Thompson v. Booth et al

Filing 168

MEMORANDUM OPINION AND ORDER re: 152 MOTION for Sanctions Pursuant to Rule 37 with Certificate of Service. filed by Kevin Thompson, 156 MOTION for Summary Judgment . filed by Garnot, Vigina, C.O. Jordan, Salerno., The Represented Defendants' motion for summary judgment is DENIED, Peterson's motion for summary judgment is GRANTED, and Plaintiff's motion for sanctions is GRANTED. The Clerk is directed to terminate Defendant Charlotte Peterson f rom the docket, to strike Defendant Sgt. Booths Answer from the docket (Doc. 113), and to terminate the pending motions (Docs. 152, 156). The Clerk is directed further to mail a copy of this Memorandum Opinion and Order to Defendant Peterson at th e address on the docket and to Defendant Booth at 11 Tillson Avenue, Apartment 2, Highland, NY 12528. The Court shall hold a Case Management Conference on April 7, 2021 at 12:00 p.m. At the time of the scheduled conference all parties shall call ( 888) 398-2342; access code: 3456831.SO ORDERED., Charlotte Peterson terminated., Case Management Conference via telephone set for 4/7/2021 at 12:00 PM before Judge Philip M. Halpern. (Signed by Judge Philip M. Halpern on 3/10/2021) (rj) Transmission to Docket Assistant Clerk for processing.

Case 7:16-cv-03477-PMH Document 168 Filed 03/10/21 Page 1 of 23

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
KEVIN THOMPSON,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER

SGT. BOOTH, C.O., et al.,

16-CV-03477 (PMH)

Defendants.
---------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
Plaintiff Kevin Thompson (“Plaintiff”) brings this action under 42 U.S.C. § 1983 against
Sgt. Booth (“Booth”), Correction Officer (“C.O.”) Salerno (“Salerno”), C.O. Garnot (“Garnot”),
C.O. Jordan (“Jordan”), C.O. Vigna (“Vigna”), Hearing Officer Woods (“Woods”), MD Hill
(“Hill”), and RN Peterson (“Peterson”). (Doc. 2, “Compl.”). Plaintiff alleges that while he was
incarcerated as a convicted prisoner at the Fishkill Correctional Facility (“Fishkill”), his
constitutional rights were violated.
Judge Karas, who presided over this case before it was reassigned to me on April 16,
2020, issued an Opinion and Order on September 28, 2018 (the “Motion to Dismiss Decision”),
which dismissed certain of Plaintiff’s claims. (Doc. 96, “Op. & Order”). Specifically, Judge
Karas dismissed all claims against Woods and Hill, Plaintiff’s Eighth Amendment claims
alleging that he was incarcerated under unconstitutional conditions of confinement, and
Plaintiff’s Fourteenth Amendment due process claims.1 Plaintiff’s claims that survived the
motion to dismiss stage and proceeded to discovery included Plaintiff’s Eighth Amendment
excessive force claims against Booth, Salerno, Garnot, Jordan, and Vigna related to an alleged
January 13, 2014 assault (the “January 13 Incident”) and an Eighth Amendment deliberate
1

