) (concluding that the deliberate indifference standard "best accommodates the constitutional concerns implicated in connection with section 1983 claims brought by involuntarily committed mental patients based on alleged failures to protect them in violation of their substantive due process rights"); Parks v. City of New York, 04 Civ. 2490(DC), 2006 WL 944659, at *5 (S.D.N.Y. Apr. 11, 2006) (citation omitted) ("Failure-to-protect claims are treated as challenges to conditions of confinement and, accordingly, [the] plaintiff must demonstrate deliberate indifference."); Vallen 2005 WL 2296620, at *8-*9 (concluding that substantial departure analysis and substantive due process analysis ill-suited for addressing an involuntarily-committed plaintiff's failure to protect claim). For example, in Vallen v. Carroll, the court concluded that the substantial departure standard had "no applicability, " to a failure to protect claim brought by an involuntarily-committed plaintiff. Id . In doing so, the court noted that, the standard's "professional judgment" analysis was not appropriate where the defendants were "low-level staff members" who were addressing day-to-day issues, rather than "higher-level decisions." Id.[7]

Next, the Vallen court also concluded that application of the conscious-shocking analysis of the general substantive due process standard "demands too much of such plaintiffs' substantive due process claims, " and suggested that it placed too a heavy burden on an involuntarily-committed plaintiff. 2005 WL 2296620, at *9; see also McChesney, 2010 WL 3613806 at *5. Thus, the undersigned agrees with the Vallen court and its progeny that the most appropriate standard to apply when assessing involuntarilycommitted plaintiff's failure to protect claims brought under section 1983 is the deliberate indifference analysis applied to Eighth Amendment claims.

As discussed above, the deliberate indifference analysis requires the plaintiff to demonstrate that the defendants were (1) aware of a substantial risk of harm and (2) that they were deliberately indifferent to that harm. The plaintiff must show that the deprivation was "sufficiently serious" and that the defendant had a culpable state of mind. Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996); see also Farmer, 511 U.S. at 837; Hayes v. New York City Dept. of Corr., 84 F.3d 614, 620 (2d Cir.1996). A plaintiff meets his or her burden of demonstrating a sufficiently serious deprivation where he or she alleges that the deprivation posed a substantial risk of serious harm. Farmer, 511 U.S. at 834. The second prong, or the "deliberate indifference" prong, is met where the defendant knew of and disregarded an excessive risk to the plaintiff's health or safety by failing to take reasonable measures to avoid the harm. Id.

First, Brooks contends that Davis and Smith-Creaser were aware of a substantial risk of harm - an assault by defendants Smith and Brennan -because he informed them that he wanted to switch wards because feared for his safety. Compl. ¶¶ 17-19; Dkt. No. 25, at 2. Although Brooks alleges that he informed Smith-Creaser that he feared for his safety, he does not specifically argue that he told Smith-Creaser that what he feared was an assault at the hands of Smith and Brennan. Compl. ¶ 17. The record is similarly unclear as to whether Brooks specifically told Davis that he feared an assault by Smith and Brennan or whether Brooks assumed that Davis knew the source of Brooks's fear. Dkt. No. 25, at 2 ¶¶ 4-5. Brooks suggests that Davis refused his request to speak with a nurse administrator because Davis did not want to get Smith and Brennan into trouble. Dkt. No. 25, at 2, 5. Because Brooks fails to explicitly state that he told Smith-Creaser and Davis that he wanted a transfer because he feared that Smith and Brennan would harm him, he has not proven that Smith-Creaser or Davis had actual knowledge of a serious risk of harm based on his statement that he feared for his safety. See e.g. Shell v. Brun, 585 F.Supp.2d 465 (W.D.N.Y. 2008) (holding that, to establish deliberate indifference, a plaintiff must demonstrate that defendants had knowledge of a specific risk to the plaintiff's safety); see also Farmer, 511 U.S. at 838 (holding that a defendant's failure to alleviate a significant risk that he or she should have perceive, but did not, will not establish deliberate indifference).

Brooks next appears to suggest that, even absent his verbal complaints on May 24, 2011, Davis and Smith-Creaser were aware of the serious risk that Brennan posed to him because they were aware of Brennan's history of threatening Brooks with physical harm. Dkt. No. 1-1, at 3-4. Brooks provides evidence that Mental Hygiene Legal Services contacted CNYPC's quality management office on his behalf to inform them that Brennan harassed Brooks and made threats against his safety in 2009 and 2010. Id . However, "verbal statements alone do not indicate a substantial threat of serious harm." See, e.g., Desulma v. City of New York, No. 98 Civ. 2078, 2001 WL 798002, at *6-*7 (S.D.N.Y. July 6, 2001). Thus, Brennan's past harassing behaviors is insufficient to establish defendants' knowledge of a substantial risk of harm.

Brooks also alleges that Davis and Smith-Creaser were aware of a risk of serious harm because they knew that both Brennan and Smith had a history of assaulting CNYPC residents. Dkt. No. 1-1, at 3-4. However, Brooks's unsupported allegation that Brennan and Smith had a history of assaulting patients at CNYPC is not persuasive. Brooks does not provide any factual support for this claim. Cf. Farmer, 511 U.S. at 842-43 (concluding that evidence of an official's "longstanding, pervasive, well-documented" history of attacks, along with "circumstances suggest[ing] that the defendant-official being sued had been exposed to [this] information" sufficient to allow a trier of fact to conclude that the defendant had actual knowledge of the risk). Although a plaintiff may base his or her deliberate indifference claim on a general risk of harm that a defendant poses to all individuals at a facility, Brooks fails to contend that the earlier assaults were similar enough to the assault in question such that "remedial actions would have prevented that attack." Parris v. New York State Dept. of Corr. Services, 947 F.Supp.2d 354, 363 (S.D.N.Y. 2013) (citation omitted). Thus, Brooks fails to establish a failure to protect based in Davis and Smith-Creaser's actual or constructive knowledge of defendants' history of assaulting residents at CNYPC.

Finally, Brooks argues that Davis and Smith-Creaser failed to protect him because they observed defendants Brennan and Smith assault him for a period of fifteen minutes, but did not intervene. In response, Davis contends that he was down the hall in the day room and did not observe the assault. Dkt. No. 39-3, at 2-3. Similarly, Smith-Creaser suggests that she did not fail to protect Brooks because she "would have no reason to believe that [Brooks] was in a position of substantial harm. To the contrary, she did have reason to believe that defendants Brennan and Smith were the ones in a position of substantial harm." Dkt. No. 41-8, at 8.

Construing the facts in the light most favorable to Brooks, if Davis and Smith-Creaser failed to intervene as they observed Brennan and Smith maliciously and sadistically assaulting Brooks, rather than exerting the minimal force necessary to gain control and order over him, Brooks will meet his burden of demonstrating that they were deliberately indifferent to a substantial risk of harm. George v. Corr. Officer Burton, No. Civ. 00-143 (NRB), 2001 WL 12010, at *3 (S.D.N.Y. Jan. 4, 2001) (citing Davidson v. Cannon, 474 U.S. 344, 348 (1986) (A failure to protect violation occurs "when prison guards simply stand by and permit an attack on an inmate by another inmate to proceed."). Due to the conflicting evidence offered by Brooks and defendants, summary judgment cannot be granted on this ground. See Nimley v. City of New York, 414 F.3d 381, 390 (2d Cir.2005).

Accordingly, it is recommended that defendants Davis and Smith-Creaser's motions for summary judgment on this ground be denied.

C. Qualified Immunity

Qualified immunity shields public officials from being sued for conduct undertaken in the course of their duties so long as that conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir.1988).

It is clearly established that civilly-committed individuals have a constitutional right to be free from excessive force. See Youngberg, 457 U.S. at 315-16. Here, is unclear whether the force allegedly used by defendants Brennan and Smith continued beyond what was necessary under the circumstances and, thus, was a malicious and sadistic application of force intended solely for the purpose of harming Brooks. Similarly, because of this clearly established right to be free from malicious excessive force, it also cannot be said that it would be reasonable for defendants Davis and Smith-Creaser to allow use of force beyond what was needed to subdue Brooks. Granting summary judgment on the basis of a qualified immunity defense is not appropriate where there are facts in dispute that are material to a determination of a defendant's reasonableness. Thomas v. Roach, 165 F.3d 137, 143 (2d Cir.1999). Here, it would be premature for this court to hold that no reasonable fact finder could conclude that it was objectively unreasonable for defendants Brennan and Smith to believe that they were acting in a manner not in violation of a clearly established constitutional right. See Lee v. Sandberg, 136 F.3d 94, 102 (1997); see also Tafari v. McCarthy, 714 F.Supp.2d 317, 353-54 (N.D.N.Y. 2010).

Accordingly, it is recommended that (1) defendant Davis's motion for summary judgment on the basis of qualified immunity, and (2) defendants Smith, Smith-Creaser, and Brennan's motion for summary judgment on the basis of qualified immunity be denied.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that

(1) Defendants' Brennan, Smith, and Smith-Creaser's motion for summary judgment (Dkt. No. 41) be DENIED and;
(2) defendant Davis's motion for summary judgment (Dkt. No. 39) be DENIED.

Pursuant to 28 U.S.C. § 636 (b) (1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court "within fourteen (14) days after being served with a copy of the... recommendation." N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. § 636 (b) (1) (B)-(C)).

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of Heath and Human Servs., 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72, 6 (a), 6 (e).

Attorneys and Law Firms

Luis Caban, Alden, NY, pro se.

Hon. Eric T. Schneiderman, Attorney General for the State of New York, Douglas J. Goglia, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

*1 This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Luis Caban ("Plaintiff') alleges that Defendants violated his Eighth Amendment rights by subjecting him to excessive force. (Dkt. No. 6 ¶ 24.) Currently pending before the Court is Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 25.)For the reasons that follow, I recommend that Defendants' motion be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that on April 2, 2009, he and another inmate fought. (Dkt. No. 6 ¶ 11.) He claims "[t]he other inmate appeared [to] have numerous puncture wounds as a result of a pick type weapon, '" but staff recovered no weapon. Id. After the fight, Plaintiff was taken to the prison infirmary. There, Defendant Sgt. Kieth Hendry, Defendant Sgt. William Kline, and Defendant Correctional Officer James Patch surrounded him. Id. ¶ 12. They asked Plaintiff where the weapon was. Id. When he failed to respond, Defendant Hendry told him "[l]isten you fucking spic, you're going to tell me where that fucking shank is at" and then banged his head with a walkie-talkie. Id. ¶ 13. Plaintiff claims that he "threw his hands up for cover so to preven[t] any further blows to the head and was immediately jumped on by Defendants Kline and Patch." Id. He alleges that Defendant Patch beat his head and face with closed fists, put him in a choke hold, and slammed him on the floor as Defendant Hendry continued to beat him with closed fists. Id. ¶¶ 14-15.

