Cox v. State of New York et al

Filing 59

OPINION AND ORDER re: 42 MOTION for Summary Judgment filed by Campbell, Murphy, Boykin, Brian Fischer, L. Smith, Robinson. For the foregoing reasons, Defendants' motion for summary judgment is granted in part and denie d in part. Cox's claims against Defendants Fischer, Campbell, Smith, Robinson, and Boykin are dismissed. Cox's excessive force claim against Defendant Murphy survives. The Court notes that the exhibits to the Declaration of Michael J. Kea ne (Dkt. 4 7), which include the transcripts of Cox's depositions, do not appear to have been filed on the public docket. No later than April 6, 2017, Defendants shall publicly file the exhibits on the docket or submit a letter setting forth the basis for sealing or redacting these exhibits under Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). A conference is hereby scheduled for April 13, 2017 at 4:00 p.m. in Courtroom 1506 at the United States Courthouse, 40 Foley Sq uare, New York, New York 10007. The Clerk of Court is respectfully directed to terminate the motion pending at Docket No. 42. (As further set forth in this Order.) Brian Fischer (DOCCS), Robinson, L. Smith, Boykin and Campbell (Shield #2013) terminated., (Status Conference set for 4/13/2017 at 04:00 PM in Courtroom 1506, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams.) (Signed by Judge Ronnie Abrams on 3/31/2017) (cf) (Main Document 59 replaced on 3/31/2017) (arc).

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 03/31/2017

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

KEITH THOMAS COX,

Plaintiff,
v.
BRIAN FISCHER, COMMISSIONER,
N.Y.S. DEPARTMENT OF CORRECTIONS
& COMMUNITY SERVICES; SENIOR
PAROLE OFFICER MURPHY, SHIELD
NO. 0421; PAROLE OFFICER CAMPBELL,
SHIELD NO. 2013; CORRECTION
OFFICER L. SMITH; CORRECTION
OFFICER ROBINSON; and CORRECTION
OFFICER BOYKIN,

No. 14-CV-1862 (RA)
OPINION AND ORDER

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Keith Thomas Cox, proceeding pro se, brings this Section 1983 action against
Defendants Brian Fischer, former Commissioner of the New York State Department of Corrections
and Community Supervsion (“DOCCS”), DOCCS Senior Parole Officer Murphy, Parole Officer
Campbell, and Edgecombe Residential Treatment Facility Correction Officers Smith, Robinson,
and Boykin. Before the Court is Defendants’ motion for summary judgment. For the reasons set
forth below, Defendants’ motion is granted in part and denied in part.
BACKGROUND1

These facts are drawn from the parties’ submissions in connection with Defendants’ motion for
summary judgment, including Defendants’ Statement of Undisputed Material Facts Pursuant to Rule 56.1
(“Defs. 56.1”) (Dkt. 46), the Declaration of Michael J. Keane in Support of Defendants’ Motion for
Summary Judgment and accompanying exhibits (“Keane Decl.”) (Dkt. 47), the Declaration of Jeffrey Hale
in Support of Defendants’ Motion for Summary Judgment and accompanying exhibit (“Hale Decl.”) (Dkt.
45), and Plaintiff’s Sworn Opposition to Defendant[s’] Notice of Motion for Summary Judgment and
1

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A. Cox’s Conviction
On October 2, 2016, Cox attempted to steal twelve Kodak cameras from a Duane Reade
drug store. After a trial in the New York Supreme Court, Cox was convicted of third-degree
burglary and sentenced to three and one-half to seven years in prison. On June 25, 2012, after
serving five years in prison, Cox was released on parole.
B. The August 14, 2012 Incident
On August 14, 2012, Cox reported to the Bronx I Area Parole Office for a routine parole
visit. While Cox was waiting for his parole officer, his cell phone began to ring. Defs. 56.1 ¶ 4.
DOCCS requires parolees to silence the ringers on their cell phones while they are reporting. Id.
¶ 5. Parole Officer Campbell confiscated Cox’s phone. See id. ¶ 4. In response, Cox turned to
Parole Officer Bennett and, referring to Campbell, asked, “Who’s that broad?” Keane Decl. Ex.
B (“Cox Feb. 1 Dep. Tr.”) at 34:11–12. Cox then stepped outside to smoke a cigarette. Defs. 56.1
¶ 6.
When Cox returned, Officer Campbell asked whether he had called her a “broad.” Id. Cox
did not respond. Id. ¶ 7. Officers Bennett and Campbell then escorted Cox to a copy room,
measuring approximately eight feet by ten feet, in the back area of the parole office. See id.
At this point, Senior Parole Officer Murphy, who stands six feet three inches tall and
weighs 290 pounds, confronted Cox in the copy room. Id. ¶ 8; Keane Decl. Ex. C (“Cox Mar. 29
Dep. Tr.”) at 22:5–7. According to Cox, Officer Murphy asked whether he had called Officer
Campbell a “broad,” then said, “We got something for dudes like you. Put your hands on the
wall.” Cox Feb. 1 Dep. Tr. 50:21–51:2. Cox did not immediately put his hands on the wall. See
Defs. 56.1 ¶ 11. Instead, Cox asked, “What are you talking about? Why do I have to put my hands
accompanying exhibits (“Pl. Opp.”) (Dkt. 50), as well as exhibits accompanying Plaintiff’s Complaint (Dkt.
2). See S.D.N.Y. Local Rule 56.1(c)–(d).

