Floyd v. Bailey et al

Filing 71

MEMORANDUM OPINION AND ORDER re: 56 MOTION for Summary Judgment filed by Captain Rosney Singletary, Warren Bailey, C.O. Brian Rees, C.O. Cory Caldwell. The Court has considered all of the arguments of the parties. To the extent not specifically a ddressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is granted with respect to the plaintiffs unlawful search claim but denied with respect to the plaintiffs excessive force claim, except all claims against Captain Singletary are dismissed. The Clerk is directed to close Docket No. 56. (Signed by Judge John G. Koeltl on 3/12/2013) (tro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
DENNIS FLOYD,
10 Civ. 7794 (JGK)
Plaintiff,
- against -

MEMORANDUM OPINION
AND ORDER

WARDEN BAILEY, C.O. CALDWELL,
C.O. REES, CAPT. SINGLETARY,
Defendants.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The plaintiff, Dennis Floyd, brings this action against
Warden Bailey, Correction Officer Caldwell, Correction Officer
Rees, and Captain Singletary, alleging that they violated his
rights under the United States Constitution during and after a
strip search.

In this action pursuant to 42 U.S.C. § 1983, the

plaintiff, a pro se inmate, alleges that the defendants’ conduct
constituted: (1) an unlawful search in violation of the Fourth
Amendment, and (2) use of excessive force in violation of the
Eighth Amendment. 1

1

The defendants now move for summary judgment

In his Amended Complaint, the plaintiff also alleged that the
defendants’ conduct constituted deliberate indifference to
serious medical needs in violation of the Eighth Amendment. At
Oral Argument, however, the plaintiff withdrew that claim and
chose to proceed solely on the remaining two claims.

on these claims, pursuant to Rule 56 of the Federal Rules of
Civil Procedure. 2

I.
The standard for granting summary judgment is well
established.

“The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994).

“[T]he trial

court’s task at the summary judgment motion stage of the
litigation is carefully limited to discerning whether there are
any genuine issues of material fact to be tried, not to deciding
them.

Its duty, in short, is confined at this point to issue-

finding; it does not extend to issue-resolution.”
F.3d at 1224.

Gallo, 22

The moving party bears the initial burden of

“informing the district court of the basis for its motion” and
identifying the matter that “it believes demonstrate[s] the
absence of a genuine issue of material fact.”

2

Celotex, 477 U.S.

The defendants also moved for summary judgment dismissing the
plaintiff’s state law claims because the plaintiff failed to
file a notice of claim under N.Y. Gen. Mun. Law § 50-e.
However, the Amended Complaint does not allege any state law
claims, and thus the defendants’ arguments are moot.

2

at 323.

The substantive law governing the case will identify

those facts that are material and “[o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)); see also Gallo, 22 F.3d at 1223.

Summary judgment is

improper if there is any evidence in the record from any source
from which a reasonable inference could be drawn in favor of the
nonmoving party.

See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d

29, 37 (2d Cir. 1994).

If the moving party meets its burden,

the nonmoving party must produce evidence in the record and “may
not rely simply on conclusory statements or on contentions that
the affidavits supporting the motion are not credible . . . .”
Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.
1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.
1998) (collecting cases).
Where, as here, a pro se litigant is involved, although the
same standards for dismissal apply, a court should give the pro
se litigant special latitude in responding to a summary judgment

3

motion.

See McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.

1999) (courts “read the pleadings of a pro se plaintiff
liberally and interpret them ‘to raise the strongest arguments
that they suggest’” (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994))).

In particular, the pro se party must be given

express notice of the consequences of failing to respond
appropriately to a motion for summary judgment.

Local Civ. R.

56.2; see also McPherson, 174 F.3d at 281; Vital v. Interfaith
Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999).

Nevertheless,

“. . . the district court may not rely solely on the statement
of undisputed facts contained in the moving party’s Rule 56.1
statement.

It must be satisfied that the citation to evidence

in the record supports the assertion.”

Vt. Teddy Bear Co. v. 1-

800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing
Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir.
2003) (stating that not verifying in the record the assertions
in the Rule 56.1 statement “would derogate the truth-finding
functions of the judicial process by substituting convenience
for facts”)).
In this case, the defendants urge the Court to take the
facts in their statement pursuant to Local Civil Rule 56.1 as
true because the plaintiff failed to respond to their Rule 56.1
statement.

However, because the Court is not satisfied that

each of the defendants’ Rule 56.1 assertions is supported by the

4

evidence in the record, it declines to rely solely on the
defendants’ Rule 56.1 statement.

See id.

