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Lopez v. Martinez

United States District Court, E.D. New York

January 23, 2018

KRISHTIAN LOPEZ, Plaintiff,
v.
Correction Officer RICARDO MARTINEZ, Defendant.

          MEMORANDUM DECISION AND ORDER

          Ann M. Donnelly United States District Judge

         The plaintiff initiated this civil rights action on February 26, 2015, pursuant to 42 U.S.C. § 1983 et seq., alleging excessive use of force, as well as violations of the New York State Constitution and New York State common law, against the City of New York, Corizon Health Inc. ("Corizon"), and individual corrections officers. (ECF No. 1.)[1] The plaintiff filed an amended complaint on April 5, 2016. (ECF No. 22.) The plaintiff withdrew his claims against Corizon, and filed a second amended complaint on August 29, 2016. (ECF No. 40.) On November 4, 2016, the plaintiff withdrew his state law claims and discontinued his action against the City of New York. (ECF No. 49.) On April 3, 2017, 1 held a bench trial on the remaining Section 1983 excessive use of force claim against an individual corrections officer, Ricardo Martinez. Six witnesses testified, including the plaintiff, Corrections Officer Steve Carpenter, Captain Tiana Diaz, Drs. Zulfiquar Bhuiyan and Budd Heyman, and the defendant, Corrections Officer Ricardo Martinez. The issue at trial was whether the plaintiff established by a preponderance of the evidence that Officer Martinez used excessive force against him.[2]

         The parties submitted proposed findings of fact and conclusions of law on June 20, 2017. (ECF Nos. 79, 80.) For the reasons that follow, I conclude that the plaintiff has failed to prove by a preponderance of the evidence that the defendant used excessive force against him.

         FINDINGS OF FACT[3]

         The parties agree about certain facts. Broadly, they agree that the plaintiff sustained a broken jaw that required surgery, that he sought medical attention for that injury on September 1, 2014, and that over a period of a few weeks he told medical professionals that he was hurt during a basketball game.[4] The parties also agree that the plaintiff did not notify Department of Corrections officials of the alleged assault until October 17, 2014, through a notice of claim letter from the plaintiffs attorney. (Def. Ex. M.) There is no dispute that the plaintiff did not identify the defendant until about a year and a half after the injury, when the plaintiff filed his amended complaint on April 5, 2016. The following facts also are largely undisputed.

         In August of 2014, the plaintiff was an inmate at Rikers Island assigned to the Otis Bantum Correctional Center ("OBCC") housing. (Tr. 14.) On September 1, 2014 at approximately 8:00 am, the plaintiff called his girlfriend; the call lasted about fifteen minutes. (Def. Ex. I.) Throughout the day, the plaintiff made additional calls to his girlfriend; the last call at 8:10 pm lasted for several minutes.[5] (Id.) A few minutes later, around 8:15 pm, the plaintiff told Corrections Officer Steve Carpenter that his jaw hurt, and that he needed medical attention. (Tr. 45-46.) Officer Carpenter filled out an injury report, which stated that the plaintiff was hurt playing basketball the previous day. (PI. Ex.4 at ¶ 284.)[6] Carpenter also called Captain Tiana Diaz, who escorted the plaintiff to the Rikers Island clinic. (Tr. 52, 141-42, 165-66.)

         The medical notes from the clinic reflect that the plaintiff was hurt playing basketball, that the "[r]ight side of [his] face" was "mildly swollen and tender, " and that he did not lose consciousness as a result of his injury. (PI. Ex. 4 at ¶ 294; Def. Ex. A at ¶ 088-089.) The plaintiff was prescribed medication, and told to return the next morning for x-rays. (Tr. 55-56; Def. Ex. A at ¶ 088-089.) X-rays taken the next morning revealed that the plaintiff s jaw was fractured; the plaintiff reported to the treating physician that he was "elbowed in the face by another inmate" while playing basketball. (Def. Ex. A at ¶ 086.) Later that day, the plaintiff was admitted to Bellevue Hospital, where medical records reflect that the plaintiff said he was "hit in the jaw" playing basketball two days earlier, on August 31st. The records noted "swelling" on the right side of the plaintiffs face, and that he could open his mouth "partially." (PI. Ex. 4 at ¶ 294; Def. Ex. C at ¶ 004.) The next day, on September 3, 2014, records show that the plaintiff had "significant swelling" on the right side of his face, a "fissure" in his lower gum, "some bleeding, " and a "fracture" to his jaw. (Def. Ex. C at ¶ 016-17.) That same day, Dr. Budd Heyman examined the plaintiff and wrote in his medical notes that the plaintiff "[s]tates he was punched in the face by another inmate in jail, " and that the plaintiff "denie[d]" that he lost consciousness. (Def. Ex. C at ¶ 026.)