Judge Karas noted that, at the time the Motion to Dismiss Decision was issued, Peterson had been served
but had not yet appeared in the action. (Id. at 28).
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indifference to medical needs claim against Peterson related to the treatment Plaintiff received
after the January 13 Incident. (Id. at 27).
After the Motion to Dismiss Decision was issued, on October 30, 2018, Peterson
appeared pro se and filed an Answer. (Docs. 100, 101). Plaintiff, who had commenced this
action pro se, secured pro bono counsel on February 5, 2019. (Docs. 110, 111). Booth, Garnot,
Jordan, Salerno, and Vigna filed Answers on February 14, 2019. (Docs. 113-18). Although
Booth was represented by the New York State Office of the Attorney General (the “AG Office”)
at the time he filed his Answer, on April 3, 2020, the Court granted the AG Office’s motion to
withdraw as counsel for Booth. (Doc. 142). Currently, both Peterson and Booth are proceeding
pro se.
Three motions are pending presently before the Court: (1) Vigna, Salerno, Jordan, and
Garnot’s (the “Represented Defendants”) motion for summary judgment (Doc. 156; Doc. 157
(“Defs. Br.”)); (2) Peterson’s pro se motion for summary judgment (Doc. 160); and (3)
Plaintiff’s motion for sanctions against Booth seeking an order striking Booth’s Answer (Doc.
152; Doc. 153, “Sanctions Br.”).2 Plaintiff filed opposition to the Represented Defendants’ and
Peterson’s motions for summary judgment in a single brief on July 15, 2020 (Doc. 162, “Pl.
Opp’n”), and the summary judgment motions were fully submitted with the filing of the
Represented Defendants’ reply on July 29, 2020 (Doc. 166, “Reply”).3
For the reasons set forth below the Represented Defendants’ motion is DENIED,
Peterson’s motion is GRANTED, and Plaintiff’s motion for sanctions is GRANTED.

2

Plaintiff’s motion seeking sanctions against Booth is unopposed. The Court details the relevant
procedural and factual history regarding Booth’s participation in this action infra.
3

Peterson did not file a reply brief.
2

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BACKGROUND
The facts, as recited below, are taken from Plaintiff’s Complaint, the Represented
Defendants’ Local Civil Rule 56.1 Statement (Doc. 155, “56.1 Stmt.”), Plaintiff’s Rule 56.1
Counter Statement (Doc. 164, “56.1 Counter Stmt.”),4 and the admissible evidence submitted by
the parties.
I.

The January 13 Incident
Plaintiff has a history of seizures and has been diagnosed with epilepsy. (56.1 Counter

Stmt. at 4 ¶ 1 (citing Doc. 165 “Lesser Decl.” Ex. 3, “Thompson Dep.” at 15:20-18:15, 23:816)). While Plaintiff was prescribed medication for his seizures, he was not taking it on January
13, 2014 because he was recovering from foot surgery performed on October 31, 2014. (Id. at 4 ¶
2, 5 ¶ 3 (citing Thompson Dep. at 17:25-18:15)). While all parties acknowledge that there was a
physical altercation between Plaintiff and Vigna, Salerno, Jordan, Garnot, and Booth just after
midnight on January 13, 2014, the parties dispute at length the specifics of the incident.
According to Plaintiff, shortly after midnight, he had a seizure and blacked out. (Compl.
at 3; 56.1 Counter Stmt. at 3 ¶ 10, 5 ¶ 6). After the alleged seizure, Vigna and Salerno were the
first officers to arrive at Plaintiff’s housing location (his “Cube”); and shortly thereafter, Jordan
and Garnot arrived. (56.1 Counter Stmt. at 5 ¶¶ 8, 10). According to Plaintiff, when the officers
arrived, they used broomsticks to hold down Plaintiff’s legs and then began kicking and
punching Plaintiff. (Id. at 5 ¶¶ 14-15 (citing Lesser Decl. Ex 1, “Thompson Decl.” at 42, 44;5
Lesser Decl. Ex. 2, “Montgomery Decl.” ¶¶ 16-23)). Plaintiff apparently received a forceful
4

Because Plaintiff’s Rule 56.1 Statement includes his response to Defendants’ statements of material
facts and includes additional statements of fact, and each section begins with paragraph 1, the Court refers
to the page number and paragraph number when citing to the Rule 56.1 Counter Statement.
5

Exhibit 1 to the Lesser Decl. is a Declaration from Plaintiff as well as a number of exhibits annexed
thereto in a single filing. When citing to Plaintiff’s Declaration or the other documents annexed thereto,
the Court cites to the Thompson Decl. and refers to the pagination generated by ECF.
3

