United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, UNITED STATES DISTRICT JUDGE:
Keith Thomas Cox, proceeding pro se, brings this
Section 1983 action against Defendants Brian Fischer, former
Commissioner of the New York State Department of Corrections
and Community Supervsion (“DOCCS”), DOCCS Senior
Parole Officer Murphy, Parole Officer Campbell, and Edgecombe
Residential Treatment Facility Correction Officers Smith,
Robinson, and Boykin. Before the Court is Defendants'
motion for summary judgment. For the reasons set forth below,
Defendants' motion is granted in part and denied in part.
October 2, 2016, Cox attempted to steal twelve Kodak cameras
from a Duane Reade drug store. After a trial in the New York
Supreme Court, Cox was convicted of third-degree burglary and
sentenced to three and one-half to seven years in prison. On
June 25, 2012, after serving five years in prison, Cox was
released on parole.
August 14, 2012 Incident
August 14, 2012, Cox reported to the Bronx I Area Parole
Office for a routine parole visit. While Cox was waiting for
his parole officer, his cell phone began to ring. Defs. 56.1
¶ 4. DOCCS requires parolees to silence the ringers on
their cell phones while they are reporting. Id.
¶ 5. Parole Officer Campbell confiscated Cox's
phone. See Id. ¶ 4. In response, Cox turned to
Parole Officer Bennett and, referring to Campbell, asked,
“Who's that broad?” Keane Decl. Ex. B
(“Cox Feb. 1 Dep. Tr.”) at 34:11-12. Cox then
stepped outside to smoke a cigarette. Defs. 56.1 ¶ 6.
Cox returned, Officer Campbell asked whether he had called
her a “broad.” Id. Cox did not respond.
Id. ¶ 7. Officers Bennett and Campbell then
escorted Cox to a copy room, measuring approximately eight
feet by ten feet, in the back area of the parole office.
point, Senior Parole Officer Murphy, who stands six feet
three inches tall and weighs 290 pounds, confronted Cox in
the copy room. Id. ¶ 8; Keane Decl. Ex. C
(“Cox Mar. 29 Dep. Tr.”) at 22:5-7. According to
Cox, Officer Murphy asked whether he had called Officer
Campbell a “broad, ” then said, “We got
something for dudes like you. Put your hands on the
wall.” Cox Feb. 1 Dep. Tr. 50:21-51:2. Cox did not
immediately put his hands on the wall. See Defs.
56.1 ¶ 11. Instead, Cox asked, “What are you
talking about? Why do I have to put my hands on the
wall?” Cox Feb. 1 Dep. Tr. at 51:4-6; Cox Mar. 29 Dep.
Tr. at 17:7-12. Cox claims that, at this point, he was calm,
though Murphy was “belligerent.” Cox. Feb. 1 Dep.
Tr. at 53:11-12. Officer Murphy then pushed Cox in the chest.
Defs. 56.1 ¶ 14. Cox responded by telling Officer
Murphy, “You have no right to put your hands on me. Why
are you putting your hands on me?” Cox Feb. 1 Dep. Tr.
at 54:20-23. Cox testified that he did not “raise [his]
hand or use [his] hand” in a way that could have
suggested that he was “coming after” Officer
Murphy. Cox Mar. 29 Dep. Tr. at 18:21-23. According to Cox,
Officer Murphy then “swung and hit” Cox on the
left side of his jaw with a closed fist. Defs. 56.1 ¶
15; Cox Feb. 1 Dep. Tr. at 54:23-24, 55:8-24.
Murphy next called for assistance from other officers. Defs.
56.1 ¶ 18. Cox testified that he “remained calm,
” “didn't struggle, ” and
“didn't resist or anything.” Cox Feb. 1 Dep.
Tr. at 59:16-17. Cox claims that at least four and as many as
nine parole officers arrived in response to Officer
Murphy's call and proceeded to grab Cox by his arms and
legs, choke him, and “slam” his body to the
floor. Id. at 59:18-22; see Defs. 56.1
¶ 20; Compl. at 6. Cox hit a copy machine on his way
down, and at least one officer fell to the ground with him.