Plaintiff claims that he struggled and attempted to get up as Defendants Kline, Hendry, and Patch beat him. Id. ¶ 16. The beating lasted about a minute, until Plaintiff "became placid from the hard blows." Id. Plaintiff alleges that Defendants Hendry, Kline, and Patch "continued slapping, punching and kicking" him after he was handcuffed. Id. Plaintiff was then yanked to his feet. Id. ¶ 17. He claims that Defendant Hendry punched him in the back of his head "causing his face to slam hard against a wall." and that "[b]oth [Defendant] Kline and [Defendant] Patch repeatedly slapped [Plaintiffs] face and head several more times." Id.

Plaintiff alleges that Defendant Sgt. D. Winchip later arrived. Id. ¶ 18. Plaintiff claims that Defendant Winchip "without premable, slapped [Plaintiff] in the face" and "yelled where's the weapon?'" Id. Plaintiff did not answer and Defendant Winchip punched him in the stomach and he fell to the floor. Id. Plaintiff alleges that he was threatened with criminal charges if he did not reveal the weapon's location and was escorted to the Special Housing Unit for refusing to talk. Id. ¶ 19.

*2 On May 13, 2009, Plaintiff was indicted for assaulting Defendant Hendry.[1] (Dkt. No. 25-3.)On December 7, 2009, he pleaded guilty to one count of attempted assault in the second degree in violation of New York Penal Law §§ 110 and 120.05(7). (Dkt. No. 25-4.) During the plea allocution, the judge asked Plaintiff whether he "with the intent to cause physical injury to another, attempt[ed] to cause such physical injury to Corrections Sergeant... Hendry?" Id. at 13:11-14. Plaintiff replied "Yes. I tried to defend myself." Id. at 13:15-16. The judge asked again: "[D]id you, with the intent to cause physical injury to another, attempt to cause such physical injury to Corrections Sergeant... Hendry?" Id. at 13:23-14:1. Plaintiff replied "yes." Id. at 14:2. Plaintiff was sentenced to a term of imprisonment of one and a half to three years as a result of his guilty plea. (Dkt. No. 25-5 at 6:18-24.)

Plaintiff filed this action after he was indicted but before he pleaded guilty to attempting to assault Defendant Hendry. (Dkt. No. 1.) The operative complaint is the amended complaint. (Dkt. No. 6.) Plaintiff requests $500, 000 in compensatory damages and $100, 000 in punitive damages. Id. at ¶¶ 25-26. Defendants now move for a judgment on the pleadings. (Dkt. No. 25.)Plaintiff has not opposed the motion.

II. LEGAL STANDARD GOVERNING MOTIONS FOR JUDGMENT ON THE PLEADINGS

"The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b) (6) motion to dismiss for failure to state a claim." Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief... requires the... court to draw on its judicial experience and common sense... [W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief." Id. at 1950 (internal citation and punctuation omitted).

"In reviewing a complaint for dismissal under Rule 12(b) (6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.

III. ANALYSIS

*3 Defendants argue that the rule in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) bars Plaintiffs § 1983 excessive force claim for damages because Plaintiffs success in this action would imply the invalidity of his criminal conviction for attempting to assault Defendant Hendry. (Dkt. No. 25-1 at 4-7.)Defendants' argument is without merit because Plaintiffs success in this action would not necessarily demonstrate the invalidity of his conviction for attempted assault in the second degree.

In Heck, the Supreme Court held that:

in order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.

Heck, 512 U.S. at 486-87. Under Heck and its progeny, "a state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief)... - if success in that action would necessarily demonstrate the invalidity of confinement or its duration."Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) (emphasis omitted). If a plaintiff whose success would necessarily demonstrate the invalidity of the confinement or its duration does not satisfy Heck's favorable termination' rule, he must seek relief through the federal habeas corpus statute rather than through § 1983. Peralta v. Vasquez, 467 F.3d 98, 104 (2d Cir.2006)

Defendants argue that "if this matter somehow results in a judgment in favor of Plaintiff, it unquestionably would imply the invalidity of his conviction. Plaintiffs claim of excessive force therefore is not cognizable..." (Dkt. No. 25-1 at 6.) Defendants cite Douglas v. Smith, No. 05-CV-1000, 2009 U.S. Dist. LEXIS 130720, 2009 WL 789450 (N.D.N.Y. Jan. 26, 2009), [2] which they characterize as being "[a]lmost directly on point." (Dkt. No. 25-1 at 6.)

In Douglas, the plaintiff was involved in an altercation with several officers, including an officer named Rae. After the incident, Douglas was criminally charged with assaulting Officer Rae. He pleaded guilty to a reduced charge of attempted assault. The conviction was not overturned on appeal. Douglas filed a § 1983 action alleging that the officers violated his Eighth Amendment rights by subjecting him to excessive force. To prevail on the cause of action, Douglas needed to prove that the officers applied force "maliciously and sadistically to cause harm" rather than "in a good-faith effort to maintain or restore discipline." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Officer Rae, but not the other officers, moved for summary judgment. The court granted Officer Rae's motion, finding that:

*4 Douglas was convicted of attempted assault in the second degree, admitting that he intended to prevent Rae from performing his lawful duty by attempting to cause Rae physical injury. Douglas' contention here that Rae initiated the assault and that Douglas was merely attempting to protect himself directly contradict his conviction based on his allocution and plea and mandates the implication of the invalidity of that conviction and appeal... [I]f Douglas' current version of the relevant facts were accepted, Rae would not have been performing a lawful duty and Douglas' plea would become invalid.

Douglas, 2009 WL 789450, at *2.

Douglas is distinguishable from the case at bar. This is primarily because Douglas and Plaintiff pleaded guilty to different subsections of Penal Law § 120.05. Douglas pleaded guilty to subsection three, which states that a person is guilty of assault in the second degree if "[w]ith intent to prevent a peace officer... from performing a lawful duty... he causes physical injury to such peace officer." N.Y. Penal Law § 120.05(3) (McKinney 2004). Judge Homer reasoned that if Douglas succeeded in his Eighth Amendment excessive force claim against Officer Rae by proving that Officer Rae applied force maliciously and sadistically rather than in a good faith effort to maintain or restore discipline, it would necessarily demonstrate the invalidity of Douglas' conviction because it would show that Officer Rae had not been performing a lawful duty.

Here, Plaintiff pleaded guilty to the subsection of § 120.05 that states that a person is guilty of assault in the second degree if "while confined in a correctional facility... with intent to cause physical injury to another person, he causes such injury to such person or to a third person." N.Y. Penal Law § 120.05(7) (McKinney 2004). Thus, Plaintiff did not plead guilty to a charge that includes the assault victim's "performance of a lawful duty" as an element. Success in this action would not invalidate Plaintiffs conviction because both propositions could be true: Defendants may have acted maliciously and sadistically and Plaintiff may have intended to harm Defendant Hendry. Nothing in Plaintiffs complaint contradicts the facts that he admitted when he pleaded guilty to attempting to assault Defendant Hendry. Indeed, Plaintiff admits that he struggled' against Defendants. (Dkt. No. 6 ¶ 16.) The complaint also states that Plaintiff "became placid" after "approximately a minute, " which suggests that Plaintiff was not "placid" before that point. Id. Therefore, I find that Plaintiffs claim is not barred by Heck.

I note, also, that the Douglas court granted summary judgment in favor of only Defendant Rae. The other officers who Douglas alleged used excessive force did not move for summary judgment on the basis of Heck. Here, all of the defendants have moved for judgment on the pleadings, not just Defendant Hendry. Defendants have not cited any case holding that a prisoner's conviction for assaulting one officer bars his excessive force claims against other officers. Therefore, I recommend that the Court deny Defendants' motion for judgment on the pleadings.

*5 ACCORDINGLY, it is

RECOMMENDED that Defendants' motion for judgment on the pleadings (Dkt. No. 25) be DENIED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir.1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).

ELLIS, Magistrate J.

I. INTRODUCTION

*1 Pro se incarcerated plaintiff Chrisner Desulma ("Desulma") sued the City of New York and two Department of Corrections officers alleging violation of his Eighth and Fourteenth Amendment rights while he was an inmate on Rikers Island. Compl.[1] His claims were thereafter dismissed except as against defendant Goolsby, who has brought the instant motion for summary judgment. For the reasons which follow, I respectfully recommend Goolsby's motion be GRANTED.

II. BACKGROUND

A. Factual Background

The following account is based on Desulma's complaint and deposition testimony. The events which give rise to this cause of action occurred on December 27, 1996, when Desulma was incarcerated in the Adolescent Detention and Reception Center ("ADRC") at Rikers Island Compl. ¶ 8. At midday, Desulma and approximately fifty other inmates from his housing unit were escorted in a line to the mess hall by officers Goolsby and an unidentified officer, "Jane Doe." Id. ¶ 9; Tr. at 83. Two inmates standing near Desulma in the line began "menacing" him by making unspecified threats and racial insinuations. Tr. at 58-59, 75-77. Desulma testified that officer Goolsby witnessed these threats. Tr. at 63, 79-80. Desulma requested protection, but Goolsby told him to defend himself. Tr. at 81.

During the meal, Desulma sat away from the inmates who bothered him. Tr. at 85. After the meal, as the group was preparing to leave the mess hall, Desulma attempted to ask Goolsby for protective measures against these inmates, whom he feared. Tr. at 134, 138. Although he did not find Goolsby, Desulma succeeded in speaking to Doe. Id. at 133-35. Desulma claims that Doe ignored his request for protective measures and instructed him to get into the line. Tr. at 134-135.

The inmates who had earlier threatened Desulma were again standing near him in line. Id. at 138. They began to "bother" Desulma, telling him that he "smell led]." Tr. at 141. Desulma later submitted changes to his deposition in which he claims the inmates said, "kill this negro, get you, we are going to get you stinky."Tr. Ch. 6.[2] Following their verbal abuse, the inmates attacked Desulma using their fists and a sharp weapon. Tr. at 141-43. They beat Desulma all over his body and slashed his face with the weapon, leaving a permanent scar. Id. at 143.

