France v. Westchester County Correctional Jail et al

Filing 132

OPINION & ORDER re: 118 MOTION for Summary Judgment . filed by Morton. For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 118), enter judgment for Defendant, close this case, and mail a copy of this Opinion to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/9/2018) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ROBERT G. FRANCE,
Plaintiff,
v.

No. 12-CV-5576 (KMK)
OPINION & ORDER

CORRECTON OFFICER ELGIN MORTON,
Defendant.

Appearances:
Robert G. France
Wallkill, NY
Pro Se Plaintiff
Irma W. Cosgriff, Esq.
Reginald J. Johnson, Esq.
White Plains, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Robert G. France (“Plaintiff”), formerly detained at Westchester County
Jail, brought this Action against Correction Officer Elgin Morton (“Defendant”), alleging that he
used excessive force against Plaintiff in violation of his Fourteenth Amendment rights. (See
Second Am. Compl. (Dkt. No. 55).) Before the Court is Defendant’s Motion for Summary
Judgment. (Notice of Mot. For Summ. J. (Dkt. No. 118).) For the following reasons, the Motion
is granted.

I. Background
A. Factual Background
The following facts are taken from the documents submitted and Defendant’s statement
pursuant to Local Civil Rule 56.1, (Def.’s Rule 56.1 Statement (“Def.’s 56.1”) (Dkt. No. 120)),
and are recounted “in the light most favorable to” Plaintiff, the non-movant. 1 Wandering Dago,

1

Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise
statement, in numbered paragraphs, of the material facts as to which the moving party contends
there is no genuine issue to be tried.” The nonmoving party, in turn, must submit “a
correspondingly numbered paragraph responding to each numbered paragraph in the statement of
the moving party, and if necessary, additional paragraphs containing a separate, short[,] and
concise statement of additional material facts as to which it is contended that there exists a
genuine issue to be tried.” Local Civ. R. 56.1(b). “A pro se litigant is not excused from this
rule,” Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774, at *3
(S.D.N.Y. Mar. 13, 2014) (italics omitted), and “[a] nonmoving party’s failure to respond to a
Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are
uncontested and admissible,” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 418 (2d Cir. 2009);
see also Biberaj v. Pritchard Indus., Inc., 859 F. Supp. 2d 549, 553 n.3 (S.D.N.Y. 2012) (same).
Here, Defendant filed and served his statement pursuant to Rule 56.1, (Dkt. No. 120), and filed
and served a statement notifying Plaintiff of the potential consequences of not responding to the
Motion, as required by Local Rule 56.2, (Dkt. No. 122). Despite this notice, Plaintiff failed to
submit a response to Defendant’s 56.1 Statement of Facts. Accordingly, the Court may conclude
that the facts in Defendant’s 56.1 Statement are uncontested and admissible. See Brandever,
2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did not submit a Rule 56.1
statement in response to the defendant's statement of facts, “there [were] no material issues of
fact”); Anand v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL
4757837, at *7 (S.D.N.Y. Aug. 29, 2013) (same). Indeed, Plaintiff did not even file any
opposition papers containing “statements and documents” that the Court could consider. Berry
v. Marchinkowski, 137 F. Supp. 3d 495, 503 n.1 (S.D.N.Y. 2015).
Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when
confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344 (2d
Cir. 1988), the Court will “in its discretion opt to conduct an assiduous review of the record,”
including Plaintiff’s deposition testimony, when deciding the instant Motion. Holtz v.
Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001); see also Houston v. Teamsters Local 210,
Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y.
2014) (“Although plaintiffs did not file a Rule 56.1 statement, the Court has independently
reviewed the record to ensure that there is uncontroverted evidence to support the paragraphs
referenced in defendants’ Rule 56.1.”); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872,
2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013) (italics omitted) (“[W]here a pro se plaintiff
fails to submit a proper . . . Rule 56.1 statement in opposition to a summary judgment motion,
2

Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks omitted). The facts as
described below are not in dispute, except where indicated.
At the time of the relevant events, Plaintiff was a pre-trial detainee at Westchester County
Jail. (Decl. of Irma W. Cosgriff, Esq. (“Cosgriff Decl.”) Ex. 4 (“Pl.’s Dep.”) 16 (Dkt. No. 119);
Def.’s 56.1 ¶ 6.) He was designated to the 1-G Block, which housed inmates with mental health
issues. (Def.’s 56.1 ¶ 11; Pl.’s Dep. 55.) On August 12, 2011, Defendant was partnered with
Correction Officer Steve Coaxum (“Coaxum”) to conduct searches of inmate cells in the 1-G
block as “a Special Search Team.” (Def.’s 56.1 ¶ 13.) Defendant contends that this was part of a
“routine, random search of the 1-G Block,” done “to ensure the safety of other inmates and staff
from contraband,” (id. ¶¶ 11–12), but Plaintiff claims that “[i]t looked like [his] cell was
targeted,” (Pl.’s Dep. 79).
At approximately 7:12 am, Defendant and Coaxum, along with other officers paired in
teams, began searching all of the cells in 1-G. (See Cosgriff Decl. Ex. 7 (“Camera 7”).) 2 At
approximately 7:18:10 am, Defendant and Coaxum approached Plaintiff’s cell door. (Def.’s 56.1
¶ 17; Camera 7 at 7:18:10 am (showing an officer in the back right of the hallway approach the

the [c]ourt retains some discretion to consider the substance of the plaintiff’s arguments, where
actually supported by evidentiary submissions.” (internal quotation marks omitted)); Pagan v.
Corr. Med. Servs., No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013)
(explaining that “[t]he [c]ourt ha[d] considered the [motions for summary judgment] in light of
the entirety of the record to afford [the pro se] [p]laintiff the special solicitude to which he [was]
entitled” where the plaintiff failed to submit a Rule 56.1 response).
2

Defendant states that these searches began at approximately 7:05 am, but the cited video
does not show officers entering the 1-G block until closer to 7:07 am. (Compare Def.’s 56.1
¶ 16 with Camera 7 at 7:07:33 am.) And, no officers actually return to begin searching
individual cells until closer to 7:12:32 am. (See Camera 7 at 7:12:32 am.)
3

furthest door on the left from the camera angle).) 3 The sliding door to Plaintiff’s cell then
opened. (Def.’s 56.1 ¶ 17; Pl.’s Dep. 103.) At this point, the Parties’ versions of events diverge.
1. Defendant’s Version and the Video
Defendant contends, and the video shows, that he handcuffed Plaintiff in his cell and
“backed him out of his cell without incident,” (Def.’s 56.1 ¶ 18; Camera 7 at 7:18:40 am; see
also Pl.’s Dep 109 (testifying that he was handcuffed “[i]mmediately” upon leaving his cell).) 4
Coaxum then entered Plaintiff’s cell to search it. (Def.’s 56.1 ¶ 18.) While Coaxum searched,
Defendant stood in the hallway outside of Plaintiff’s cell, where he directed Plaintiff to face the
wall until the search was complete and pat frisked Plaintiff, beginning at 7:19:36 am. (Id. at
¶ 19; Camera 7 at 7:19:36 am.) 5 As of approximately 7:20:20 am, Plaintiff was the only detainee