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on the wall?” Cox Feb. 1 Dep. Tr. at 51:4–6; Cox Mar. 29 Dep. Tr. at 17:7–12. Cox claims that,
at this point, he was calm, though Murphy was “belligerent.” Cox. Feb. 1 Dep. Tr. at 53:11–12.
Officer Murphy then pushed Cox in the chest. Defs. 56.1 ¶ 14. Cox responded by telling Officer
Murphy, “You have no right to put your hands on me. Why are you putting your hands on me?”
Cox Feb. 1 Dep. Tr. at 54:20–23. Cox testified that he did not “raise [his] hand or use [his] hand”
in a way that could have suggested that he was “coming after” Officer Murphy. Cox Mar. 29 Dep.
Tr. at 18:21–23. According to Cox, Officer Murphy then “swung and hit” Cox on the left side of
his jaw with a closed fist. Defs. 56.1 ¶ 15; Cox Feb. 1 Dep. Tr. at 54:23–24, 55:8–24.
Officer Murphy next called for assistance from other officers. Defs. 56.1 ¶ 18. Cox
testified that he “remained calm,” “didn’t struggle,” and “didn’t resist or anything.” Cox Feb. 1
Dep. Tr. at 59:16–17. Cox claims that at least four and as many as nine parole officers arrived in
response to Officer Murphy’s call and proceeded to grab Cox by his arms and legs, choke him,
and “slam[]” his body to the floor. Id. at 59:18–22; see Defs. 56.1 ¶ 20; Compl. at 6. Cox hit a
copy machine on his way down, and at least one officer fell to the ground with him. See Defs.
56.1 ¶¶ 19–23. Cox testified that, as the officers held him, he “didn’t resist at all.” Cox Feb. 1.
Dep. Tr. at 69:23. Once Cox was on the ground, he was handcuffed, and the physical struggle
ended.
Parole officers who were on the scene recall the incident differently. Officer Herrera, for
example, testified at a preliminary parole revocation hearing that Cox “flail[ed] his arms,”
“shout[ed] at Senior Parole Officer Murphy,” and “resisted” the officers’ orders to raise his arms
for handcuffing. Pl. Opp. Ex. 9 at 4. Officer Jones, who was also present for the incident, testified
that other officers came to Officer Murphy’s assistance because Cox “resisted.” Pl. Opp. Ex. 8 at
6, 9. Asked whether Cox was “combative” before Officer Murphy used force, Officer Jones

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answered, “He made a gesture.” Id. at 5–6.2 Cox’s violation of release report alleged that Cox
“threatened the safety and well being of others” by “flailing his arms and striking at Senior Parole
Officer Murphy causing him to sprain his lower back” and by “acting in a combative manner
causing Parole Officer Herrera to be knocked down to the floor injuring his back.” Pl. Opp. Ex. 2
at 3.
It is not disputed that Cox immediately received medical attention. A medical examination
indicated that Cox had dislocated his left rotator cuff and that he had footprints on his back,
bruising to his ribs and upper torso, and a “choke mark” around his neck. See Defs. 56.1 ¶ 25.
Cox was given painkillers and told to treat his injury with massage, hot water, and sleep. See id.
¶¶ 27–28. Cox followed these instructions, and his shoulder injury “healed right away.” Id. ¶¶ 28–
30. As a result of the parole office incident, Cox’s parole was revoked. See id. ¶¶ 34–36.
C. The March 8, 2013 Incident
After his parole was revoked, Cox was held in DOCCS custody at Edgecombe Residential
Treatment Facility. Defs. 56.1 ¶ 37. On March 8, 2013, Cox did not appear as scheduled for
transportation to his work station at the Edgecombe laundry. See id. ¶ 41. Officer Smith was
charged with retrieving Cox and escorting him to the laundry. See id. ¶ 42.
When Officer Smith arrived at Cox’s dormitory, Cox indicated that he needed to return to
his bunk to retrieve his identification card. Id. ¶ 49. Cox claims that, as he emerged from the bunk
area, he was “putting his identification card in his left lapel with his right hand” at a distance of
approximately twenty feet from Smith. Cox Feb. 1 Dep. Tr. at 90:14–16, 94:24–95:16. Officer
Smith then moved towards Cox, stating, “You want to raise your hands.” Id. at 95:23–25. Cox

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Officer Jones testified that she did not see Officer Murphy hit Cox in the face but did see Officer
Murphy “caus[e] damage to [Cox’s] left upper lip,” at which point “everyone that was in the area
intervened.” Pl. Opp. Ex. 8 at 6–7.