Desulma called for help during the attack, but the escorting officers did not intervene. Id. at 145. As Desulma attempted to run away from his attackers, he fell onto the floor near Doe's feet. Id. Desulma alleges that no correctional officer sought medical assistance until he "fell to the floor in a pool of blood, " Compl. ¶ 18, at which point Doe called for emergency assistance over her radio transmitter. Id. at ¶ 21. Desulma originally testified that Goolsby was not on the scene until Doe called for help, Tr. at 134, 138, 149, but later asserted that he had seen Goolsby "a few seconds" before and after the incident. Tr. Ch. at 6.

*2 Approximately twenty-five officers responded to Doe's call. Tr. at 147-49. The officers transported Desulma to the facility's medical clinic, Tr. at 150, where he received treatment requiring a total of twelve stitches. Com pl. ¶ 19-20. Desulma was subsequently transferred to live in a separate housing unit. Glass. Decl. ¶ 22.[3]

B. Procedural Background

Desulma filed the instant complaint on January 5, 1998, against the City of New York and correctional officers Goolsby and Jane Doe, in their individual and official capacities, for failure to protect Desulma from other inmates during an incident at Riker's Island. He alleges violation of his Eighth and Fourteenth Amendment rights, see Compl. ¶ 32, and various tort violations under New York state law. Id. ¶ 34. Specifically, he alleges that Goolsby, "with deliberate indifference, " failed to separate him from a group of inmates who had threatened him and "deliberately refused" to grant his request for protection. Id. ¶ 29-30.

At a status conference before Judge Shira A. Sheindlin on November 5, 1998, the complaint was dismissed with respect to all defendants except officer Goolsby. The ruling was confirmed in a written order issued by Judge Richard M. Berman on December 21, 1998. On December 3, 1998, Goolsby served an answer to the complaint, and discovery progressed as ordered. Desulma was deposed on April 23, 1999 and May 17, 1999.

In January 1999, Desulma requested that discovery materials be translated into Creole and that counsel be appointed to assist him. The Court denied those requests by order dated March 16, 1999. On October 13, 1999, after the close of discovery, Goolsby filed the present motion. Desulma requested and received an extension of time, until January 14, 2000, in which to respond to Goolsby's motion. On December 24, 1999, Desulma requested an audiotape recording of his deposition. See Glass Decl., Exh. C. In an Order dated February 25, 2000, the Court denied the request, as no tapes existed, but granted Desulma permission to submit corrections to his deposition transcripts by April 21, 2000. Id., Exh. D.

On April 20, 2000, Desulma filed, and served Goolsby with, fourteen pages of changes to the deposition. Id., Exh. A. Goolsby objected and, on June 1, 2000, moved to have the changes declared null and void for failure to comply with Rule 30(e) of the Federal Rules of Civil Procedure. Goolsby argued that the changes were "a deliberate attempt by plaintiff to tailor his testimony to defeat defendant's previously served summary judgment motion."See Glass Decl.

On June 19, 2000, the Court ordered Desulma to have his changes signed and sworn, to fully explain each change, and to respond to Goolsby's motion by July 19, 2000. Desulma responded on July 11, 2000, by submitting to the Court the same fourteen pages of deposition transcript changes he had originally filed, along with a sworn affidavit and a declaration of service. He did not, however, submit explanations for his changes or respond to Goolsby's motion. Instead, Desulma requested, and was granted, extensions of time in which to comply with the court's Order of June 19, 2000, and in which to respond to Goolsby's motion for summary judgment. Desulma filed his response on November 16, 2000. The case was referred to the undersigned on December 28, 2000, and the motion was fully submitted when Goolsby filed reply papers on January 5, 2001.

C. The Instant Motion

*3 Goolsby argues that Desulma did not establish the elements of an Eighth Amendment "failure to protect" claim under § 1983 for three reasons: (1) he failed to show he was incarcerated under conditions posing a substantial risk of serious harm; (2) he failed to show Goolsby acted with a sufficiently culpable state of mind; and (3) Goolsby is immune from liability under the doctrine of qualified immunity. See Def. Mem.[4]

Relying primarily on the deposition transcript changes he filed, Desulma contends that officer Goolsby acted with deliberate indifference to his safety and well-being by disregarding his requests for protective measures and by failing to intervene in the attack. Pl. Resp. at 11, 19, 22, 25.[5] Desulma also contends that Goolsby is not immune under the doctrine of qualified immunity. Id. at 17-18. Goolsby argues that Desulma should not be permitted to rely on the deposition transcript changes, and that, even if the changes were accepted into the record, Desulma cannot establish that Goolsby was deliberately indifferent to a substantial risk of serious harm to plaintiff. See Def. Rep.[6]

III. DISCUSSION

A. Standards for Motion for Summary Judgment

A court shall grant a motion for summary judgment if it determines that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). Under this standard, summary judgment is proper if "viewing the record in the light most favorable to the nonmoving party, the evidence offered demonstrates that there is no genuine issue of fact and that the moving party is entitled to judgment as a matter of law. " Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir.1989) (internal quotations omitted), rev'd on other grounds, 496 U.S. 633 (1990). In making this determination, the court does not resolve disputed factual issues, but reaches a conclusion as to whether there exists "a genuine and material issue for trial. " Hudson Hotels Corp. v. Choice Hotels Int'l, 995 F.2d 1173, 1175 (2d Cir.1993). An issue of fact is "genuine" if it provides a basis for "a rational trier of fact to find for the non-moving party. " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the record contains evidence which supports a reasonable inference in favor of the nonmoving party on the issues presented in the motion, summary judgment is not appropriate. SeeKnowles v. New York City Dept. of Corrections, 904 F.Supp. 217, 220 (S.D.N.Y.1995).

The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact. SeeConsarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568 (2d Cir.1993) ( citingAdickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). This burden may be met by demonstrating that there is a lack of evidence to support the nonmoving party's claim. SeeCelotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must then set forth "specific facts showing that there is a genuine issue for a trial."Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 321-22. A nonmoving party may not rely on conclusory allegations or conjecture to create disputed fact issues. Lipton v. Nature Co., 71 F.3d 464, 469 (2d cir.1995); Thomas v. Keane, 2001 WL 410095 (April 23, 2001). Even in cases involving pro se plaintiffs, where the court has an obligation to construe the plaintiffs papers liberally, Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988), these same standards for dismissal apply. Thomas, 2001 WL 410095, at *3 ( citingLee v. Artuz, 2000 WL 231083, at *2 (S.D.N.Y. Feb. 29, 2000)).

B. Deposition Transcript Changes

*4 Rule 30(e) of the Rules of Federal Procedure permits a witness to review the transcript of her deposition and make changes "in form or in substance" within thirty days of notification by the court reporter that the transcript is ready for review, and requires that the deponent sign a statement setting forth the reasons for each change. Rule 30(e), Fed.R.Civ.P. Courts have construed the Rule broadly, even accepting changes which contradict original testimony. Hlinko v. Virgin Atlantic Airways, 1997 WL 68563 (S.D.N.Y. Feb. 19, 1997) ( citing, inter alia, Podell v. Citicorp Diners Club, Inc., 914 F.Supp. 1025, 1034 (S.D.N.Y.1996). Original answers remain admissible at trial as admissions of a party. Podell., 914 F.Supp. at 1034.

Desulma's submission of transcript changes include the following material changes to his initial testimony: (1) the two inmates who attacked him had harassed him the day before the incident, Tr. Ch. at 2; (2) he alerted Goolsby about the harassment the day before the incident, id.; (3) Goolsby was actually on the scene during the incident, Tr. Ch. at 6; (4) the two inmates threatened him with a knife when they verbally harassed him prior to the incident, Tr. Ch. at 4; (5) and the attackers said "kill this negro, get you, we are going to get you stinky, " before attacking him. Tr. Ch. at 6.

Goolsby argues that the Desulma's changes should be rejected because they were tailored to oppose Goolsby's motion for summary judgment and do not comply with Rule 30(e). See Def. Rep. Desulma never submitted explanations as ordered by this Court on July 19, 2000, but maintains that the transcript changes were warranted because his interpreter had not translated his answers accurately. Pl. Resp. at 13. Although Rule 30(e)"does not require a judge to examine the sufficiency, reasonableness, or legitimacy of the reasons for the changes, " Podell v. Citicorp Diners Club, Inc., 914 F.Supp. at 1035, a court is free to reject changes in extreme situations. See, e.g., Baker v. Ace Advertiser's Service, 134 F.R.D. 65 (S.D.N.Y.1991) (changes rejected where they were so far-reaching as to render the transcript a nullity). A court may reopen deposition if the changes to the transcript are made without adequate reasons, or if they are so substantial as to render the transcript incomplete or useless. SeeHlinko v. Virgin Atlantic Airways, 1997 WL 68563, *1 ( citingAllen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 341 (S.D.N.Y.1970).

Here, although Desulma's changes are not so substantial as to render the transcript incomplete or useless, Desulma never submitted explanations for his changes as required by Rule 30(e) and as ordered by this Court on July 19, 2000. The explanation Desulma offers in his opposition papers to the instant motion (that his changes were made to correct the mistranslation of his Creole interpreter, see Pl. Resp. at 13) does not constitute "a statement reciting such changes and the reasons given by the deponent for making them."Fed.R.Civ.P. Rule 30(e). Furthermore, Desulma's explanation does not satisfy this Court's July 19, 2000 order instructing plaintiff to "fully explain each and every change made to the transcript."Desulma's changes are therefore unacceptable.

*5 Moreover, to allow Desulma's changes under these circumstances would permit him to tailor his testimony to meet specific deficiencies in his evidence. As a general proposition, a party may not rely on an affidavit that contradicts his deposition testimony in order to defeat a pending motion for summary judgment. See, e.g., Hale v. Mann, 219 F.3d 61, 74 (2d Cir.2000) ("[I]t is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment.") ( quotingMack v. United States, 814 F.2d 120, 124 (2d Cir.1987)). Similarly, Desulma's contradictory deposition changes, submitted to the Court six months after Goolsby filed her motion for summary judgment, should not provide a basis for avoiding summary judgment. The Court finds that, even if Desulma's changes did conform to the requirements of Rule 30(e), Desulma would not be permitted to rely upon them in opposing the instant motion.

C. 42 U.S.C. § 1983

In order to maintain a claim under Section 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law, and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States. Mendez v. Walker, 110 F.Supp.2d 209, 213 ( citingDwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993)). Desulma has properly alleged that Goolsby, as a correctional officer, was acting under color of state law and that her conduct resulted in a violation of his Eighth Amendment rights.

As a prerequisite to bringing suit, a plaintiff must also show a defendant's direct or personal involvement in the alleged Constitutional deprivation. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Personal involvement may take one of four forms: (1) direct participation in the infractions; (2) failure of a supervisory official to remedy wrong after learning of violation; (3) creation or sanction by a supervisory official of policy or custom under which unconstitutional practices occur; or, (4) gross negligence in managing subordinates. Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986).