3

Defendant relies heavily on video footage captured by a stationary camera in 1-G block
to support his version of events. (See Camera 7.) Plaintiff does not contest the authenticity of
this video. While the Court considers the video when deciding the instant Motion, it notes that
the video is somewhat blurry and captures the entire 1-G block at the time of events, rather than
only the interaction between Plaintiff and Defendant. There are other officers and inmates in the
hallway at the same time, none of whose faces can be seen with great clarity, and Defendant does
not identify with particularity which two people in the video are Plaintiff and Defendant.
However, because Defendant cited to specific time-stamps in the video, which Plaintiff does not
dispute, the Court can identify which of the two (albeit blurry) figures are Plaintiff and
Defendant. At the very least, the Court can identify Plaintiff as of approximately 7:20 am, when
only one inmate remains in the hallway. (Camera 7 at 7:20:20 am.) In any event, even if it is not
clear which of the inmates and officers are Plaintiff and Defendant, respectively, the video
footage is clear enough to show the amount of time each inmate was in the hallway, how each
was generally positioned, and whether there were any altercations involving a significant amount
of force.
4

It is undisputed that Defendant handcuffed Plaintiff, although when, where, and how
tightly is disputed, as discussed later in Plaintiff’s version of events. (See, e.g., Pl.’s Dep. 72
(“[Defendant] was the one that handcuffed me.”).
5

The video is blurry, and Plaintiff and Defendant are the furthest figures from the
camera, but it is possible to see vague patting and touching occurring. (See Camera 7 at 7:19:36
to 7:19:50 am.) Similarly, although Defendant contends that it is undisputed that he was
“standing at least 2 feet behind Plaintiff” at 7:19:50 am, the Court finds it difficult to see that
with certainty. (See Camera 7 at 7:19:50 am.) But, it is possible to see that Defendant made no
4

still in the hallway, he was not touching the wall, and no officers were closer than a few feet
away from him. (Camera 7 at 7:20:20 am.) At approximately 7:21:26 am, Coaxum completed
the search of Plaintiff’s cell and Defendant directed Plaintiff back into his cell, ordering him to
stand at the foot of the bed so that Defendant could remove his handcuffs. (Def.’s 56.1 ¶ 20;
Camera 7 at 7:21:26–7:21:32 am.) Plaintiff walked into his cell still wearing handcuffs, while
Defendant stood in the doorway. (Camera 7 at 7:21:26–7:21:32 am.)
Defendant “removed Plaintiff’s left handcuff,” and then “ordered [Plaintiff] to place his
left hand on top of his head.” (Def.’s 56.1 ¶ 21.) Plaintiff “kept his left arm down by his left
side, ignoring [Defendant’s] order.” (Id.) 6 Plaintiff asked “why in the hell are you
motherfuckers searching my cell?” (Id.) Defendant “repeated his order again, this time loudly[,]
to Plaintiff, to place his left hand on top of his head.” (Id.) “During this exchange, [Defendant]
maintained control of Plaintiff’s right arm which was still cuffed and behind his back.” (Id.)
Although the video does not capture these events, which transpired inside Plaintiff’s cell, it
shows that Defendant was positioned in the doorway of Plaintiff’s cell until approximately
7:21:57 am. (Camera 7 at 7:21:26–7:21:57 am; see also Def.’s 56.1 ¶ 21.)
“Plaintiff made a sudden turn to the right towards [Defendant] while raising his left arm
above his head with a clenched fist.” (Def.’s 56.1 ¶ 22.) “In order to prevent injury, [Defendant]
placed his left forearm on Plaintiff’s upper back and used . . . physical force to guide Plaintiff

quick or extravagant movements, as all of the officers on the video in the hallway are moving
quite slowly and do not appear to be standing close to the inmates facing the wall.
6

Defendant states that “Plaintiff was acting in a passive resistant manner.” (Def.’s 56.1
¶ 21.) The Court is unsure whether this a term of art used by correction officers or merely a legal
conclusion.
5

face down to the bed that was directly in front of him.” (Id.) 7 “Once Plaintiff was on the bed,
[Defendant] grabbed Plaintiff’s left arm with his left hand and ordered him to put his left hand
behind his back.” (Id.) However, Plaintiff “actively resisted” by “tens[ing] his left arm to
attempt to prevent [Defendant] from handcuffing him.” (Id.; see also Cosgriff Decl. Ex. 8
(“Diaz Aff.”) ¶ 4.) During this interaction, at approximately 7:22 am, Captain Marcelo Diaz, the
Sergeant Supervisor in charge of the floor including 1-G Block, “entered Plaintiff’s cell where
[he] observed Plaintiff’s non-compliance with the orders of [Defendant].” (Diaz Aff. ¶ 4; see
also Camera 7 at 7:22 am.) Diaz “also gave Plaintiff an order to comply and place his hand
behind his back.” (Diaz Aff. ¶ 4.) Defendant “then reapplied the left handcuff and maintained
control of Plaintiff.” (Def.’s 56.1 ¶ 22; see also Diaz Aff. ¶ 4.)
Meanwhile, also at approximately 7:22 am, “an officer-needs-assistance alarm,” also
known as a “code signal 13,” was sounded to call the facility’s Emergency Response Team
(“ERT”). (Def.’s 56.1 ¶¶ 24–25; Diaz Aff. ¶ 4.) These alarms summoning ERT are intended “to
ensure the safety of staff members and inmates and, if necessary, restore order to the area.”
(Def.’s 56.1 ¶ 26.) “During any ERT activation, an officer accompanies ERT to the incident area
equipped with a handheld video camera . . . to document the response.” (Id. ¶ 27.) Accordingly,
at approximately 7:23:22 am, ERT responded to the call and arrived at Plaintiff’s cell. (Camera
7 at 7:23:22 am; Diaz Aff. ¶ 4.) 8 Correction Officer Raymond Valles arrived with ERT to

7

Defendant claims he “used the minimal necessary physical force” to do this. (Def.’s
56.1 ¶ 22.) This is a legal conclusion which presupposes the result of this lawsuit. However, it
is undisputed that Westchester County Department of Corrections policy “provides guidelines
and procedures for staff when they are confronted with a situation where physical force may be
required,” including when it is appropriate to use force and how much it is appropriate to use.
(Id. ¶ 24; see also Cosgriff Decl. Ex. 10 (“WCDOC Policy No. 18-02”).)
8

Defendant’s 56.1 Statement incorrectly states that ERT responded at 7:22 am, but that
was when the alarm sounded. (Def.’s 56.1 ¶ 28.)
6

operate the handheld video camera. (Def.’s 56.1 ¶ 28.) “As soon as ERT arrived and took
control of Plaintiff, [Defendant] exited the cell.” (Id. ¶ 23; see also id. ¶ 30 (“As soon as ERT
arrived at Plaintiff’s cell, [Defendant] (and [Coaxum]) left and ERT took control.”); Camera 7 at
7:23:27 am (showing officers leaving Plaintiff’s cell after the ERT went in).) Less than 2
minutes elapsed from the time Plaintiff entered his cell—around 7:21:26 am—until ERT arrived,
at 7:23:22 am. (Def.’s 56.1 ¶ 23; see also Camera 7 at 7:21:26–7:23:22 am.)
“When ERT arrived, Plaintiff was fully clothed and handcuffed behind his back lying
face down on his bed in his cell.” (Def.’s 56.1 ¶ 30.) “ERT placed restraints on [Plaintiff’s] legs
and he was escorted outside to the hallway while a search of his cell was conducted[,] which
produced negative results.” (Id.; see also Camera 7 at 7:23:56 am (showing Plaintiff leaving his
cell).) The ERT officer who placed the leg restraints on Plaintiff and escorted him into the
hallway was officer Salvatore Ficarrotta, (Cosgriff Decl. Ex. 13 (“ERT Video 2”) at 0:30–0:41;
see also id. Ex 9 at 507 (incident narrative report stating that “Ficarrotta . . . placed leg restraints
on [Plaintiff’s] person and was escorted outside of cell while a search of cell was conducted”).) 9
While in the hallway, ERT faced Plaintiff against the wall, while Plaintiff “was cursing and
saying . . . ‘there was no reason for them to do this.’” (Def.’s 56.1 ¶ 31; see also Camera 7 at
7:24:04 am (putting Plaintiff against the wall); Cosgriff Decl. Ex. 13 (“ERT Video 1”) at 1:11–
2:15 (showing Plaintiff on the wall and telling the ERT officer holding him in place that he had
previously had knee surgery and a broken hand, that there was “no reason for [them] to do this,”
and later, that “there’s no reason for you to be pushing me up like a mother fucking dog”).)

