Reid v. Marzano et al

Filing 79

DECISION AND ORDER: ORDERS that Magistrate Judge Hummel's Report-Recommendation and Order (Dkt. No. 73 ) is ADOPTED in part as to the recommendation to deny the motion for summary judgment as to Defendants Verne and Rozanski, and REJECTED in p art as to the recommendation to grant summary judgment as to Defendant Marzano. ORDERS that Defendants' motion for summary judgment (Dkt. No. 62) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 1/8/18. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOSEPH J. REID, SR.,
Plaintiff,
vs.

No. 9:15-CV-761
(MAD/CFH)

V. MARZANO, Correctional Officer, M. VERNE,
Correctional Officer, SGT. MATTHEW
ROZANSKI,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

Joseph J. Reid Sr.
15-R-1021
Attica Correctional Facility
Box 19
Attica, New York 14011
Plaintiff, pro se
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
The Capitol
Albany, New York 12224
Attorneys for Defendants

RYAN W. HICKEY, AAG

Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
On June 19, 2015, Plaintiff Joseph J. Reid Sr. filed the complaint in this action alleging
that Defendants Corrections Officer V. Marzano, Corrections Officer M. Verne, and Sergeant
Matthew Rozanski violated his Eighth Amendment rights. See Dkt. No. 1. Defendants moved for
summary judgment, and Magistrate Judge Christian F. Hummel issued a Report-Recommendation
and Order recommending that the Court grant Defendants' motion in part and deny it in part. See

Dkt. Nos. 62, 73. Plaintiff did not file any objections. For the following reasons, the ReportRecommendation and Order is adopted in part and rejected in part.
II. BACKGROUND
In the complaint, Plaintiff alleges that on May 10, 2015, he was attacked by Officer
Marzano while getting breakfast at the mess hall. See Dkt. No. 1 at 4. When Plaintiff tried to
report the attack to Sergeant Rozanski, he was tackled to the ground and handcuffed by Officer
Marzano. See id. Plaintiff was then escorted to the special housing unit ("SHU"), where he was
hit in the face by Officer Verne until Sergeant Rozanski opened the door and told Officer Verne
to "start wrapping the fun up" because a nurse was coming. See id. Defendants' account of that
day is very different. According to Defendants, Plaintiff had an unprovoked outburst, refused to
obey commands, and punched Officer Marzano in the face. See Dkt. No. 62-2 at ¶¶ 4-7. When
Plaintiff was taken to SHU, he refused Officer Verne's order to comply with a strip frisk. See id.
at ¶ 15. Plaintiff then turned aggressively toward Officer Verne with his fists raised, and Officer
Verne used a leg sweep to bring Plaintiff to the ground. See id. at ¶ 17.
As a result of the events that took place on May 10, 2015, Plaintiff was subject to a Tier
III disciplinary hearing and found guilty of several charges, including assault on staff, violent
conduct, and creating a disturbance. See Dkt. No. 62-5 at 30-31. Additionally, Plaintiff was
charged with criminal assault in Jefferson County, New York. See Dkt. No. 62-6. Plaintiff
pleaded guilty to third degree assault in Jefferson County Court, and on May 13, 2016, he was
sentenced to time served. See id. at 1-3.
On May 26, 2017, Defendants moved for summary judgment in this case arguing that
Plaintiff's claims must be dismissed because a favorable judgment in this case would "necessarily
imply the invalidity" of Plaintiff's underlying criminal conviction. See Dkt. No. 62-1 at 1 (citing
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Heck v. Humphrey, 512 U.S. 477 (1994)). Magistrate Judge Hummel issued a ReportRecommendation and Order recommending that this Court grant Defendants' motion for summary
judgment as to Officer Marzano but deny summary judgement as to Officer Verne and Sergeant
Rozanski. See Dkt. No. 73 at 18-19.
III. LEGAL STANDARD
In reviewing a report and recommendation, a district court "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)(1)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
IV. DISCUSSION
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that,
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance
of a writ of habeas corpus.
Id. at 486-87. Under Heck and its progeny, "a state prisoner's § 1983 action is barred (absent
prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target
of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if
success in that action would necessarily demonstrate the invalidity of confinement or its
duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). But Heck "does not require dismissal
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of claims which, if adjudicated in favor of the plaintiff, would not necessarily invalidate her
conviction or sentence. . . . [And] it is 'well established that an excessive force claim does not
usually bear the requisite relationship under Heck to mandate its dismissal.'" McGrew v. Holt,
No. 13-CV-792, 2015 WL 736614, *4 (N.D.N.Y. Feb. 20, 2015) (quoting Smith v. Fields, No. 95CV-8374, 2002 WL 342620, *4 (S.D.N.Y. Mar. 4, 2002)).
In the motion for summary judgment, Defendants argue that Plaintiff's § 1983 excessive
force action is barred by Heck because Plaintiff's assault conviction is incompatible with a finding
of excessive force. See Dkt. No. 62-1 at 1.1 In support of their position, Defendants argue that
this "exact scenario was recently confronted" in Shapard v. Attea (Shapard I), No. 08-CV-6146,
2016 WL 5871360 (W.D.N.Y. Oct. 7, 2016). In Shaphard I, the plaintiff was a prisoner who
brought a claim for excessive force against multiple corrections officers. See id. at *1. Before the
plaintiff filed his complaint in federal court, he pleaded guilty in New York State Supreme Court,
Erie County, to assaulting one of the corrections officers during the incident in question. See id.
However, during his Tier III disciplinary hearing, the plaintiff denied assaulting any corrections
officers, and he reiterated that denial at a deposition in his federal case and stated that he lied
during his plea to the assault charge. See id. at *2. The court in Shapard I found that the
plaintiff's § 1983 excessive force claims were barred by Heck because they "clearly imply the
invalidity of his assault conviction," and the version of events based on his sworn statements was
"utterly incompatible with his conviction" for assault. See id. at *4, *7.