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blow to his face, which resulted in significant bleeding. (Id. ¶¶ 15-16 (citing Montgomery Decl.
¶¶ 21-22; Thompson Decl. at 46)).
According to the Represented Defendants’ version of events regarding the January 13
Incident, Vigna and Salerno came to Plaintiff’s cube after they heard a loud bang, and upon
arriving at the Cube, Plaintiff swung a chair which struck them. (56.1 Stmt. ¶ 11 (citing Doc.
158-7, “Vigna Decl.” ¶ 2; Doc. 158-8, “Salerno Decl.” ¶ 3)). Plaintiff claims he has no memory
of swinging a chair and a fellow inmate who witnessed the dispute stated that he did not see
Plaintiff swing a chair. (56.1 Counter Stmt. ¶ 11 (citing Thompson Decl. at 3 ¶ 12; Montgomery
Decl. ¶ 25)). Vigna and Salerno stated the only force used against Plaintiff was a body hold to
bring him to the ground and that the force used to subdue Plaintiff was appropriate. (56.1 Stmt. ¶
12 (Vigna Decl. ¶¶ 5, 10; Salerno Decl. ¶¶ 9, 13)). At some point Booth arrived on the scene,
Jordan and Booth handcuffed Plaintiff, and a spit mask was placed over Plaintiff’s face. (Id. ¶¶
14-15; 56.1 Counter Stmt. at 6 ¶¶ 18-19 (citing Thompson Decl. at 2 ¶ 11)).
Following the June 13 Incident, Plaintiff was taken to the Fishkill Medical Unit,
administered Ativan, and eventually transferred to two outside hospitals for treatment—first St.
Luke’s Hospital (“St. Luke’s”) and then Mount Vernon Hospital (“Mount Vernon”). (56.1 Stmt.
¶ 16; 56.1 Counter Stmt. at 6 ¶ 24). In the Fishkill Medical Unit, Plaintiff was examined by
Peterson who noted that “[d]ried blood was visualized to the facial area and oral cavity through
the mask. Copious amounts of [] blood noted on the floor.” (56.1 Counter Stmt. at 4 ¶ 17 (citing
Lesser Decl. Ex. 4, “Peterson Dep.” at 136:20-22)). The medical records from Mount Vernon
indicate that the results of an EEG showed no evidence that Plaintiff suffered a seizure on

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January 13, 2014. (56.1 Stmt. ¶ 18 (citing Ex. O Mount Vernon Hospital Record,6 “Medical
Records” at 45)). The Medical Records do indicate, however, that Plaintiff reported a “history of
epilepsy, and says that he has seizures around every 2 weeks” and that on the night of January
13, 2014 Plaintiff “likely” suffered a “psychogenic pseudoseizure.” (56.1 Stmt. ¶ 19 (citing
Medical Records at 53)).
Upon his return to Fishkill, Plaintiff was kept in isolation at the Fishkill infirmary and
then later transferred to the Special Housing Unit (the “SHU”) where he was held in solitary
confinement under constant supervision. (56.1 Counter Stmt. at 6 ¶¶ 25, 28).
II.

Exhaustion of Administrative Remedies
Plaintiff alleges that while he was still housed at Fishkill he filed a grievance related to

the January 13 Incident, but that the grievance was “never processed.” (Compl. at 4). Plaintiff
argued, in his opposition to Defendants’ motion to dismiss that “[u]pon returning from Mount
Vernon Hospital[,] Plaintiff was immediately placed in solitary confinement for six months. . . .
Plaintiff filed grievances.” (Doc. 8 ¶ 27; see also id. ¶ 28 (“Plaintiff’s repeated grievances and
complaints were ignored.”)).7 At his deposition, Plaintiff testified that he filed a grievance at
Fishkill related to the January 13 Incident “a day or two days after” he returned from Mount
6

The Represented Defendants’ Rule 56.1 Statement and Opening Brief refer to Exhibit O, however no
Exhibit O appears on the docket. (See generally Docs. 158, 159). Courtesy copies of the Represented
Defendants’ moving papers and exhibits filed in support of their motion were sent to the Court’s
Chambers, including Exhibit O. The Court assumes that the Represented Defendants intended to file
Exhibit O under seal as it contains potentially sensitive medical information related to Plaintiff but notes
that the Represented Defendants did not comply with this Court’s Individual Practices regarding the
process for filing exhibits under seal and never requested permission to file Exhibit O under seal.
Nonetheless, the Court considers the portions of Exhibit O referenced in the parties’ 56.1 statements on
the present motion.
7

