Betts v. Rodriquez et al

Filing 97

OPINION AND ORDER: re: 78 MOTION for Summary Judgment filed by The City of New York, Ricardo Morrison, Glenda Wajer, Kelthlyn Frederick, Ivan Rodriquez. For the foregoing reasons, the motion is GRANTED IN PART and DENIED IN PART. Defen dants' motion to for summary judgment is granted as to the claim for deliberate indifference and any claim against Defendant Morrison; the motion is denied as to the claim for excessive force. The Clerk of Court is directed to close the motion at Docket Number 78. SO ORDERED. (Signed by Judge J. Paul Oetken on 5/15/2017) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KENNETH BETTS,
:
:
Plaintiff,
:
:
-v:
IVAN RODRIQUEZ, et al.,
:
Defendants. :
:
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15-CV-3836 (JPO)
OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Kenneth Betts, proceeding pro se, filed the initial complaint in this action under
42 U.S.C. § 1983 on May 7, 2015. (Dkt. No. 2.) Betts filed the first amended complaint, the
operative complaint in this action, on January 12, 2016, naming as defendants Ivan Rodriquez,
Kelthlyn Frederick, Glenda Wajer, Sergeant Ricardo Morrison, and the City of New York
(collectively, “Defendants”). (Dkt. No. 20 (“Compl”).) In an Opinion and Order dated
December 12, 2016, the Court granted in part and denied in part Defendants’ motion to dismiss.
(Dkt. No. 75.) Defendants now move for summary judgment on Betts’ remaining claims. (Dkt.
No. 78.) For the reasons that follow, the motion is granted in part and denied in part.
I.

Legal Standard
“A document filed pro se is ‘to be liberally construed’ . . . .” Erickson v. Pardus, 551

U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “The rule favoring
liberal construction of pro se submissions is especially applicable to civil rights claims.” Cruz v.
Midwood Ambulance & Oxygen Serv., Inc., 136 F. App’x 414, 415 (2d Cir. 2005) (citing Weixel
v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002)).
A party is entitled to summary judgment where “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
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fact is material if it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “A dispute is genuine if, considering the record as a whole, a rational jury
could find in favor of the non-moving party.” Cohen Lans LLP v. Naseman, No. 14 Civ. 4045,
2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (quoting Ricci v. DeStefano, 557 U.S. 557, 586
(2009)).
At the summary judgment stage, the party bearing the burden of proof at trial must
provide evidence on each element of its claim or defense. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). “If the party with the burden of proof makes the requisite initial showing,
the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue
for trial, i.e., that reasonable jurors could differ about the evidence.” Clopay Plastic Prods. Co.
v. Excelsior Packaging Grp., Inc., No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept.
18, 2014). In deciding a motion for summary judgment, courts view the evidence “in the light
most favorable to the nonmoving party” and grant summary judgment only if “no reasonable
trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d
Cir. 1995) (internal quotation marks omitted).
II.

Discussion
Familiarity with this dispute is presumed, and the facts of the case are detailed in the

Court’s prior Opinion and Order at the motion-to-dismiss stage. See Betts v. Rodriquez, No. 15
Civ. 3836, 2016 WL 7192088 (S.D.N.Y. Dec. 12, 2016).
In considering this motion, the Court relies on facts that are undisputed, and where facts
are disputed and supported by evidence, takes those facts in the light most favorable to Betts. 1

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In response to Defendants’ motion for summary judgment, Betts submitted a brief
in opposition (Dkt. No. 88), and a statement of disputed factual issues, which attaches several
exhibits (Dkt. No. 89). Defendants argue that the Court should disregard Betts’ opposition due
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At this stage, the only claims remaining are Betts’ claims for excessive force and for
deliberate indifference to serious medical needs.
Defendants argue that they are entitled to summary judgment on the deliberate
indifference claim due to Betts’ failure to show that he was denied adequate medical care. (Dkt.
No. 79 at 10.) Defendants also argue that they are entitled to summary judgment on the
excessive force claim because Betts has not adequately alleged Defendants’ personal
involvement. (Id. at 7.) The Court will address these issues in turn.
A.