9

Defendant submitted the handheld video taken by Officer Valles. (Cosgriff Decl. Ex.
13.) The disc contains two video files: (1) the actual video footage of the incident between ERT
and Plaintiff, which the Court will call “ERT Video 1,” and (2) a video taken immediately after
the incident in which an officer reads a report of the incident, which the Court will call “ERT
Video 2.” (Id.) Plaintiff does not contest the authenticity of these videos.
7

“Plaintiff was directed to quiet down.” (Def.’s 56.1 ¶ 31; see also ERT Video 1 at 1:47–1:51
(ERT officer stating “Nobody’s doing anything, be quiet.”).)
“ERT and Plaintiff were in the hallway for approximately one minute and then Plaintiff
was guided back into his cell[,] where ERT gave him orders to comply and removed his
restraints.” (Def.’s 56.1 ¶ 31; see also Camera 7 at 7:25:09–7:25:14 (showing Plaintiff walking
back into his cell); ERT Video 1 at 1:11–2:15 (standing in hallway against the wall); id. at 2:16
(“Get on the bed.”); id. at 2:20–2:24 (“Listen, I can’t take the leg ties off—on the bed.”).)
“Plaintiff was standing facing the wall in his cell and given orders to take his clothes off so that
he could be searched for contraband, weapons and any visible injuries, all with negative
findings.” (Def.’s 56.1 ¶ 31; see also ERT Video 1 at 2:43–3:01, 3:32–3:39 (telling Plaintiff
someone would remove his restraints and that failure to comply with ERT orders would be
considered “an act of aggression” and would result in force being used); id. at 4:08–5:43
(instructing Plaintiff to undress and take other actions so that the ERT officers could search him,
and showing that Plaintiff complied).) “After the search was completed, Plaintiff was directed to
lay face down on his bed and ERT left his cell.” (Def.’s 56.1 ¶ 31; ERT Video 1 at 5:43–6:05
(same).) The ERT was inside Plaintiff’s cell for approximately 3 and a half to 4 minutes, and the
last member of the ERT was out of the cell by approximately 7:29:02 am. (See Camera 7 at
7:28:46–7:29:02 am (showing ERT leaving Plaintiff’s cell); ERT Video 1 at 2:16–6:00 (showing
ERT inside Plaintiff’s cell).)
Per prison protocol, (see WCDOC Policy No. 18-02 at 527), an Alarm or Incident
Response and Use of Force Report (“UOF Report”) was filed to document this incident. (Def.’s
56.1 ¶ 32.) Among other things, the report included statements, narratives, and reports from
officers on the scene, a Use of Force by Staff Report signed by Defendant, a disciplinary Report

8

signed by Defendant documenting that Plaintiff’s “assaultive behavior” resulted in him being
“segregated pending a disciplinary hearing,” an Injury Report relating to Plaintiff’s medical
treatment, and an Inmate Statement Form submitted by Plaintiff. (Id. ¶ 32(A).) 10 The report
indicates that (1) Captain John Gleason, the assigned shift commander, reviewed the entirety of
the report’s contents; (2) Assistant Warden Robert Doty conducted a further review of the
incident and the associated documentation om August 15, 2011; (3) Westchester County
Department of Correction’s Use of Force Review Board then conduct a full review of all the
submitted documentation, including both videos of the incident, on August 24, 2011, and
determined that the staff members’ actions “complied with existing department policy and
procedure” and that the “[v]ideo evidence and officers reports refute [Plaintiff’s] claim”; and (4)
on August 26, 2011, Deputy Commissioner Wanda D. Smithson reviewed the Board’s
determination and accepted its findings. (Id. ¶ 32.)
2. Plaintiff’s Version(s)
In the Complaint, Plaintiff alleged that he “was forced from his cell [and] forced on the
wall” in the hallway, where Defendant “us[ed] excessive force upon him” by “twisting and
choking [Plaintiff],” “slamming his face into [the] cell door,” “picking [Plaintiff] up by the neck
and twisting the handcuffs,” and “roughly put[] [his] elbows and knees in [P]laintiff[’]s back,”
and then other unspecified officers “helped [Defendant] drag Plaintiff into [his] cell . . .
slamming his face again into [the] cell wall” and “choking him with elbows and knees in his
back.” (Second Am. Compl. 5 ¶ 3.) However, Plaintiff’s version of events changed throughout
his deposition, such that it is unclear whether the alleged assault took place inside or outside of

10

Defendant quotes from Plaintiff’s Inmate Statement Form, but the document does not
appear in the exhibits provided to the Court. (See Def.’s 56.1 ¶ 33 n.9 (citing Ex. 9 at 514, which
is missing from Ex. 9).)
9

his cell and who else was with Defendant when it occurred. Indeed, Plaintiff does not
distinguish between the incident involving Defendant and the one involving the ERT, and at
times indicates that Defendant was a member of the ERT. However, he consistently insists he
did not refuse to obey any orders. (See Pl.’s Dep. 75 (“I didn’t refuse anything.”); id. at 97
(“There was a . . . false report claiming that I didn’t follow an order or something.”); id. at 110
(“I was compliant. I didn’t break any rule.”).)
Initially, Plaintiff testified that Defendant arrived at his cell with the ERT—or, as he calls
them, “the turtles”—and they immediately attacked him. (Id. at 59 (testifying that Defendant
“attacked [him]” upon walking into his cell for the search); id. at 56 (claiming that multiple
“officers came to [his] cell and just started roughing [him] up”); id. at 79 (testifying that the
turtles “came the same time [Defendant] did” and stayed “[t]he entire time”).) According to
Plaintiff, these officers were members of “[t]he special turtle unit” and “came with shields and
helmets” to his cell, where they “told [Plaintiff] to get on the wall.” (Id. at 56.) Then, after
Plaintiff “got on the wall,” “the guy”—who he identifies as Defendant—started “pushing [his]
head against the wall.” (Id. at 56–57; see also id. at 57–58 (testifying that Defendant was an
ERT turtle, and “was with the turtle unit”); id. at 59–60 (testifying that Defendant entered
Plaintiff’s cell “[w]ith the turtles,” who were “right behind him” and “with him”); id. at 60 (“I
remember, he entered with the turtle crew.”); id. at 61 (“[H]e came in with officers . . . [T]urtle
unit.”); id. at 71–72 (testifying that Defendant “was in charge of the turtles”).) Defendant then
“grab[bed] [Plaintiff] by the back of [his] neck,” and when Plaintiff said he had injuries,
Defendant “told [him] to shut the eff up,” and “put[] elbows in [Plaintiff’s] back, choking [him].”