Judge Karas, in the Motion to Dismiss Decision, relied on Plaintiff’s Complaint and the facts alleged in
Plaintiff’s opposition to the motion to dismiss that were consistent with the Complaint. (Op. & Order at
10 (“As noted, the Court may consider factual allegations raised for the first time in a pro se plaintiff’s
opposition papers if they are plausible and consistent with the allegations in the complaint. See VladBerindan v. MTA New York City Transit, No. 14-CV-675, 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10,
2014).”)) The Court adopts the same approach here.
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Vernon. (Lesser Decl. Ex. 3, “Thompson Dep.” at 87:24-88:12; see also id. at 103:3-6 (testifying
that he filed a grievance “as soon as [he] got back to [Fishkill] in January of 2014”)).
Plaintiff’s Declaration provides more detail regarding his apparent attempts to file
grievances. First, on January 18, 2014, after returning from Mount Vernon, Plaintiff wrote a
letter to the Superintendent of Fishkill related to the January 13 Incident. (Thompson Decl. at 5 ¶
23; see also id. at 12). On or about that same day, while Plaintiff was being held in isolation at
the Fishkill infirmary, he filed a formal grievance. (Id. at 6 ¶ 24). Because Plaintiff was being
held in isolation, he was unable to submit the grievance form to the inmate grievance box and
instead handed his grievance form to a correction officer for filing. (Id. at 6 ¶ 25). No copy of
this grievance form appears in the record. On January 20, 2014, Plaintiff was moved from the
infirmary to the SHU. (Id. at 6 ¶ 26). At this time, Plaintiff attempted to file a second grievance.
(Id. at 6-7 ¶ 28). Because Plaintiff was in solitary confinement in the SHU, Plaintiff “was
dependent on the correctional officers who made their rounds or gave [Plaintiff] breakfast to take
[the] grievance form and submit it for [him] by placing it in the box.” (Id. at 7 ¶ 29). Plaintiff
retained a copy of this grievance form. (Id. at 14). On January 25, 2015, Plaintiff wrote a third
grievance and attempted to file it the same way he had attempted to file the second grievance, by
placing the form through the slot of his cell and giving it to a correction officer for filing. (Id. at
8 ¶ 34). Plaintiff retained a copy of this grievance form as well. (Id. at 16). Plaintiff never
received a response to any of these grievances. (Id. at 8 ¶ 35).
Defendants, for their part, state that Plaintiff did not file any grievances related to the
January 13 Incident while at Fishkill. (56.1 Stmt. ¶ 1).

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STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might
affect the outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.’”
Liverpool v. Davis, No. 17-CV-3875, 2020 WL 917294, at *4 (S.D.N.Y. Feb. 26, 2020) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Factual disputes that are irrelevant
or unnecessary’ are not material and thus cannot preclude summary judgment.” Sood v.
Rampersaud, No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013)
(quoting Anderson, 477 U.S. at 248). The Court’s duty, when determining whether summary
judgment is appropriate, is “not to resolve disputed issues of fact but to assess whether there are
any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir.
2010)). Indeed, the Court’s function is not to determine the truth or weigh the evidence. The task
is material issue spotting, not material issue determining. Therefore, “where there is an absence
of sufficient proof as to one essential element of a claim, any factual disputes with respect to
other elements of the claim are immaterial.” Bellotto v. Cty. of Orange, 248 F. App’x 232, 234
(2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)).
“It is the movant's burden to show that no genuine factual dispute exists.” Vermont Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970)). The Court must “resolve all ambiguities and draw all
reasonable inferences in the non-movant’s favor.” Id. (citing Giannullo v. City of N.Y., 322 F.3d
139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come

