Bryant v. Clinton Correctional Facility et al
DECISION AND ORDER: ORDERED, that the Order and Report-Recommendation (Dkt. No. 41 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' Motion for Summary Judgment (Dkt. No. 29 ) is GRANTED in part as to all claims against defendants T. Bouvia and M. Blair, and as to the Eighth Amendment claims against defendant Baxter relating to the allegations of excessive force in the facility hospital, and DENIED in part as to the Eighth Amendment claim of excessive force arising from the SHU escort. ORDERED, Bryant's Motion for Summary Judgment (Dkt. No. 33 ) is DENIED. ORDERED, that the denial without prejudice to renew of Bryant's request for appointment of counsel (Dkt. No. 37) is AFFIRMED. Signed by Senior Judge Lawrence E. Kahn on 1/27/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
T. BOUVIA, et al.,
DECISION AND ORDER
This matter comes before the Court following an Order and Report-Recommendation
filed on October 3, 2016, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 41 (“Report-Recommendation”). Pro se
Plaintiff Tony Bryant and Defendants timely filed Objections. Dkt. Nos. 42 (“Defendants’
Objections”), 43 (“Plaintiff’s Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b). Otherwise, a court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
A. Defendants’ Objections
Defendants object to the Report-Recommendation on two grounds. First, relying on
Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), Defendants argue that Bryant’s
allegations about the alleged assault during the Special Housing Unit (“SHU”) escort “are so
replete with inconsistencies that no reasonable juror could suspend his/her disbelief and credit
the plaintiff’s testimony while ignoring defendants’ evidence.” Defs.’ Objs. at 2. Second,
Defendants claim that Bryant’s deposition testimony conclusively establishes the de minimis
nature of both the injuries he suffered and the force used by the SHU escort during the alleged
assault. Id. at 3.
Turning to Defendants’ first objection, Jeffreys held that in the “rare circumstance where
the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and
incomplete,” a district court may weigh the credibility of the plaintiff’s version of events in
determining whether to grant summary judgment. 426 F.3d at 554. If the plaintiff’s account is so
contradictory and incomplete that no reasonable juror would credit it, and if the “moving
party . . . meet[s] the difficult burden of demonstrating that there is no evidence in the record
upon which a reasonable factfinder could base a verdict in the plaintiff’s favor,” then the court
may enter summary judgment in favor of the defendant. Id. at 554–55. As the Second Circuit
later noted, “[t]he facts in Jeffreys . . . were extreme.” Matheson v. Kitchen, 515 F. App’x 21, 23
(2d Cir. 2013). “The Jeffreys plaintiff offered, for the first time in litigation, a version of events
that directly contradicted the account he had previously and consistently provided, and that was
inconsistent with all other evidence in the record.” Id. Further, as Judge Posner put it,
credibility issues are to be left to the trier of fact to resolve on the
basis of oral testimony except in extreme cases. The exceptional
category is—exceptional. For the case to be classified as extreme, the
testimony sought to be withheld from the trier of fact must be not just
implausible, but utterly implausible in light of all relevant
In re Chavin, 150 F.3d 726, 728 (7th Cir. 1998).
In his Report-Recommendation, Judge Baxter discusses several aspects of Bryant’s
testimony that distinguish it from the plaintiff’s testimony in Jeffreys. Rep.-Rec. at 18, 20. The
Court agrees with these distinctions and notes one other reason to view Jeffreys as inapposite to
the facts of this case.
One of the factual issues in dispute in Jeffreys was whether the plaintiff, in an attempt to
evade capture by the police, had jumped out of the third-floor window of a school building he
was burgling, or whether the police had pushed him out of the window. 426 F.3d at 551–52. The
court emphasized that “[t]he record confirms, and [the plaintiff] does not dispute, that on at least
three occasions he confessed to having jumped out of the third-story window of the school
building.” Id. at 552. Indeed, the plaintiff “first publicly stated that he had been thrown out of a
window by police officers in a conversation with Dr. Charles Bendheim of the Greenhaven
Correctional Facility nine months after the incident allegedly occurred.” Id.
Here, Bryant filed a grievance on December 12, 2012, describing the assault that
allegedly took place during his escort to the SHU on November 28, 2012. Rep.-Rec. at 18–19. So
unlike the plaintiff in Jeffreys, Bryant did not wait several months before complaining about the
alleged assault, and he did not change his story between the incident and the filing of the
grievance. True, the record contains an “Offender Injury Report dated December 19, 2012, that
includes a staff notation that plaintiff ‘had been trying to get medical and didn’t so made
statement of staff abuse, but has since recanted it.’” Id. at 21. But Bryant has continually stated
that “he was not interviewed during the grievance process, and that he never recanted his
allegations.” Id. He has also affirmed that he has no recollection of signing the report, and that
the signature on the form did not match his handwriting. Id. at 22. The forgery allegation is not
wholly implausible. Comparison of Bryant’s signature on other documents with the illegible
signature on the report reveals a significant difference between the signature on the report and the
other instances of his signature. Compare Dkt. No. 29-6 (“Exhibit B”) at 4–5, with id. at 11. At
Bryant’s deposition, Defendants’ attorney appears to have suggested that Bryant’s shoulder
issues caused the anomalous signature on the report, Dkt. No. 29-2 (“Exhibit A”) at 96:16–20,
but a rational jury would not be required to believe this theory. The forgery allegation further
shows that Bryant, unlike the plaintiff in Jeffreys, disputes that he ever gave a contradictory
account of the events in question. For this and the other reasons given in the ReportRecommendation, Judge Baxter was correct to hold that the credibility issues with Bryant’s
testimony did not warrant granting summary judgment in favor of defendant Baxter with respect
to the alleged assault during the SHU escort.1
Moving on to Defendants’ second objection, they assert that “the protection of the Eighth
Amendment does not extend to a de minimis injury.” That is simply incorrect. Courts are not
required to reject excessive force claims that arise from apparently de minimis injuries. The
Supreme Court has explicitly rejected this bright-line approach to excessive force claims, holding
instead that courts must ask “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34,
37 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In Wilkins, the Supreme Court
refused to give “decisive weight to the purportedly de minimis nature of [the plaintiff’s] injuries.”
