Molina v. State of New York et al
Filing
45
MEMORANDUM-DECISION AND ORDER denying 37 Motion for Summary Judgment; ORDERED that a Settlement Conference is scheduled for 12/19/11 at 11:00a.m. in Albany, N.Y. Signed by U.S. District Judge Mae A. D'Agostino on 12/1/11. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
FRANCISCO J MOLINA,
Plaintiff,
vs.
1:09-CV-00467
(MAD/ATB)
STATE OF NEW YORK; NYS OFFICE OF
CHILDREN AND FAMILY SERVICES;
NYS DIVISION FOR YOUTH; LOUIS GOSSETT
JR. RESIDENTIAL CENTER; JOHN A
JOHNSON, Commissioner of the NYS Division for
Youth; JOSEPH IMPICCIATORE, Director of the
Louis Gossett Jr. Residential Center; CYRIL
STEPHENS, Youth Detention Aide at the Louis
Gossett Jr. Residential Center; ARTHUR MYERS,
Youth Detention Aide at the Louis Gossett Jr.
Residential Center; SCOTT PELKY, Youth
Detention Aide at the Louis Gossett Jr. Residential
Center; and “JOHN and JANE DOES,” the names
being fictitious and intended to be the individual(s)
who is/was/were employed at the Louis Gossett Jr.
Residential Center and who caused injury to the
Plaintiff,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
PEKNIC, PEKNIC & SCHAEFER
1005 West Beech Street
Long Beach, New York 11561
Attorneys for Plaintiff
Sean W. Schaefer, Esq.
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL OF THE STATE
OF NEW YORK
The Capitol
Albany, New York 12224
Attorneys for Defendants
Adrienne J. Kerwin, Esq.
Assistant Attorney General
Mae A. D’Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Francisco Molina, brought this action for relief under 42 U.S.C.§ 1983 alleging
that defendants Cyril Stephens (“Stephens”) and Arthur Myers (“Myers”) used excessive force
against him in violation of his Eighth Amendment rights.1 Presently before the Court is
defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. (Dkt. No. 37). Plaintiff has opposed the motion. (Dkt. No. 41).
II.
FACTS2
At the time of the incident, plaintiff was 17 years old and a resident of the Louis Gossett,
Jr. Residential Center (“Gossett Center”) in the custody of the State of New York Office of
Children and Family Services (“OCFS”). Defendant Stephens was the Administrator on Duty and
was responsible for all staff and all units at the Gossett Center. Defendant Myers was a Level
Three Youth Detention Aide (“YDA”) responsible for the direct care of the residents.
Incident
On December 4, 2006, plaintiff was in the gymnasium at the Gossett Center. Plaintiff,
who was prohibited from taking part in gym activities because he was on arm’s length
supervision,3 began doing push-ups and was directed to stop by a YDA.4 Plaintiff continued to do
1
On March 3, 2010, United States District Judge Lawrence E. Kahn issued a Memorandum-Decision and
Order on defendants’ motion to dismiss. As a result of that decision and a subsequent stipulation of the parties, the
only remaining cause of action is plaintiff’s Eighth Amendment claim against Stephens and Myers.
2
There are few undisputed facts. The background set forth in this section is taken from the exhibits and
evidence submitted by defendants in support of the Motion for Summary Judgment and the exhibits and evidence
submitted by plaintiff in opposition to the Motion for Summary Judgment. To the extent that the parties’ Statements
of Material Facts are supported by the record, the Court will also consider those submissions in the context of the
within motion. The facts recited are for the relevant time period as referenced in the complaint.
3
Plaintiff understood arm’s length supervision to mean that he was not allowed to leave the officer’s side.
4
The YDA was Ms. Titus. Ms. Titus is not a defendant herein.
2
push-ups resulting in the YDA, “pushing the pin”.5 After Titus alerted the response team, Titus
and Scott Pelky (“Pelky”), plaintiff’s block officer, escorted plaintiff out of the gymnasium.
Plaintiff claims that he walked freely and was not arguing with the officers. As a result of the pin
push, a response team, including defendants Stephens and Myers, arrived at the corridor outside
the gymnasium. Stephens arrived first and claims that plaintiff’s back was against a wall.
Stephens claims that he heard plaintiff cursing at the YDA and being “nasty and disrespectful”,
but not physically acting out. Stephens claims that he stood six to seven inches from plaintiff and
told plaintiff to calm down and be respectful. Plaintiff alleges that Stephens was screaming at
him. Myers arrived and saw Stephens attempting to “de-escalate” the situation. Stephens and
Myers claim that plaintiff became “aggressive” and took a step towards Stephens with balled fists
and attempted to grab him. At that point, Stephens spun plaintiff around and attempted to initiate
a physical restraint technique and place plaintiff in a single-man restraint tactic known as “high
hooks”.6 Stephens claims that as he attempted this maneuver, he was “struggling with the kid”
but also testified that plaintiff, “wasn’t kicking and flailing like that, he was just tugging with me
up on top”. Myers testified that plaintiff was “resisting” and, “thrashing back and forth, trying to
snatch his arms away. You know, grabbing pants and clothes and things of that nature”. Plaintiff
claims he was not using his feet or trying to get away. Stephens claims he, “got [plaintiff] on the
ground as quickly as possible”. Myers testified that Stephens and plaintiff fell to the floor but
that the fall was not “hard”, rather, they didn’t “transition the way I know a restraint’s supposed
to transition”. Plaintiff claims that he was “thrown” to the ground.