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testified that Officer Smith could not have interpreted his hand movements as a threatening gesture.
See Cox Feb. 1 Dep. Tr. at 97:18–21, 111:19–23.
Cox and Officer Smith then engaged in a physical struggle. Defs. 56.1 ¶ 59. According to
Cox, Officer Smith pushed him into the bed area and “slammed” Cox into the bunk beds. Cox
Feb. 1 Dep. Tr. at 90:14–20, 96:1, 99:15–16. Cox testified that Officer Smith then pulled his right
arm behind his back, pushed his face towards the wall, and “slammed” him into two lockers and
the bunk beds. Defs. 56.1 ¶ 60. Officer Robinson, who “observed the whole encounter,” Cox Feb.
1 Dep. Tr. at 98:21–25, pulled her alarm at some point during the incident, and three other officers
arrived on the scene, Defs. 56.1 ¶ 64.
Cox was then taken to the Edgecombe medical unit. See Defs 56.1 ¶ 65. At the medical
unit, a nurse found that Cox had approximately eighteen “superficial red openings,” of about oneeighth of an inch to one inch in size, on his back. See Defs 56.1 ¶ 66; Cox Feb. 1 Dep. Tr. at
101:2–103:4. The nurse further reported that Cox denied feeling any pain. Cox Feb. 1 Dep. Tr.
at 103:6. At his deposition, Cox testified that he was not in pain at the time. Id. at 104:18–19.
D. Procedural History
On March 10, 2014, Cox filed a complaint in this action. Dkt. 2. On June 8, 2015,
Defendants filed an answer, asserting qualified immunity as a defense. Dkt. 27. On May 13, 2016,
Defendants moved for summary judgment. Dkt. 42. On June 30, 2016, Cox filed an opposition
to Defendants’ motion. Dkt. 50. On July 29, 2016, Defendants filed a reply. Dkt. 52.
LEGAL STANDARDS
A. Summary Judgment
To prevail on a motion for summary judgment, the movant must show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). “An issue of fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v.
Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016). “The movant bears the burden of demonstrating
the absence of a question of material fact.” Chaparro v. Kowalchyn, No. 15-CV-1996 (PAE),
2017 WL 666113, at *3 (S.D.N.Y. Feb. 17, 2017). “When a motion for summary judgment is
properly supported by documents or other evidentiary materials, the party opposing summary
judgment may not merely rest on the allegations or denials of his pleading; rather his response, by
affidavits or otherwise as provided in the Rule, must set forth ‘specific facts’ demonstrating that
there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting
Fed. R. Civ. P. 56(e)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In determining whether to grant summary judgment, the Court must “constru[e] the
evidence in the light most favorable to the non-moving party and draw[] all reasonable inferences
in its favor.” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (quoting Costello v.
City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011)). In addition, “it is well established that a court
is ordinarily obligated to afford a special solicitude to pro se litigants, particularly where motions
for summary judgment are concerned.” Harris v. Miller, 818 F.3d 49, 57 (2d Cir. 2016) (per
curiam) (alteration omitted) (citations omitted).
B. Qualified Immunity
“Under the doctrine of qualified immunity, ‘government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person would
have known.’” Tracy v. Freshwater, 623 F.3d 90, 95–96 (2d Cir. 2010) (quoting Kelsey v. County
of Schoharie, 567 F.3d 54, 60–61 (2d Cir. 2009)); see also Rogoz v. City of Hartford, 796 F.3d

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236, 247 (2d Cir. 2015). “Accordingly, when a defendant official invokes qualified immunity as
a defense in order to support a motion for summary judgment, a court must consider two questions:
(1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation
of a statutory or constitutional right, and (2) whether that right was clearly established at the time
of the alleged violation.” Tracy, 623 F.3d at 96. Courts may “exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236
(2009). “But under either prong, courts may not resolve genuine disputes of fact in favor of the
party seeking summary judgment.” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam).
“A clearly established right is one that is ‘sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.’” Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)). The
Supreme Court has emphasized that “‘clearly established law’ should not be defined ‘at a high
level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting Ashcroft v.
al–Kidd, 563 U.S. 731, 742 (2011)). While Supreme Court precedent “does not require a case
directly on point for a right to be clearly established, existing precedent must have placed the
statutory or constitutional question beyond debate.” Id. at 551 (alteration omitted) (internal
quotation marks omitted).3 “[T]he clearly established law must be ‘particularized’ to the facts of
the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Mullenix, 136
S. Ct. at 308 (“This inquiry ‘must be undertaken in light of the specific context of the case, not as

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While the Second Circuit has not provided a bright-line rule regarding the sources a court may
consider in determining whether a constitutional right was “clearly established,” it has expressly disagreed
with the view that “‘only Supreme Court and Second Circuit precedent existing at the time of the alleged
violation is relevant in deciding whether a right is clearly established.’” Terebesi v. Torreso, 764 F.3d 217,
231 n.12 (2d Cir. 2014) (emphasis in original) (alteration omitted) (quoting Moore v. Vega, 371 F.3d 110,
114 (2d Cir. 2004)).