10

(Id. at 57.) 11 Defendant “[p]ut . . . handcuffs [on Plaintiff],” “trying to break [Plaintiff’s] arm”
by twisting it, “and pick[ed] [Plaintiff] up by the handcuffs,” with “assistance” from other
officers. (Id.; see also id. at 113–14 (testifying that Defendant had him by the handcuffs and the
neck, while the turtles picked him up by the leg irons and handcuffs).) Defendant told Plaintiff
“to get undressed” and “[s]lammed [his] face into the wall when he was pushing [Plaintiff’s]
head against the wall.” (Id. at 57.)
Later in his deposition, however, Plaintiff testified that when Defendant initially came to
his cell, he said “[s]tep out your cell,” without telling Plaintiff why, and Plaintiff complied.
(Pl.’s Dep. 103–04; see also id. at 60 (testifying that Defendant “[a]sked [Plaintiff] to step out”
of the cell and Plaintiff “stepped out [of] the cell”); id. at 61 (testifying that Defendant entered
his cell “[a]nd asked [Plaintiff] to step outside [his] cell”).) Then, according to Plaintiff,
Defendant “push[ed] [his] face on the wall and chok[ed] him.” (Id. at 60; see also id. at 106
(testifying that Defendant kept Plaintiff “pressed against the wall” and choking him while others
were “tearing up [Plaintiff’s] cell”).) Plaintiff said, “I have injuries. You don’t have to do
everything because I’m complying. Whatever you ask me to do,” to which Defendant replied
“’[s]hut the eff up.” (Id. at 60; see also id. at 62 (testifying that Plaintiff said “You don’t have to
rough me up. I’m already injured,” to which Defendant responded “[s]hut the eff up”); id. at 67
(testifying that once he told Defendant he didn’t have to hurt him, Defendant said “[s]hut the eff
up”); id. at 104 (testifying that outside the cell, Defendant made this comment and was “being

11

As noted below, Plaintiff’s testimony is inconsistent about when and where he was
lifted by the neck and pushed on the wall. (See Pl.’s Dep. 74 (stating that this happened “both”
inside and outside his cell); id. at 102–03 (testifying that Defendant grabbed him by the neck
inside and outside his cell).) However, he later testified that Defendant picked him up by the
neck and squeezed so hard that Plaintiff “couldn’t pick [his] head up off the pillow,” “you could
see the bruises, “and his “neck was red.” (Id. at 74.) And, he testified that his “whole face” was
pushed into the wall while Defendant had him by the neck. (Id. at 76–77.)
11

rough”); id. at 110 (testifying that Defendant only said “[s]hut the eff up” to him while outside
the cell during the turtles’ search of his cell).) Plaintiff testified that, while “on the wall,”
Defendant “started roughing [Plaintiff] up.” (Id. at 62). Specifically, Defendant “started
choking [Plaintiff],” “[s]lammed [his] face against the wall[,] and told [Plaintiff] to be quiet.”
(Id.; see also id. at 64 (“[Defendant] smashed [Plaintiff’s] head against the wall and against the
cell gate.”).) Then, Defendant handcuffed Plaintiff tightly, so he “couldn’t do nothing” and “had
gouges in [his] wrist,” and took Plaintiff’s arm “cast out of [his] cell.” (Id. at 63–64.) The
choking outside the cell occurred for “more than one minute.” (Id. at 110–111.) And, Defendant
stayed with Plaintiff the entire time while the search of his cell took place. (Id. at 106–07.)
Plaintiff’s testimony is inconsistent about whether these events occurred inside or outside
of his cell, but at times appears to emphasize it happened both inside and outside the cell. See,
e.g., id. at 63 (testifying that three other turtle officers watched this assault outside his cell); id. at
60 (testifying that this whole incident occurred “[i]n and out” of his cell and that Defendant “did
the same thing in my cell that he did outside”); id. at 64 (testifying that the tight handcuffing
“happened outside [his] cell,” as did the smashing of his head “against the wall and . . . the cell
gate”); id. at 74 (“This was outside my cell and inside my cell . . . Both.”); id. at 76–77
(testifying that outside his cell, Defendant was smashing his face into the concrete wall); id. at 78
(testifying that his face was smashed against “the back wall of [his] cell”).)

Plaintiff testified

that the assault outside his cell “lasted more than ten minutes” and that another officer was
filming the “whole incident” with a hand-held video camera. (Id. at 67–68; see also id. at 107
(testifying that he “would think” it lasted for more than 10 minutes).)
Afterwards, the officers “took [Plaintiff] back in the cell,” where Defendant held his
“hand by the handcuff and by the leg cuff” and “[m]ade [Plaintiff] get undressed.” (Id. at 68.)

12

The officers pushed Plaintiff’s “mattress on the floor” and “pushed [Plaintiff] on the metal
frame,” where Defendant “got his hand on [Plaintiff’s] neck and his elbow on [Plaintiff’s] back.”
Id. at 69.) Defendant, after removing Plaintiff’s handcuffs and holding Plaintiff “on the bed with
a chokehold,” “tried to . . . break [Plaintiff’s] arm” by trying “to take [Plaintiff’s] arm and make
[his] hand touch the back of [his] head.” (Id. at 69; see also id. at 78 (testifying that Defendant
“initiated the violence[:] the elbow in [his] back, the twisting of [his] arm, the smashing of [his]
face”).) Plaintiff testified that at this point, Defendant “made [him] get up after that” and put his
“face on the wall” at “the back of the cell,” as he had previously testified. (Id. at 70; id. at 78
(testifying that Defendant pushed his face into “the back wall of [his] cell”); but see id. at 60, 62
(testifying that this occurred outside of the cell).)
3. Medical Attention & Injuries
Plaintiff was asked before the ERT left his cell and again afterwards whether he wanted
medical attention, but he declined both times. (Def.’s 56.1 ¶ 31 & n.8.) Two hours after the
incident, however, Plaintiff requested medical attention, and he was seen and evaluated that day.
(See id.; id at ¶ 34; Pl.’s Dep 83.) The medical professionals he saw examined his wrist and said
it “was red”; “the handcuff marks” and the areas “where the skin was shed” were visible. (Pl.’s
Dep. 82.) Plaintiff also had bruising on his cheekbone. (Id. at 84–85.) The medical professional
also examined Plaintiff’s neck. (Id. at 84.) And, because Plaintiff claimed to have sustained a
back injury from the incident, x-rays were taken of his spine. (Cosgriff Decl. Ex. 14 (“Pl.’s
Medical Records”) at 240.) 12 Plaintiff was at some point prescribed Motrin pills, although it is
unclear what injury that prescription was meant to treat. (Pl.’s Dep. 84.) Otherwise, “no
medication or treatment was administered.” (Def.’s 56.1 ¶ 34.)