5
6
The pin sends a radio signal to a response team.
Plaintiff describes the restraint as a “choke hold”. According to Stephens, in order to engage the restraint,
the officer gets behind the individual and hooks his arm under both of the individuals armpits and then drops to one
knee and rolls the individual onto his stomach.
3
Once on the floor, Stephens and plaintiff remained on the floor for fifteen to twenty
seconds. Myers and Stephens testified that Myers offered to take over the “primary position”
because Stephens was struggling to control plaintiff. Stephens also testified that he became
“winded” and had to be accessible if another pin was pulled. Stephens transferred one of
plaintiff’s arms, and then the other, to Myers who then placed plaintiff in high hooks. During this
transition, plaintiff claims he was yelling for the officers to get off of him and let him go. The
transition from Stephens to Myers took approximately ten seconds. At that time, Myers testified
that plaintiff’s head was towards the middle of Myers' lower back, in his groin area. Myers
claims he, “wasn’t in the proper technique at that point. He was still resisting. He wasn’t secure
yet”. Stephens claims that plaintiff was attempting to “grab Myers’ testicles”. Within seconds of
Myers’ taking over the hold, the parties heard a “pop”. Myers released plaintiff’s arm.7
Plaintiff suffered a fracture to his right arm. Plaintiff was taken to Cayuga Hospital where
x-rays were taken, his arm was casted and placed in a sling. Plaintiff returned to the Gossett
Center later that same evening. The next morning, plaintiff returned to Cayuga Hospital and was
admitted for three days. Plaintiff was discharged and returned to the Gossett Center.
Grievance Procedure and Investigation
OCFS provides a grievance procedure available to any resident wishing to formally
complain about any aspect of their residency in an OCFS facility, including circumstances of a
physical restraint. As an exhibit in support of the within motion, defendants provide The New
York State Office of Children and Family Services Resident Manual for Non-Secure Facilities
("Manual"). The Manual provides:
TABLE OF CONTENTS
7
Plaintiff testified that five to eight seconds elapsed between hearing the “pop” and Myers’ release.
4
RESIDENT GRIEVANCE PROGRAM
Reception Center Grievance Process
The OCFS Ombudsman
Under the title, Resident Grievance Program, the Manual provides, in relevant part:
Resident grievance forms are located on each living unit and in an area
of the facility generally used by residents.
To file a grievance, you fill out a grievance form and put the
completed form directly into a locked grievance mailbox.
After your grievance has been date stamped and given a log number,
a copy of the grievance will be given to you and the unit administrator.
Within 7 days from the date stamped on your filed and logged
grievance, you will receive a written decision on your grievance.
Under the title, The OCFS Ombudsman, the Manual provides:
An OCFS ombudsman is a lawyer who specializes in juvenile law and
the legal rights of young people. The ombudsman helps you with your
legal problems or questions. The Office of the Ombudsman is part of
the Commissioner's Office.
The Ombudsman hears concerns regarding the treatment of residents
in the OCFS facilities. The ombudsman will also look into any
complaint believed to be a violation of your legal rights. The
ombudsman will also try to assist you with legal problems you may
have which are unrelated to the facility. If you need the help of a
judge, a lawyer, or community service worker to solve your problem,
the ombudsman can assist you in contacting that person.
You may tell your concerns to the counselor assigned to your unit or
to any other employee.
If you feel your concerns are not being addressed, you may fill out a
Resident Grievance Form (See section on Resident Grievance
Program to find out how to file a grievance).
Every OCFS facility employee is required to report suspected cases of
abuse or maltreatment to the New York State Child Abuse Hotline. If
a facility employee suspects that you have been abused or maltreated,
the employee must see to it that a report is made to the hotline for
investigation.
5
See Kerwin Aff., Ex. "D" at pps. 3-6.
Plaintiff claims that a few days after he was released from the hospital, he returned to the
Gossett Center and filed a grievance form complaining that Stephens and Myers used excessive
force. Plaintiff claims he, “filled it out and put it in the box, a little grievance box”. Defendants
claim that a search of the Grievance Log and all other relevant records failed to uncover any
grievance filed by plaintiff in connection with the December 4, 2006 incident.
On December 18, 2006, plaintiff was interviewed by Annabelle Gardner, a Child Abuse
Specialist employed by the OCFS Syracuse Regional Office.8 Ms. Gardner states that she
conducted an investigation into a report of possible child abuse made to the New York Statewide
Central Register of Child Abuse and Maltreatment hotline on December 4, 2006 regarding an
injury plaintiff received at the Gossett Center. Ms. Gardner interviewed witnesses, including
plaintiff. Ms. Gardner prepared a report of her investigation and concluded that the accusation of
possible child abuse was unfounded. The report, which lists the date of intake as December 5,
2006, indicates that, “[w]hile on another investigation at Louis Gossett Jr. Residential Center, this
investigator was informed by Mr. Germano of this SCR report”.