Moreover, there is no

indication that the defendants complied with Local Civil Rule
56.2 and explained to the plaintiff the consequences of failing
to respond to a motion for summary judgment and the need to file
responsive evidentiary materials.

However, the Court held Oral

Argument on the motion and permitted the plaintiff to file any
further materials.

In view of the Court’s disposition, the

defendants’ failure to comply with Local Civil Rule 56.2 was
wrong, but harmless, because the Court has carefully scrutinized
the evidence and the arguments, and the plaintiff has not
suggested there is anything further to produce.

See, e.g., M.B.

v. Reish, 119 F.3d 230, 232 (2d Cir. 1997) (per curiam) (holding
that affirmative notice was not required where the pro se
litigant “understood the need to set forth all available
evidence demonstrating a genuine dispute over material facts”).

II.
The following facts are undisputed for the purposes of this
motion, unless otherwise indicated.
As of April 20, 2010, the plaintiff was incarcerated at the
Robert N. Davoren Center (“RNDC”) on Riker’s Island.
Deposition of Dennis Floyd (“Floyd Dep.”) at 21.)

(Complete

At or about

9:00 A.M. on April 20, 2010, there was a physical altercation

5

between two inmates, Joshua S. and Zelton C., in the dayroom of
the 2 Upper North housing area.

(Lulich Decl., Ex. D (“Unusual

Incident Report”) at NYC 157, 165, 171, 173, 201.)

Correction

Officer Caldwell witnessed the fight and gave verbal orders for
the inmates to cease fighting.
157, 165, 171, 173, 201.)

(Unusual Incident Report at NYC

When they refused to comply, Officer

Caldwell activated his personal body alarm.
Report at NYC 157, 165, 171, 173, 201.)

(Unusual Incident

At some point, another

inmate in the dayroom, David P., was cut on the right side of
his face.

(Floyd Dep. at 31-32; Unusual Incident Report at NYC

159, 160, 167, 171-74, 195, 203; Lulich Decl., Ex. E (“Incident
Information Report”) at NYC 320-24, 326.)
The plaintiff alleges that he was at the phones near the
dayroom when he saw the two fighting inmates burst through the
doors out of the dayroom.

(Floyd Dep. at 24-30, 69-72.)

According to the plaintiff, Officer Caldwell was yelling at them
to stop and told some inmates, including the plaintiff, to go
inside the dayroom.

(Floyd Dep. at 30.)

The plaintiff alleges

that upon entering the dayroom he saw several inmates and saw
that someone had a cut across his face, but denies cutting the
person or seeing him get cut.

(Floyd Dep. at 30-33.)

By

contrast, Officer Caldwell reported observing the plaintiff
approach David P. in the dayroom and then punch and slash the

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right side of David P.’s face, which began bleeding.

(Unusual

Incident Report at NYC 203-04.)
A team of prison staff came to the dayroom in response to
Officer Caldwell’s call for assistance, including Correction
Officer Rees and Captain Singletary.

(Unusual Incident Report

at NYC 157, 165, 167, 171, 189-90, 195-96, 199-200, 201-04;
Incident Information Report at NYC 320-24.)

The plaintiff

alleges that Warden Bailey was also among the correction
officers who arrived.

(Am. Compl. at III.C; Floyd Dep. at 22,

41.)
2 Upper North was placed in lockdown status while the
plaintiff and other inmates were present in the dayroom.

(Floyd

Dep. at 22, 37-38; Unusual Incident Report at NYC 172, 174;
Incident Information Report at NYC 320-24.)

The plaintiff

alleges that Officer Caldwell picked out the inmates “who he
felt [were] the bad guys of the house,” including the plaintiff
and three other inmates, to remain in the dayroom.

(Floyd Dep.

at 32-39.)
Correction officers, including Officer Rees, conducted a
strip search of the inmates in the dayroom.

(Am. Compl. at

III.C; Floyd Dep. at 22, 40-41; Unusual Incident Report at NYC
157, 159, 167,171-74, 189, 195, 199; Lulich Decl., Ex. F
(“Notice of Infraction”).)

Captain Singletary ordered Officer

Rees to strip search all the inmates in the dayroom, and Officer

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Rees complied and ordered the plaintiff to strip in front of the
others.

(Am. Compl. at III.C; Floyd Dep. at 22, 57; Unusual

Incident Report at NYC 199-200.)

Correction officers asked the

plaintiff multiple times whether he had a weapon on his person,
but the plaintiff just laughed.

(Floyd Dep. at 76-77.)

The plaintiff alleges that once he was naked, he started
laughing and told Warden Bailey “he’s funny,” and then Warden
Bailey told Officer Rees to “teach [the plaintiff] a lesson.”
(Am. Compl. at III.C; Floyd Dep. at 22, 45, 56.)