12

Plaintiff’s medical records were filed under seal. (See Dkt. Nos. 117, 124).
13

Plaintiff continued to request pain medication and various scans for his pain. (See, e.g.,
Pl.’s Medical Records 250–255.) Plaintiff testified that he “was already injured, so [Defendant]
just messed [him] up even more.” (Id. at 83.) The pre-existing injury was a spinal cord injury,
(id. at 31, 97), which he received from an earlier, unrelated assault, (id. at 32, 98). An x-ray
taken of his cervical spine on August 16, 2011 revealed “mild degenerative changes” but
“normal alignment” and “no fracture.” (Def.’s 56.1 ¶ 38.) Similarly, x-rays of his thoracic and
lumbar spine showed “scoliotic curvature” and “mild degenerative changes,” but “no fracture.”
(Id.) Plaintiff also had a prior hand injury, which had required surgery, and a neck injury. (Pl.’s
Dep. 98–99; Def.’s 56.1 ¶ 35 (“Plaintiff had hand, back and neck injuries prior to his
incarceration at the WCDOC.”).). After this incident, Plaintiff received “therapy for [his] neck
and [his] back” and got “treatment for [his] hand.” (Pl.’s Dep 100.) He also later sought mental
health treatment, for this incident and previous ones, but the person he spoke with thought he did
not “really need it.” (Id. at 85.)
B. Procedural History
Plaintiff commenced this Action by filing a Complaint on July 16, 2012 against
Westchester County Correctional Jail, New York State Commission of Correction, Sergeant
Susan Hubbard, Morton, Correction Officer Bradley Roane, Officer Christopher Lambert,
Sergeant Francesco Imbrogno, and various unnamed defendants. (Dkt. No. 2.) On October 2,
2012, the Court dismissed Plaintiff’s claims with respect to Westchester County Correctional Jail
for failure to state a claim and with respect to New York State Commission of Correction on
sovereign immunity grounds. (Dkt. No. 6.) The Court also directed the Clerk of Court to add
the County as a Defendant under Federal Rule of Civil Procedure 21. (Id.) On July 31, 2013,

14

the Court dismissed the Action without prejudice as to Imbrogno and Lambert, whom Plaintiff
still had not served. (Dkt. No. 21.)
After receiving multiple extensions of time to file an amended complaint, (see Dkt. Nos.
32, 35, 37, 44), Plaintiff filed an Amended Complaint on November 24, 2014, naming more than
90 defendants and listing the docket numbers of three other cases that had already been
dismissed. (Dkt No. 46.) On December 17, 2014, the Court dismissed the Amended Complaint
for failure to comply with Federal Rule of Civil Procedure 8. (Dkt. No. 48.) On March 24,
2015, Plaintiff filed a Second Amended Complaint, naming more than 20 defendants. (Dkt. No.
55.) The remaining Defendants who had been served—the County, Sergeant Hubbard, and
Correction Officers Morton and Roane— filed a Motion to Dismiss, (see Dkt. Nos. 65–67),
which Plaintiff did not oppose. On March 30, 2016, the Court issued an Opinion & Order
granting the Motion to Dismiss with prejudice as to all Defendants except Morton. (Opinion &
Order (Dkt. No. 74).) On May 3, 2016, Plaintiff filed a Motion for Reconsideration, (Dkt. No.
77), which the Court denied, (Dkt. No. 84). Morton filed an Answer on May 16, 2016. (Dkt.
No. 80.) The Court held a status conference on August 25, 2016, at which a discovery schedule
was set, (see Docket (entry for Aug. 25, 2016)), and conferences again on February 10, 2017,
(see id. (entry for Feb. 10, 2017)), and April 18, 2017, (see id. (entry for Apr. 18, 2017)).
Plaintiff filed another Motion for Reconsideration of the Court’s Opinion & Order on May 4,
2017, (Dkt. No. 104), which the Court denied, (Dkt. No. 108).
On May 5, 2017, Defendant Morton, the only remaining Defendant, filed a pre-motion
letter explaining the grounds on which he would move for summary judgment. (Dkt. No. 101.)
Pursuant to a briefing schedule set by the Court, (see Dkt. Nos. 109, 114), Defendant filed a
Motion for Summary Judgment, along with a Rule 56.1 statement and accompanying papers, on

15

August 24, 2017, (see Dkt. Nos. 118–121). Defendant also filed and served a statement
notifying Plaintiff of the potential consequences of not responding to the Motion, as required by
Local Rule 56.2. (Dkt. No. 122). On October 20, 2017, Defendant filed a motion to deem the
Motion for Summary Judgment Unopposed. (Dkt. No. 125.) On October 23, 2017, the Court
gave Plaintiff “one last 30-day extension to file his opposition papers.” (Dkt. No. 127). On
November 13, 2017, Plaintiff sent a letter to the Court requesting a 30-day extension to respond
to an unidentified petition for certiorari. (Dkt. No. 128.) The Court stated in a memo
endorsement that “[t]he Court is unclear about what Plaintiff is referring to” and that “Plaintiff
[should] explain further by [November 30, 2017].” (Dkt. No. 129.) Plaintiff did not respond this
Order and has since had no communication with the Court.
II. Discussion
A. Standard of Review
Summary judgment is appropriate where 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 Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir.
2014) (same). “In determining whether summary judgment is appropriate,” a court must
“construe the facts in the light most favorable to the non-moving party and . . . resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653
F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014)
(same). “It is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry, 137 F. Supp.
at 521 (same).

16

“However, when the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim,” in which case “the nonmoving party must come
forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114,
123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, “[t]o survive a
[summary judgment] motion . . . , [a nonmovant] need[s] to create more than a ‘metaphysical’
possibility that his allegations were correct; he need[s] to ‘come forward with specific facts
showing that there is a genuine issue for trial,’” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d
Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986)), “and cannot rely on the mere allegations or denials contained in the
pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014)
(internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)
(“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 . . . .”). And, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
“On a motion for summary judgment, a fact is material if it might affect the outcome of
the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental
Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage,
“[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any

17

factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted). Thus, a
court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm.
Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks
omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986)). However, a district
court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc.
v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on
affidavits . . . to establish facts, the statements ‘must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant . . . is competent to testify
on the matters stated.’” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ.
P. 56(c)(4)).
Finally, the Second Circuit has instructed that when a court considers a motion for
summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham, 848
F.2d at 344; Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7
(S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se
litigant . . . liberally” and interpret them “to raise the strongest arguments that they suggest,”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (italics and internal
quotation marks omitted). And, “the failure to oppose a motion for summary judgment alone
does not justify the granting of summary judgment.” Vermont Teddy Bear Co., 373 F.3d at 244;
see also Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination
of the legal validity of an entry of summary judgment should . . . be[] made in light of the
opposing party’s pro se status” (italics omitted)). “Nonetheless, proceeding pro se does not
otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party’s
bald assertions unsupported by evidence . . . are insufficient to overcome a motion for summary

18

judgment.” Houston, 27 F. Supp. 3d at 351 (alterations, italics, and internal quotation marks
omitted); see also Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2
(S.D.N.Y. July 31, 2017) (same).
B. Analysis—Excessive Force
1. Applicable Law
Defendant argues that there is no dispute of material fact as to whether he used excessive
force against Plaintiff. (Def.’s Mem. Of Law in Supp. of Mot. for Summ. J. (“Def.’s Mem.”)
(Dkt. No. 121) 8–14.) Because Plaintiff was a pre-trial detainee rather than a convicted prisoner
at the time he was allegedly subjected to excessive force, (see Def.’s 56.1 ¶ 6; Pl.’s Dep. 16), his
claim falls under “the Due Process Clause of the Fourteenth Amendment, rather than the Cruel
and Unusual Punishments Clause of the Eight[h] Amendment,” Darnell v. Pineiro, 849 F.3d 17,
29 (2d Cir. 2017). To state a claim for excessive force under the Due Process Clause, Plaintiff
must allege that (1) the force used was “deliberate”—in other words, “purposeful,” “knowing,”
or “possibly [] reckless”—“not accidental[] or negligent[]”; and (2) “the force purposely or
knowingly used against him was objectively unreasonable.” Kinglsey v. Hendrickson, 135 S. Ct.
2466, 2472–73 (2015).
Because “the relevant standard is objective not subjective . . . the defendant’s state of
mind is not a matter that a plaintiff is required to prove.” Kingsley, 135 S. Ct. at 2472. Rather, a
plaintiff must show that the force was “not rationally related to a legitimate governmental
objective or that it [was] excessive in relation to that purpose.” Id. at 2473–74. In describing
when the use of force is objectively unreasonable, the Supreme Court has explained that:
[O]bjective reasonableness turns on the facts and circumstances of each particular
case. A court must make this determination from the perspective of a reasonable
officer on the scene, including what the officer knew at the time, not with the 20/20
vision of hindsight. A court must also account for the legitimate interests that stem
19