         The plaintiff had surgery on his jaw on September 11, 2014, and the surgeon put a metal bar with wires and screws in the plaintiffs mouth to keep his jaw properly aligned. (Tr. 68, 221-22; Def. Ex. C at ¶ 44-48). He was discharged the next day and assigned to the Rikers Island infirmary for the next few months. (Tr. 75, 78; PI. Ex. 2 at ¶ 268.)[7]

         At some point during the plaintiffs stay at the infirmary, he retained legal counsel. On October 22, 2014, the plaintiffs attorney sent a letter to the New York City Department of Correction ("DOC"), alleging that a corrections officer assaulted the plaintiff on September 1, 2014 at about 10:50 pm.[8] The letter described the assailant as "Hispanic or white, " "about 6 feet tall, " weighing about "250 pounds, " and claimed that the officer was "agitated that it took [the plaintiff] longer than expected to lock up for the night and struck [the plaintiff] in the face breaking his jaw in 3 [ ] places." (Def. Ex. L.) Counsel also wrote that the plaintiff "fainted as a result of this assault, " and that when he "came to he was in severe pain and bleeding from the mouth." (Id.) Counsel went on to say that the plaintiff did not report the incident immediately because he was "very much afraid" and "fear[ed] retaliation and further assault." (Id.)

         On October 30, 2014, the infirmary staff reported the alleged assault to the DOC Investigation Division ("DOC ID"), which began an internal investigation.[9] (Tr. 119; PI. Ex. 9 at ¶ 616.) The investigator interviewed witnesses, including the plaintiff and Officer Martinez, reviewed medical records and photographs, and listened to the plaintiffs phone calls - including the plaintiffs calls to his girlfriend - from September 1, 2014.[10] The investigator also photographed the plaintiffs injuries. The investigator was "unable to substantiate" the plaintiffs account of his injury, or conclude that the defendant "used force." (PI. Ex. 9 at ¶ 619.)

         On November 5, 2014, the plaintiff had a follow-up appointment at the Rikers Island clinic with Dr. Bhuiyan. (PL Ex. A at ¶ 600.) According to Dr. Bhuiyan's notes, the plaintiff "denie[d] depression or self[-]injurious behav[ior]." (Tr. 129-30; Def. Ex. A at ¶ 600.) Five days later, however, on November 10, 2014, the plaintiff complained of "difficulty sleeping, " depression, and "PTSD" from the alleged assault, so the clinic referred him for mental health treatment. (Tr. 128; Def. Ex. A at ¶ 537.)

         The parties disagree about other facts, most obviously how the plaintiff s jaw was broken, and by whom. The plaintiff testified that the defendant hit him in frustration because the plaintiff would not follow his orders. Specifically, the plaintiff testified that on August 31, 2014, at 11:00 pm, the defendant directed him and other inmates to "lock in" for the night. (Tr. 24-26.) The plaintiff was "being bad" and "wasn't really trying" to follow the defendant's order. (Tr. 24.) Other inmates were also ignoring the defendant, but the defendant focused on the plaintiff: the defendant, according to the plaintiff, "was angry ... [because] he wanted to go home." (Tr. 26-27.) At this point, the plaintiff was "out halfway in [his] cell, " not facing the defendant, but standing with his right side toward the defendant. Suddenly, the plaintiff felt himself being punched with such force that he lost consciousness. (Tr. 28-29.)[11] He revived after a few minutes, and found that he was lying on his bed. (Tr. 31.)[12] The plaintiff looked in the mirror, and saw that his mouth was "swollen" and looked "crazy . . . one side was up, one side was down." His gum was "split, " and there was "a lot" of blood not only on him, but on the cell floor and his pillows. (Tr. 30. 33-34.) The plaintiff tried unsuccessfully to close the wound in his gum with the "string" from a towel. (Tr. 34-35.) Although the plaintiff said he was in "a lot of pain/' (Tr. 31), he did not alert anyone that he was injured or seek medical attention because he feared retaliation from the officers, who "controlled] everything." He then fell asleep. (Tr. 31-32, 35.)