Goolsby maintains that she is not liable because she was not present at the time of the slashing. Def. Mem. at 16-17. In fact, the record does not establish Goolsby's location during the slashing. Desulma testified that he was unable to locate Goolsby as the inmates were leaving the mess hall, Tr. 134, and did not see her again until after the incident when Doe called for assistance. Tr. 138, 149. In his reply papers, Desulma claims he "was assaulted in [the] presence of the same two corrections officers, Goolsby and Doe. "Pl. Rep. at 22. And in his changes to the transcript, Desulma claims that he saw Gooslby "before and after" the slashing. Tr. Ch. at 6. Whether Desulma saw Goolsby is not dispositive. Goolsby may have been present even if Desulma did not see her. Defendant has not offered any evidence to suggest that she was not there. Moreover, Desulma need not prove Goolsby's presence at the scene to prevail on his claim that she was deliberately indifferent to a substantial risk of serious harm to him. Construing all pleadings and evidence in Desulma's favor, Goolsby's knowledge of the events leading up to the attack would be enough to establish personal involvement for the purposes of 42 U.S.C. § 1983.

C. Eighth Amendment

*6 The Eighth Amendment, applicable to the states through the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishment. Failure-to-protect claims, because they are treated as challenges to conditions of confinement, are analyzed under the Eighth Amendment. See, e.g., Farmer v. Brennan, 511 U.S. 826 (1994); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997) (stating that Eighth Amendment imposes on prison officials "a duty to protect prisoners from violence at the hands of other prisoners"); Edney v. Karringan, 69 F.Supp.2d 540, 544 n. 1 (S.D.N.Y.1999).

To prevail in a failure-to-protect case, a prisoner must establish that (1) he is incarcerated under conditions posing a "substantial risk of serious harm, " Farmer, 511 U.S. at 834 ( citingHelling v. McKinney, 509 U.S. 25 (1993)), and that (2) the prison official acted with "deliberate indifference" to the prisoner's health or safety. Farmer, 511 U.S. at 828 ( citingHelling, 509 U.S. 25; Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1976)).

While the first part of the test is an objective determination about the severity of the conditions under which plaintiff is incarcerated, seeFarmer, 511 U.S. at 834, the second part of the test invokes a subjective standard akin to criminal recklessness such that the defendant must "consciously disregard" a substantial risk of serious harm. Id. at 839-40. The official "has sufficient culpable intent if he has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm." Hayes, 84 F.3d at 620. The official must be aware of the risk or aware of facts from which the inference of risk could be drawn, and she must also draw the inference. Farmer, 511 U.S. at 837; Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) ( quotingHathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996)).

1. Objective Test: Conditions of Plaintiff's Incarceration

Desulma does not succeed in showing that he was incarcerated under conditions posing a substantial risk of serious harm, a standard which "contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain, "Hathaway, 37 F.3d at 66 ( quotingNance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting)), for two reasons. First, Desulma does not show that the risk he faced was substantial. Second, he fails to show that the risk - to the extent that one existed - was one of serious harm.

Desulma had no prior altercations with the inmates who attacked him. He testified that he had never complained about them or requested separation from them before, id. at 160; that he did not know his attackers at the time of the incident, Tr. 52; and that he only became "enemies" with them en route to the mess hall. Tr. at 60. Desulma later asserts, by changing "no" answers to "yes" answers in the deposition transcript, that he did have an altercation with the same inmates previously, Tr. Ch. 2-3, 8, and adds that he had previously asked Goolsby for protection from the inmates. Id. at 8-9. Desulma does not describe the prior altercation.

*7 Nothing on the record or in the revisions shows that the inmates posed a substantial threat. By Desulma's account, the inmates told him he was "going to pay a price" and told him to get away from them because "he smell[ed]." Tr. at 59-60. These verbal statements alone do not indicate a substantial threat of serious harm. Indeed, Desulma even surmised that "the officers thought that was just words; they didn't believe anything could happen."Tr. at 63, 80. Finally, although Desulma changed his testimony to reflect that the inmates had actually threatened him with a knife, Tr. Ch. at 4, that fact alone would not be enough to establish a substantial risk.

2. Subjective Test: Defendant's Mental State

Desulma is also unable to show that Goolsby acted with the state of mind necessary to establish an Eighth Amendment violation. Desulma may properly rely on circumstantial evidence to prove Goolsby acted with the requisite mental state, because "[d]irect evidence that prison officials knew of and disregarded a serious risk of harm to a prison inmate will rarely be available, " Matthews v. Armitage, 36 F.Supp. 121, 125 (N.D.N.Y.1999) ( citingCoppage v. Mann, 906 F.Supp. 1025, 1036 (E.D.Va.1995)). The evidence he submits, however, fails to support the conclusion he argues before this Court. The record supports the conclusion that Goolsby was aware that Desulma feared his attackers because Desulma requested protective measures en route to the mess hall, [7] and because Goolsby witnessed the verbal altercation. However, given the lack of a prior history of violence between Desulma and those inmates, and the nature of the inmates' verbal threats against Desulma, Goolsby had no reason to infer the existence of a threat of harm, much less a life-threatening danger, as Desulma claims. Pl. Rep. at 21.

Goolsby's failure to intervene in the attack is not, by itself, a basis for liability. Although "[a] correctional officer's presence at an attack of an inmate, where he does nothing to stop an assault, may be sufficient to establish a claim under Section 1983, "Dresdner v. Brockton ( citingMorales v. New York State Department of Corrections, 842 F.2d 27 (2d Cir.1988)), an isolated omission to act by a state prison guard must be accompanied by evil intent, recklessness, or at least deliberate indifference to the consequences of the conduct. Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir.1986) ( quotingAyers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir.1974)). The defendant must also be shown to have had "an extended opportunity to stop the attack but failed to take any action to do so. "Rucco v. Howard, 1993 WL 299296 (S.D.N.Y. Aug. 4, 1993) ( citing Williams, 508 F.2d at 546).

Here, there is no evidence that Goolsby deliberately disregarded Desulma's safety or had an opportunity to intervene in the attack. The fact that Doe called for help and Goolsby appeared shortly thereafter suggests that both officers responded immediately to the attack. At most, Goolsby's failure to heed Desulma's initial request for protection was negligent, and negligence is not a sufficiently culpable mental state for liability to attach in a failure-to-protect cases. SeeDavidson v. Cannon, 474 U.S. 344 (1986); Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 620 (2d Cir.1996).

C. Qualified Immunity

*8 Under 42 U.S.C. § 1983, a public official is entitled to qualified immunity if her acts did not violate clearly established rights of which a reasonable officer would have known, or if she reasonably believed that her conduct did not violate those rights. SeeHarlow v. Fitzgerald, 457, U.S. 800, 818 (1982); Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir.1998); Brown v City of Oneonta, N.Y., Police Dept., 106 F.3d 1125, 1130-31 (2d Cir.1997). The test is whether, in light of the clearly established federal right, it was objectively reasonable for the official to believe that his or her actions were constitutional. Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir.), cert. denied, 498 U.S. 967 (1990).

An official is entitled to qualified immunity "if reasonable officials could disagree regarding whether the actions at issue violated the Constitution."Def. Mem. at 14. However, summary judgment will be granted on the basis of qualified immunity only if "no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff, could conclude that it was objectively reasonable for the defendant to believe that he was acting in a fashion that did not clearly violate an established federally protected right. " Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995) ( quotingRobison v. Via, 821 F.2d 913, 921 (2d Cir.1987)). See also Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir.1996); Noguera v. Hasty, 2000 WL 1011563, * 18 (S.D.N.Y. July 21, 2000). Thus, "[i]f any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon, 66 F.3d at 420.

Goolsby argues that she and Doe acted in an objectively reasonable manner. Def. Mem. at 15. Based on the verbal harassment which preceded the attack, Goolsby argues, "reasonable correction officers at least could differ as to whether these comments alone were concrete enough to create a substantial risk of harm to plaintiff of imminent physical attack." Id. On summary judgment it is necessary to show that no reasonable trier of fact could find that the defendants' actions were objectively unreasonable. In this case, where the only notice of potential harm to Desulma was a request for protection and an incident of verbal harassment, Goolsby was, at most, merely negligent in failing to protect Desulma from the inmates who attacked him. She responded quickly to the attack, separating the inmates and transporting Desulma to the medical unit. On these facts, no reasonable jury could conclude that it was anything but objectively reasonable for Goolsby to believe her acts did not clearly violate an established federally protected right. She is therefore entitled to qualified immunity.

IV. CONCLUSION

Because no genuine issue of material fact exists with respect to Desulma's claims, I respectfully recommend that defendant's motion for summary judgment be GRANTED.

*9 Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. SeeThomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp.1995); Fed.R.Civ.P. 72, 6(a), 6(e).

Parallel Citations

50 Fed.R.Serv.3d 865

Attorneys and Law Firms

Ellis Douglas, Pine City, NY, pro se.

Law Offices Of Gregory J. Teresi, Gregory J. Teresi, Esq., of Counsel, Albany, NY, for Plaintiff.

Hon. Andrew M. Cuomo, Attorney General for the State of New York, Michael G. McCartin, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff Ellis Douglas ("Douglas"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, eight DOCS employees, [2] violated his constitutional rights under the First, Fourth, Eighth, and Fourteenth Amendments. Compl. (Docket No. 1). In an order signed February 14, 2008, defendants' motion for summary judgement was granted with respect to all claims except Douglas' Eighth Amendment excessive force claim against the eight remaining defendants. Docket No. 54.Presently pending is defendants' motion for summary judgment as to one defendant, J. Rae, pursuant to Fed.R.Civ.P. 56. Docket No. 68.Douglas has not opposed the motion. For the following reasons, it is recommended that defendants' motion be granted.

I. Background

A. Failure to Respond

Douglas did not oppose defendants' motion.[3] Under the rules of this district, "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."N.D.N.Y.L.R. 7.1(A) (3) (emphasis omitted). Because Douglas has not responded to raise any question of material fact, the facts as set forth in defendants' Statement of Material Facts are accepted as true. SeeDocket No. 68-9) [hereinafter "Defs. Statement"]; see also Adirondack Cycle & Marine, Inc. v. American Honda Motor Co., No. 00-CV-1619, 2002 WL 449757, at *1 (N.D.N.Y. Mar. 18, 2002) (McAvoy, J.) (citing Lopez v. Reynolds, 998 F.Supp. 252, 256 (W.D.N.Y.1997)).