from [the county] government’s need to manage the facility in which the individual
is detained, appropriately deferring to policies and practices that in the judgment of
jail officials are needed to preserve internal order and discipline and to maintain
institutional security.
Id. at 2473 (alterations and internal quotation marks omitted). This analysis is driven by the
recognition “that running a prison is an inordinately difficult undertaking, and that safety and
order at these institutions requires the expertise of correctional officials, who must have
substantial discretion to devise reasonable solutions to the problems they face.” Id. at 2474
(alteration, citations, internal quotation marks omitted). Factors to consider in determining the
objective reasonableness of the use of force include, but are not limited to:
the relationship between the need for the use of force and the amount of force
used; the extent of the plaintiff’s injury; any effort made by the officer to temper
or to limit the amount of force; the severity of the security problem at issue; the
threat reasonably perceived by the officer; and whether the plaintiff was actively
resisting.
Id. at 2473.
2. Plaintiff’s Excessive Force Claim
It is undisputed that Defendant used force at some point against Plaintiff. (E.g., Def.’s
Mem. 13 (“[T]here is no dispute that force was used by [Defendant].”) Therefore, the Court
must decide whether there is a dispute of material fact regarding whether the force used was
“objectively unreasonable.” Kingsley, 135 S. Ct. at 2473. Construing Plaintiff’s deposition in
the light most favorable to him, he claims that Defendant used excessive force against Plaintiff
(1) inside his cell, by bashing Plaintiff’s head against the wall, grabbing him by the neck and
choking him, and picking him up by his handcuffs; (2) outside his cell, by pushing him and
smashing his head against the wall, choking him, and handcuffing him tightly; and (3) also inside
his cell, by putting him in a chokehold and trying to break his arm. The Court will consider

20

these claims in light of the entire record, but notes that all but a fraction of the relevant time
period is captured on video.
Plaintiff initially testified that Defendant arrived at his cell with the ERT, bearing shields
and helmets, and immediately attacked him. (See Pl.’s Dep. 56, 59–60, 79.) He specifically
testified that Defendant was part of the “turtle unit,” meaning the ERT. (Id. at 56–57, 71–72.)
However, the video evidence, corroborated by numerous officer affidavits and reports,
thoroughly belies Plaintiff’s testimony. The video of the 1-G block hallway shows Defendant
arriving at Plaintiff’s cell with only one other officer—Coaxum—at 7:18:10 am, without any
ERT officers or any of the equipment they carry. (Camera 7 at 7:18:10 am.) The ERT officers,
carrying this equipment and wearing distinct uniforms, did not arrive at Plaintiff’s cell until
7:23:22 am. (Camera 7 at 7:23:22 am.) The video also contradicts Plaintiff’s testimony that
Defendant immediately attacked him in his cell. (E.g., Pl.’s Dep. 59 (testifying that Defendant
“attacked [him]” upon entering his cell).) Rather, Defendant is shown backing Plaintiff out his
cell in handcuffs and directing Plaintiff to stand facing the hallway wall while Coaxum remained
inside Plaintiff’s cell. (Camera 7 at 7:18:40.) 13 This video evidence is corroborated by
Defendant’s sworn affidavit. (See Cosgriff Decl. Ex. 5 (“Morton Aff.”) ¶ 7 (“[O]n August 12,
2011, I was posted as a Special Search Team, to conduct routine searches and I was not acting as

13

Plaintiff at one point testified that he was handcuffed “[i]mmediately” upon leaving his
cell. (Pl.’s Dep. 109.) Given that he is standing facing the wall in the hallway with his hands
behind him like all of the other inmates in the video, he was likely handcuffed before he left his
cell. However, construing the record in the light most favorable to him, the Court credits his
testimony that he was not. In any event, Plaintiff later testified that the handcuffing injuries he
suffered were as a result of being picked up by the handcuffs, not the mere act of handcuffing.
(Pl.’s Dep. 114.) Thus, this act alone does not constitute excessive force. See Dunkelberger v.
Dunkelberger, No. 14-CV-3877, 2015 WL 5730605, at *14 (S.D.N.Y. Sept. 30, 2015)
(explaining that “there is a consensus among courts in the Second Circuit that tight handcuffing
does not constitute excessive force unless it causes some injury beyond temporary discomfort”
(alteration and internal quotation marks omitted)).
21

a member of ERT.”); id. ¶ 9 (At approximately 7:18 am, CO Coaxum and I approached
Plaintiff’s cell door . . . I handcuffed Plaintiff and I backed him out of his cell without incident . .
. CO Coaxum entered his cell to search it.”).)
Plaintiff’s version of events later in his deposition more closely resembles the events
depicted in the hallway video. Plaintiff testified that Defendant initially asked him to “step out”
of his cell into the hallway, which he did. (Pl.’s Dep. 60, 61–62, 103–04.) However, what
Plaintiff contends happened next—namely, that Defendant pushed and slammed his face against
the wall and choked him while in the hallway—is again directly contradicted by the video. (See
Pl.’s Dep. 60, 62, 64, 106, 110–11.) Rather, the video shows that Plaintiff was standing, facing
the wall, from approximately 7:19 am until 7:21:26 am. (Camera 7 at 7:19–7:21:26 am.)
Although the image is not clear enough to see precisely what Defendant is doing, it is clear
enough to show that no one in the hallway—the inmates or the officers—made any substantial
movements. (See id.) And, while Defendant acknowledges that he pat frisked Plaintiff at
7:19:36 am, (see Def.’s 56.1 ¶ 19; Camera 7 at 7:19:36 am), as of 7:20:20 am, Plaintiff is the
only inmate standing in the hallway, and it is clear that he is not touching the wall and no officers
are closer than a few feet away from him, (Camera 7 at 7:20:20 am). Therefore, Plaintiff’s
testimony that Defendant was choking him or otherwise using force against him for more than 5
or 10 minutes in the hallway, (Pl.’s Dep. 67–68, 107, 111), is thoroughly disproven by the
video. 14 Even if Plaintiff could substantiate his assertion that his head was pushed into the wall

