United States District Court, S.D. New York
OPINION & ORDER
LORNA G. SCHOFIELD, District Judge.
Pro se Plaintiff Melvin Peters brings suit against the New York City Department of Corrections ("DOC"), former DOC Commissioner Dora Schriro, Assistant Deputy Warden Maria Texeira, Correction Officer Trevor Chambers and Correction Officer Vincent Niemiec pursuant to 42 U.S.C. § 1983. Liberally construed, his Amended Complaint alleges excessive force, deliberate indifference to his medical needs and false testimony at trial. Defendants move for summary judgment on all claims other than any excessive force claim against Defendant Chambers. Despite being given repeated extensions, Plaintiff has not responded to Defendants' motion. For the reasons below, Defendants' unopposed motion is granted in its entirety.
The facts are taken from Defendants' statement pursuant to Local Rule 56.1 and the exhibits submitted in connection with the motion.
On the morning of June 17, 2009, Plaintiff was to appear at the Manhattan Criminal Court in a then-pending criminal case. Defendant Niemiec was charged with escorting inmates from the holding areas to their respective court appearances. At around 8:50 a.m., Defendant Niemiec was escorting a group of approximately ten inmates, including Plaintiff, to a holding cell.
According to Plaintiff's deposition in the present case, he suffers from asthma and felt unwell that morning. Plaintiff had two asthma inhalers with him at the time. He also had a walking cane. When he complained about not feeling well to the correctional officer who first received him at the courthouse, Plaintiff was told to inform another officer. After Defendant Niemiec arrived, Plaintiff told Defendant Niemiec, "I don't feel good." Defendant Niemiec told him he would be alright and continued escorting Plaintiff and the other inmates to the pen. At this point, Plaintiff had not used his asthma inhaler because he did not know whether his illness was related to asthma or a buildup of gas. Plaintiff did not tell Defendant Niemiec that he had asthma.
Plaintiff requested medical attention from Defendant Niemiec again. In response, Defendant Niemiec handcuffed Plaintiff's left wrist, brought him out of his cell and around the corner, took Plaintiff's cane and struck Plaintiff with the cane twice. While Plaintiff was being struck, he was attempting to use his inhaler to no effect. Plaintiff fell against the wall and then slid to the floor where Defendant Niemiec kicked him.
Within a few seconds of Defendant Niemiec hitting Plaintiff, Defendant Chambers and Defendant Texeira arrived. Defendant Chambers kicked and stomped on Plaintiff. Defendant Texeira discharged "mace" at Plaintiff, which completely missed him and hit the other Defendants instead. A few seconds later, a probe team arrived, handcuffed Plaintiff and removed him. The whole encounter, from when Plaintiff was struck with the cane to when the probe team took him away, lasted 15 to 20 seconds.
The probe team took Plaintiff to the clinic, where he received oxygen. He was then transferred to Bellevue Hospital.
Defendant Niemiec has a different version of events, based on which Plaintiff was indicted and subsequently convicted of assaulting Defendant Niemiec. At Plaintiff's criminal trial for the charges of attempted murder and assault of Defendant Niemiec, Defendant Niemiec testified that on the morning of June 17, 2009, just as he was escorting Plaintiff into a holding cell, Plaintiff said he needed to go to the bathroom. Defendant Niemiec told Plaintiff to use the bathroom in the cell he was being placed in. Plaintiff objected, and Defendant Niemiec insisted that Plaintiff would have to use the bathroom in his cell. According to Defendant Niemiec's testimony, Plaintiff shouted, "I already got a body, you'll make number two, " lunged out of the cell, grabbed Defendant Niemiec by the throat and pushed him against the wall. In an attempt to free himself, Defendant Niemiec wrestled with Plaintiff until they fell to the floor. That is how Defendant Texeira found the two before ordering Plaintiff to stop his assault and pepper sprayed him.
At the trial, Plaintiff provided the same version of events he provided in his deposition in the present case. He stated that he never placed his hands on Defendant Niemiec, and that while he was being hit, he just covered his head and "balled up."
On November 29, 2011, the jury acquitted Plaintiff of attempted murder, but convicted him of the assault charges. For one of the assault charges, the jury was required to find that Plaintiff had injured Defendant Niemiec with the intent to prevent him "from performing a lawful duty."
In the meantime, on June 16, 2011, Plaintiff filed the Complaint in this action, which he amended on July 9, 2012, to add what appear to be claims for deliberate indifference to medical needs and providing false testimony at trial as to Defendant Niemiec.
Defendants filed the present motion on June 16, 2014. Plaintiff's response was initially due on July 18, 2014. On July 28, 2014, at Plaintiff's request, Plaintiff was granted until September 3, 2014, to respond to the motion. On September 10, 2014, and again at Plaintiff's request, he was granted a further extension until October 3, 2014, to respond to the motion. On October 15, 2014, Plaintiff was granted a sua sponte extension of up to November 26, 2014, to respond to the motion. The Court informed him that it was his last opportunity to respond to the motion. Plaintiff never filed a response. On January 12, 2015, Defendants' motion was deemed fully briefed, and Plaintiff was given until January 26, 2015, to inform the Court if he wished to ...