Garcia v. McCarthy et al

Filing 114

DECISION AND ORDER that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 110 ) is ACCEPTED and ADOPTED in its entirety. Plaintiff's request pursuant to Fed. R. Civ. P. 56(d) (Dkt. No. 95 ) is DENIED. Plaintiff's claims ag ainst Defendant John Doe #2 are sua sponte DISMISSED without prejudice, based on Plaintiff's failure to identify and serve that Defendant. Defendants' motion for summary judgment (Dkt. No. 87 ) is GRANTED in part and DENIED in part. Plai ntiff's excessive force and failure-to-intervene claims against Defendants Anderson, Carson, and Frederick related to their alleged use of the water fire extinguisher are DISMISSED with prejudice. Plaintiff's excessive force and failure-t o-intervene claims against Defendants Anderson, Carson, and Frederick related to their alleged use of the dry chemical fire extinguisher SURVIVE Defendants' motion and remain PENDING for trial. The parties are respectfully advised that, in the near future, the undersigned shall be appointing pro bono trial counsel for Plaintiff, and that the undersigned's Courtroom Deputy will be contacting counsel in order to schedule a pre-trial conference, which counsel shall appear at with settlement authority (and which shall be followed by an exhaustion hearing if applicable). Signed by U.S. District Judge Glenn T Suddaby on 2/6/2024. (Copy served upon plaintiff via regular mail) (sal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
CARLOS GARCIA,
Plaintiff,
9:21-CV-0814
(GTS/ML)

v.
ANDERSON, Corr. Ofcr., Auburn Corr. Fac.;
CARSON, Corr. Ofcr., Auburn Corr. Fac.;
FREDERICK, Corr. Ofcr., Auburn Corr. Fac; and
JOHN DOE #2, Corr. Ofcr., Auburn Corr. Fac.;
Defendants.
__________________________________________
APPEARANCES:

OF COUNSEL:

CARLOS GARCIA, 89-T-1556
Plaintiff, Pro Se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
CAPEZZA HILL LLP
Counsel for Defendants
30 South Pearl Street, Suite P-110
Albany, New York 12207

THOMAS A. CAPEZZA , ESQ.
ABBY McCORMICK-FOLEY, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Carlos
Garcia (“Plaintiff”) against Defendants Anderson, Carson, John Doe #2, and Frederick,
employees of the New York State Department of Corrections and Community Supervision
(DOCCS) (collectively, “Defendants”) pursuant to 42 U.S.C. § 1983, are the following: (1)
United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that