         The plaintiff woke up the next day, on September 1st. He skipped breakfast, lunch, and dinner, because his jaw was "all swollen up" and "some of [his] teeth w[eren't] hitting each other" and were not "grinding." (Tr. 42.) He could not move his mouth, and his jaw was "hanging." (Tr. 108.) The plaintiffs mouth did not bleed as long as he did not talk or move it, but if he "tried to move it or do anything it opened back up." (Tr. 42.) Nevertheless, the plaintiff called his girlfriend twice - once in the morning and once later in the afternoon. (Tr. 37, 44; Def. Ex. I.) Officers on the floor and in the control room could see him at the telephones, but the plaintiff "covered" his injury by not opening his mouth. (Tr. 109-10.)

         Later that night, there was still "a lot of blood" in the plaintiffs mouth, and the "whole right side of [his] face was swollen and [the] left part of [his] jaw was down." At about 8:00 pm, he asked Corrections Officer Steve Carpenter, who he thought "seem[ed] like a good guy, " for medical attention. (Tr. 46-47.)

         According to the plaintiff, Carpenter called Captain Diaz, who wrote him a "pass" so that he could go to the clinic by himself. (Tr. 48-49.) The infirmary staff turned him away because he had no escort. (Tr. 50-51.) Thereafter, Diaz escorted the plaintiff to the medical clinic. (Tr. 141-42, 165-66.) At the clinic, the plaintiff reported that he got hurt playing basketball; he told this story because a corrections officer was "right next" to him. (Tr. 53.) According to the plaintiff, the doctor "didn't believe" his basketball story, and "went and told the other officers .. . this guy says he got hurt playing basketball, " and showed the officers the plaintiffs face. (Tr. 54.) Another doctor also saw the plaintiff and prescribed medication. (Tr. 55.)

         On September 3, 2014, the plaintiff went to Bellevue Hospital, where he also told the staff that he was injured playing basketball; once again, he told this story because corrections officers were always within earshot. (Tr. 58-59, 61-62.) He admitted, however, that no officers were present when Dr. Budd Heyman examined him. (Tr. 107.) The plaintiff denied telling Dr. Heyman that an inmate punched him, and did not remember saying that he did not lose consciousness, although he conceded that the doctor's record about other aspects of his medical history and medications was accurate. (Tr. 104-07.) Up to this point, the plaintiff had told nine people that he was injured playing basketball. (Tr. 134.)

         The first person to whom the plaintiff confided that a corrections officer punched him was his girlfriend, who visited him at Bellevue the day after his surgery on September 12, 20I4.[13] He felt comfortable telling his girlfriend what happened because there were no corrections officers in the room when she visited. (Tr. 71, 107.) About a week after that conversation, the plaintiff told his father about the assault, not in the hospital, but in the Rikers Island infirmary visitation area; the plaintiff said it was "too noisy" for corrections officers to hear his conversations. (Tr. 74.) Shortly thereafter, the plaintiffs family retained counsel to represent him. (Tr. 89-90.)

         On November 5, 2014, the plaintiff had an appointment with Dr. Bhuiyan, when he told that he was not depressed. (Tr. 129-30.) Nevertheless, on November 10, 2014, the plaintiff visited a mental health provider claiming "PTSD . .. sleeping disorder, [and] depression, " as well as "flashbacks" in which he saw "the officer hitting" him. (Tr. 78.)

         Corrections Officer Steve Carpenter, Captain Tiana Diaz, and Drs. Heyman and Bhuiyan also testified. Officer Carpenter had no independent recollection of his encounter with the plaintiff but confirmed that he had prepared the initial report in which the ...


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