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a broad general proposition.’” (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam))).
DISCUSSION
A. The August 14, 2012 Incident
Cox first claims that Officer Murphy used excessive force during the August 14, 2012
incident at the parole office. The Court concludes that Officer Murphy is not entitled to qualified
immunity on this claim.
1. Violation of a Constitutional Right
“In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged application of
force.” Graham v. Connor, 490 U.S. 386, 394 (1989). “In most instances, that will be either the
Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth
Amendment’s ban on cruel and unusual punishments, which are the two primary sources of
constitutional protection against physically abusive governmental conduct.” Id. “The validity of
the claim must then be judged by reference to the specific constitutional standard which governs
that right, rather than to some generalized ‘excessive force’ standard.” Id.
As several courts have recognized, a parolee’s claim that he was subjected to excessive
force in the course of an arrest for a parole violation arises under the Fourth Amendment, not the
Eighth Amendment. See, e.g., Rushion v. NYS Div. of Parole, No. 13-CV-4277 (RRM), 2016 WL
5255812, at *4 (E.D.N.Y. Sept. 21, 2016) (“Allegations by a parolee that he was subjected to
excessive force while being arrested by his parole officer for a parole violation are analyzed under
the Fourth Amendment.”); Rivera v. Madan, No. 10-CV-4136 (PGG), 2013 WL 4860116, at *8
(S.D.N.Y. Sept. 12, 2013) (“The Fourth Amendment applies to an excessive force claim brought

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by a parolee in connection with some new offense or violation parole officers believed had been
committed.” (alteration omitted) (internal quotation marks omitted)); Turner v. White, 443 F. Supp.
2d 288, 294 (E.D.N.Y. 2005).4 The rationale is straightforward: when officers use force against a
parolee they suspect of violating the conditions of his parole, they are effecting a “seizure” of the
parolee for committing a new offense, not a “punishment” for committing the crime for which he
was convicted. U.S. Const. amends IV, VIII. Indeed, the Division of Parole records submitted in
this case state that Cox was attempting “to avoid his lawful arrest” for parole violations at the time
of the incident. And when the parolee is seized, his right to be free from excessive force derives
from the same source as that of other members of the public—the Fourth Amendment. See, e.g.,
Graham, 490 U.S. at 395 (“All claims that law enforcement officers have used excessive
force . . . in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard . . . .” (alteration omitted)
(emphasis in original)). Therefore, although Defendants apply Eighth Amendment standards to
Cox’s excessive force claim arising out of the parole office incident, the Court analyzes this claim
under the Fourth Amendment.
“The Fourth Amendment prohibits the use of excessive force in making an arrest, and
whether the force used is excessive is to be analyzed under that Amendment’s ‘reasonableness
standard.’” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham, 490
U.S. at 395). “Determining excessiveness requires ‘a careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.’” Id. (quoting Graham, 490 U.S. at 396). In conducting this

See also Peoples v. Kimmey, 67 F. App’x 506, 507 (10th Cir. 2003) (unpublished) (analyzing a
parolee’s excessive force claim under the Fourth Amendment); Ellis v. City of San Diego, 176 F.3d 1183,
1189 n.4 (9th Cir. 1999) (rejecting the argument that the “rights of parolees are identical to those of
prisoners” in the excessive force context), as amended on denial of reh’g (June 23, 1999).
4

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balancing, a court generally considers the following three factors: “(1) the nature and severity of
the crime leading to the arrest, (2) whether the suspect poses an immediate threat to the safety of
the officer or others, and (3) whether the suspect was actively resisting arrest or attempting to
evade arrest by flight.” Tracy, 623 F.3d at 96 (citing Graham, 490 U.S. at 396). “Given the factspecific nature of the inquiry, granting summary judgment against a plaintiff on an excessive force
claim is not appropriate unless no reasonable factfinder could conclude that the officers’ conduct
was objectively unreasonable.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir.
2004).
The Supreme Court has emphasized, however, that courts must evaluate the reasonableness
of an officer’s use of force “from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396; see also Tracy, 623 F.3d at 96.
Courts must also “make ‘allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the
amount of force that is necessary in a particular situation.”’ Jones v. Parmley, 465 F.3d 46, 61 (2d
Cir. 2006) (quoting Graham, 490 U.S. at 397). “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Tracy, 623
F.3d at 96 (quoting Graham, 490 U.S. at 397).
Viewing the evidence in the light most favorable to Cox, the Court concludes that a
reasonable juror could find that Officer Murphy used excessive force. First, Cox’s offenses were
minor. According to the Amended Violation of Parole Report, Cox had violated the conditions of
his parole by failing to follow Officer Campbell’s instruction to turn off his cell phone, by engaging
in “disrespectful behavior” in referring to Officer Campbell as a “broad,” and by “flailing” his
arms. See Pl. Opp. Ex. 2 at 3–5. A reasonable juror could find that this conduct was neither