In “December 2006", Scot Lamphier, a Level 2 Youth Counselor employed by the OCFS
at the Gossett Center and Assistant Director Ernie Germano conducted an internal investigation of
the December 4, 2006 incident.9 As part of the investigation, Mr. Lamphier interviewed
witnesses, including plaintiff, defendants, Pelky, Titus and other Gossett employees including
other YDA’s in the gymnasium on the day of the incident. Annexed to Mr. Lamphier’s affidavit
8
Ms. Gardner prepared an affidavit submitted in support of defendant’s motion.
9
In support of the within motion, Mr. Lamphier provided an affidavit.
6
is a “Narrative” that contains “Findings” that the force used by Stephens and Myers was not
excessive.10
III.
DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate where there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Substantive
law determines which facts are material; that is, which facts might affect the outcome of the suit
under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986). A party
moving for summary judgment bears the initial burden of demonstrating that there is no genuine
issue of material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the Court, viewing the evidence in the
light most favorable to the nonmovant, determines that the movant has satisfied this burden, the
burden then shifts to the nonmovant to adduce evidence establishing the existence of a disputed
issue of material fact requiring a trial. See id. If the nonmovant fails to carry this burden,
summary judgment is appropriate. See id.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate
where admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates the absence of a genuine issue of material fact, and one party's
entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712,
716 (2d Cir. 1994). No genuinely triable factual issue exists when the moving party
demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all
inferences and
10
Annexed to Mr. Lamphier’s affidavit is a report entitled “Investigation #06-99FC, OCFS #1597-06
Narrative”. The report is unsigned and undated.
7
resolving all ambiguities in favor of the non-movant, that no rational jury could find in the
non-movant's favor. Chertkova v. Conn. Gen ‘l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996)
(citing Fed. R. Civ. P. 56(c)).
B.
Failure to Exhaust
Under the Prison Litigation Reform Act (“PLRA”), an inmate must exhaust all available
administrative remedies prior to bringing a § 1983 action "with respect to prison conditions." See
42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 523-24 (2002) (discussing §
1997e(a) exhaustion requirements). “There is no question that exhaustion is mandatory under the
PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199,
200 (2007) (citation omitted). In light of this exhaustion requirement, a federal court must
dismiss a § 1983 complaint brought by an inmate where the prisoner failed to exhaust his
administrative remedies absent “justification for not pursuing [such] remedies.” Giano v. Goord,
380 F.3d 670, 675 (2d Cir. 2004) (citations omitted). As a juvenile in a resident facility, plaintiff
is obligated to exhaust his administrative remedies per the PLRA. Lewis ex rel. Lewis v. Gagne,
281 F.Supp.2d 429, 433 (N.D.N.Y. 2003).
The Second Circuit has crafted a three-part test for determining whether dismissal of an
inmate plaintiff’s complaint is warranted for failure to satisfy the PLRA’s exhaustion
requirement. McQueen v. County of Albany, 2010 WL 338081, at *7 (N.D.N.Y. 2010) (citing
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). First, “the court must ask whether
[the] administrative remedies [not pursued by the prisoner] were in fact ‘available’ to the
prisoner.” Hemphill, 380 F.3d at 686 (citation omitted). The age of the prisoner and their
familiarity with the grievance procedure are relevant in determining whether the grievance
process was available to the prisoner. Lewis v. Mollette, 752 F.Supp.2d 233, 241 (N.D.N.Y.
8
2010) (citations omitted). Second, if those remedies were available, “the court should . . . inquire
as to whether [some or all of] the defendants may have forfeited the affirmative defense of
non-exhaustion by failing to raise or preserve it . . . or whether the defendants' own actions
inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from
raising the plaintiff's failure to exhaust as a defense.” Id. Third, if the remedies were available
and some of the defendants did not forfeit, and were not estopped from raising, the
non-exhaustion defense, “the Court should consider whether ‘special circumstances' have been
plausibly alleged that justify the prisoner's failure to comply with the administrative procedural
requirements.” Id.
To determine whether “special circumstances” exist, a court must consider the
“circumstances which might lead usually uncounselled prisoners to fail to grieve in the normally
required way”. Hill v. Tisch, 2009 WL 3698380, at *6 (E.D.N.Y. 2009) (citing Giano, 380 F.3d
at 678). Findings of special circumstances have primarily been established where a plaintiff acted
pursuant to a reasonable interpretation of the regulations. Winston v. Woodward, 2008 WL
2263191, at *10 (S.D.N.Y. 2008). Special circumstances do not exist where plaintiff fails to
allege that, during the time in question, he was laboring under any sort of physical infirmity, or
reasonable misunderstanding of the law, which impeded his attempts to complain. McCloud v.