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forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 2020 WL
917294, at * 4 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere
speculation or conjecture as to the true nature of the facts.” Id. (quoting Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, if “there is any evidence from which a reasonable
inference could be drawn in favor of the opposing party on the issue on which summary
judgment is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec.
Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)).
Should there be no genuine issue of material fact, the movant must also establish its
entitlement to judgment as a matter of law. See Glover v. Austin, 289 F. App’x 430, 431 (2d Cir.
2008) (“Summary judgment is appropriate if, but only if, there are no genuine issues
of material fact supporting an essential element of the plaintiffs’ claim for relief.”); Pimentel v.
City of New York, 74 F. App’x 146, 148 (2d Cir. 2003) (holding that because plaintiff “failed to
raise an issue of material fact with respect to an essential element of her[] claim, the District
Court properly granted summary judgment dismissing that claim”). Simply put, the movant must
establish separately that the law favors the judgment sought.
ANALYSIS
Plaintiff’s surviving claims include: (1) Eighth Amendment claims against Vigna,
Salerno, Jordan, Garnot, and Booth related to the alleged excessive force inflicted upon Plaintiff
during the course of the January 13 Incident; and (2) an Eighth Amendment claim against
Peterson related to her deliberate indifference to Plaintiff’s medical needs following the January
13 Incident. Defendants argue that summary judgment should be entered in their favor because
there are no genuine issues of material fact. The Court analyzes Defendants’ arguments seriatim.

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I.

Claims Against the Represented Defendants
a. Eighth Amendment Excessive Force Claim
“The Eighth Amendment, which applies to the states through the Due Process Clause of

the Fourteenth Amendment . . . prohibits the infliction of ‘cruel and unusual punishments,’ . . .
including the ‘unnecessary and wanton infliction of pain.’” Sims v. Artuz, 230 F.3d 14, 20 (2d
Cir. 2000) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (internal citations omitted)). “A
claim of cruel and unusual punishment in violation of the Eighth Amendment has two
components—one subjective, focusing on the defendant’s motive for his conduct, and the other
objective, focusing on the conduct’s effect.” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009)
(citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992)). Regarding the subjective component, the
defendant must have “had the necessary level of culpability, shown by actions characterized by
‘wantonness’ in light of the particular circumstances surrounding the challenged conduct.” Id.
(quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). “When prison officials are
accused of using excessive force, the ‘wantonness’ issue turns on ‘whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.’” Id. (quoting Hudson, 503 U.S. at 7). “To determine whether defendants acted
maliciously or wantonly, a court must examine several factors including: 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.” Castro v. City of New York, No. 16-CV-8147, 2020 WL 6782000, at *10 (S.D.N.Y.
Nov. 18, 2020) (quoting Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)). “[D]etermining

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whether officers used excessive force necessarily turns on the need for the force used.” Harris v.
Miller, 818 F.3d 49, 64 (2d Cir. 2016) (emphasis in original).
As to the objective component, the inmate must prove “that the conduct was objectively
‘harmful enough’ or ‘sufficiently serious’ to reach constitutional dimensions.” Id. (quoting
Crawford v. Cuomo, 796 F.3d 252, 265 (2d Cir. 2015)). This inquiry is “context specific, turning
upon ‘contemporary standards of decency.’” Id. (quoting Blyden, 186 F.3d at 263). “[W]hen
prison officials use force to cause harm maliciously and sadistically, ‘contemporary standards of
decency always are violated.’” Wright, 554 F.3d at 269-70 (quoting Hudson, 503 U.S. at 9).
Thus, “the malicious use of force to cause harm” constitutes a “‘per se’ violation of the Eighth
Amendment.” Castro, 2020 WL 6782000, at *10 (quoting Harris, 818 F.3d at 64). The court’s
focus, at the objective component stage, is not on the severity of the injuries suffered and even
“minor” injuries can support an Eighth Amendment claim, Sims, 230 F.3d at 21, “as long as the
amount of force used is not de minimis,” Harris, 818 F.3d at 64 (quoting United States v.
Walsh, 194 F.3d 37, 50 (2d Cir. 1999)).
“[W]hether a ‘use of force was’ justified is a ‘fact intensive inquiry’ that often must be
‘left for a jury to decide.’” Castro, 2020 WL 6782000, at *10 (quoting Ismael v. Charles, No.
18-CV-3597, 2020 WL 4003291, at *7 (S.D.N.Y. July 15, 2020)). Thus, “granting summary
judgment against plaintiffs on excessive force claims is rarely appropriate.” Ismael, 2020 WL
4003291, at *7 (quoting Anderson v. City of New York, No. 16-CV-02583, 2019 WL 1426723, at
*8 (S.D.N.Y. Mar. 28, 2019)). “The Second Circuit has [] ‘reversed summary dismissals of
Eighth Amendment claims of excessive force even where the plaintiff's evidence of injury was
slight and the proof of excessive force was weak.’” Wright, 554 F.3d at 269 (collecting cases).