B. Statement of Facts

The facts and procedural history of this case are set forth in the Report-Recommendation and Order filed January 22, 2008, familiarity with which is assumed. SeeDocket No. 53.

As relevant here, Douglas has asserted two excessive force claims. Defendant Rae was allegedly involved only in one of those claims. Defs. Statement ¶¶ 1-3. On June 30, 2004, on the way back to his cell, Douglas and defendants Rae, Ketzer, and Cross became involved in an altercation. Id. ¶ 3; Compl. ¶ 14, 17-18. Douglas claims that Rae "punched [him] in the face [and] as [he] turned to protect himself from the assault, Sgt. Rae threw a barrage of punches striking Douglas in the face area."Compl. ¶ 17.

As a result of the June 30 altercation, Douglas was charged criminally with assaulting a corrections officer, "pleaded guilty to the reduced charge of attempted assault..., and was sentenced as a second felony offender in accordance with the plea agreement to a prison term of 2 to 4 years, to be served consecutively to a sentence he was then serving. " People v. Douglas, 831 N.Y.S.2d 585, 586 (3d Dep't 2007); see alsoDocket No. 68-4, 5, 6. Douglas attempted to appeal the guilty plea, but the appeal was ultimately denied because the court "f[ound] that [Douglas] entered a knowing, voluntary and intelligent plea of guilty... [and] his allocution sufficiently establishe[d] the essential elements of the crime." Id. at 586-87.This action followed.

II. Discussion

*2 The remaining causes of action in Douglas' complaint allege two instances of excessive force in violation of the Eighth Amendment. Defendants move for summary judgment as to Rae contending that (1) Douglas' claim is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); (2) Douglas' claim is barred by collateral estoppel; and (3) Douglas' excessive force claim is meritless.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

B. Favorable Termination Rule

The favorable termination rule of Heck provides that if a determination favorable to the plaintiff in a § 1983 action "would necessarily imply the invalidity of his conviction or sentence, " a plaintiff must prove that the conviction or sentence has been reversed on direct appeal or declared invalid in order to recover damages under § 1983. Edwards. v. Balisok, 520 U.S. 641 (1997). While the application of the favorable termination rule has been precluded in claims where the alleged "use of excessive force lacks the requisite relationship to the conviction, " this case is patently different. Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 257 (2d Cir.1998).

In this case, Douglas was convicted of attempted assault in the second degree, admitting that he intended to prevent Rae from performing his lawful duty by attempting to cause Rae physical injury. See Douglas, 831 N.Y.S.2d at 586-87; Docket No. 68-6 at 10.Douglas' contentions here that Rae initiated the assault and that Douglas was merely attempting to protect himself directly contradict his conviction based on his allocution and plea and mandates the implication of the invalidity of that conviction and appeal. See Dye v. Virts, No. 03-CV-6273, 2004 WL 2202638, at *4 (W.D.N.Y. Sept. 28, 2004) (barring a prisoner's federal claims regarding a correction officer's alleged assault pursuant to Heck because (1) the plaintiff had previously "ple[d] guilty to assault in the second degree... for causing physical injury to [the corrections officer] in order to prevent him from performing a lawful duty, " (2) the conviction had been affirmed on appeal, and (3) if the prisoner was merely defending himself, the corrections officer would not have been performing a lawful duty.). As in Dye, if Douglas' current version of the relevant facts were accepted, Rae would not have been performing a lawful duty and Douglas' plea would become invalid. Additionally, there is no evidence that Douglas' criminal conviction was ever otherwise vacated. Therefore, because his recovery of damages for excessive force would necessarily imply the invalidity of his criminal conviction, his claim here cannot stand.

*3 Accordingly, defendants' motion as to Douglas' claim against Rae should be granted.

C. Collateral Estoppel

Under the Full Faith and Credit Clause of the Constitution, federal courts must grant state court judgments the same preclusive effects as those given to other courts located within the state. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (citing Migra v. Warren City Sch. Dist., 465 U.S. 75, 81 (1984))."[I]n New York, a guilty plea precludes relitigation in a subsequent civil action of all issues necessarily determined by the conviction [and t]hus, for collateral estoppel purposes, a guilty plea is equivalent to a conviction after trial. " Marinaccio v. Boardman, No. 02-C831 (NPM), 2005 WL 928631, at *11 (N.D.N.Y. Apr. 19, 2005) (internal quotations and citations omitted). Collateral estoppel is applicable:

[I]f (1) there has been a final determination on the merits of the issue sought to be precluded; (2) the party against whom... preclusion is sought has a full and fair opportunity to contest the decision...; and (3) the issue sought to be precluded by the earlier suit is the same issue involved in the later action.

Davis v. Halpern, 813 F.2d 37, 39 (2d Cir.1987) (citation omitted). The requirement of a full and fair opportunity to contest requires that the plaintiff "was fully able to raise the same factual or legal issues" in the prior litigation as asserted in the present case. LaFleur v. Whitman, 300 F.3d 256, 274 (2d Cir.2002).

In this case, the state court has established that Douglas voluntarily and intelligently pled guilty to the charge of attempted assault in the second degree stemming from the same events which gave rise to this action. See Douglas, 831 N.Y.S.2d at 586-87; Docket No. 68-6 at 10.Specifically, Douglas pled guilty to intentionally interfering with Rae's ability to perform his lawful duties and attempting to assault him, as opposed to Douglas' current contentions that Douglas did not instigate the altercation and was only acting in self-defense. Thus, the guilty plea constituted a final determination on the merits of the case.

This leaves the question of whether a defendant who pleads guilty to a crime, in lieu of trial, has had a full and fair opportunity to litigate... [to which n]umerous courts have answered in the affirmative, holding that a defendant is not denied the chance to contest issues in a criminal proceeding merely because he pleds guilty, so long as the plea was voluntary and intelligent.

Downing v. King, No. 06-CV-363 (GLS/RFT), 2007 WL 4191765, at *2 (N.D.N.Y. Nov. 26, 2007) (internal citations and quotations omitted). Therefore, Douglas has also had a full and fair opportunity to contest the decision, despite the lack of a trial in light of his voluntary and intelligent guilty plea.

Accordingly, in the alternative defendants' motion for summary judgment should be granted on this ground.

III. Conclusion

*4 For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for summary judgment as to defendant Rae (Docket No. 68) be GRANTED in all respects and that judgment be entered in favor of Rae on all remaining claims against him.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

MEMORANDUM-DECISION and ORDER

HON. GLENN T. SUDDABY, District Judge.

On August 8, 2005, Ellis Douglas ("Plaintiff') filed this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983, against nine employees of the New York State Department of Correctional Services ("Defendants"), alleging that they violated his constitutional rights under the First, Fourth, Eighth and Fourteenth Amendments. (Dkt. No. 1.) On February 14, 2008, Senior U.S. District Judge Lawrence E. Kahn granted in part, and denied in part, Defendants' first motion for summary judgment. In so doing, he dismissed certain of Plaintiffs claims, including all claims against three of the nine Defendants - namely, Correctional Officer R. Davies, Superintendent Joseph T. Smith and Nurse Skies. (Dkt. No. 54, at 2, adopting Dkt. No. 53, at 21-23, 29-31.)[1] Remaining in the action after Judge Kahn's Decision and Order were only Plaintiffs Eighth Amendment excessive force claim against six Defendants, including J. Rae.

Currently before the Court are (1) Defendant Rae's second motion for summary judgment (Dkt No. 68), and (2) United States Magistrate Judge David R. Homer's Report-Recommendation that Defendant Rae's motion be granted (Dkt. No. 81). Plaintiff has filed, through counsel, timely Objections to the Report-Recommendation. (Dkt.Nos.82-85.) For the reasons set forth below, the Report-Recommendation is adopted and accepted in its entirety, Defendant Rae's second motion for summary judgment is granted, and Plaintiffs claims against Defendant Rae are dismissed.

I. STANDARD OF REVIEW

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).[2] When only general objections are made a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999).[3] Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-C2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Edition. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

II. LEGAL STANDARD ON MOTION FOR

SUMMARY JUDGMENT

*5 Under Fed.R.Civ.P. 56, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact. " Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). This burden has appropriately been characterized as "modest."[4] When the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial."Fed.R.Civ.P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation omitted]; see alsoFed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts" [citations omitted] Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmoving party is proceedingpro se. [5] (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)[6] As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.[7] For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement[8] - even where the nonmoving party was proceeding pro se in a civil rights case.[9]

III. RELEVANT BACKGROUND

*6 On July 3, 2008, Defendant Rae filed his second motion for summary judgment. (Dkt. No. 68.)In his motion papers, Defendant Rae gave Plaintiff sufficient notice of the consequences of failing to properly oppose his motion. (Dkt. No. 68, Part 1.) Moreover, in Defendant Rae's first motion for summary judgment, he gave Plaintiff a similar notice, and attached the Northern District's form "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion."(Dkt. No. 41, Part 1.) Plaintiffs response to Defendant Rae's second motion for summary judgment was due on July 29, 2008. ( See Docket Entry for 7/3/08.)

On July 10, 2008, Attorney Gregory J. Teresi (who had been appointed Plaintiffs trial counsel on March 12, 2008), sent Plaintiff a letter, advising him that he was Plaintiffs counsel only for purposes of trial. (Dkt. No. 69; see also Dkt. No. 56, at 1 & n. 1.) In the letter, Attorney Teresi specifically advised Plaintiff, "[I]t is still your responsibility to respond to [Defendant Rae's second motion for summary judgment] if you so choose unless Judge Kahn issues an Order... [expanding the scope of] my assistance [to you]." (Dkt. No. 69.)Later that month, on July 28, 2008, Attorney Teresi sent Judge Kahn a letter regarding a pre-trial motion, at the end of which he requested, on Plaintiffs behalf, an extension of the deadline by which Plaintiff had to respond to Defendant Rae's second motion for summary judgment. (Dkt. No. 72.)

It does not appear that the request for an extension was ever decided. ( See generally Docket Sheet.) Rather, it appears from the Court's internal notes that, on September 15, 2008, Attorney Teresi was contacted by Magistrate Judge Homer's Chambers regarding the possibility of his filing a response, on behalf of Plaintiff, to Defendant Rae's second motion for partial summary judgment. During that conversation, it appears that Attorney Teresi advised Judge Homer's Chambers of the following: (1) a telephone conference between Attorney Teresi and Plaintiff was scheduled for September 29, 2008, during which Plaintiff was expected to confirm his intent to withdraw the claim against Defendant Rae, which was at issue in Defendant Rae's second motion for summary judgment; and (2) after that telephone conference on September 29, 2008, Attorney Teresi would contact Judge Homer's Chambers to advise Judge Homer whether Plaintiff has confirmed his intent to withdraw the claim (in which case Defendant Rae's motion would be moot), or whether the claim would go forward (in which case, Attorney Teresi would file a response to the motion). The Court's notes also reflect that, in the event the claim would go forward, a response date would be set by the Court.