Tureglio, 2008 WL 1772305, at *14 (N.D.N.Y. 2008). The Second Circuit has recognized that
remedies may sometimes be exhausted through the use of informal channels such as contacting
the OCFS ombudsman with complaints or reporting suspected cases of abuse to the New York
State Child Abuse Hotline. Lewis v. Mollette, 752 F.Supp.2d at 240 (it is reasonable for a plaintiff
to believe that an Internal Abuse Bureau investigation, started several days after an incident
occurred, obviated the need to file a formal grievance or take any other steps).
9
This matter presents facts and issues strikingly similar to those presented in Lewis ex rel.
Lewis v. Gange, 281 F.Supp.2d 429, 436 (N.D.N.Y. 2003). In Lewis, the plaintiff brought a claim
for excessive force and deliberate indifference against the Tryon Residential Facility. Id. at 431.
The defendants moved for summary judgment arguing that the plaintiff failed to exhaust his
administrative remedies. Id. The plaintiff claimed that he filled out a grievance form and
complained to his Youth Division Counselor and YDA. Id. at 431. The plaintiff’s mother also
reported the incident to a senior counselor at the facility and to the New York State Child Abuse
and Maltreatment Center. Lewis, 281 F.Supp.2d at 431. The Court held that the plaintiff did not
exhaust his remedies through formal procedures as he failed to place a grievance in the designated
mailbox and failed to file an appeal after not receiving a response within the applicable time
period. Id. at 433. However, the Court found that the plaintiff informally exhausted his remedies.
First, the Court found that the facility’s formal grievance program was not the exclusive means of
exhaustion. Specifically, the Court reviewed the OCFS handbook and noted that the document,
“impl[ies] that the grievance procedure is not the exclusive means for addressing legal issues
regarding the facility’s treatment of residents.” Id. at 434. The Court cited to the Handbook
noting that, “the grievance program is presented within the context of the other steps a resident
may take to assert their legal rights”. The Court noted:
the Handbook, after explaining how to contact the OCFS ombudsman,
lists the following as ways a resident can make his or her concerns
known about the way he or she is treated:
You may tell your concerns to the Counselor assigned to your unit or
to any other employee.
If you feel your concerns are not being addressed, you may fill out a
Resident Grievance Form. (See section on Resident Grievance
Program to find out how to file a grievance.)
10
Every OCFS facility employee is required to report suspected cases of
abuse or maltreatment to the New York State Child Abuse Hotline. If
a facility employee suspects that you have been abused or maltreated,
the employee must see to it that a report is made to the Hotline for
investigation.
Lewis, 281 F.Supp.2d at 434. The Court found that the Handbook did not list the order for the
options nor did it indicate which procedure should be exercised first. Id.
The Court also found that the facility’s own actions demonstrated that the formal
grievance procedure need not always be followed to address a problem and prompt an
investigation. Id. Specifically, the facility conducted an internal investigation including an
interview of plaintiff within 5 weeks of the incident. Clearly, the facility knew that the plaintiff
was pursuing the matter. Id. The Court held, “[w]hile not the preferred or most efficient channels
of seeking administrative redress, plaintiffs' informal efforts demonstrate a reasonable attempt to
exhaust all possible means before filing in federal court”. Id. (citations omitted). As an
investigation into the incident ensued, it was reasonable for the plaintiffs believe that at least one
effort they took accomplished the same result that filing through the formal process would have
produced. Lewis, 281 F.Supp.2d at 434.
In this matter, the OCFS Manual utilized by Gossett includes the same list of services,
explaining how to file a grievance and how contact the OCFS ombudsman, as those contained in
Tryon Residential Facility’s Handbook as discussed in the Lewis case. Moreover, as in Lewis, the
Gossett Center Manual presents the OCFS Ombudsman information under the same heading and
in the same context as the Grievance Procedure. Indeed, the Manual contains identical language
regarding how to report complaints to the Counselor. Accordingly, this Court adopts the
reasoning and holding of the Court in Lewis and finds that Gossett's formal grievance procedure
11
was not the exclusive means of exhaustion. Moreover, the Handbook did not list the order in
which the options were to be undertaken.
Further, as in Lewis, plaintiff herein sufficiently exhausted his remedies through informal
procedures. Ms. Gardner’s report indicates that her office was first informed of the incident on
December 4th or 5th. On December 18, 2006, two weeks after the incident, Ms. Gardner
interviewed plaintiff. In February and March 2007, Ms. Gardner continued her investigation
interviewing Titus, Stephens and the OCFS Medical Director. Plaintiff testified that he filled out
a grievance after he returned to Gossett from the hospital. He testified that he placed the form in
"a little grievance box". Plaintiff testified as follows:
A.
I believe about a day - - it's like a week in a half or two weeks
after the whole thing happened with my arm, some lady came
to me from - - I don't even know. She told me she was like a
human - - what was it - - I don't know. She was from some
organization, or something like that, I gues for cases for all
that type of abuse and all that kind of stuff.
Q.
Like Child Protective or something like that?
A.