Deliberate Indifference

As the Court explained at the motion-to-dismiss stage:
In order to succeed on a deliberate indifference claim, a 1983 plaintiff must plead
two elements. “The first requirement is objective: the alleged deprivation of
adequate medical care must be sufficiently serious.” Salahuddin v. Goord, 467
F.3d 263, 279 (2d Cir. 2006) (internal quotation marks omitted) (quoting Farmer
v. Brennan, 511 U.S. 825, 834 (1994)). Determining whether a deprivation is
objectively serious demands two inquiries. “The first inquiry is whether the
prisoner was actually deprived of adequate medical care. As the Supreme Court
has noted, the prison official's duty is only to provide reasonable care.” Id. (citing
Farmer, 511 U.S. at 844-47). “Second, the objective test asks whether the
inadequacy in medical care is sufficiently serious.” Id. at 280. “Factors relevant to
the seriousness of a medical condition include whether ‘a reasonable doctor or
to his failure to comply with the Court’s local rules, even after Defendants served Betts with
notice of the applicable rules. (Dkt. No. 93 at 1-4.)
While pro se litigants are “not excused from meeting the requirements of Local Rule
56.1,” the Court nonetheless “retains some discretion to consider the substance of the [pro se
party’s] arguments, where actually supported by evidentiary submissions.” Wali v. One Source
Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009); see Holtz v. Rockefeller & Co., 258 F.3d 62, 73
(2d Cir. 2001) (“A district court has broad discretion to determine whether to overlook a party's
failure to comply with local court rules.”). Though Betts’ factual statement does not directly
correspond to Defendants’ 56.1 statement, and though it is not supported by citations to
evidence, because he is proceeding pro se, “this Court has conducted ‘an assiduous review of the
record’ to determine if there is any evidentiary support for his assertions of fact that do not cite to
evidence and to determine if there are any other material issues of fact.” Geldzahler v. N.Y. Med.
Coll., 746 F. Supp. 2d 618, 620 n.1 (S.D.N.Y. 2010) (quoting Lee v. Coughlin, 902 F. Supp. 424,
429 (S.D.N.Y. 1995)); see also, e.g., Anderson v. City of New Rochelle, No. 10 Civ. 4941, 2012
WL 3957742, at *7 (S.D.N.Y. Sept. 4, 2012). The Court will also “consider the unsworn
statements in his 56.1 Response on the assumption that he would have testified to these
statements in his Declaration.” Geldzahler, 746 F. Supp. 2d at 620 n.1.
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patient would find [it] important and worthy of comment,’ whether the condition
‘significantly affects an individual's daily activities,’ and whether it causes ‘chronic
and substantial pain.’” Id. (alteration in original) (quoting Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998)).
“The second requirement . . . is subjective: the charged official must act with a
sufficiently culpable state of mind.” Id. “This mental state requires that the charged
official act or fail to act while actually aware of a substantial risk that serious inmate
harm will result.” Id. Such “awareness may be proven ‘from the very fact that the