The plaintiff

alleges that Officer Rees then punched the plaintiff on the
right side of his face, knocking the plaintiff to the ground.
(Am. Compl. at III.C; Floyd Dep. at 22, 46-47.)

The plaintiff

alleges that Officer Caldwell, Officer Rees, and another
correction officer proceeded to kick him several times in the
ribs and lower back while he was curled up naked on the ground.
(Am. Compl. at III.C; Floyd Dep. at 47-50.)
At the time, the plaintiff was hiding a razor under his
foot.

(Floyd Dep. at 51-52, 58.)

Officer Rees noticed that the

plaintiff was limping, instructed him to lift up his foot, and
discovered the razor.

(Floyd Dep. at 52-58; Unusual Incident

Report at NYC 159, 163, 164, 167, 172, 173, 189-90, 193-96, 199200; Incident Information Report at NYC 320-24; Notice of
Infraction.)

The plaintiff alleges that after Officer Rees

found the razor, Officer Rees again punched the plaintiff on the

8

right side of his face, and the plaintiff fell to the floor and
curled up.

(Floyd Dep. at 47, 58-59.)

The plaintiff alleges

that he sustained injuries from the correction officers’ punches
and kicks, including a black eye and sore ribs, which lasted for
about a week and a half.

(Floyd Dep. at 64, 80-85.)

The plaintiff then got dressed in a jumpsuit, was
handcuffed, and was taken to the intake area.
60.)

(Floyd Dep. at

The plaintiff was charged with possession of a razor and

cutting David P.’s face.
Infraction.)

(Floyd Dep. at 65, 88; Notice of

Later that night, the plaintiff was transferred to

pre-hearing detention.

(Floyd Dep. at 65.)

The plaintiff alleges that he “was refused medical
attention for 6 days” (Am. Compl. at III.C) by being held in
pre-hearing detention for about a week before seeing a doctor on
the day of his hearing (Floyd Dep. at 66, 96-99).

In pre-

hearing detention, medical staff members conducted “sick call,”
during which they walked by the cells every morning.
Dep. at 66-67.)

(Floyd

The plaintiff alleges that he “eventually”

caught a nurse and asked to see a doctor, but he never saw a
doctor until after his disciplinary hearing.

(Floyd Dep. at 65-

67.)
The plaintiff alleges that he did not see nor speak to any
medical staff member on April 20, 2010.
78.)

(Floyd Dep. at 64, 77-

The plaintiff signed an Injury to Inmate Report dated

9

April 20, 2010, which indicated that he refused a medical
evaluation and that he had no visible injuries.

(Lulich Decl.,

Ex. G (“Injury to Inmate Report dated April 20, 2010”).)
Although the plaintiff admits that his signature appears on the
April 20th Report, he claims that he never went to the doctor on
April 20th to sign the Report and never refused a medical
evaluation, but instead signed the Report without reading it at
a different time.

(Floyd Dep. at 78-80.)

The plaintiff alleges

that he did have visible injuries on April 20th, specifically
his black eye.

(Floyd Dep. at 80.)

On April 25, 2010, the

medical staff prescribed Sudafed for the plaintiff, and the
accompanying medical record indicates that the Sudafed was for
nasal congestion.

(Floyd Dep. at 99-101; Lulich Decl., Ex. H

(“Correctional Health Services Progress Note”).)
On April 26, 2010, the plaintiff appeared at an inmate
disciplinary hearing on the charges against him for possession
of a razor and for cutting David P.’s face.

(Floyd Dep. at 88-

89; Lulich Decl., Ex. I (“Investigating Supervisor’s Report”) at
NYC 262-63.)

The plaintiff was found guilty on both charges but

the charges were later dismissed on appeal.

(Floyd Dep. at 90.)

Before the hearing, the plaintiff had filed a written grievance
about the alleged use of force against him on April 20, 2010.
(Floyd Dep. at 91-92; Incident Information Report at NYC 32730.)

At the hearing, the plaintiff told the hearing officer

10

that correction officers had assaulted him on April 20th, and
the hearing officer responded that the matter would be
investigated.

(Floyd Dep. at 88-95; Investigating Supervisor’s

Report at NYC 262-63.)

Correction staff then began conducting a

Use of Force Investigation.

(Investigating Supervisor’s Report

at NYC 262-65.)
On April 26, 2010, after the hearing, a physician’s
assistant examined the plaintiff as part of the Use of Force
Investigation.

(Floyd Dep. at 96:22-99:7; Lulich Decl., Ex. C

(“Injury to Inmate Report dated April 26, 2010”).)