Something like Social Services, stuff like that, but I'm not sure
of the names that she gave me. So then she came and said,
"I'm here to talk to you about what happened with you arm".
So, I'm like, "All right." And she asked me, "Do you feel that
they abused you physically?" And I said, "Yeah". I gave her
a rundown of what happened. I spoke with her and she said
something, that she was going to do something with that
complaint and she would get back to me.
Q.
So does she know about this grievance that you were on?
A.
No. I - -
Q.
You think there were two separate things. She came in to talk
to you - -
A.
Yes, she came on her own. I tried to tell them that she came
on her own. They - - I guess, they seen it on the file, they
know, know when something like that happens in jail. So, she
12
came on her own. But the grievance, I put the grievance in the
grievance box on my own, and they never - - they never got
back to me.
Q.
A.
*
*
*
Did you ever ask anyone, "What's going on with my
grievance?"
Not really because after I spoke to the lady, maybe it was
because of the time, because I went home December 31st, so
maybe it was after I wrote that grievance. You know, the lady
came and spoke to me and let me know that you're going
home. I said, "I'm going home, that's great." Basically I was
worried about - - focusing on home. Cleared my mind about
that. So maybe the time frame, because I'm going home, they
didn't get back to me. I waited, if I'm not mistaken, the
grievance time, seven days to 14 days for them to come speak
to you, and then they came - - I mean one of them.
Based upon the record and the Lewis holding, the Court finds that it was reasonable for
plaintiff to believe that he did not need to take any further action due to Ms. Gardner’s
investigation.
Finally, Gossett’s own actions and investigations establish that a formal grievance was not
necessary. Two reports were prepared regarding the incident and while Gossett and OCFS
completed their investigations and found the reports of abuse unfounded, defendants clearly knew
that plaintiff was pursuing a claim regarding excessive force. As in Lewis, "defendants were
afforded and took advantage of an opportunity to address" plaintiff's claims. See Lewis, 281
F.Supp.2d at 436. Accordingly, defendants' motion for summary judgment and dismissal of
plaintiff's complaint for failure to exhaust administrative remedies is denied.
C.
Excessive Force
In the alternative, defendants argue that even if plaintiff’s claims were not subject to
dismissal for failure to exhaust, defendants are entitled to summary judgment because no
13
reasonable fact finder could conclude that plaintiff suffered from a deprivation or violation of his
constitutional rights.
When prison officials are “accused of using excessive physical force in violation of the
Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Claims that prison officials applied
restraints too tightly are analyzed under the Eighth Amendment as claims of excessive force. See
Davidson v. Flynn, 32 F.3d 27 (2d Cir.1994). The extent of any injury suffered by the inmate “is
one factor that may suggest whether the use of force could plausibly have been thought necessary
in a particular situation or instead evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness that it occur.” Hudson, 503 U.S. at 7
(citation and quotation marks omitted).
In determining whether the use of force was wanton and unnecessary,
it may also be proper to evaluate the need for application of force, the
relationship between that need and the amount of force used, the threat
reasonably perceived by responsible officials, and any efforts made to
temper the severity of a forceful response. The absence of serious
injury is therefore relevant to the Eighth Amendment inquiry, but does
not end it.
Id. (citation and quotation marks omitted). In other words, not “every malevolent touch by a
prison guard gives rise to a federal cause of action. The Eighth Amendment's prohibition of cruel
and usual punishments necessarily excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort repugnant to the conscience of
mankind.” Id. at 9.
An Eighth Amendment claim of cruel and unusual punishment has two components, one
subjective and one objective. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). The objective
14
component focuses on the harm done, and the defendants' conduct must be “ ‘inconsistent with
the contemporary standards of decency’ and ‘repugnant to the conscience of mankind.’ ” Whitely
v. Albers, 475 U.S. 312, 327 (1986). The court must ask itself whether the alleged conduct was
objectively “harmful enough to establish a constitutional violation.” Wright, 554 F.3d at 268
(quoting Hudson, 503 U.S. at 8) (internal quotation marks omitted). Here, defendant admits that
plaintiff has satisfied the objective prong of the test.
The subjective component focuses on the motive for the defendants’ conduct, and requires
a showing that the defendant had the necessary “level of culpability,” shown by actions that
exhibit “wantonness” in light of the particular circumstances surrounding the challenged conduct.
Id. (citing inter alia Hudson, 503 U.S. at 7-8). The determination of whether action is “wanton”
turns upon whether the force “was applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 7;
Whitely, 475 U.S. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973), cert.
denied, 414 U.S. 1033 (1973)). Thus, where a prisoner's claims, together with his evidentiary
proffers could “reasonably, if credited, allow a rational fact finder to find that corrections officers
used force maliciously and sadistically,” then summary dismissal is not appropriate. Wright, 554
F.3d at 269 (emphasizing that the prohibition against cruel and unusual punishment does not
extend to de minimis uses of physical force, provided that the use of force is not “repugnant to the
conscience of mankind”).