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dangerous nor threatening. Rather, these alleged parole violations are analogous to the offenses
of disorderly conduct or resisting arrest, which are not considered severe in the excessive force
context. See, e.g., Brown, 798 F.3d at 101; Gersbacher v. City of N.Y., 134 F. Supp. 3d 711, 723
(S.D.N.Y. 2015). Indeed, the minor nature of this parole violation is underscored by the fact that,
under New York law, parole officers lack statutory authority to make warrantless arrests for parole
violations that, as in this case, occur in the officers’ presence. See People v. Bratton, 870 N.E.2d
146, 148 (N.Y. 2007). Consideration of the severity of Cox’s offenses thus weighs against a
finding that Officer Murphy’s use of physical force was reasonable.
Second, a reasonable juror could find that Cox did not pose an immediate threat to the
safety of the officers or others. It is not disputed that, at the time Officer Murphy began to use
force, Cox was confined to a small copy room, measuring only eight feet by ten feet. It is also
undisputed that Officer Murphy had considerable support from other officers: at least three other
officers were present in the copy room when he punched Cox in the jaw. See O’Hara v. City of
New York, 570 F. App’x 21, 23 (2d Cir. 2014) (summary order) (denying qualified immunity on
excessive force claim against officer who allegedly “punched [an arrestee] in the face” even though
he was “one of six armed officers on the scene”); cf. Tracy, 623 F.3d at 97 (granting qualified
immunity to an officer who allegedly hit a suspect with his flashlight, where the officer “was
operating without back up on the side of a road at night and in bad weather”). A juror could also
reasonably find that Cox, at 201 pounds, was no physical match for Murphy, who stands six feet
three inches and weighs 290 pounds. See Brown, 798 F.3d at 101 (denying qualified immunity to
officers on Fourth Amendment excessive force claim based, in part, on evidence that the officers
were significantly larger than the arrestee). Moreover, there is no dispute that Cox had followed
Officers Bennett and Campbell to the copy room without any resistance. Accordingly, when

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viewed in the light most favorable to Cox, the evidence supports a finding that Cox did not present
a threat to the safety of the officers or others at the time this incident began.
Third, a reasonable juror could conclude that Cox was not “actively resisting arrest or
attempting to evade arrest by flight” at the time that Officer Murphy purportedly punched his jaw.
Graham, 490 U.S. at 396. While Cox did not immediately comply with Officer Murphy’s two
orders to put his hands on the wall, he claims that he did not physically resist in any way. Cox
further testified that he did not raise his arms or make any other physical gesture that an officer
could reasonably perceive as a threat. Moreover, Cox did not explicitly refuse to follow Officer
Murphy’s instructions—with, for example, an unequivocal “no”—and instead asked, “Why do I
have to put my hands on the wall?” While Cox did not immediately obey, a reasonable juror might
nonetheless find that such a verbal response, unaccompanied by any form of physical threat or
struggle, does not rise to the level of “active resistance” or an attempt to flee. See Brown, 798 F.3d
at 102 (holding that a jury could reasonably find that an arrestee was not “actively resisting arrest”
by refusing to put her hands behind her back for handcuffing, where the arrestee “was not fleeing,
nor physically attacking an officer, nor even making a move that an officer could reasonably
interpret as threatening an attack” (citations omitted)).
Finally, viewed in the light most favorable to Cox, the evidence supports a finding that
Officer Murphy used a significant degree of force. Officer Murphy allegedly punched Cox in the
jaw with a closed fist and pushed him to the ground with as many as eight other officers. While
“[n]ot every push or shove . . . violates the Fourth Amendment,” Tracy, 623 F.3d at 96 (quoting
Graham, 490 U.S. at 397), a juror could reasonably conclude that a punch to the jaw is not a routine
exercise of force, but rather one that may result in serious and lasting physical injury. See, e.g.,
Rivera v. City of Yonkers, 470 F. Supp. 2d 402, 405 (S.D.N.Y. 2007) (noting that officers’ punch

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to a suspect’s jaw resulted in a nasal fracture and a fractured jaw that required surgical repair and
the removal of several teeth). A juror could also reasonably conclude that a punch to the jaw is
unreasonable absent some physical resistance or threat from the arrestee. See, e.g., O’Hara, 570
F. App’x at 23 (holding that punching an “unarmed” and “non-menacing” arrestee in the face
“without provocation” was unreasonable as a matter of law (emphasis in original)). Moreover, if
a juror credits Cox’s testimony that he “remained calm,” “didn’t struggle,” and “didn’t resist or
anything” after Officer Murphy punched him, she could reasonably conclude that it was
unreasonable for as many as nine officers to take Cox to the ground, choke him, and “slam[]” his
body to the floor. In sum, a jury could reasonably find that Officer Murphy’s actions were
unreasonable, where Cox had allegedly committed only a minor parole violation, did not pose any
physical threat to officers or others, and did not physically resist or threaten any officer on the
scene.
2. Clearly Established Right
At the time of the parole office incident in 2012, it was clearly established law that an
officer uses excessive force by punching an arrestee in the jaw and forcing him to the ground,
where the arrestee is suspected of a relatively minor offense and, though failing to immediately
comply with an officer’s order to put his hands on the wall, is not physically resisting arrest,
making any threatening gesture, or attempting to flee.
As the Second Circuit has held, the law was clear before 2012 that it is unreasonable under
the Fourth Amendment for an officer to use substantial force against an arrestee suspected of a
minor offense who refuses to raise his arms but does not physically attack an officer, attempt to
flee, or make any threatening gesture. In Brown v. City of New York, 798 F.3d 94 (2d Cir. 2015),
the Circuit held that officers violated clearly established law as it stood in November 2011 by