The

plaintiff alleges that he showed the physician’s assistant his
black eye and his ribs, and the April 26th Report indicates that
the plaintiff had visible injuries, specifically a slight
discoloration under his right eye.

(Floyd Dep. at 98-102;

Injury to Inmate Report dated April 26, 2010.)

However, the

physician’s assistant did not give or prescribe any treatment
for the plaintiff.

(Floyd Dep. at 98-102; Injury to Inmate

Report dated April 26, 2010.)
Like four other correction officers who are not named in
this action, Officer Caldwell reported that he did not witness
any force used on the plaintiff on April 20, 2010.
(Investigating Supervisor’s Report at NYC 263.)

The Use of

Force Investigator stated that he could not ascertain whether or
not the plaintiff sustained injuries on April 20th, but that

11

correction officers had reported that they did not use or
witness any force.
265.)

(Investigating Supervisor’s Report at NYC

Accordingly, the Use of Force Investigator concluded that

the plaintiff’s allegation of a use of force was
unsubstantiated.

(Investigating Supervisor’s Report at NYC

265.)

III.
The plaintiff now alleges that the defendants’ conduct
constituted: (1) an unlawful search in violation of the Fourth
Amendment, and (2) use of excessive force in violation of the
Eighth Amendment. 3

A.
1.
First, the plaintiff alleges that the strip search was an
unlawful search in violation of the Fourth Amendment.

While it

is true that the constitutional rights of prison inmates are

3

The defendants assert that because the plaintiff did not
respond to their arguments regarding his excessive force claim
in his opposition brief, that claim should be deemed abandoned.
However, the plaintiff made clear at Oral Argument that he was
not abandoning his excessive force claim. Moreover, the
defendants failed to provide the plaintiff with the notice
required under Local Civil Rule 56.2. In any event, the
plaintiff has not withdrawn his excessive force claim, and the
Court has reviewed the plaintiff’s deposition to determine if
there are issues of fact that preclude summary judgment.
12

restricted because of the institutional needs of imprisonment,
see Price v. Johnston, 334 U.S. 266, 285 (1948), the Fourth
Amendment still requires that strip searches of inmates be
reasonable.

See Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir.

1983) (per curiam) (citing Bell v. Wolfish, 441 U.S. 520, 559
(1979)).

The need for a particular search must be balanced

against the resulting invasion of personal rights.

Florence v.

Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct.
1510, 1516 (2012) (citing Bell, 441 U.S. at 559).

In

determining whether a particular strip search is reasonable, a
court “must consider the scope of the particular intrusion, the
manner in which it is conducted, the justification for
initiating it, and the place in which it is conducted.”

Bell,

441 U.S. at 559 (collecting cases).
Generally, strip searches have been upheld as reasonable so
long as they are reasonably related to legitimate penological
interests.

See, e.g., Florence, 132 S. Ct. at 1515-17; Covino

v. Patrissi, 967 F.2d 73, 78-79 (2d Cir. 1992); Jean-Laurent v.
Wilkerson, 438 F. Supp. 2d 218, 323 (S.D.N.Y. 2006).

Given the

legitimate penological interest in the safety of inmates,
“prison officials have an obligation to take reasonable measures
to protect the safety of the prison’s inmates.”

Arnold v.

Westchester Cnty., No. 09 Civ. 3727, 2012 WL 336129, at *11
(S.D.N.Y. Feb. 3, 2012) (citation omitted).

13

The Supreme Court

recently noted that correctional officials must be permitted to
detect and deter the possession of contraband in their
facilities, see Florence, 132 S. Ct. at 1517, and that policies
designed to keep contraband out of prisons--including strip
searches--have been upheld in cases decided since Bell, id. at
1516.

“After a fight between two inmates in which one inmate

suffers injuries that were likely caused by a weapon, it is
plainly proper for prison officials to search both inmates for
such weapons or other contraband.”

Arnold, 2012 WL 336129, at

*11 (citing Jean-Laurent, 438 F. Supp. 2d at 323.)
In this case, the correction officers’ search of the
plaintiff was reasonable.

On April 20, 2010, an inmate in the

dayroom was cut on his face, and the weapon used in the slashing
was not immediately found.

(Floyd Dep. at 77.)

The correction

officers strip searched the inmates in the dayroom in an attempt
to find the weapon.

(Floyd Dep. at 77.)

They asked the

plaintiff multiple times whether he had a weapon on his person,
but the plaintiff just laughed and did not admit or deny that he
had a razor.

(Floyd Dep. at 76-77.)