Id. at 38. Courts must therefore not assume that “the absence of ‘some arbitrary quantity of
injury’ requires automatic dismissal of an excessive force claim.” Id. at 39 (quoting Hudson, 503
U.S. at 9).
As Defendants point out, Bryant offered strikingly different accounts of the incident in his
deposition testimony, his Complaint, and his grievance. Defs.’ Objs. at 3. In his deposition
testimony, Bryant alleged that, when the SHU escort learned he had told the nurse about the
previous beatings, they hit him two or three times on the shoulder. Ex. A at 57:20–58:2,
58:23–59:3. They did not hit him hard, id. at 59:4–5, and he even described the incident as “the
little hitting thing down the steps,” id. at 57:15. In his grievance, on the other hand, Bryant
Defendants suggest that Bryant’s Complaint contains “no allegation whatsoever that he
had been assaulted during the escort to SHU.” Defs.’ Objs. at 2. That is false. Bryant’s Complaint
states that he “was assaulted . . . for another hour” when he was moved from the holding area to
the SHU. Dkt. No. 1 (“Complaint”) at 5. And Judge Baxter himself notes that the Complaint
alleges as much. Rep.-Rec. at 19.
“alleged that the SHU escort repeatedly hit him in the head, stomach, and groin area,” Rep.-Rec.
at 19, and his Complaint asserts that the assault lasted an hour, Compl. at 5.
According to Defendants, Bryant’s “account of the incident in his deposition testimony
affirmatively establishes that the force used, if any, was indisputably de minimis.” Defs.’ Objs.
at 3. Even assuming that Defendants are right that the force described in the deposition testimony
is de minimis, it does not follow that they are entitled to summary judgment on this issue. The
Court’s duty in reviewing a motion for summary judgment is “carefully limited” to finding
genuine disputes of fact, “not to deciding them.” Gallo v. Prudential Residential Servs., Ltd.
P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Defendants point to no authority showing that the
Court is required to assume that the version of events offered in Bryant’s deposition testimony is
the one true account. True, “a party may not create an issue of fact by submitting an affidavit in
opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s
previous deposition testimony.” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
But that rule does not apply here. Bryant did submit an opposition to Defendants’ Motion for
Summary Judgment that set forth the more brutal version of events contained in his Complaint
and grievance. Dkt. No. 33-4 (“Bryant Declaration”) ¶ 5; see also Dkt. No. 29 (“Motion for
Summary Judgment”). If that affidavit were the only piece of evidence contradicting the
deposition testimony, it would not be enough to defeat Defendants’ Motion. But as just noted,
Bryant offered the account that differs from his deposition testimony in both his Complaint and
grievance, which were obviously submitted before Defendants moved for summary judgment.
The concern underlying Hayes is that “[i]f a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an affidavit contradicting his own
prior testimony, this would greatly diminish the utility of summary judgment as a procedure for
screening out sham issues of fact.” Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578
(2d Cir. 1969). That concern has no bearing on materials completed before summary judgment is
even on the horizon. Thus, Defendants’ objection on this score is not well taken, and the Court
agrees with Judge Baxter’s recommendation that summary judgment be denied on this issue.
B. Bryant’s Objections
Bryant’s objections are not specifically directed at Judge Baxter’s findings and
recommendations. See Pl.’s Objs. Because Bryant fails to make any specific objections to the
recommendations of the Report-Recommendation, the Court has reviewed those
recommendations for clear error and has found none. Moreover, to the extent that Bryant
challenges Judge Baxter’s denial of his request for appointment of counsel, id. ¶ 12, the Court
finds no error in that determination.
Accordingly, it is hereby:
ORDERED, that the Order and Report-Recommendation (Dkt. No. 41) is APPROVED
and ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 29) is
GRANTED in part as to all claims against defendants T. Bouvia and M. Blair, and as to the
Eighth Amendment claims against defendant Baxter relating to the allegations of excessive force
in the facility hospital, and DENIED in part as to the Eighth Amendment claim of excessive
force arising from the SHU escort; and it is further
ORDERED, Bryant’s Motion for Summary Judgment (Dkt. No. 33) is DENIED; and it
ORDERED, that the denial without prejudice to renew of Bryant’s request for
appointment of counsel (Dkt. No. 37) is AFFIRMED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
January 27, 2017
Albany, New York
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