14

Plaintiff testified repeatedly that when he told Defendant about his injuries and told
him he did not need to use force, Defendant told Plaintiff to “[s]hut the eff up.” (See Pl.’s Dep.
60, 62, 67, 110.) Because the video has no sound, and therefore does not contradict this
testimony, the Court credits it. However, it is possible that Plaintiff confused this interaction
with Defendant with his later interaction with the ERT officer who held him against the wall and
told him to be quiet. (See ERT Video 1 at 1:47–1:51.) In any event, the mere fact that
Defendant told Plaintiff to shut up, without more, does not constitute an objectively unreasonable
22

or he was choked during this brief pat and frisk, courts have found such force to be “de minimis”
rather than excessive. See Armand v. Bartlett, No. 11-CV-4182, 2016 U.S. Dist. LEXIS 17236,
at *29–30 (E.D.N.Y. Feb. 10, 2016) (collecting cases), adopted by 2016 U.S. Dist. LEXIS 47853
(E.D.N.Y. Apr. 6, 2016); Vogelfang v. Capra, 889 F. Supp. 2d 489, 507 (S.D.N.Y. 2012)
(concluding that pushing an inmate against a wall to pat-frisk her is “a degree of roughness that
is common in prison contexts” and listing cases holding that force used in conjunction with pat
frisks is not excessive); Tavares v. City of New York, No. 08-CV-3782, 2011 WL 5877550, at *6
(S.D.N.Y. Oct. 17, 2011) (collecting cases holding that “actions taken consistent with a forceful
pat frisk” amount to only de minimis use of force), adopted by 2011 WL 5877548 (S.D.N.Y.
Nov. 23, 2011). 15
The video shows Plaintiff being directed back into his cell, while wearing handcuffs, at
approximately 7:21 am. (Camera 7 at 7:21:26–7:21:32 am.) After Plaintiff enters his cell, he is
no longer visible, but Defendant is seen standing in the doorway until approximately 7:21:57 am.
(Id. at 7:21:26–7:21:57 am.) What transpired in the following minute and 56 seconds is the only
part of the events relevant here that was not captured on video. (See Camera 7 at 7:23:22 am
(showing the ERT arrive); ERT Video 1 (beginning when the ERT arrives at Plaintiff’s cell).)
Defendant proffers that, while attempting to remove Plaintiff’s handcuffs, he used force only
when Plaintiff ignored his order, twice, to place his left hand on his head, and then “made a

use of force. See, e.g., Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 404 (S.D.N.Y.
2009) (concluding that when “a police officer yelled at [a] child and told her to shut up,” it was
“rude, but it [did] not constitute an application of physical force”).
15

The Court recognizes that one could attempt to distinguish pushing or pressing an
inmate’s head against the wall from “slamming” it against the wall. However, the Court is aware
of no case making such a distinction, and in any event, the video belies Plaintiff’s contention that
his head was slammed into the wall for any period of time, let alone a prolonged one.
23

sudden turn to the right towards [Defendant] while raising his left arm above his head with a
clenched fist.” (Def.’s 56.1 ¶¶ 21–22.) Defendant claims he placed his left forearm on
Plaintiff’s upper back and used minimal force to guide Plaintiff’s face down to the bed in front of
him, after which he grabbed Plaintiff’s left arm and ordered him to put his left hand behind his
back. (Id. ¶ 22.) Plaintiff “actively resisted” by “tens[ing] his left arm to attempt to prevent
[Defendant] from handcuffing him,” (id.), at which point Captain Diaz, who is seen on video
entering Plaintiff’s cell, (Camera 7 at 7:22 am), also gave Plaintiff an order to place his hand
behind his back, (Diaz Aff. ¶ 4). Defendant contends that he “then reapplied the left handcuff
and maintained control of Plaintiff.” (Def.’s 56.1 ¶ 22.) At this point, the ERT, which had been
activated via an “officer-needs assistance alarm” at 7:22 am, (id. ¶¶ 24–25), arrived and “took
control of . . . Plaintiff,” at which point Defendant left Plaintiff’s cell, (id. ¶ 23; see also id. ¶ 30
(same); Camera 7 at 7:23:27 am (showing officers leaving Plaintiff’s cell after the ERT went
in).)
Plaintiff’s account of what occurred in his cell differs wildly from Defendant’s, but is
also internally inconsistent throughout his deposition and contradicted by other events that are on
video. First, as described earlier, Plaintiff testified that Defendant came to his cell with the ERT
and began slamming his face into the wall, twisting his arm, putting elbows in his back and
ordering him to get undressed. (Pl.’s Dep. 57.) Again, the video contradicts these claims,
because Defendant did not enter Plaintiff’s cell and begin attacking him, nor did he arrive with
the ERT. Indeed, Plaintiff testified multiple times that all of these events were filmed by an
ERT officer, referring to the handheld video taken by Officer Valles. (See Pl.’s Dep. 58
(explaining that another officer “had his own video camera” and “was videoing everything”); id.
at 60–61 (“He did the same thing in my cell that he did outside. Once he got me in the cell—it’s

24

on videotape. Like I said, [an officer] had his own personal tape, and it’s on jail surveillance.”);
id. at 68 (“The whole incident is on tape.”).) But, that video does not begin until the ERT
arrives, at which point Defendant left Plaintiff’s cell. (Def.’s 56.1 ¶¶ 23, 30; see also Camera 7
at 7:23:27 am (showing officers leaving Plaintiff’s cell after the ERT went in).)
In fact, it appears that all of Plaintiff’s testimony about Defendant’s actions inside his cell
refers to events occurring after the ERT arrived, not before, when Defendant admits to having
used force. For example, Plaintiff testified that multiple officers “took [him] back in the cell,”
where Defendant “[m]ade [him] get undressed.” (Pl.’s Dep. 68.) However, when the multiple
other officers—the ERT—arrived, after Defendant had been alone in Plaintiff’s cell with him,
the handheld video shows that Plaintiff was still fully clothed and handcuffed, lying face down
on his bed. (ERT Video 1 at 0:48–1:02; see also Def.’s 56.1 ¶ 30 (same).) Similarly, Plaintiff
testified that when Defendant “tried to break [his] arm” and put him in “a chokehold” on the bed,
“most of the officers [were] in the cell at that time” and the ERT officer was filming with the
hand-held camera. (Pl.’s Dep. 69; see also id. at 57 (testifying that other officers gave Defendant
“assistance”); id. at 113–14 (testifying that the other ERT officers picked Plaintiff up by the leg
irons and handcuffs while Defendant had him by the handcuffs and neck).) However, these
facts are simply impossible in light of the time stamps on the videos—there is no time period in
which Defendant was with other ERT officers inside Plaintiff’s cell that is not captured on
video. 16 Moreover, Plaintiff testified that Defendant is the one who pushed him up against the

16

Indeed, Plaintiff at least a few times testified that he was not alone with Defendant,
another fact that is inconsistent with the video. (Pl.’s Dep. 107 (responding to question “So you
were with [Defendant] alone for ten minutes?” with “No. It was Officer Rome, and maybe
another turtle. Maybe two turtles–three turtles in my cell.”); id. at 109 (testifying again that there
were other officers “in full riot gear” with him and Defendant outside his cell).; id. at 60
(testifying that Defendant “entered with the turtle crew” and then “[t]hey put me on the wall”).)
25