risk was obvious.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138
(2d Cir. 2013) (quoting Farmer, 511 U.S. at 842).
Betts, 2016 WL 7192088, at *4.
In allowing the deliberate indifference claim to survive Defendants’ motion to dismiss,
the Court focused on the actions of Defendant Morrison during his encounter with Betts at
Manhattan Central Booking. Id. However, in his opposition to Defendants’ motion for summary
judgment, Betts nowhere mentions his claim for deliberate indifference or discusses the incidents
that occurred at Central Booking. (Dkt. Nos. 88, 89.) Betts focuses only on the excessive force
claim and the facts surrounding his initial arrest. (Id.)
Betts’ failure to address the circumstances surrounding his deliberate indifference claim
is alone sufficient to justify summary judgment for Defendants on this claim. See, e.g., Turner v.
Sidorowicz, No. 12 Civ. 7048, 2016 WL 3938344, at *4 (S.D.N.Y. July 18, 2016) (“[B]ecause
Plaintiff does not address this claim in either his memorandum or affidavits and exhibits
submitted in opposition to Defendants’ motion for summary judgment, the Court deems him to
have abandoned this claim. This result is warranted regardless of Plaintiff’s pro se status . . . .”
(citations omitted)).
In any event, Defendants are entitled to summary judgment on the merits of the deliberate
indifference claim. Defendants adduce evidence in the form of medical records from Harlem
Hospital that show that Betts’ injuries were not sufficiently severe as to satisfy the objective
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prong of the deliberate indifference standard. See Salahuddin, 467 F.3d at 279-80. Those
records show that, though Plaintiff claims that his lips and gums were bleeding following his
arrest, his medical records indicate no cuts or bleeding. (Dkt. No. 80 ¶ 21.) Moreover, though
Betts had claimed that he suffered serious injuries to his right arm and shoulder, x-rays showed
no fracture or dislocation to his shoulder, arm, or elbow. (Id. ¶ 22.) Further, one of Betts’ chief
complaints related to the delay in providing him with pain medication until he was treated at
MDC. However, he testified in a deposition that he received pain medication much earlier, while
he was at Harlem Hospital before he was transported to the police precinct. (Id. ¶ 24.) These
injuries are not sufficiently serious for the purposes of deliberate indifference. See Vargas v.
City of N.Y., No. 13 Civ. 3188, 2017 WL 1214434, at *11 (E.D.N.Y. Mar. 31, 2017) (“To
establish a ‘serious medical condition’ under the . . . ‘objective prong,’ the plaintiff [i]s required
to establish ‘a condition of urgency, one that may produce death, degeneration, or extreme
pain.’”) (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990)).
As the Court predicted at the motion-to-dismiss stage, factual development has
“reveal[ed] more details about the nature of Plaintiff’s injuries.” Betts, 2016 WL 7192088, at *5.
And these details—along with Betts’ failure to contest them or put forward an alternative version
of events—are insufficient to support a claim for deliberate indifference.
B.