The docket sheet reflects no further communication from either Plaintiff or Attorney Teresi for the next three months (except a change-of-address notice filed by Plaintiff). ( See Docket Sheet.) As a result, on January 26, 2009, Magistrate Judge Homer issued his Report-Recommendation on Defendant Rae's second motion for summary judgment. (Dkt. No. 81.)[10] In that Report-Recommendation, Judge Homer expressly and repeatedly found that Plaintiff had not opposed the motion. ( Id. at 2 & n. 3.)

*7 On February 2, 2009, Attorney Teresi filed, on Plaintiffs behalf, Objections to the Report-Recommendation. (Dkt. No. 82.)Generally, in his Objections, Plaintiff argues that Defendant Rae's motion should be denied for three alternative reasons: (1) Defendant Rae's faulty Rule 7.1 Statement precludes him from meeting his threshold burden in support of that motion; (2) neither the "favorable termination" rule nor the doctrine of collateral estoppel preclude Plaintiffs claim against Defendant Rae; and (3) Plaintiff has adduced admissible record evidence that his Eighth Amendment excessive force claim against Defendant Rae arises from Defendant Rae's use of force after Plaintiff was placed in handcuffs, and Defendant has not adduced any admissible record evidence controverting that fact. ( Id; see also Dkt. Nos. 83-85). In addition, Plaintiff argues that, under the circumstances, the Court should consider Attorney Teresi's Rule 7.1 Response, Opposition Memorandum of Law, and Attorney Declaration and Exhibits. ( Id. )

IV. ANALYSIS

When Magistrate Judge Homer prepared his Report-Recommendation on Defendant Rae's second motion for summary judgment, he was considering an unopposed motion. As a result, assuming that Plaintiff had received adequate notice of the consequences of failing to properly oppose Defendant Rae's second motion for summary judgment, [11] all that Defendant Rae needed to do to succeed on his motion was "demonstrate entitlement" to the relief requested.[12] An inquiry into whether a movant has met its "burden to demonstrate entitlement" to the relief requested under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion.[13] This is because, as a practical matter, the burden requires only that the movant present an argument that is "facially meritorious."[14] After conducting a de novo review of Magistrate Judge Homer's Report-Recommendation, the Court concludes that Judge Homer correctly found that Defendant Rae had met his lightened burden on his unopposed motion.

The Court rejects Plaintiffs argument that (purported) defects in Defendant Rae's Rule 7.1 Statement preclude him from meeting his threshold burden in support of his motion. As required by Local Rule 7.1(a)(3), Defendant Rae's Rule 7.1 Statement set forth, in eight (8) numbered paragraphs, each material fact about which Defendant Rae contended there exists no genuine issue, and supported each factual assertion with a specific citation to the record where the fact was established. (Dkt. No. 68, Part 9.) In his Objections, Plaintiff does not contest these facts. (Dkt. No. 83, 111 [Plf.'s Proposed Rule 7.1 Response, admitting the facts in question].) Rather, he contends that the facts were not "complete, " as required by Local Rule 7.1(a)(3). (Dkt. No. 82, at 1; Dkt. No. 84, at 2-3.)Specifically, he argues that Defendant Rae "blatant[ly]" and "plainly ignored" the fact that the "barrage of kicks" that Defendant Rae allegedly inflicted on Plaintiff were inflicted - not before Plaintiff was handcuffed (as is assumed in Defendant Rae's Rule 7.1 Statement), but after Plaintiff was handcuffed. (Dkt. No. 83, ¶ 2; Dkt. No. 84, at 5.)

*8 The Court finds that Defendant Rae's Rule 7.1 Statement was sufficiently "complete" in order for him to meet his modest threshold burden under Local Rule 7.1(a)(3). Defendant Rae addressed what he asserts to be Plaintiffs version of the incident, in Paragraph 3 of his Rule 7.1 Statement. Plaintiff may disagree with whether that account is accurate. However, that disagreement does not render the Rule 7.1 Statement "incomplete" for purposes of Local Rule 7.1(a)(3).

Furthermore, it should be emphasized that, when Defendant Rae implied in Paragraph 3 of his Rule 7.1 Statement that the "barrage of kicks" were inflicted before Plaintiff was handcuffed, Defendant Rae was merely quoting from Paragraph 17 of Plaintiffs own Complaint. (Dkt. No. 68, Part 9, ¶ 3.) Paragraph 17 of Plaintiffs Complaint, which is verified, contains Plaintiffs sworn assertions regarding when the "barrage of kicks" were inflicted. (Dkt. No. 1, ¶ 17.) Moreover, Paragraph 18 of Plaintiffs Complaint starts with the words, "Officer Cross then jumped on Douglas['] back as Ketzer tightly cuffed Douglas['] wrist." ( Id. at ¶ 18.)As a result, Plaintiffs own Complaint swears that the "barrage of kicks" were inflicted before the handcuffing of Plaintiff. This sworn assertion is implicitly echoed in Paragraph 28 of Plaintiffs Complaint, which refers to the handcuffing after referring to the kicking. ( Id. at ¶ 28.)Simply stated, under the circumstances, Defendant Rae did not have a duty to cite Plaintiffs deposition transcript in order to render his Rule 7.1 Statement "complete" for purposes of Local Rule 7.1(a) (3)[15]

Turning to Plaintiffs arguments regarding the "favorable termination" rule and the doctrine of collateral estoppel, the success of both of these arguments depends on the Court's willingness to (1) accept as timely Plaintiffs Rule 7.1 Response, and (2) permit the expansion of the record before the Court to include Plaintiffs deposition transcript. (Dkt. No. 84, at 3-5.)Plainly stated, those two things are the vehicles by which Plaintiff attempts to bring before the Court evidence that Plaintiff continued to be kicked by Defendant Rae after he was handcuffed. ( Id. )

As an initial matter, the Court declines - at this late stage of its decision of Defendant Rae's motion - to accept as timely Plaintiffs Rule 7.1 Response, and permit the expansion of the record before the Court to include Plaintiffs deposition transcript.[16] Plaintiff should have presented these materials to Magistrate Judge Homer for his review and consideration. Plaintiff does not argue that his deposition transcript was not previously available to him during the time period in which he had to respond to Defendant Rae's motion, nor does he proffer any justification (reasonable or otherwise) for his failure to present it (along with his Rule 7.1 Response) to Judge Homer. (Dkt. Nos.82-85.)[17] To permit Plaintiff to introduce these materials now, without sufficient justification, would undermine the purpose (and work) of magistrate judges, encourage neglectful behavior by non-movants, and deprive Defendant Rae of an opportunity to reply to the evidence.[18]

*9 In any event, even assuming that the Court were to inclined to consider Plaintiffs deposition testimony at this late stage of deciding Defendant Rae's motion (which, again, it is not inclined to do), the Court would find that deposition testimony insufficient to create a genuine issue of material fact. In his motion papers, Defendant Rae met his modest threshold burden of showing that Plaintiffs conviction precludes his excessive force claim against Defendant Rae (because of the "favorable termination" rule and/or the doctrine of collateral estoppel). As a result, the burden shifted to Plaintiff to adduce admissible record evidence from which a rational fact-finder could conclude that his criminal conviction for attempted assault in the second degree on June 30, 2004, did not preclude his excessive force claim (because that conviction did not resolve, to his detriment, his claim that Defendant Rae kicked him after he was handcuffed). Even with the benefit of his deposition transcript, Plaintiff would fail to meet this burden. ( See generally Dkt. Nos. 82-85.)

The plea allocution between the Court and Plaintiff states that, "by pleading guilty to the reduced charge of attempted assault in the second degree, you are admitting that... on or about the 30th day of June, 2004, with intent to prevent a [peace] officer from performing a lawful duty, you attempted to cause physical injury to that peace officer, that being Sergeant John Rae of the Shawangunk Correctional Facility."(Dkt. No. 68, Part 6, at 5-7 [attaching pages "4" to "6" of Plaintiffs plea allocution].) In the portion of the deposition transcript adduced by Plaintiff during his Objection, there is no testimony that Plaintiffs conviction did not partially arise out of, or resolve the lawfulness of, Defendant Rae's alleged kicking Plaintiff after he was handcuffed, and while he was on the ground continuing to resist arrest.[19]

For all of these reasons, the Court rejects Plaintiffs arguments.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Homer's Report-Recommendation (Dkt. No. 81) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendant Rae's second motion for summary judgment (Dkt. No. 68) is GRANTED, and that judgment be entered in favor of Defendant Rae as to all claims against him; and it is further

ORDERED that the Clerk of the Court shall amend the docket sheet to indicate that Plaintiffs claims against Superintendent Smith and Nurse Skies were terminated on February 14, 2008.

Attorneys and Law Firms

Catalino Espinosa, Alden, NY, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General, Dean J. Higgins, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.

REPORT-RECOMMENDATION AND ORDER[1]

DAVID R. HOMER, United States Magistrate Judge.

*1 Plaintiff pro se Catalino Espinosa ("Espinosa"), an inmate in the custody of the New York State Department of Correctional and Community Services ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that eight DOCCS employees violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending are (1) defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56 (Dkt No. 40); (2) Espinosa's motion to amend the complaint (Dkt. No. 47); and (3) Espinosa's motion to amend his opposition to defendants' motion for summary judgment (Dkt. No. 54). All motions are opposed. For the following reasons it is recommended that defendants' motion be granted in part and denied in part and it is ordered that Espinosa's motions be granted in part and denied in part.

I. Background

The facts are related herein in the light most favorable to Espinosa as the non-moving party. See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).

A. Use of Force

On July 26, 2007, Espinosa was issued a misbehavior report while he was housed in the dormitories at Bare Hill Correctional Facility. Espinosa Dep. (Dkt. No. 40-4) at 10 (hereinafter "Dep."); Dkt. No. 40-5 at 90.[2] Espinosa was then escorted from his housing unit dormitory to the Special Housing Unit ("SHU")[3] by defendant Corrections Officers Carter and Southworth and defendant Sergeant McCabe. Compl. at 4; Dep. at 11. Upon arriving at SHU, Espinosa was met by defendant Corrections Officer Arquette. Compl. at 4. Once inside the unit, Espinosa was escorted into a separate room used to perform strip searches. Id. at 4; Dep. at 13.

