United States District Court, N.D. New York
MALCOLM JEMMOTT Plaintiff pro se Ulster County Jail Kingston, NY.
ERIC M. KURTZ, ESQ, COOK, NETTER, CLOONAN, KURTZ & MURPHY, PC, Kingston, NY. Attorneys for Defendants.
REPORT-RECOMMENDATION and ORDER
THÉRÉSE WILEY DANCKS, Magistrate Judge.
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 Frederick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Malcolm Jemmott claims that Defendant Detectives Eric Van Allen and Edward A. Shuman, Jr.,  subjected him to excessive force when he was detained at the City of Kingston Police Headquarters and that Defendant Lieutenant John Tremper failed to protect him from that force. (Dkt. No. 1.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 29.) For the reasons discussed below, I recommend that the Court deny the motion as to the excessive force claims against Defendants Van Allen and Shuman and grant the motion as to the failure to intervene claim against Defendant Tremper.
I. FACTUAL AND PROCEDURAL SUMMARY
The incident at issue occurred at the headquarters of the City of Kingston Police Department on September 17, 2010. (Dkt. No. 29-9 ¶¶ 4-5.) Plaintiff had been arrested, taken into custody, processed, and placed in a holding cell pending arraignment. (Dkt. No. 29-9 ¶¶ 4-5.) Plaintiff arrived at headquarters at approximately 1:30 p.m. (Dkt. No. 29-8 ¶ 8.)
In his verified complaint, Plaintiff alleges that Defendant Van Allen punched him in the face and threw him down in a holding cell. (Dkt. No. 1 at 4, 5.) He alleges that Defendants Van Allen and Shuman hit him around the head and neck repeatedly with rolled up phone books in an interrogation room. Id. Plaintiff alleges that this use of force was "unprovoked." Id. at 4. He alleges that he was handcuffed when it occurred. Id. at 5. Plaintiff alleges that Defendant Lieutenant John Tremper heard him screaming and did nothing to stop the assault. Id. Plaintiff alleges that, as a result of the incident, he suffered from internal bleeding in his head and brain. Id. at 4. He alleges that the incident has "changed [his] life forever." Id. at 6.
Defendant Tremper declares that Plaintiff was the only individual being detained in a holding cell when he arrived at 3:00 p.m. for his shift. (Dkt. No. 29-8 ¶¶ 5-6.) Defendant Tremper declares that, pursuant to his usual custom and practice, he checked on Plaintiff every twenty to forty minutes during his shift. Id. ¶ 7. Defendant Tremper declares that he heard Plaintiff "yelling for someone" sometime in the late afternoon. Id. ¶ 11. Defendant Tremper directed non-defendant Officer Kurz to find out what Plaintiff wanted. Id. Officer Kurz returned to Defendant Tremper's office and indicated that Plaintiff was asking to speak to Defendant Van Allen. Id. Defendant Tremper directed Officer Kurz to go upstairs to Defendant Van Allen's office and advise him of Plaintiff's request. Id.
Defendant Van Allen and Defendant Shuman declare that at 6:00 p.m., Officer Kurz approached and advised them that Plaintiff wanted to speak to Defendant Van Allen to provide some information. (Dkt. No. 29-9 ¶¶ 5-6; Dkt. No. 29-10 ¶ 6.) Defendant Van Allen declares that he proceeded downstairs with Defendant Shuman and advised Defendant Tremper that he was taking Plaintiff from the holding cell to an interview room on the second floor. (Dkt. No. 29-9 ¶ 6.) Defendant Van Allen declares that Plaintiff was moved from the holding cell to the interview room at approximately 7:00 p.m. Id. ¶ 7. Defendant Van Allen declares that although Plaintiff was initially handcuffed, he asked Defendant Shuman to remove the handcuffs for the interview process. Id. Defendant Van Allen declares that, to the best of his recollection, Plaintiff accepted a bottle of water and some chips before the interview began. Id. After that, Plaintiff was given his Miranda warnings and the officers began taking his statement, which was recorded on tape. Id.
According to the transcript, Defendant Van Allen ("DV") and Plaintiff ("MJ") had the following exchange toward the end of the interview:
DV: [S]ince you've been taken into custody by myself and other members of the department today, how have you been treated?
DV: [W]ere you given an opportunity to use ...