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Here, the Represented Defendants argue that summary judgment is appropriate because
the evidence establishes that the correction officers used “the least amount of force needed to
restrain an out of control inmate and transport him to the medical center for evaluation and
treatment.” (Defs. Br. at 15). Given the aforementioned standards applicable to an Eighth
Amendment excessive force claim, and the inherent fact-intensive nature of the inquiry, the
Court finds that there are genuine issues of material fact precluding the entry of summary
judgment.
At bottom, the parties dispute at length how the January 13 Incident began. According to
Vigna, he “heard a loud banging noise” coming from Plaintiff’s cube, and after going to
investigate the situation, Plaintiff “was down on the floor in a crouched position but soon came
upward with his metal chair and started swinging the chair and screaming ‘motherfuckers’ in
[Vagna’s] direction.” (Vigna Decl. ¶ 4). Vigna claims that Plaintiff “struck [him] with the chair
on [his] lower knees” at which time Vigna called for assistance. (Id.). Salerno’s description of
Plaintiff’s conduct is consistent with that offered by Vigna. (Salerno Decl. ¶ 3 (Plaintiff “swung
a metal chair wildly and repeatedly in [Salerno’s] direction and in the direction of C.O. Vigna
before he successfully struck [Salerno] with the metal chair on the knees.”)). Both Vigna and
Salerno claim that in response to Plaintiff swinging a chair at them they used “appropriate and
legitimate force to put an end to a dangerous situation caused by” Plaintiff. (Vigna Decl. ¶ 2;
Salerno Decl. ¶ 4). Specifically, Vigna and Salerno claim that they held Plaintiff’s upper torso
and grabbed his legs to bring him to the ground. (56.1 Stmt. ¶ 12 (citing Vigna Decl. ¶ 5; Salerno
Decl. ¶ 9)). Jordan, Garnot, and Booth then responded to the scene and placed Plaintiff in
handcuffs and put a spit mask over Plaintiff’s head. (Id. ¶¶ 13-15).