After being instructed to remove his clothing, Espinosa stated that McCabe "abruptly, viciously and without provocation... struck [Espinosa]... [in] his left eye, which cause [Espinosa] to fall to the ground." Compl. at 4; Dep. at 17. The remaining three defendants began kicking Espinosa in his legs, knees, and body. Compl. at 4; Dep. at 17-18, 20. The defendants then lifted Espinosa to his feet and began punching his head and body. Compl. at 4; Dep. at 20. McCabe then approached Espinosa, grabbed his throat, and choked him. Compl. at 4; Dep. at 20. Espinosa again fell to the floor where the remaining defendants continued to kick and punch him until he lost consciousness. Compl. at 4; Dep. at 20-21. Throughout the course of the assault, Espinosa contends he never resisted or used force. Compl. at 4.

McCabe, Carter, and Southworth escorted Espinosa from his dormitory to the SHU. McCabe Decl. ¶ 7; Carter Decl. (Dkt. No. 40-9) ¶ 5; Southworth Decl. (Dkt. No. 40-10) ¶ 5; No. 40-6 at 16. Upon arrival at SHU, Espinosa was turned over to Arquette for further processing without incident and Carter and Southworth remained outside of the SHU. Carter Decl. ¶¶ 6-7; Southworth Decl. ¶ ¶ 6-7; No. 40-6 at 16-17. Carter and Southworth assert they never assaulted Espinosa and never witnessed any other defendant strike him. Carter Decl. ¶ 8; Southworth Decl. ¶ 8; No. 40-6 at 16. They also never observed any injuries upon Espinosa's person. Carter Decl. ¶ 9; Southworth Decl. ¶ 9. McCabe was responsible for supervising Espinosa's admission to the SHU, which included a number of health and safety procedures, one of which was a strip frisk. McCabe Decl. (Dkt. No. 40-8) ¶¶ 4-5; Dkt. No. 40-6 at 12. Arquette performed the strip frisk on Espinosa with McCabe present, and concluded that SHU admissions process was professionally completed, without incident, and without any use of force by either himself or McCabe. Arquette Decl. (Dkt. No. 40-7) ¶¶ 4-7; McCabe Decl. ¶¶ 6, 20, 22; No. 40-6 at 12, 15, 18.

*2 During the frisk, Espinosa was not cooperative, indicating that he did not understand English and did not comprehend what was occurring. McCabe Decl. ¶ 8; No. 40-6 at 12. McCabe gestured to Espinosa, "such as pulling on [his] shirt, in an effort to convey to [Espinosa] what he needed to do, " which ultimately resulted in Espinosa cooperating with the strip frisk. McCabe Decl. ¶¶ 9-10; see also No. 40-6 at 12. McCabe had previously interacted with Espinosa, occasionally using an interpreter, often enough to "know, from experience, that Espinosa understood and c[ould] respond to simple questions." McCabe Decl. ¶¶ 11-12; see also No. 40-6 at 12.

B. Medical Treatment[4]

After Espinosa lost consciousness, he was awakened by the sound of nurse Hugaboom[5] calling his name. Compl. at 4; Dep. at 21. Espinosa claims to have been left without receiving any medical assistance by Arquette, Carter, Southworth, and McCabe, despite Espinosa's alleged moans of pain. Id. at 6. It is undisputed that Arquette, Carter, Southworth, and McCabe had no responsibilities to provide medical care to Espinosa. Arquette Decl. ¶ 8; McCabe Decl. ¶ 23; Carter Decl. ¶ 10; Southworth Decl. ¶ 10. Defendants also deny that they were aware of any medical injury requiring any reporting to medical personnel. McCabe Decl. ¶ 23; Carter Decl. ¶ 11; Southworth Decl. ¶ 11. Espinosa asserts that Hugaboom and defendant Arquette moved him into a SHU cell and leaving him, despite his pleas for medical attention. Compl. at 4; Dep. at 21-22. McCabe denies that Espinosa ever lost consciousness or received injuries which required treatment. McCabe Decl. ¶ 21.

McCabe contends that after completing the strip frisk, Hugaboom was called into the room and "attempted to ask questions pertaining to the frisk and explain facility sick call procedures, " Which Espinosa acknowledged. McCabe Decl. ¶¶ 13-14; see also Hugaboom Decl. (Dkt. No. 40-11) ¶¶ 5-7; No. 40-6 at 12, 21. Hugaboom "did a complete viewing... and observed no injuries or medical issues." McCabe Decl. ¶ 15; Hugaboom Decl. ¶¶ 5, 8; No. 40-6 at 21. Medical records reflect the same. Dkt. No. 41 at 174. Espinosa also failed to allege to Hugaboom any complaints of assault by staff. Decl. ¶ 8. McCabe attempted to continue the admissions procedure, but Espinosa again indicated that he did not understand, so Espinosa was escorted to his SHU cell, without incident, to await the arrival of non-party Serrano who acted as an interpreter and assisted Espinosa in completing the remainder of the admissions forms. McCabe Decl. ¶¶ 16-18; Serrano Decl. (Dkt. No. 40-12) ¶¶ 4-8; No. 40-6 at 12, 14. At that time, Espinosa made no complaints of injury to Serrano and there were no visual signs that he had been previously assaulted. McCabe Decl. ¶ 19; Serrano Decl. ¶¶ 9-10; No. 40-6 at 14.

The following day, Serrano returned to Espinosa's cell on his rounds. Serrano Decl. ¶ 13. It was at that time that Espinosa said that he was physically abused during his SHU admission. Serrano Decl. ¶ 13; No. 40-6 at 14. Espinosa "claimed that he had fallen during the admission, was picked up by the neck, and that someone had stepped on his knee." Serrano Decl. ¶ 14; see also No. 40-6 at 14. Espinosa showed Serrano "a thumb-sized bruise under his right upper arm, " and Serrano informed Security. Serrano Decl. ¶¶ 15-16; see also No. 40-6 at 14. Espinosa was escorted to medical where he was examined by nurse Mulverhill[6] Compl. at 5. Espinosa contends that no notes were taken during their interaction. Id. at 5. The inmate injury report indicates that there were "red marks [with] ecchymosis[7] noted to interior biceps, bilateral [complaints of right] knee discomfort, states has an old injury to the area [and complaints of] pain to [the right] shoulder." No. 40-6 at 24. The medical notes indicate that Espinosa was viewed in his shorts after the alleged assault with no additional details. Dkt. No. 41 at 173. Espinosa was also previously scheduled to meet with the doctor for preoperative testing. No. 40-6 at 24.

*3 Espinosa then had x-rays taken of his knee in connection with the previously scheduled testing, but contends that medical staff failed to obtain additional x-rays of his face where there was visible damage. Compl. at 5; Dep. at 31-33; No. 40-6 at 24. X-ray results from Espinosa's knee and shoulder showed unremarkable findings with mild degenerative joint disease noted in his knee. Dkt. No. 41 at 188; see also Dkt. No. 41 at 187 (x-ray results showing similar findings of "moderate osteroarthritic changes" taken in March 2008);182 (x-ray results showing "[m]inimal narrowing of the medial and lateral components... probably on the basis of cartilage degeneration, " and a screw, which was surgically implanted prior to the use of force, still running "transversely through the... tibia" taken in January of 2010). The medical staff also called non-party Officer Gonzales to act as an interpreter and explain the medical statement which had been prepared by Mulverhill in connection with the alleged use of force. Compl. at 5; No. 40-6 at 22-23. According to Espinosa, Gonzales merely read the statement, handed it to Espinosa, and instructed him to sign it. Id. at 5. Gonzalez attests that "this interview was translated exactly the way the inmate told [him and]... at all time while conducting the interpretation... [Gonzalez] conducted [him]self in a professional manner." No. 40-6 at 23. The inmate injury report which was translated and ultimately signed by Espinosa indicated an alleged assault with Espinosa's sole statement being that he "had a problem on the dorm yesterday and was taken to the box." No. 40-6 at 24.

Photographs were taken of Espinosa in his shorts. Compl. at 5; No. 40-6 at 25-27. Espinosa contends that the pictures are not illustrative of his true injuries because they were taken from such a great distance that the details of the bruising on his face are unrecognizable. Dep. at 35, 37. Espinosa was then escorted back to his cell. Compl. at 5. Espinosa contends that a Catholic priest came to his cell on July 27 and that he was responsible for "put[ting] everything in motion so that they would take [Espinosa] to the hospital and... take the pictures." Dep. at 39. However the priest remains unidentified. Dep. at 40.

Espinosa contends the lack of treatment persisted throughout his remaining twenty days at Bare Hill Correctional Facility. Compl. at 6; Dep. at 44 (explaining that he received no treatment for his eyes at Bare Hill). Espinosa contends that he "pled with [defendant] Superintendent Donelli to intervene; however, the Superintendent also chose to do nothing." Compl. at 6. Espinosa's medical records indicate that he was seen frequently by medical staff at Bare Hill, six times in two weeks, until his transfer to Auburn. Dkt. No. 41 at 171-73. Subsequent visits to medical reveal no additional complaints of any eye, head, knee, or shoulder injuries. Id. Additionally, records indicate that Espinosa was being provided with several prescription medications, as well as over-the-counter pain relievers, for a variety of health conditions. Id.

*4 Due to his the injuries, Espinosa contends he suffered permanent damage to his eye, throat, and knee. Compl. at 5; Dep. at 22-23, 26; but see Dep. at 28 (admitting that he had previous issues with his knee, including surgical intervention and the placement of pins). Espinosa is now classified as legally blind. Dep. at 23. Espinosa's medical records indicate that he has had visual complications, including a "h[istory] of decreasing vision." for twenty years "from [an] old traumatic injury." Dkt. No. 41-1 at 8. Espinosa was referred to a specialist multiple times from 2008 through 2010, and his medical records also indicate at least one eye appointment while housed at Bare Hill. Dkt. No. 41-1 at 8-11, 19. An appointment in June 2008 at the Harrison Eye Center indicated subjective reports of blurry vision since the trauma he suffered during the use-of-force incident. Dkt. No. 41-1 at 11. The eye clinic founmd possible optic nerve damage and requested a retinal evaluation. Id. After an appointment with an ophthalmologist and various testing in September 2008 at Wende Correctional Facility, glaucoma was suspected as the reason for Espinosa's visual difficulties. Dkt. No. 41-1 at 16.