Plaintiff’s request pursuant to Fed. R. Civ. P. 56(d) be denied, and that Defendants’ motion for
summary judgment be granted in part and denied in part; (2) Defendants’ Objection to the
Report-Recommendation; and (3) Plaintiff’s response to Defendants’ Objection. (Dkt. Nos. 110,
111, 113.) For the reasons set forth below, Magistrate Judge Lovric’s Report-Recommendation
is accepted and adopted in its entirety.
As an initial matter, the Court finds that Defendants’ Objection does not assert a new
argument but merely repeats an argument asserted in their underlying motion. (Compare Dkt.
No. 111, at 4-9 attaching pages “1” through “6” of Defs.’ Objection, asserting argument
regarding Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), and Aziz Zarif Shabazz v.
Pico, 994 F. Supp. 460 (S.D.N.Y. 1998)] with Dkt. No. 87, Attach. 7, at 8, 12 [attaching pages
“5” and “9” of Defs.’ Memo. of Law, introducing, then asserting an argument under, Jeffreys and
Aziz].) Furthermore, the Court observes that, "[w]here . . . an objecting party . . . simply
reiterates his original arguments, the Court reviews the Report and Recommendation only for
clear error." Caldwell v. Crosset, 09-CV-0576, 2010 WL 2346330, at * 1 (N.D.N.Y. June 9,
2010) (quoting Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008)) (internal quotation
marks omitted).
Here, the Court finds that Magistrate Judge Lorvic’s thorough Report-Recommendation
contains no clear error: while acknowledging the argument in question, Magistrate Judge Lovric
correctly rejected it without deeming it worthy of explicit analysis. (Compare Dkt. No. 110, at
14 [Report-Recommendation, summarizing Defs.’ argument that Plaintiffs’ self-contradictory
and uncorroborated testimony that he breathed fumes from the dry chemical powder must be
disregarded under Jeffreys and Aziz] with Dkt. No. 110, at 19-20 [Report-Recommendation,
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citing the admissible record evidence, including a medical record, from which a rational juror
could find that Plaintiff breathed fumes from the dry chemical powder].)
In any event, even if the Court were to subject this portion of the ReportRecommendation to a de novo review, it would accept and adopt that portion of the ReportRecommendation. In their Objection, as in their underlying motion, Defendants essentially ask
the Court to disregard as incredible the portion of Plaintiff’s testimony in which he claims to
have inhaled (at least to his detriment) the dry chemical from a fire extinguisher, which they
claim fell straight to the floor (escaping inhalation). (Dkt. No. 111, at 4 [attaching page “1” of
Defs.’ Objection, requesting that the Court disregard Plaintiff’s testimony in support of his claim
related to Defendants’ use of the dry chemical fire extinguisher]; Dkt. No. 87, Attach. 7, at 12
[attaching page “9” of Defs.’ Memo. of Law, arguing, “No evidence in the record corroborates
Plaintiff’s speculative assertion that he was suffering from ongoing effects from exposure to the
contents of the fire extinguisher”]; Dkt. No. 102, at 9 [attaching page “6” of Defs.’ Reply Memo.
of Law, arguing, “The discharge of the dry chemical extinguisher was not force at all, as it was
sprayed through a vent onto the floor of plaintiff’s cell, not onto him”].)
Generally, of course, a district court may not make credibility determinations on a motion
for summary judgment. However, that general rule contains a narrow exception: where the
plaintiff relies so much on his own testimony (because it is so uncorroborated by other record
evidence), and that testimony is so internally contradictory and/or incomplete, that it would be
impossible for the court to determine whether or not there exists a genuine dispute of material
fact without making a credibility determination. See Jeffreys v. City of New York, 426 F.3d 549,
554-55 (2d Cir. 2005) (setting forth applicable standard for when to disregard testimony on
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motion for summary judgment). In such a circumstance, the district court must make a credibility
determination, because finding the absence of a genuine dispute of material fact would require
the court to reject the conflicting portion of the plaintiff’s testimony as not credible; and finding
the existence of a genuine dispute of material fact based on a portion of the plaintiff’s testimony
would similarly require the court to reject the conflicting portion of the plaintiff’s testimony as
not credible.
Here, however, Defendants have not made the necessary showing to invoke the narrow
Jeffreys exception that they request. In their Objection, Defendants point to internal
inconsistencies in Plaintiff’s testimony regarding such issues as (1) whether Plaintiff reported his
injuries to corrections officers, (2) whether he was forced to remain in his cell following the
incident, (3) whether he was able to identify the officers involved in the incident, (4) whether
other incarcerated individuals were able to handle the white powder without ill effects, and (5)
the nature of the fire he started in his cell after the incident to draw attention to himself. (Dkt.
No. 111, at 5-9.) Yet, even if these internal inconsistencies were accompanied by a lack of
corroborating record evidence, the Court does not understand those particular inconsistencies to
permit the Court (under Jeffreys) to disregard Plaintiff’s consistent testimony on the different
subject of whether, on July 25, 2018, a dry chemical from a fire extinguisher was indeed
“discharged” or “sprayed” into Plaintiff’s cell, and whether he inhaled that dry chemical. Indeed,
the fact that a dry chemical was discharged, like the fact that Plaintiff both reported and testified
that he inhaled it, remains undisputed. (See, e.g., Dkt. No. 110, at Part I.B., Undisputed Fact
Numbers 5, 6, 9, 10, 11, 20, 23.) Moreover, at least some admissible record evidence exists
corroborating Plaintiff’s testimony that he inhaled the dry chemical. (Dkt. No. 101, Attach. 2, at
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4 [Plaintiff’s medical record indicating his eyes were “red & irritated” on August 7, 2018].)
If the Eighth Amendment claim in question were one of deliberate indifference to a
serious medical need, the Court might reach a different conclusion. But it is not. Rather, it is a
claim premised on the unnecessary and wanton infliction of pain. (Dkt. No. 110, at 18.)
Furthermore, it is a claim whose objective component turns on whether Defendants violated
contemporary standards of decency. (Id.) Under the circumstances, Defendants would be well
advised to keep in mind the point of law that, when a corrections officer maliciously and
sadistically uses force to cause harm to a prisoner, the result is cruel and unusual punishment
under the Eighth Amendment, regardless of whether the prisoner suffers significant injury.1
ACCORDINGLY, it is
ORDERED that Magistrate Judge Lovric’s Report-Recommendation (Dkt. No. 110) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s request pursuant to Fed. R. Civ. P. 56(d) (Dkt. No. 95) is
DENIED; and it is further
ORDERED that Plaintiff’s claims against Defendant John Doe #2 are sua sponte
DISMISSED without prejudice, based on Plaintiff’s failure to identify and serve that
Defendant; and it is further.
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 87) is

1

See Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (finding "minor" or non-"serious"
injuries sufficient); Hudson v. McMillian, 503 U.S. 1, 9 (1992) (finding "[in]significant" injury
sufficient); Cole v. Fischer, 379 F. App'x 40, 42 (2d Cir. 2010) (finding no physical injury
required) (Summary Order); Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (finding
"[in]significant" injury sufficient); 3B O'Malley, Grenig & Lee, Fed. Jury Prac. & Instr. § 166.23
(6th ed. 2013).
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GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s excessive force and failure-to-intervene claims against
Defendants Anderson, Carson, and Frederick related to their alleged use of the water fire
extinguisher are DISMISSED with prejudice; and it is further
ORDERED that Plaintiff’s excessive force and failure-to-intervene claims
against Defendants Anderson, Carson, and Frederick related to their alleged use of the dry
chemical fire extinguisher SURVIVE Defendants’ motion and remain PENDING for trial.
The parties are respectfully advised that, in the near future, the undersigned shall be
appointing pro bono trial counsel for Plaintiff, and that the undersigned's Courtroom Deputy will
be contacting counsel in order to schedule a pre-trial conference, which counsel shall appear at
with settlement authority (and which shall be followed by an exhaustion hearing if applicable).
Dated: February 6, 2024
Syracuse, New York

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