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Plaintiff’s version of events differs in substantial and significant ways. Plaintiff claims
that on January 13, 2014 he had a seizure, blacked out, and has no memory of swinging a chair at
Vigna and Salerno. (56.1 Counter Stmt. at 3 ¶¶ 10-11). Plaintiff claims that when officers came
to his Cube, they used broomsticks to hold his legs down, and kicked and punched him before
placing him in handcuffs that were too tight and putting a spit mask over his head. (Id. at 5-6 ¶¶
14-15, 18-19). Plaintiff’s version of events is corroborated by other inmates who allegedly
witnessed the January 13 Incident. Montgomery, one of those inmates, completed a Declaration
that largely corroborates Plaintiff’s version of events. (See Montgomery Decl. ¶ 11 (Montgomery
“looked into [Plaintiff’s] cube area and [he] saw [Plaintiff] lying on the ground and he was
shaking a lot. He appeared to be in a completely incoherent state of mind”); id. ¶¶ 11-15
(Montgomery believed Plaintiff was having a seizure); id. at ¶¶ 18-19 (the correction officers
“were being very aggressive with [Plaintiff]” and “pulled [Plaintiff’s] legs and dragged him out
of his cube”); id. ¶ 21 (“[O]ne of the CO’s forcefully slammed [Plaintiff] down to the ground”);
id. at ¶ 23 (“One of the COs kicked [Plaintiff’s] body while he was on the floor, trying to control
him while he was convulsing”); id. ¶ 25 (“[A]t no point did I see [Plaintiff] hit or fight the COs.
At no point did I see [Plaintiff] swing a chair”); id. ¶ 26 (“[T]he COs brought over brooms to try
and keep [Plaintiff] from flailing and convulsing. They tried to use the brooms to hold him
down.”); id. ¶ 29 (“[T]he COs kicked him and punched him to keep him down”)). Additionally, a
hearing was conducted at Fishkill on February 5, 2014 in which other inmates testified about the
January 13 Incident. (See Thompson Decl. at 18-58). The testimony of these other inmates,
Briggs and Lee, is also consistent with Plaintiff’s version of events. (Id. at 42 (inmate Briggs
testified that Plaintiff “was having a seizure,” a corrections officer “put a broom on [Plaintiff’s]
leg as the other officers that were on the side pulled him back out in the hallway,” and Briggs did

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not see plaintiff swing a chair); id. at 47-49 (inmate Lee testified that Plaintiff was convulsing,
“the officers picked up a broom . . . and put it on his legs,” and that Lee did not see Plaintiff
swing a chair at correction officers)).
The factual disputes regarding the January 13 Incident preclude the entry of a summary
judgment order. There are clearly genuine disputes of material facts. Certainly, the appropriate
response by correction officers to a situation involving an inmate attacking those correction
officers by swinging a chair and the appropriate response to an inmate suffering a seizure are
radically different.8 Given the genuine factual disputes, it is a task for the fact-finder, not the
Court, to determine whether the proof adduced at trial is sufficient to establish the subjective and
objective components of an Eighth Amendment excessive force claim. See, e.g., Ismael, 2020
WL 4003291, at *7 (S.D.N.Y. July 15, 2020) (finding that it “is unsurprising [that summary
judgment on an excessive force claim is rarely appropriate] because whether a ‘use of force was’
justified is a ‘fact intensive inquiry’ that often must be ‘left for a jury to decide.’”
(quoting Olutosin v. Lee, No. 14-cv-685, 2016 WL 2899275, at *9 (S.D.N.Y. May 16, 2016))).
b. PLRA Exhaustion
The Represented Defendants argue also that summary judgment is appropriate because
Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act
(“PLRA”). (Defs. Br. at 6-15). While Plaintiff concedes that he did not exhaust his
administrative remedies because he never appealed the denial of a grievance, he argues that his
failure to exhaust should be excused because there are genuine factual disputes regarding
whether the administrative remedies were available to him. (Pl. Opp’n at 9-15).
8