Espinosa had another examination with Strong Memorial Hospital in November of 2008 where he reported continual gradual loss of vision in both eyes and it was found that he had "questionable optic neuropathy" and was suggested to be referred to a neuro-opthalmology clinic. Dkt. No. 41-1 at 15. Espinosa returned to Strong Memorial in January 2009 and was assessed as having a "functional visual loss" and was recommended to return in three months to the clinic. Dkt. No. 41-1 at 7. By April 2009, Espinosa reported that his vision was improving, but that he has been having headaches. Dkt. No. 41-1 at 6. The headaches were assessed as a type of migraine and the doctor "suspect[ed] that [the] episodes of transient bilateral visual loss are related to the migraine." Id. Thus, he recommended a different medication "which works much better for migraine prevention, especially for [Espinosa's] types of spells." Id. During his follow-up appointment in April 2010, there was little noted and it was recommended that he return in another year. T. 41-1 at 5.

Espinoi's medical records also indicate complaints of a sore throat and persistent headaches which he attributed to the use of force. Dkt. No. 41 at 76, 114, 120, 128, 168. Espinosa was given throat lozenges, warm salt water gargles, and sent to multiple specialists to have his throat scanned and scoped. Dkt. No. 41 at 47, 70, 79, 92, 95, 110, 120-21, 152, 184-86, 220-21, 223. Medical professionals wanted to biopsy the tissue for fear of cancerous tumors and ensure that there was not a stricture which was impeding his ability to swallow. Dkt. No. 41 at 218-19, 222. Espinosa was even scheduled for surgery to remove his tonsils. Dkt. No. 41 at 52-53, 56-59, 213-15, 219. Ultimately, it was determined that Espinosa did not require surgery and that there were no growths or lesions in his throat, though he did have acid reflux. Dkt. No. 41 at 202-05. Espinosa was counseled on appropriate diet and prescribed medication. Id. There is nothing in the record to indicate that these health conditions were attributable to the alleged assault.

*5 Espinosa was seen bi-weekly by medical staff for blood pressure checks because throughout his incarceration he was non-compliant with his medication resulting in uncontrolled hypertension. Dkt. No. 41 at 129-30, 133, 140-41, 158-63, 166. In November 2007, Espinosa was first placed in the infirmary and ordered to be supervised by nurses when taking his medication to ensure compliance. Dkt. No. 41 at 247-54. During this treatment, Espinosa was informed that his headaches were probably associated with his uncontrolled blood pressure. Dkt. No. 41 at 254 ("c [omplaints of] h[eadache]. Explained via interpreteur [sic] - h[eadache] cause by [increased] b[lood]p[ressure].") Espinosa was placed in the infirmary again for noncompliance in July 2008. Dkt. No. 41 at 244-46. Espinosa also indicated that he had suffered a head injury in 2005. Dkt. No. 41 at 168. There is nothing in the medical record that links the alleged assault with Espinosa's subsequent headaches.

C. Grievances[8]

On July 31, 2007, Espinosa filed a grievance related to the alleged assault. Dkt. No. 40-5 at 70-74. The Superintendent denied the grievance after receiving the investigatory findings. Dkt. No. 40-5 at 69; Dkt. No. 40-6 at 4, 10-11. Espinosa had been interviewed in conjunction with the investigation, but stated he had nothing additional to add. Dkt. No. 40-5 at 69; No. 40-6 at 31. Serrano was interviewed as well and stated that he did not recall any useof-force incident occurring. Dkt. No. 40-5 at 69; Dkt. No. 40-6 at 12-13. McCabe and Arquette also denied any and all allegations, along with Carter and Southworth, though the latter two defendants also stated that they never entered the SHU. Dkt. No. 40-5 at 69. Hugaboom also observed no injuries to Espinosa during the course of the admissions. Dkt. No. 40-5 at 69. The following day, Espinosa was escorted to medical where photos and x-rays were taken, though the x-rays were in conjunction with an unrelated, upcoming, medical procedure. Dkt. No. 40-5 at 69. Marks were also noted on Espinosa's body, as were complaints of pain to Espinosa's knee, though that was attributed to a prior injury. Dkt. No. 40-5 at 69. The medical statement ultimately signed by Espinosa at the conclusion of the examination also failed to indicate alleged abuse. Dkt. No. 40-5 at 69. Espinosa again appealed the findings. Dkt. No. 40-5 at 68, 69, 75-78. Denial of the grievance was ultimately affirmed by CORC on October 31, 2007, citing "a proper investigation, " and insufficient evidence to overturn the denial. Dkt. No. 40-5 at 67.

Espinosa also filed multiple grievances in early 2008, contending that he was receiving inadequate medical treatment. Dkt. No. 40-5 at 84-88. These grievances were also denied due to the fact that in the prior six months he had been seen by either a nurse practitioner or facility physician on five occasions. Dkt. No. 40-5 at 81. The grievance was appealed and ultimately denied by CORC. Dkt. No. 40-5 79-80, 82, 89.

II. Discussion

*6 Espinosa alleges that his Eighth Amendment rights were violated when were deliberately indifferent to his serious medical needs. Additionally, Espinosa alleges that his Eighth Amendment rights were violated when McCabe, Arquette, Carter, and Southworth used excessive force against him. Defendants seek dismissal because (1) his constitutional claims are meritless; (2) no evidence exists of the personal involvement of various defendants; and (3) the Eleventh Amendment prohibits suit against defendants in their official capacities.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. 22 F.3d 1219, 1223-24 (2d Cir.1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir.1988).

When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.' "(citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 247-48.

B. Personal Involvement

Defendants contend that Espinosa has failed to establish that Donelli was personally involved in any of the alleged constitutional deprivations and that McCabe, Carter, Arquette, and Southworth were personally involved with his medical care. "c[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir.1991)). Thus, supervisory officials may not be held liable merely because they held a position of authority. Id.; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.1996). Supervisory personnel may be considered "personally involved" if:

*7 (1) [T]he defendant participated directly in the alleged constitutional violation;
(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong;
(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986)).[9]

1. Donelli

Espinosa contends that Donelli was personally involved because he pled with Donelli to intervene and Donelli failed to act. During his deposition, Espinosa stated that because Donelli was "the superintendent of the prison... he should know." Dep. at 34. In essence, it appears that Espinosa claims Donelli is responsible because of his position in a chain of command, which is insufficient to establish personal involvement. Wright, 21 F.3d at 501. Furthermore, "[t]he law is well established... that a failure to process, investigate or respond to a prisoner's grievances does not in itself give rise to a constitutional claim." Rosales v. Kikendall, 677 F.Supp.2d 643, 650 (W.D.N.Y.2010) (internal quotation marks and citation omitted).

It is unclear when or how Espinosa approached Donelli. However, even construing the facts in the light most favorable to Espinosa, the alleged single notice, after the event occurred, is still insufficient. See Harnett v. Barr, 538 F.Supp.2d 511, 524 (N.D.N.Y.2008) (concluding that a distinction lies between a supervisory official that is "confronted with an alleged violation that has ended or... is... a continuing violation, " as with the latter the supervisory officially is deemed "personally involved if he is confronted with a situation that he can remedy directly.") (internal quotation marks and citations omitted). Moreover, if Espinosa communicated with Donelli via mail, such correspondence is also not enough as receipt of a letter, without personally investigating or acting on the letter or grievance, is also insufficient to establish personal involvement. See, e.g., Rivera v. Fischer, 655 F.Supp.2d 235, 238 (W.D.N.Y.2009) (citing cases); Boddie v. Morgenthau, 342 F.Supp.2d 193, 203 (S.D.N.Y.2004) ("While mere receipt of a letter from a prisoner is insufficient to establish individual liability... [p]ersonal involvement will be found... where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint.").

Accordingly, defendants' motion on this ground should be granted as to Donelli.

2. McCabe, Arquette, Carter, and Southworth

*8 Espinosa contends that these defendants abandoned him in a cell, while he was moaning and writhing in pain, instead of taking him to the infirmary to receive medical attention. While it is undisputed that these defendants are not medical providers and thus were not responsible for Espinosa's medical care, Espinosa asserts that they directly interfered with the provision of his care by leaving him in isolation instead of alerting the appropriate medical officials. This suffices to allege direct involvement in an alleged constitutional violation. See Baumann v. Walsh, 36 F.Supp.2d 508, 512 (N.D.N.Y.1999) ("Non-medical prison personnel engage in deliberate indifference where they intentionally deny access to medical care when the inmate was in extreme pain and has made his medical problem known....") (internal quotation marks and citations omitted).

Accordingly, defendants' motion on this ground should be denied as to these defendants.

C. Eighth Amendment

The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. Eighth Amendment obligations include the duty to protect prisoners from other known harms. Farmer v. Brennan, 511 U.S. 825, 829 (1970); Matthews v. Armitage, 36 F.Supp.2d 121, 124 (N.D.N.Y.1999) (citations omitted). It also includes the provision of medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). The test for a § 1983 claim is twofold. First, the prisoner must show that the condition to which he was exposed was sufficiently serious. Farmer, 511 U.S. at 834. Second, the prisoner must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Id. "[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844.

1. Excessive Force

Inmates enjoy an Eighth Amendment protection against the use of excessive force and may recover damages for its violation under § 1983. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Eighth Amendment's prohibition against cruel and unusual punishment precludes the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.2000). To bring a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999).

The objective element is "responsive to contemporary standards of decency" and requires a showing that "the injury actually inflicted is sufficiently serious to warrant Eighth Amendment protection." Hudson, 503 U.S. at 9 (internal citations omitted); Blyden, 186 F.3d at 262. However, "the malicious use of force to cause harm constitute [s] [an] Eighth Amendment violation per se" regardless of the seriousness of the injuries. Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). "The Eighth Amendment's prohibition of cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted).

*9 The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness." Id. at 21 (citation omitted). The wantonness inquiry "turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider: "the extent of the injury and the mental state of the defendant [;]... the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (internal quotation marks and citations omitted).

Defendants' contend that Espinosa's claims are insufficient to establish an Eighth Amendment violation because they are "unsupported and inconsistent with witness accounts and the medical records prepared at the time of the alleged event." Defs. Mem. of Law (Dkt. No. 40-13) at 8. Espinosa contends that he was viciously attacked by four unprovoked corrections officers while he was being compliant and non-resistant. As a result of being punched in the face, kicked throughout the head and body, and choked, Espinosa contends he suffered permanent damage to his eye, head, throat, and knee. Espinosa's medical records indicate continued treatment for headaches, vision loss, sore throats, and knee pain. Such injuries could be indicative of suffering multiple blows to the head and ...


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