In this regard, the Court finds this matter striking similar to another Northern District case,
Lewis v. Mollette, 752 F.Supp.2d 233 (N.D.N.Y. 2010). In Mollette,11 the plaintiff, a 15 year old
inmate at the Highland OCFS, asserted excessive force claims against employees of the OCFS
11
To avoid confusion, the Court will refer to the Lewis v. Mollette matter as "Mollette"
15
after his arm was fractured. After a disagreement regarding lockers and school materials, the
defendant Mollette initiated a Physical Restraint Technique ("PRT") attempting to restrain the
plaintiff's arms while pulling down to the floor. Id. at 236. The defendant Keller took the
secondary position and attempted to restrain the plaintiff's legs and then defendant Bahret
replaced Keller in the secondary position. Id. The defendant Gavin arrived and attempted to
secure the primary position but had difficulty because the plaintiff continued to twist and resist.
Id. at 237. Gavin testified that he was involved in the PRT for less than thirty seconds. Mollette,
752 F.Supp.2d at 236. The plaintiff claims that while he was laying on the floor, crying and fully
restrained, Gavin took his left arm from Mollette, who already had control of it, and twisted the
plaintiff's arm. Id. The plaintiff "felt a snap" and his fingers went numb. Id. The plaintiff was
released from the PRT. Id. The following morning, the plaintiff was taken to the hospital and
was diagnosed with a fracture in his left arm. Id.
The defendants moved for summary judgment arguing that their actions were an exercise
of standard procedure and were done in good faith to restore order. Mollette, 752 F.Supp.2d at
241. The record contained two different versions of the event prompting the Court to comment
that, "[the] defendants' motion utterly ignores the material facts in dispute" Id. at 242. As to the
events leading up to the incident, Mollette claimed that the plaintiff threw his body or some object
into a cabinet. Id. Bahret could not testify regarding the plaintiff's actions prior to the initiation
of the PRT because he arrived after the restraint was in place. Id. Similarly, Gavin testified that
when he arrived both Mollette and Bahret were already using the restraint. Mollette, 752
F.Supp.2d at 242. Keller, who assisted Molette in the initial use of the restraint, testified that the
plaintiff, "became out of control" but he could not recall why. Id. The defendants claimed that
they had difficulty because the plaintiff resisted while the plaintiff argued that Mollette and
16
Bahret had him under control. Id. Gavin claimed that the plaintiff's left arm was free and he was
swinging, cursing and twisting the entire time. Id. The plaintiff testified that when Gavin
arrived, Mollette had full control of him so there was no need for Gavin to assist. Mollette,752
F.Supp.2d at 242.
The Court outlined all of the conflicting versions of events and held,
Considering the facts in the light most favorable to plaintiff as must be
done, there was no reason for Mollette to institute the PRT regardless
of whether it was an approved type of restraint. According to plaintiff,
he was walking back from his locker when, unprovoked and without
reason, he was tackled by Mollette. Under these facts, Mollette had no
reason and was not authorized to initiate the PRT pursuant to the
CMPR Manual. Thus any force used by himself and later, Gavin, was
excessive. Furthermore, Mollette had Lewis fully under control by the
time Gavin arrived on the scene and thus Gavin's involvement in the
PRT was not the exercise of standard procedure in a good faith effort
to restore order—because order was allegedly already restored.
Because there is evidence from which a reasonable jury could find that
defendants used excessive force, their motion for summary judgment
on this claim will be denied.
Id. at 243.
Here, plaintiff claims that he was complying with Titus' directives when Stephens and
Myers arrived and that he was calm. Plaintiff testified that when he left the gymnasium with
Pelky and the YDA, he was not arguing with them. He testified that when Stephens arrived, he
"started screaming at me" and that Stephens was "three inches in [his] face". Then, plaintiff
claims, "[h]e screamed at me some more and then he turned me around. When he turned me
around, Steve - - Stephenson put me in a choke hold. So when he had me like that against the
wall (indicating), I was trying - - I was trying get him off of me, telling him to get off of me".
Plaintiff testified:
Q.
And what were you doing when he was doing this choke hold?
17
A.
Trying to talk, trying to tell him get off of me, because I was
like pulling, pulling a little bit against my neck, and that's
when I reached up. I'm trying - - I'm trying to like breathe.
I'm trying to get space to breathe, and that's when they opened
my arms, put them behind my back. Stephenson grabbed my
arm put them behind my back.
*
*
*
Q.
Okay. Were you doing anything to your feet, trying to get
away, use your feet, your body to get away?
A.
I really couldn't. I was focusing on trying to breathe. I was
just - - that was all I was worried about really.
Plaintiff testified that Stephens hooked his arms behind his back and threw him to the
floor. He testified that Stephens asked Myers to switch with him:
A.
. . . So Myers dropped down on top of me. I'm trying to tell
him, "Yo, Myers, yo, let me go". And then when I told him to
let me go, he pulled up tighter. And that's when I - - I don't
know if I felt it or I heard it, but it was a pop. I know it was a
pop.