Strip searching the

plaintiff, who was in the vicinity where another inmate had been
injured by a weapon, was plainly proper to ensure the safety of
the inmates in the facility.

Because the correction officers’

search of the plaintiff was reasonable, the defendants’ motion

14

for summary judgment with respect to the plaintiff’s unlawful
search claim is granted.

2.
Second, the plaintiff alleges that the defendants used
excessive force against him in violation of the Eighth
Amendment.

A claim of excessive force requires a plaintiff to

satisfy both an objective and a subjective prong.
Hudson v. McMillian, 503 U.S. 1, 8 (1992).

See, e.g.,

“[C]ourts

considering a prisoner’s claim must ask both if ‘the officials
act[ed] with a sufficiently culpable state of mind’ and if the
alleged wrongdoing was objectively ‘harmful enough’ to establish
a constitutional violation.”

Id. (quoting Wilson v. Seiter, 501

U.S. 294, 298 (1991)).
The objective prong “focuses on the harm done, in light of
contemporary standards of decency.”

Wright v. Goord, 554 F.3d

255, 268 (2d Cir. 2009) (citation and internal quotation marks
omitted).

“[W]hen prison officials use force to cause harm

maliciously and sadistically, ‘contemporary standards of decency
always are violated . . . whether or not significant injury is
evident.’”

Id. at 268-69 (quoting Hudson, 503 U.S. at 9).

The

subjective prong “requires a showing that the defendant had the
necessary level of culpability, shown by actions characterized
by wantonness in light of the particular circumstances

15

surrounding the challenged conduct.”
internal quotation marks omitted).

Id. at 268 (citation and

“The core judicial inquiry

. . . [is] not whether a certain quantum of injury was
sustained, but rather whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.”

Wilkins v. Gaddy, 130 S. Ct. 1175,

1178 (2010) (per curiam) (citation and internal quotation marks
omitted).
In his deposition testimony, the plaintiff describes in
sufficient detail how the defendants allegedly assaulted him on
April 20, 2010.

(Floyd Dep. at 45-50.)

Those sworn allegations

are sufficient to allege facts supporting a wanton infliction of
harm.

While Officer Caldwell and other correction officers deny

using any force against the plaintiff, there are plainly genuine
issues of material fact as to whether the defendants assaulted
the plaintiff as the plaintiff described--specifically, whether
Warden Bailey ordered Officer Rees to “teach [the plaintiff] a
lesson,” whether Officer Rees “immediately and without
provocation” punched the plaintiff in the face, and whether
Officers Rees and Caldwell kicked the plaintiff while he was on
the ground.

(Am. Compl. at III.C.)

The defendants argue that the plaintiff’s version of the
April 20th events is “internally implausible” and “not credible”
because, as they claim, the plaintiff would not have been able

16

to keep a razor hidden under his foot while being assaulted.
(Defs.’ Mem. Supp. Mot. Summ. J. at 13-14.)

However, the

plaintiff explained at Oral Argument that the razor was secured
to the bottom of his foot, and at the disciplinary hearing he
was in fact found to have possessed the razor.

The plaintiff’s

allegations, if credited, could reasonably allow a rational jury
to find that the defendants used force maliciously and
sadistically to cause harm.

Therefore, the defendants’ motion

for summary judgment with respect to the plaintiff’s excessive
force claim is denied.

B.
A plaintiff must plead the personal involvement of each
defendant in a violation of § 1983.
superior liability in § 1983 cases.”

“There is no respondeat
Green v. Bauvi, 46 F.3d

189, 194 (2d Cir. 1995) (citing Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 691 (1978)).

Instead, “a plaintiff must plead

that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.”
556 U.S. at 676.

Iqbal,

Here, Captain Singletary is only alleged to

have ordered the strip search of the inmates in the dayroom,
which, as explained above, was not a constitutional violation.
There are no allegations that Captain Singletary was involved in
the use of force against the plaintiff.

17

Because the plaintiff’s

excessive force claim is the only claim that survives the
defendants’ motion for summary judgment, and because Captain
Singletary lacked personal involvement in that claim, all claims
against Captain Singletary are dismissed.

CONCLUSION
The Court has considered all of the arguments of the
parties.

To the extent not specifically addressed above, the

remaining arguments are either moot or without merit.

For the

foregoing reasons, the defendants’ motion for summary judgment
is granted with respect to the plaintiff’s unlawful search claim
but denied with respect to the plaintiff’s excessive force
claim, except all claims against Captain Singletary are
dismissed.

The Clerk is directed to close Docket No. 56.

SO ORDERED.
Dated:

New York, New York
March 12, 2013

__/s/________________________
John G. Koeltl
United States District Judge

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