Defendants also argue that Plaintiff's claims are also Heck-barred because Plaintiff was
convicted of several infractions at his Tier III disciplinary hearing. See Dkt. No. 62-1 at 12. For
the reasons set forth by Magistrate Judge Hummel in the Report-Recommendation and Order, the
Court finds that the Plaintiff's disciplinary hearing does not bar his claims in this case under Heck.
See Dkt. No. 73 at 14-15.
1

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In this case, Plaintiff was also convicted of assault because of his conduct during the
incident giving rise to his excessive force claim.2 Additionally, like the plaintiff in Shaphard,
Plaintiff told a different story during his Tier III disciplinary hearing and his deposition in this
case; in both instances, Plaintiff denied assaulting Officer Marzano. See Dkt. No. 62-5 at 22, 23,
30; Dkt. No. 62-4 at 110-11. In the Report-Recommendation and Order, Magistrate Judge
Hummel followed the reasoning in Shapard I, noting that "Plaintiff's excessive force claim
against [Officer] Marzono is based on the theory that he never hit [Officer] Marzano, and that
[Officer] Marzano attacked him without provocation." See id. at 12. Therefore, Magistrate Judge
Hummel recommended that the Court dismiss Plaintiff's claims as to Officer Marzano. See id.
But Plaintiff's claims against Officer Verne and Sergeant Rozanski are based, in part, on the
events that took place once Plaintiff arrived at SHU, which was well after Plaintiff's assault
against Officer Marzano. Therefore, Magistrate Judge Hummel recommended that the Court
deny the motion for summary judgment as to Officer Verne and Sergeant Rozanski. See Dkt. No.
73 at 13-18.
After Magistrate Judge Hummel issued his Report-Recommendation and Order in this
case, the Second Circuit issued a Summary Order vacating the district court's decision in
Shapard. See Shapard v. Attea (Shapard II), No. 16-3764, 2017 WL 4548439 (2d Cir. Oct. 12,
2017) (summary order). The Second Circuit determined that "Shapard's excessive force claims
are not Heck-barred because their favorable adjudication would not 'necessarily imply the

Plaintiff pleaded guilty to third degree assault. Under N.Y. Penal Law § 120.00, a
person is guilty of third degree assault when:
1. With intent to cause physical injury to another person, he causes
such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another
person by means of a deadly weapon or a dangerous instrument.
2

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invalidity' of his prior assault conviction." See id. at *2. The Second Circuit pointed to two
reasons for its decision. First, the elements of excessive force are not incompatible with the
elements of Shapard's assault conviction. Second, despite denying the assault during his
deposition and his Tier III disciplinary hearing, Shapard's complaint did not deny that he
assaulted the corrections officer in question. See id. at *2. Ultimately, the Second Circuit found
that "Shapard's plausible claim of excessive force can be reconciled with his assault [conviction]."
See id. at *3.
As Defendants pointed out in their motion for summary judgment, the facts in Shapard
I are extremely similar to the facts in this case. The Second Circuit's reasoning for vacating the
Western District's decision in Shapard I applies equally to this case: the elements of excessive
force are not incompatible with the elements of third degree assault under N.Y. Penal Law §
120.00, and Plaintiff's complaint does not actually deny that he assaulted Officer Marzano. See
Dkt. No. 1 at 4. Therefore, the Court finds that Plaintiff's claims against Officer Marzano are not
barred by Heck. However, as the Second Circuit noted in Shapard II, the Court may take steps to
prevent Plaintiff from disputing his assault conviction, including "limiting his testimony and
instructing a jury that he assaulted" Officer Marzano. See Shapard II, 2017 WL 4548439, at *3.
IV. CONCLUSION
After carefully reviewing the parties' submissions, Magistrate Judge Hummel's ReportRecommendation and Order, the applicable law and for the above-stated reasons, the Court
hereby
ORDERS that Magistrate Judge Hummel's Report-Recommendation and Order (Dkt. No.
73) is ADOPTED in part as to the recommendation to deny the motion for summary judgment as

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to Defendants Verne and Rozanski, and REJECTED in part as to the recommendation to grant
summary judgment as to Defendant Marzano; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 62) is DENIED; and
the Court further
ORDERS 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.
Dated: January 8, 2018
Albany, New York

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