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Evans v. Balmer

United States District Court, W.D. New York

March 24, 2017

SHAWN EVANS, #111-A-0681, Plaintiff,
v.
CORRECTION OFFICER M. BALMER, et al., Defendants.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE

         I. Introduction

         Proceeding pro se, Shawn Evans (“Plaintiff”), instituted this action pursuant to 42 U.S.C. § 1983 alleging that while he was an inmate at Southport Correctional Facility (“Southport”), the Defendants, who are employees of the New York State Department of Corrections and Community Supervision (“DOCCS”), used excessive force against him in violation of his Eighth Amendment rights.

         Currently pending before the court is the Defendants' Motion for Summary Judgment. Dkt. # 71.

         II. Factual Background and Procedural History

         On August 5, 2013, Plaintiff commenced this action by filing a complaint alleging that on January 24, 2013, while incarcerated at Southport, Corrections Officers (“CO”) Balmer, Paluch, and Tillinghast opened his cell door and “used excessive force by punching [him] repeatedly in the face[.]” Dkt. # 1 at 4.

         On December 18, 2013 and January 30, 2014, Plaintiff amended his complaint re-stating the allegations from the first complaint, (Dkt. Nos. 5 at 4; 6 at 4), but later sought to have the amended complaints dismissed, leaving only the original complaint Dkt. # 7. This Court entered an Order on April 3, 2014, dismissing the first and second amended complaints without prejudice. Dkt. # 8.

         Following discovery, the remaining defendants in this case filed a Motion for Summary Judgment on May 18, 2016. Dkt. # 71. After multiple extensions of time, Plaintiff has submitted his opposition papers to Defendants' motion (Dkt. # 100), to which Defendants have replied. Dkt. # 113.

         In support of his opposition, Plaintiff has submitted a memorandum of law, statement of undisputed facts, and supporting exhibits Dkt. # 100. Plaintiff's “statement of undisputed facts” indicates that, with the exception of eleven paragraphs, he disputes all of Defendant's factual assertions set forth in their Rule 56 statement (Dkt. #, 100-1). However, he appears to admit all of Defendants' propounded material facts in his memorandum of law, thus challenging Defendants' motion solely on legal grounds. Dkt. # 100.[1]

         The pertinent facts are based on Defendants' Local Rule 56 statement and supporting materials, which include Plaintiff's deposition testimony.[2]

         The matter is now fully briefed and the Court has considered carefully the parties' submissions. For the reasons that follow, the Defendants' Motion for Summary Judgment (Dkt. # 71) is granted in its entirety.

         A. Facts Relevant to CO Balmer, CO Paluch, and CO Tillinghast

         Plaintiff alleges in his complaint that, on one occasion while incarcerated at Southport, CO Balmer, CO Paluch, and CO Tillinghast opened his cell door and “used excessive force by punching [him] repeatedly in the face[.]” Dkt. # 1 at 4. He filed a grievance concerning the January 24, 2013 incident, in which he stated that “several officers” assaulted him. Dkt. # 24 at 30.

         Plaintiff later gave testimony under oath in connection with the instant proceeding on April 22, 2014. Dkt. 71-5 (“Evans Dep.”). During his deposition, Plaintiff testified that on January 24, 2013, at approximately 4:01pm, CO Tillinghast opened and entered his cell and punched him one time in the eye. Id. at 11-12, 19. The alleged assault took place while CO Balmer, CO Paluch, and CO Tillinghast were responding to a neighboring inmate who was suicidal. The incident lasted approximately three seconds. Id. at 9-10, 15, 19. Plaintiff described his eye as “swollen, ” for a couple of days. Id. at 42.

         Plaintiff further testified that CO Balmer and CO Paluch did enter his cell and did not touch him, despite his previous assertions that all three defendants opened his cell and committed the assault. Id. at 14, 21, 23.

         His testimony indicated that, at the time Plaintiff was punched by CO Tillinghast, CO Balmer was removing a neighboring inmate from his cell to the infirmary. Id. at 10, 25. With respect to CO Paluch, Plaintiff recalled that he was the “area supervisor” and had “actual notice of . . . misconduct being used by one of his subordinates.” Id. at 19-21.

         The DOCCS Log Books indicate that on January 24, 2013 at 4:01pm, CO Balmer and CO Paluch escorted Plaintiff's neighboring ...


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