See Defs. 56.1 ¶¶ 19-23. Cox testified
that, as the officers held him, he “didn't resist
at all.” Cox Feb. 1. Dep. Tr. at 69:23. Once Cox was on
the ground, he was handcuffed, and the physical struggle
officers who were on the scene recall the incident
differently. Officer Herrera, for example, testified at a
preliminary parole revocation hearing that Cox
“flail[ed] his arms, ” “shout[ed] at Senior
Parole Officer Murphy, ” and “resisted” the
officers' orders to raise his arms for handcuffing. Pl.
Opp. Ex. 9 at 4. Officer Jones, who was also present for the
incident, testified that other officers came to Officer
Murphy's assistance because Cox “resisted.”
Pl. Opp. Ex. 8 at 6, 9. Asked whether Cox was
“combative” before Officer Murphy used force,
Officer Jones answered, “He made a gesture.”
Id. at 5-6. Cox's violation of release report
alleged that Cox “threatened the safety and well being
of others” by “flailing his arms and striking at
Senior Parole Officer Murphy causing him to sprain his lower
back” and by “acting in a combative manner
causing Parole Officer Herrera to be knocked down to the
floor injuring his back.” Pl. Opp. Ex. 2 at 3.
not disputed that Cox immediately received medical attention.
A medical examination indicated that Cox had dislocated his
left rotator cuff and that he had footprints on his back,
bruising to his ribs and upper torso, and a “choke
mark” around his neck. See Defs. 56.1 ¶
25. Cox was given painkillers and told to treat his injury
with massage, hot water, and sleep. See Id.
¶¶ 27-28. Cox followed these instructions, and his
shoulder injury “healed right away.” Id.
¶¶ 28- 30. As a result of the parole office
incident, Cox's parole was revoked. See Id.
March 8, 2013 Incident
his parole was revoked, Cox was held in DOCCS custody at
Edgecombe Residential Treatment Facility. Defs. 56.1 ¶
37. On March 8, 2013, Cox did not appear as scheduled for
transportation to his work station at the Edgecombe laundry.
See Id. ¶ 41. Officer Smith was charged with
retrieving Cox and escorting him to the laundry. See
Id. ¶ 42.
Officer Smith arrived at Cox's dormitory, Cox indicated
that he needed to return to his bunk to retrieve his
identification card. Id. ¶ 49. Cox claims that,
as he emerged from the bunk area, he was “putting his
identification card in his left lapel with his right
hand” at a distance of approximately twenty feet from
Smith. Cox Feb. 1 Dep. Tr. at 90:14-16, 94:24-95:16. Officer
Smith then moved towards Cox, stating, “You want to
raise your hands.” Id. at 95:23-25. Cox
testified that Officer Smith could not have interpreted his
hand movements as a threatening gesture. See Cox
Feb. 1 Dep. Tr. at 97:18-21, 111:19-23.
Officer Smith then engaged in a physical struggle. Defs. 56.1
¶ 59. According to Cox, Officer Smith pushed him into
the bed area and “slammed” Cox into the bunk
beds. Cox Feb. 1 Dep. Tr. at 90:14-20, 96:1, 99:15-16. Cox
testified that Officer Smith then pulled his right arm behind
his back, pushed his face towards the wall, and
“slammed” him into two lockers and the bunk beds.
Defs. 56.1 ¶ 60. Officer Robinson, who “observed
the whole encounter, ” Cox Feb. 1 Dep. Tr. at 98:21-25,
pulled her alarm at some point during the incident, and three
other officers arrived on the scene, Defs. 56.1 ¶ 64.
then taken to the Edgecombe medical unit. See Defs
56.1 ¶ 65. At the medical unit, a nurse found that Cox
had approximately eighteen “superficial red openings,
” of about one-eighth of an inch to one inch in size,
on his back. See Defs 56.1 ¶ 66; Cox Feb. 1
Dep. Tr. at 101:2-103:4. The nurse further reported that Cox
denied feeling any pain. Cox Feb. 1 Dep. Tr. at 103:6. At his
deposition, Cox testified that he was not in pain at the
time. Id. at 104:18-19.
March 10, 2014, Cox filed a complaint in this action. Dkt. 2.
On June 8, 2015, Defendants filed an answer, asserting
qualified immunity as a defense. Dkt. 27. On May 13, 2016,
Defendants moved for summary judgment. Dkt. 42. On June 30,
2016, Cox filed an opposition to ...