Plaintiff testified that while he was on the ground, he was not "moving [his] body,
thrashing or anything like that". After he heard or felt the pop, plaintiff testified that five to eight
seconds elapsed.
Defendants argue that Stephens placed plaintiff in a restraint in a good faith effort to
restore discipline and that the injury was accidental without any malice. Stephens testified that
when he arrived, plaintiff was outside the gym with his back against the wall with, "fists clenched
up to his side", cursing and "giving Titus crap". Stephens stated that plaintiff was not acting out
on her, just being "nasty and disrespectful". Stephens claims that he told plaintiff to calm down
and that he asked him what happened. Stephens testified:
A.
. . . He came off the wall after me.
Q.
What do you mean he came after you?
18
A.
Well, he got very aggressive. He came to me, he stepped to
me in an aggressive manner. His fists were balled. Before I
came to him, he said, don't come near me. You know, don't
come. I'm not hearing this bullshit. So you know, I can't have
that. I mean, he's got to do the program. He can't stand out
there and do that. So, as I'm coming forward, he comes off the
wall, comes after me. That's when I had to spin him real quick
and get him down.
Stephens testified that plaintiff grabbed him. Stephens then put plaintiff in a PRT physical restraint technique - called high-hooks and got plaintiff to the floor. Stephens conceded
that plaintiff "wasn't kicking and flailing like that. He was just tugging with me up on top" but
testified that he was "struggling with the kid". Stephens testified about the transfer to Myers:
A.
So, we get the arm, the right arm right here. He gets his arm
right underneath the pit, and this part is still flailing. This is
where the problem was, because as we were trying to get the
arm, Arthur's arm to get right here so we can have this part,
we've only go right here (indicating), Francisco was pulling.
He was pulling, and we were trying to get the arm back, and
the child's arm just - - we just heard something pop.
At the time they heard "pop", the transfer was not complete. Stephens also claims that
plaintiff was attempting to "grab at Mr. Myer's testicles", "grabbing, scratching his belly, pulling
on his clothes". According to Stephens, plaintiff did not want cuffs to be put on him.
Myers testified that when he arrived at the scene, Stephens was attempting to de-escalate
the situation and was talking to plaintiff. Myers testified that plaintiff was aggressive towards
Stephens and he allegedly observed Stephens attempt to turn plaintiff and place him in "the
hooks" . Myers stated that plaintiff "started to resist", and he was, "[j]ust trashing back and forth,
trying to snatch his arms away. You know, he was grabbing pants and clothes and things of that
nature". Myers described the "takedown":
A.
I'm not sure if the takedown was caused by Mr. Stephens or by
Francisco. It was kind of like they were all over the place.
Francisco was resisting and bending over and doing whatever
19
he could do to get his arms away from Mr. Stephens. So, I
don't know if Mr. Stephens actually took him to the floor or
that movement transitioned them to the floor.
Myers testified that when he tried to take over the hold, plaintiff was "all over the place.
He's just elbowing and pulling his arm and trying to get away and trying to resist the restraint".
Myers could not get a proper technique because plaintiff was resisting. At the time plaintiff's arm
broke, Myers was "adjusting from - - he was sort of pulling his arm out of the hook. He was
almost getting away from my grip, almost slipping out. So , I shifted my body just a little bit to
secure him is when I felt his arm pop". Myers testified that he was on the floor with plaintiff
"struggling" for "seconds" before plaintiff's arm broke.
The record establishes that Pelky and Titus (and perhaps other Gossett employees and
residents) were present during the incident, both before and after the PRT was initiated.
However, the record does not include any statements or deposition testimony from any alleged
witnesses to the incident. The record consists solely of the parties’ varying versions of the events
leading up to and during the maneuver. Viewing the evidence in a light most favorable to
plaintiff, there is clearly an issue of fact as to whether it was necessary for Stephens to initiate the
restraint. Based upon the parties conflicting versions of the events, there are triable issues
regarding the subjective issue of the excessive force claim, i.e., the question of whether
defendants' restraint was “a good faith effort to maintain discipline or maliciously and sadistically
for the very purpose of causing harm.” Kee v. Hasty, 2004 WL 807071, at *17 (S.D.N.Y. 2004);
see also Jackson v. Johnson, 118 F.Supp.2d 278, 289 (N.D.N.Y. 2000) ( the court denied the
defendants’ motion for summary judgment and dismissal of excessive force claim noting, “issues
of fact exist concerning the need for physical force, the amount of force used under the
circumstances, and each defendants’ role in the application of PRT’s”). On a motion for
20
summary judgment, the Court will not weigh the parties’ credibility as that matter is for the jury.
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). Accordingly, defendants' motion for
summary judgment and dismissal of plaintiff's excessive force claim is denied.
D.
Failure to Intervene
Defendants argue that based upon how quickly the events occurred, neither defendant had
a reasonable opportunity to intervene in the use of force by the other. Plaintiff has not responded
to this argument.
A corrections worker who, while not participating in an assault upon an inmate, is present
while it occurs may nonetheless bear responsibility for any resulting constitutional deprivation. It
is well-established that a law enforcement official has an affirmative duty to intervene on behalf
of an individual whose constitutional rights are being violated in his presence by other officers.
