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Cox v. Fischer

United States District Court, S.D. New York

March 31, 2017

KEITH THOMAS COX, Plaintiff,
v.
BRIAN FISCHER, COMMISSIONER, N.Y.S. DEPARTMENT OF CORRECTIONS & COMMUNITY SERVICES; SENIOR PAROLE OFFICER MURPHY, SHIELD NO. 0421; PAROLE OFFICER CAMPBELL, SHIELD NO. 2013; CORRECTION OFFICER L. SMITH; CORRECTION OFFICER ROBINSON; and CORRECTION OFFICER BOYKIN, Defendants.

          OPINION AND ORDER

          RONNIE ABRAMS, UNITED STATES DISTRICT JUDGE:

         Plaintiff 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.

         BACKGROUND[1]

         A. Cox's Conviction

         On 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.

         B. The August 14, 2012 Incident

         On 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.

         When 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. See id.

         At this 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.

         Officer 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 ended.

         Parole 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.[2] 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.

         It is 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. ¶¶ 34-36.

         C. The March 8, 2013 Incident

         After 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.

         When 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.

         Cox and 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.

         Cox was 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.

         D. Procedural History

         On 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 ...


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