wall in the back of his cell. (Id. at 56–67, 70, 78.) However, Plaintiff also testified that
Defendant was not “wearing the . . . head gear” the other ERT members were wearing. (Pl.’s
Dep. 72; see also id. at 58 (“[Defendant] didn’t have everything [that] [the ERT officers] have.
He had on his uniform. . . . They had on their shields and helmets.”).) But, the handheld video
clearly shows that an ERT officer with the head gear was the one holding him on the wall outside
and inside his cell. (See, e.g., ERT Video 1 at 1:33; id. at 3:05; see also Cosgriff Decl. Ex. 9 at
507 (incident report stating that Officer Ficarrotta escorted Plaintiff outside his cell).) Therefore,
Plaintiff’s own testimony contradicts his claim that Defendant held him on the wall with force,
whether it was inside or outside his cell.
Even assuming that Plaintiff misspoke, and that Defendant was wearing the ERT gear,
the events he is testifying to—when multiple officers are in his cell and when he is again held on
the wall outside of his cell—are captured on the handheld video. Plaintiff was held against the
wall while telling the officer about his injuries, telling him there was “no reason for [them] to do
this” and to “push [him] up like a mother fucking dog,” to which the officer said, “nobody’s
doing anything, be quiet.” (ERT Video 1 at 1:11-2:15; see also Camera 7 at 7:24:04 am (putting
Plaintiff against the wall).) After approximately one minute, Plaintiff was brought back into his
cell, where he was directed to stand facing the back wall and to undress so he could be searched.
(ERT Video at 2:15 –5:43.) After the search was finished, the ERT directed Plaintiff to lay face
down on his bed, and they left his cell. (Id. at 5:43–6:05.) The ERT was inside Plaintiff’s cell
for no more than 4 minutes. (Id. at 2:16–6:00; see also Camera 7 at 7:25:09–7:29:02 am
(showing the ERT entering and exiting Plaintiff’s cell).) At no point during this video, either
inside or outside of Plaintiff’s cell, does Defendant—or any other ERT officer, for that matter—
bash Plaintiff’s head against the wall, (see Pl.’s Dep. 56–57, 70, 78), place Plaintiff in a

26

chokehold on the bed or try to break his arms, (id. at 69, 78), or pick Plaintiff up by the
handcuffs and the neck, (id. at 57, 113–14). While an officer placed a hand on Plaintiff’s neck
and back while he was facing the wall inside and outside his cell, no reasonable juror could find
such touching to be objectively unreasonable. (See ERT Video 1 at 1:11–6:00.) See Kinglsey,
135 S. Ct. at 2473–74 (explaining that force is objectively unreasonable when it is “not rationally
related to a legitimate governmental objective or . . . excessive in relation to that purpose”).
As is obvious from the above recitation of Plaintiff’s deposition testimony, Plaintiff’s
version of events is replete with internal inconsistencies and impossibilities in light of the video
evidence. The Court therefore concludes that Plaintiff’s testimony, which is unsubstantiated by
any other evidence, is “so replete with inconsistencies and improbabilities that no reasonable
juror would undertake the suspension of disbelief necessary to credit the allegations made in his
complaint.” Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) (internal quotation
marks omitted); id. at 555 (noting that nothing in the record supported the plaintiff’s version of
events other than his “own contradictory and incomplete testimony”); Houston, 27 F. Supp. 3d at
351 (“[A] pro se party’s bald assertions unsupported by evidence . . . are insufficient to
overcome a motion for summary judgment.” (italics and internal quotation marks omitted));
Jeffreys v. Rossi, 275 F. Supp. 2d 463, 476 (S.D.N.Y. 2003), aff'd sub nom. Jeffreys v. City of
New York, 426 F.3d 549 (2d Cir. 2005) (collecting cases holding that “when evidence is so
contradictory and fanciful that it cannot be believed by a reasonable person, it may be
disregarded”). This conclusion is particularly apt when the videos of undisputed authenticity
directly contradict Plaintiff’s testimony. See Scott, 550 U.S. at 380 (“When opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a

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motion for summary judgment.”); Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)
(“Incontrovertible evidence relied upon by the moving party, such as a relevant videotape whose
accuracy is unchallenged, should be credited by the court on [a motion for summary judgment] if
it so utterly discredits the opposing party’s version that no reasonable juror could fail to believe
the version advanced by the moving party.”); Dobbins v. Ponte, No. 15-CV-3091, 2017 WL
3309726, at *5 (S.D.N.Y. Aug. 2, 2017) (holding that “the video makes clear that the force used
to restrain [the plaintiff] was not objectively unreasonable” (internal quotation marks omitted));
Merring v. The Town of Tuxedo, N.Y., No. 07-CV-10381, 2009 WL 849752, at *10 (S.D.N.Y.
Mar. 31, 2009) (“[W]here the nonmoving party’s version of the facts is blatantly contradicted by
the existence in the record of a videotape capturing the events in question, then the court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
(internal quotation marks omitted)). Therefore, to the extent Plaintiff’s contradictory deposition
testimony could be construed as raising a dispute of material fact here, the Court does not credit
it, because “a party cannot rely upon implausible testimony to create a triable issue of fact.”
Jeffreys, 275 F. Supp. 2d at 477 (collecting cases). Indeed, “permitting [Plaintiff] to present such
incredulous testimony at trial would be a terrible waste of judicial resources and a fraud on the
court.” Id. at 477–78.
The Court emphasizes that Plaintiff could have raised a dispute of material fact as to
whether he was subjected to excessive force in the short time that he was with Defendant in his
cell, before the ERT arrived. However, Plaintiff’s deposition testimony does not identify a time
in which Defendant, acting alone or with only one other officer, such as Diaz or Coaxum, took
these actions inside Plaintiff’s cell, outside of the camera range, before the ERT arrived. Indeed,
the Complaint alleged that Defendant acted in tandem with the ERT. (See Second Am. Compl. 5

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¶ 3.) Therefore, although Court is willing to credit Plaintiff’s testimony that he never disobeyed
an order, (see Pl.’s Dep. 75 (“I didn’t refuse anything.”); id. at 97 (“There was a . . . false report
claiming that I didn’t follow an order or something.”); id. at 110 (“I was compliant. I didn’t
break any rule.”)), Plaintiff has failed to dispute Defendant’s version of events, corroborated by
other witnesses and reports—that in the only instance in which he used force, he believed
Plaintiff posed a physical threat and was not obeying an order, resulting in him using limited
force to bring Plaintiff to the bed and handcuff him, (Def.’s 56.1 ¶¶ 21–22; Diaz Aff. ¶ 4;
Cosgriff Decl. Ex. 9 at 501 (Coaxum Witness Statement)). 17 Therefore, the Court grants
Defendant’s Motion for Summary Judgment on Plaintiff’s excessive force claim. 18

17

Defendant argues that the undisputed medical evidence disproves Plaintiff’s excessive
force claim because it does not document any serious injuries. (Def.’s Mem. 13–14.) It is true
that Plaintiff received no medication or treatment the day of the incident aside from Motrin, had
normal spine x-rays, and offered no medical evidence showing he suffered a new injury or
exacerbation of his old injuries. (See Def.’s 56.1 ¶¶ 34, 38; Pl.’s Medical Records 250–25.)
However, these records also show that Plaintiff complained of pain and sought treatment and
therapy after the incident, and he also testified to that effect. (See Pl.’s Medical Records 250–25;
Pl.’s Dep. 74, 84–85, 100, 114.) The Court therefore declines to grant summary judgment on
this basis. See Dobbins, 2017 WL 3309726, at *5 (finding the fact that the plaintiff “sought
additional medical treatment,” complained of pain, and “was treated for an abrasion on his right
wrist” created a factual dispute regarding whether excessive force was used, even if “he was not
diagnosed with serious injuries at any time”). However, these records do not create a material
fact dispute, either, as they do not establish that Defendant was responsible for any injuries
Plaintiff claims he suffered, or that any force used was excessive.
18

Because the Court concludes that there is no dispute of material fact regarding whether
Defendant used excessive force, it need not reach Defendant’s alternative argument that he is
entitled to qualified immunity. (See Def.’s Mem. 14–15.)
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III. Conclusion
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. The
Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 118), enter
judgment for Defendant, close this case, and mail a copy of this Opinion to Plaintiff.
SO ORDERED.
DATED:

March~ 2018
White Plains, New York

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