Excessive Force

Defendants argue that they are entitled to summary judgment on Betts’ excessive force
claim due to Betts’ failure to adequately allege the personal involvement of each Defendant in
the use of excessive force against him. (Dkt. No. 79 at 9-10.) The also argue—for the first time
in their reply brief—that even assuming Defendants’ personal involvement, they are nonetheless
entitled to qualified immunity. (Dkt. No. 93 at 9-11.)

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“In order to maintain an action . . . under . . . section 1983, a plaintiff must establish
specific facts demonstrating that defendant’s personal involvement in the constitutional
violations alleged.” Dockery v. Tucker, No. 97 Civ. 3584, 2006 WL 5893295, at *13 (E.D.N.Y.
Sept. 6, 2006) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). Such personal
involvement may be demonstrated by “proof of the defendant’s direct participation in the alleged
violation.” Id. “A plaintiff seeking to prove that an officer directly participated in the alleged
excessive force need not be able to positively identify, at trial, which defendant took what
particular action.” Gonzalez v. Waterbury Police Dep’t, 199 F. Supp. 3d 616, 621 (D. Conn.
2016). “Rather, a jury may use a combination of factors—direct testimony, cross examination,
and circumstantial evidence—to infer that a particular defendant took a particular action.” Id.;
see also Medina v. Donaldson, No. 10 Civ. 5922, 2014 WL 1010951, at *7 (E.D.N.Y. Mar. 14,
2014) (“Absent direct evidence, a jury may still find for the plaintiff on a theory of direct
participation if ‘there is sufficient circumstantial evidence from which the trier of fact could
make reasonable conclusions concerning who, if anyone, struck [the plaintiff].’”) (alteration in
original) (quoting Lasher v. City of Schenectady, No. 02 Civ. 1395, 2004 WL 1732006, at *6–7
(N.D.N.Y. Aug. 3, 2004)); id. (collecting cases). At the summary judgment stage, the question is
whether, viewing the evidence in the light most favorable to the non-moving party, a reasonable
juror could find direct participation. Dockery, 2006 WL 5893295, at *13 (citing Provost v. City
of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001)).
Defendants marshal several facts to support their argument that Plaintiff cannot connect
them to the allegedly offending acts. The amended complaint does not specify which Defendant
took which specific action; it merely speaks of Defendants in the aggregate. (Dkt. No. 80 ¶ 3.)
Moreover, in his deposition testimony, Betts testified that he does not know what the individual
Defendants look like, that he did not get a good look at them at the time of the incident, and that
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he was only able to name them as Defendants based on paperwork prepared following his arrest.
(Id. ¶¶ 12-14.)
But in his Declaration in Opposition to Defendants’ Motion for Summary Judgment,
Betts is able to specifically describe the role of each Defendant:
[T]he heavyset Latino person (Rodriquez) had [h]is arms around my
body and would not let go. The slender and light-skinned person
(Detective Wajer) was hitting me and the black person Keithlyn
Frederick was twisting my arm and trying to handc[]uff me. He was
twisting it as hard as he could until i[t] finally popped of[f] the
socket and the pain was excruciating . . . .
(Dkt. No. 87 ¶ 5.) And in his Statement of Disputed Factual Issues, filed in opposition to the
motion for summary judgment, Betts asserts that it is, in fact, disputed whether he was
“cognizant enough to recognize” the Defendants who used physical force in connection with his
arrest as Defendants Rodriquez, Frederick, and Wajer. 2 (Dkt. No. 89 ¶¶ 3-5.) Moreover, Betts
attaches to that Statement three documents that appear to be review board interview notes
describing the involvement of each of those three Defendants in connection with Betts’ arrest.
(Id. Exs. A, B, C.)
In the face of these representations, Defendants argue that, in light of Betts’ earlier
deposition testimony, his submissions on summary judgment are insufficient to create a genuine
dispute of material fact for trial. (Dkt. No 93 at 7.) See Palazzo ex rel. Delmage v. Corio, 232
F.3d 38, 43 (2d Cir. 2000). However, Defendants’ reliance on the so-called “sham affidavit”
principle—that a party who has been examined on deposition cannot raise an issue of fact by
submitting a contradictory affidavit—is misplaced where the affidavit in question is corroborated

