United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE
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.
pending before the court is the Defendants' Motion for
Summary Judgment. Dkt. # 71.
Factual Background and Procedural History
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.
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.
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.
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.
pertinent facts are based on Defendants' Local Rule 56
statement and supporting materials, which include
Plaintiff's deposition testimony.
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.
Facts Relevant to CO Balmer, CO Paluch, and CO
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.
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.
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.
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.
DOCCS Log Books indicate that on January 24, 2013 at 4:01pm,
CO Balmer and CO Paluch escorted Plaintiff's neighboring