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pushing a woman suspected of disorderly conduct to the ground and pepper-spraying her after she
refused to put her hands behind her back for handcuffing. Id. at 95, 97. The Second Circuit
explained that the arrestee was not “actively resisting arrest” under Supreme Court precedent
because, although she did not comply with the officers’ order to put her hands behind her back,
she “was not fleeing, nor physically attacking an officer, nor even making a move that an officer
could reasonably interpret as threatening an attack.” Id. at 102 (citations omitted). “At most,” the
Second Circuit explained, “her ‘resistance’ was a refusal to permit the easy application of
handcuffs by placing her hands behind her back.” Id. The Second Circuit rejected the argument
that an arrestee’s “refusal to submit to the easy application of handcuffs always permitted police
officers to use substantial force.” Id. Similarly here, Officer Murphy used “substantial force”—a
closed-fist punch to the jaw—after Cox did not put his hands on the wall as ordered even though,
like the arrestee in Brown, Cox was “not fleeing, nor physically attacking an officer, nor even
making a move that an officer could reasonably interpret as threatening an attack.” Id. at 102.
Under Brown, which addressed the state of clearly established Fourth Amendment law the year
before the incident in this case, Officer Murphy’s use of substantial force against Cox for refusing
to put his hands on the wall, absent any physical resistance or attempt to flee, violated clearly
established law.
The Second Circuit has likewise held that, by 2012, the law clearly established that a punch
to an arrestee’s face is an unreasonable use of force where the suspect has not physically provoked
or threatened officers on the scene. For example, in a summary order in O’Hara v. City of New
York, 570 F. App’x 21 (2d Cir. 2014), the Second Circuit held that a police officer violated clearly
established law in 2010 when he “punched [an arrestee] in the face without provocation and then
proceeded to punch him repeatedly” once he fell to the ground, where the officer was one of six

14

officers on the scene and the arrestee was “unarmed,” “non-menacing,” and suspected of a
“relatively minor” offense. Id. at 23–24 (emphasis in original). As in O’Hara, Officer Murphy
“punched [Cox] in the face without provocation,” albeit once rather than “repeatedly,” see id., even
though Officer Murphy was one of several officers on the scene and even though Cox, according
to his deposition testimony, remained calm, did not “raise [his] hand” or make any other
threatening gesture, and “didn’t resist or anything,” Cox Feb. 1 Dep. Tr. at 53:11–12, 59:16–17;
Cox Mar. 29 Dep. Tr. at 18:21–23. For the reasons articulated in O’Hara, no reasonable officer
in Officer Murphy’s position would have believed that the law authorized him to punch Cox in the
jaw in effecting an arrest under these circumstances. See O’Hara, 570 F. App’x at 23–24.
The decisions of other circuits are in accord. In Rohrbough v. Hall, 586 F.3d 582 (8th Cir.
2009), for example, the Eighth Circuit denied qualified immunity on an excessive force claim
brought against a police officer who “punched [an arrestee] in the face,” then pushed him, “took
him to the ground face down, landed on top of him, and handcuffed him,” where the arrestee had
initially greeted the officer but returned the officer’s push after the officer shoved him. Id. at 585–
87. The Eighth Circuit concluded that, if a jury found that the arrestee’s resistance in pushing the
officer was “de minimis or inconsequential,” the officer’s punch to his face and shove to the ground
would violate clearly established Fourth Amendment law. Id. at 586. Similarly, the Ninth Circuit
has long held that “a failure to fully or immediately comply with an officer’s orders neither rises
to the level of active resistance nor justifies the application of a non-trivial amount of force.”
Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012) (collecting cases dating back to 2001).
Similarly here, if a jury were to determine that Cox’s failure to immediately comply with Officer
Murphy’s order constituted a de minimis form of resistance—as it reasonably could—Officer
Murphy would have exceeded clearly established constitutional limits on the use of force during

15

arrest by punching Cox in the face and forcing him to the ground. See Rohrbaugh, 586 F.3d at
586; cf. Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (denying qualified immunity
on an excessive force claim brought against a police officer for “punch[ing] [an arrestee] in the
stomach while he was handcuffed and not struggling or resisting.”).
The decisions of district courts in this Circuit also lend support to the conclusion that
Officer Murphy’s purported punch to Cox’s face violated clearly established Fourth Amendment
law at the time of the incident. In Gersbacher v. City of New York, 134 F. Supp. 3d 711 (S.D.N.Y.
2015), for example, Judge Woods found that an arrestee had stated a Fourth Amendment excessive
force claim against police officers who had allegedly “punch[ed]” him and pinned him to the
ground with the weight of their bodies in 2011, where the arrestee’s offenses of disorderly conduct
and resisting arrest were “not severe” and, although the arrestee may have “attempted to leave the
immediate area,” he was not “actively resisting arrest.” Id. at 723. Similarly, in Rivera v. Madan,
No. 10-CV-4136 (PGG), 2013 WL 4860116 (S.D.N.Y. Sept. 12, 2013), Judge Gardephe held that
police officers were not entitled to qualified immunity on an excessive force claim for violently
pushing a parolee against a wall and slamming his head against the floor in 2009, even though
there was no dispute that the parolee was “resisting efforts” to lead him out of a hospital and
“refusing to cooperate” with officers’ orders, reasoning that “[i]f, as [the parolee] claims, he was
subjected to an unprovoked violent assault at [the hospital], the officers could not have reasonably
believed that their actions were lawful.” Id. at *7–11. Consistent with these decisions, the Court
finds that clearly established law provided Officer Murphy fair warning that punching a parolee in
the jaw and taking him to the ground with several other officers during an arrest for alleged parole
violations, absent any physical resistance or provocation, was unreasonable at the time the incident
occurred.