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Betts makes no specific reference to Defendant Morrison in connection with his
excessive force claim, beyond naming him in the list of Defendants at the beginning of his
declaration. (Dkt. No. 87 ¶ 1.) Morrison, it seems, had no role in Betts’ apprehension and
arrest—and the claim of excessive force arising from that interaction. Accordingly, summary
judgment is granted as to Defendant Morrison on that claim.
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by other evidence. See Buie v. City of N.Y., No. 12 Civ. 4390, 2015 WL 6620230, at *3
(E.D.N.Y. Oct. 30, 2015) (citing Palazzo, 232 F.3d at 43). This is especially so in light of the
special solicitude due to pro se parties. See Erickson, 551 U.S. at 94.
Here, the detailed descriptions of each Defendant’s role in the alleged violation
laid out in Betts’ submission is corroborated by the CCRB interview notes. Considering together
Betts’ filings (including the corroborating evidence), Betts’ pro se status, and the Court’s
obligation at this stage to viewing the evidence in the light most favorable to Betts, the Court
concludes—even despite Betts’ deposition testimony—that a reasonable jury could find direct
participation by each defendant in the alleged violation. This is sufficient to defeat summary
judgment.
Defendants further argue that, even assuming their personal involvement, they are
nonetheless entitled to qualified immunity. (Dkt. No. 93 at 9-11.)
“It is well established that qualified immunity may operate as a defense to excessive force
claims.” Mesa v. City of New York, No. 09 Civ. 10464, 2013 WL 31002 (S.D.N.Y. Jan. 3, 2013).
“In the excessive force context, ‘the question for the purposes of qualified immunity is whether a
reasonable officer could have believed that the use of force alleged was objectively reasonable in
light of the circumstances.’” Read v. Town of Suffern Police Dep’t, No. 10 Civ. 9042, 2013 WL
3193413, at *7 (S.D.N.Y. June 25, 2013) (internal quotation marks omitted) (quoting Lennon v.
Miller, 66 F.3d 416, 425 (2d Cir. 1995)). In analyzing the reasonableness of force used in
connection with an arrest, courts consider three factors: (1) “the severity of the crime at issue,”
(2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3)
“whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v.
Connor, 490 U.S. 386, 396 (1989). “The ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
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vision of hindsight.” Id. “If a genuine issue of material fact exists regarding the reasonableness
of the officers’ conduct, summary judgment must be denied.” Read, 2013 WL 3193413, at *4
(citing Azrielli v. Cohen Law Offices, 21 F.3d 512, 516 (2d Cir. 1994)).
Defendants claim that their use of force was reasonable under the circumstances because
“no force was used against plaintiff until plaintiff attempted to punch defendant Rodriguez in the
face and flee in order to evade arrest,” and because Betts “was constantly kicking and punching,
resisting attempts to place his arms in handcuffs.” (Dkt. No. 93 at 10.) As such, Defendants
claim they only used force that was “reasonably related to the nature of the resistance and the
force used, threatened, or reasonably perceived to be threatened, against the officer[s].” Sullivan
v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000).
Though “[t]he fact that a person whom a police officer attempts to arrest resists,
threatens, or assaults the officer no doubt justifies the officer’s use of some degree of force, . . . it
does not give the officer license to use force without limit.” Id. at 165-66. And Betts’
submissions tell a different story—one in which Defendants’ use of force was not reasonably
calibrated to the nature of the threat. First, Betts claims that Defendants initiated the incident
with the use of force when he was “aggressively approached and attac[k]ed by the Defendants
. . . without them having identified themselves as officers of the law.” (Dkt. No. 87 ¶ 4.) Betts’
submissions suggest, contrary to Defendants’ claim, that Defendants used force before Betts
attempted to flee. Second, Betts does not claim that he physically resisted arrest in the way
Defendants describe. While Betts acknowledges that he attempted to flee (“because of the Fear
of being killed by [Defendants]”), he disputes aggressively resisting Defendants. (Id.) And
third, even if Betts did resist Defendants, the extent of force used may have been objectively
unreasonable under the circumstances as Betts describes them. For example, Betts contends that

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Defendants “hit him numerous times on various parts of his body; while simultaneously . . .
twisting his right arm until it popped out of the socket.” (Dkt. No. 88 at 2.)
If a jury finds the facts to be as Betts describes them, it could reasonably conclude that
the officers’ actions were objectively unreasonable under the circumstances. Alternately, if the
jury finds the facts to be as Defendants describe, they are likely to succeed. See Weather v. City
of Mount Vernon, No. 08 Civ. 192, 2011 WL 1046165, at *9 (S.D.N.Y. Mar. 22, 2011) (“In
excessive force cases the qualified immunity and Fourth Amendment analyses often ‘converge
on one question: Whether in the particular circumstances faced by the officer, a reasonable
officer would believe that the force employed would be lawful.’” (quoting Cowan v. Breen, 352
F.3d 756, 764, n.7 (2d Cir. 2003)), aff’d, 474 F. App’x 821 (2d Cir. 2012). Thus, given these
conflicting narratives of what happened and when, there are genuine issues of fact that preclude
the Court from granting summary judgment for Defendants on this claim. See Cowan, 352 F.3d
at 764 (“Because in this case genuine, material, factual disputes overlap both the excessive force
and qualified immunity issues, summary judgment must be denied.”). The question of what
really happened is one for the jury.

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III.

Conclusion
For the foregoing reasons, the motion is GRANTED IN PART and DENIED IN PART.

Defendants’ motion to for summary judgment is granted as to the claim for deliberate
indifference and any claim against Defendant Morrison; the motion is denied as to the claim for
excessive force.
The Clerk of Court is directed to close the motion at Docket Number 78.

SO ORDERED.
Dated: May 15, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

COPY MAILED TO PRO SE PARTY BY CHAMBERS

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