See Mowry v. Noone, 2004 WL 2202645, at *4 (W.D.N.Y. 2004); see also Curley v. Vill. of
Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (“Failure to intercede results in [section 1983] liability
where an officer observes excessive force being used or has reason to know that it will be.”)
(citations omitted). In order to establish liability on the part of a defendant under this theory, a
plaintiff must prove the use of excessive force by someone other than the individual, and that the
defendant under consideration: (1) possessed actual knowledge of the use by another corrections
officer of excessive force; (2) had a realistic opportunity to intervene and prevent the harm from
occurring; and (3) nonetheless disregarded that risk by intentionally refusing or failing to take
reasonable measures to end the use of excessive force. See id.; see also Espada v. Schneider, 522
F.Supp.2d 544, 555 (S.D.N.Y. 2007). Courts have found that, where officers assault an
individual so quickly that a fellow officer does not have a realistic opportunity to intercede, the
witness officer is not liable for the excessive force. Phillips v. Roy, 2011 WL 3847265, at *6
21
(N.D.N.Y. 2011) (citations omitted). For liability to attach to that, “there must have been a
realistic opportunity to intervene to prevent the harm from occurring,” and assessment of the
existence of such a “realistic opportunity” for intervention and prevention is left to the factfinder's
determination. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994).
Again, the Court relies upon the reasoning of the Court in Lewis v. Mollette. There, the
plaintiff claimed that Mollette was standing directly next to Gavin and permitted Gavin to take
the plaintiff's left arm and thus, could have reasonably prevented the harm from occurring. The
court held that based upon the facts, a jury could conclude that Mollette was standing close
enough to intervene and failed to intervene or stop Gavin from twisting the plaintiff's left arm.
Similarly, a jury could infer that Gavin was liable for failing to intervene because when he
arrived, Mollette was employing force and using an unauthorized PRT.
Here, Myers testified that he arrived on the scene prior to Stephens’ attempt to restrain
plaintiff. Plaintiff testified that he was in a choke hold for five seconds, standing with his arms
behind him for another ten seconds before being thrown to the ground, and on the ground with
Myers for 15 to 20 seconds before Myers took over. Plaintiff also testified that after Myers took
over the hold, Stephens remained next to them and stood about a foot or two away. Stephens
admitted that he was still present when plaintiff’s arm broke and testified that he was standing for
ten to twelve seconds before he heard “the pop”. As the Court previously held, whether
defendants used excessive force is an issue of fact for the jury. Assuming the facts in a light most
favorable to plaintiff, a jury could conclude that both defendants were standing close enough to
each other and both had an opportunity to intervene and failed to do so. Accordingly, defendants'
motion for summary judgment and dismissal of plaintiff’s claims relating to failure to intervene is
denied.
22
E.
Qualified Immunity
In the alternative, defendants move for summary judgment and dismissal of plaintiff’s
claims on the ground of qualified immunity. Public officials enjoy qualified immunity from
liability under § 1983 “so long as their conduct does not violate a clearly established statutory or
constitutional right.” Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir.1993) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818-19 (1982)). The Second Circuit has held that “[a] right is clearly
established if: (1) the law is defined with reasonable clarity; (2) the Supreme Court or the Second
Circuit has recognized the right; and (3) ‘a reasonable defendant [would] have understood from
the existing law that [his] conduct was unlawful.’” Luna v. Pico, 356 F.3d 481, 490 (2d Cir.2004)
(quoting Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.2003)).
In determining whether qualified immunity applies, the Court may first consider whether
“the facts alleged show the [defendant's] conduct violated a constitutional right.” Saucier v. Katz,
533 U.S. 194, 201 (2001), modified by Pearson v. Callahan, 555 U.S. 223 (2009) (holding that
although “the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded
as mandatory”). If the plaintiff establishes that the violation of a constitutional right occurred, the
court can examine “whether the right was clearly established ... in light of the specific context of
the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. “If no constitutional right
would have been violated were the allegations established, there is no necessity for further
inquiries concerning qualified immunity.” Id.
Having carefully considered the present record, the Court is not well-positioned at this
early stage to dismiss plaintiff's claims on the basis of qualified immunity. The Court finds that
“[r]esolution of qualified immunity depends on the determination of certain factual questions that
23
cannot be answered at this stage of the litigation.” Denton v. McKee, 332 F.Supp.2d 659, 666
(S.D.N.Y.2004).
IV.
CONCLUSION
Accordingly, it is hereby
ORDERED that defendants’ motion for summary judgment and dismissal of plaintiff’s
complaint (Dkt. No. 37) is DENIED, and it is further
ORDERED that a Settlement Conference is scheduled in this matter for December 19,
2011 at 11:00 A.M. in Albany. The parties are directed to appear at that time and make
submissions in advance of the conference as directed in this Court’s Order Setting Settlement
Conference.
IT IS SO ORDERED.
Dated: December 1, 2011
Albany, New York
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?