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The Court therefore concludes that Officer Murphy is not entitled to qualified immunity
on Cox’s excessive force claim. Officer Campbell, however, is entitled to summary judgment on
this claim, as there is no dispute that she was not “personally involved in the alleged deprivation”
of Cox’s constitutional rights. Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015)
(citation omitted); see also Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (“[T]he personal
involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983.” (internal quotation marks omitted)), as amended (Feb. 24, 2016). Cox
has provided no evidence that Officer Campbell directly participated in any use of force against
him. After Cox referred to Officer Campbell as a “broad,” Campbell questioned him and notified
Officers Bennett and Murphy. But when asked whether Officer Campbell was present as Officer
Murphy and other officers pushed him to the ground, Cox responded, “No. I don’t know where
she went.” Cox Mar. 29 Dep. Tr. at 24:8–9. There is no evidence that Campbell directed other
officers to use force against him, or that she failed to intervene once the physical struggle began.
Accordingly, summary judgment to Officer Campbell on Cox’s excessive force claim is
appropriate.
B. The March 8, 2013 Incident
Cox next claims that he was subjected to excessive force during the March 8, 2013 incident
at Edgecombe Residential Treatment Facility.5 Because Cox was a prisoner serving a sentence for
his criminal conviction at the time, this excessive force claim arises under the Eighth Amendment.
See Whitley v. Albers, 475 U.S. 312, 327 (1986) (“[T]he Eighth Amendment, which is specifically
concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the

5

Defendants argue that Cox has not exhausted his administrative remedies as required by the Prison
Litigation Reform Act of 1996 prior to bringing this claim. The Court need not reach this argument because,
even if Cox had properly exhausted his administrative remedies, there is no genuine dispute of material fact
that would preclude summary judgment.

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primary source of substantive protection to convicted prisoners in cases . . . where the deliberate
use of force is challenged as excessive and unjustified.”).
“The Eighth Amendment protects prisoners from cruel and unusual punishment by prison
officials.” Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015). “To state an Eighth Amendment
claim, a prisoner must allege two elements, one subjective and one objective.” Id. “First, the
prisoner must allege that the defendant acted with a subjectively ‘sufficiently culpable state of
mind.’” Id. (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992)). This subjective inquiry requires
courts to examine “the extent of the injury and the mental state of the defendant, as well as the
need for the application of force; the correlation between that need and the amount of force used;
the threat reasonably perceived by the defendants; and any efforts made by the defendants to
temper the severity of a forceful response.” Harris, 818 F.3d at 64 (quoting Scott v. Coughlin, 344
F.3d 282, 291 (2d Cir. 2003)). “Second, [the prisoner] must allege that the conduct was objectively
‘harmful enough’ or ‘sufficiently serious’ to reach constitutional dimensions.” Crawford, 796
F.3d at 256 (quoting McMillian, 503 U.S. at 8). This objective inquiry is “context specific, turning
upon contemporary standards of decency.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
(quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999)).
The Supreme Court has explained that “the use of excessive physical force against a
prisoner may constitute cruel and unusual punishment [even] when the inmate does not suffer
serious injury.” McMillian, 503 U.S. at 4; see also Wilkins v. Gaddy, 559 U.S. 34, 34 (2010) (per
curiam). Thus, 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, 559 U.S. at 37 (quoting
McMillian, 503 U.S. at 7). Nonetheless, “the extent of injury suffered by an inmate is one factor

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that may suggest whether the use of force could plausibly have been thought necessary in a
particular situation,” McMillian, 503 U.S. at 7 (internal quotation marks omitted), and “may also
provide some indication of the amount of force applied,” Wilkins, 559 U.S. at 37. “[N]ot ‘every
malevolent touch by a prison guard gives rise to a federal cause of action,’” and “[a]n inmate who
complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a
valid excessive force claim.” Wilkins, 559 U.S. at 37–38 (quoting McMillian, 503 U.S. at 9).
Viewing the evidence in the light most favorable to Cox, the Court finds no basis for
concluding that Officer Smith’s use of force on March 8, 2013 was “objectively ‘harmful enough’
or ‘sufficiently serious’” to violate the Eighth Amendment. Crawford, 796 F.3d at 256 (quoting
McMillian, 503 U.S. at 8). Cox testified that Officer Smith “slammed” him into bunk beds, pulled
his right arm behind his back, pushed his face towards a wall, and shoved him into two lockers.
Defs. 56.1 ¶ 60. After the incident, a nurse found that Cox had approximately eighteen “superficial
red openings on his back,” and Cox denied feeling any pain. Cox has suffered no lasting injuries.
Cox thus complains of a “push or shove” that caused no pain and only “superficial” injury—
essentially the same conduct that the Supreme Court has described as insufficient to state an Eighth
Amendment claim. See Wilkins, 559 U.S. at 38. Indeed, courts in this district have routinely found
that similar—or more significant—uses of force are not sufficiently severe to support an excessive
force claim. See, e.g., Rodriguez v. City of New York, 802 F. Supp. 2d 477, 480–81 (S.D.N.Y.
2011) (holding officers did not use excessive force under the Eighth Amendment by “punching
[an inmate] in the head and arm” and placing the inmate in an “extended chokehold,” where a
medical report indicated that the inmate had suffered “at most, some swelling on the left side of
his face”); Perry v. Stephens, 659 F. Supp. 2d 577, 582 (S.D.N.Y. 2009) (finding that officers’
conduct in slapping and choking an inmate was not sufficiently severe, where the inmate suffered

19

“just a little bruise” and “minor pain that abated after ‘about four days’”); James v. Phillips, No.
05-CV-1539 (PKC), 2008 WL 1700125, at *5 (S.D.N.Y. Apr. 9, 2008) (concluding officers did
not use excessive force in shoving an inmate into a door, where the inmate suffered only swelling
on his chin).6 Consistent with these authorities, the Court finds that Officer Smith’s alleged
conduct in pushing and shoving Cox, which resulted in no pain and only “superficial” cuts to his
back, is not harmful enough to support an Eighth Amendment excessive force claim.
Finally, even if Officer Smith’s conduct were sufficiently severe, Cox has provided no
evidence that Officer Smith acted with a “sufficiently culpable state of mind.” Crawford, 796 F.3d
at 296. As discussed above, the “extent of the injury,” which courts generally consider as part of
the subjective inquiry of excessive force claims under the Eighth Amendment, is far from severe:
Cox suffered several superficial cuts and reported feeling no pain. Harris, 818 F.3d at 64. Cox
has provided no evidence of Officer Smith’s mental state, and there is no indication that the two
had any preexisting relationship that might support an inference that Officer Smith pushed Cox
out of personal resentment or malice. See James, No. 05-CV-1539 (PKC), 2008 WL 1700125, at
*4 (“With respect to a wanton state of mind, there was concededly no interaction between [the
officer] and plaintiff prior to the date of the incident. This is not a case where the officer and the
inmate had a history of unpleasant interactions.”) Thus, even if Cox had satisfied the objective
element of an Eighth Amendment excessive force claim, he has failed to provide evidence of a
genuine dispute as to whether Officer Smith acted with a subjectively culpable state of mind.

See also, e.g., Kornegay v. New York, 677 F. Supp. 2d 653 (W.D.N.Y. 2010) (officer’s use of
force in shoving inmate, who lost his balance and fell to the ground but was not physically injured, was not
excessive); Show v. Patterson, 955 F. Supp. 182, 192–93 (S.D.N.Y. 1997) (officer’s use of force in “pushing
[an inmate] from one wall to another” was de minimis, where a medical examination revealed “no broken
bones, bruises or swelling”); Malloy v. DeFrank, No. 95-CV-9122 (AJP), 1996 WL 631725, at *5
(S.D.N.Y. Oct. 31, 1996) (an officer’s “push in the back,” which caused an inmate to experience
“momentary pain,” did not rise to the level of a constitutional violation).
6

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Accordingly, Commissioner Fischer and Officers Smith, Robinson, and Boykin are entitled
to summary judgment on Cox’s Eighth Amendment excessive force claim.7
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is granted in part
and denied in part. Cox’s claims against Defendants Fischer, Campbell, Smith, Robinson, and
Boykin are dismissed. Cox’s excessive force claim against Defendant Murphy survives.
The Court notes that the exhibits to the Declaration of Michael J. Keane (Dkt. 47), which
include the transcripts of Cox’s depositions, do not appear to have been filed on the public docket.
No later than April 6, 2017, Defendants shall publicly file the exhibits on the docket or submit a
letter setting forth the basis for sealing or redacting these exhibits under Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110 (2d Cir. 2006).
A conference is hereby scheduled for April 13, 2017 at 4:00 p.m. in Courtroom 1506 at the
United States Courthouse, 40 Foley Square, New York, New York 10007.
The Clerk of Court is respectfully directed to terminate the motion pending at docket
number 42.
SO ORDERED.
Dated:

March 31, 2017
New York, New York

________________________________
Ronnie Abrams
United States District Judge

7

Cox appears to claim that Officers Robinson and Boykin failed to intervene in his physical
altercation with Officer Smith. To the extent that Cox seeks to bring a failure-to-intervene claim against
Officers Robinson and Boykin, this claim fails, as Officer Smith’s use of force was not excessive as a matter
of law. Cox also appears to assert a claim against Commissioner Fischer for failing to respond to a letter
he wrote regarding this incident. To the extent that Cox claims that Commissioner Fischer may be held
liable under Section 1983 for failing to address Officer Smith’s use of excessive force, see Littlejohn, 795
F.3d at 314, this claim also fails, as Officer Smith committed no constitutional violation to which
Commissioner Fischer may have been required to respond.

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