While the Represented Defendants maintain that the Medical Records indicate that Plaintiff did not have
a seizure, but rather had a psychogenic pseudoseizure (56.1 Stmt. ¶¶ 18-19), this distinction is of no
moment on the present motion. The Represented Defendants have not in any way endeavored to explain
to the Court how this distinction is meaningful and have not included any expert testimony to shed light
on same.
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The PLRA requires an inmate who seeks to bring claims under § 1983 in federal court to
“exhaust the administrative remedies that are available at that prison before proceeding in federal
court.” Ortiz v. Annucci, No. 17-CV-3620, 2019 WL 1438006, at *8 (S.D.N.Y. Mar. 29, 2019)
(citing 42 U.S.C. § 1997e(a)). The exhaustion requirement is “mandatory.” Id. (quoting Ross v.
Blake, 136 S. Ct. 1850, 1857 (2016)). “[T]he Supreme Court and Second Circuit have instructed,
‘proper exhaustion . . . means using all steps that the agency holds out, and doing so properly (so
that the agency addresses the issues on the merits).” Id. (quoting Hernandez v. Coffey, 582 F.3d
303, 305 (2d Cir. 2009) (emphasis in original)). “The exhaustion inquiry thus requires that [the
court] look at the state prison procedures and the prisoner’s grievance to determine whether the
prisoner has complied with those procedures.” Id. (quoting Espinal v. Goord, 558 F.3d 119, 124
(2d Cir. 2009)).
An inmate’s failure to exhaust administrative remedies may only be excused if the
remedies are unavailable. Williams v. Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir.
2016). An administrative remedy is considered unavailable in three situations: (1) when the
remedy “operates as a simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates;” (2) when the “administrative scheme [is] so opaque that
it becomes, practically speaking, incapable of use;” or (3) “when prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation,
or intimidation.” Id. at 123-24 (quoting Ross, 136 S. Ct. at 1859-60). “Defendants bear the
burden of proving that Plaintiff failed to exhaust available administrative remedies.” Terry v.
Hulse, No. 16-CV-252, 2018 WL 4682784, at *7 (S.D.N.Y. Sept. 28, 2018) (citing Hubbs v.
Suffolk Cty. Sheriff's Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)).

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Here, Plaintiff relies on the second unavailability exception and argues that the Court
should deem the grievance procedure unavailable to him because he provided multiple grievance
complaints to prison officials for filing, but the complaints were never filed. The process by
which an inmate can properly exhaust his remedies in such a situation is so opaque, Plaintiff
argues, that the administrative scheme is incapable of use and thus unavailable. Plaintiff relies,
principally, on Williams in support of his argument. See generally 829 F.3d. There, the Second
Circuit recognized that while an inmate housed in the general population can file a grievance
with the grievance clerk, an inmate who is housed in the SHU, “and therefore [is] segregated
from the regular prison population . . . may give the grievance complaint to a correction officer
to file for him.” Id. at 119 (citing N.Y. Comp. Codes R. & Regs. (“NYCRR”) Tit. 7, §§ 701.7,
705(a)(1), 705(a)(2)). The inmate in Williams alleged that “while he was housed in the SHU . . .
he drafted a grievance . . . [and] gave the grievance to a correction officer to forward to the
grievance office of his behalf.” Id. at 120-21. The inmate “never received a response to the
grievance and allege[d] that the correction officer in the SHU never filed it for him.” Id. at 121.
It was undisputed that Williams never appealed the grievance. Id. Defendants moved to dismiss
Williams’s complaint arguing that Williams had failed to exhaust his administrative remedies as
is required by the PLRA. Id. Taking Williams’s allegations as true (the court was adjudicating a
motion to dismiss), the Second Circuit held that the “regulations simply do not contemplate the
situation in which Williams found himself, making it practically impossible for him to ascertain
whether and how he could pursue his grievance.” Id. at 124. The court found that “the
regulations give no guidance whatsoever to an inmate whose grievance was never filed[,] . . . do
not describe a mechanism for appealing a grievance that was never filed[,] . . . [and thus,] the
process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no

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inmate could actually make use of it.” Id. at 124, 126. The court concluded that the grievance
procedures were unavailable to Williams because they were “so opaque and confusing that they
were ‘practically speaking, incapable of use.’” Id. (citing Ross, 136 S. Ct. at 1859).
Since Williams, other courts within the Second Circuit have applied that court’s rationale
to find that summary judgment is not proper when the evidence presented on a summary
judgment motion is consistent with the inmate’s allegations in Williams. See Ortiz, 2019 WL
1438006, at *1 (denying defendants’ motion for summary judgment and finding that plaintiff had
sufficiently demonstrated that a genuine dispute of material facts existed with respect to whether
he successfully exhausted his administrative remedies where the plaintiff “maintain[ed] that he
drafted and attempted to file a grievance detailing the [assault] well within the twenty-one day
period for initiating a claim – but that the officer to whom he handed the grievance failed to file
it.”); see also Hamlett v. Stotler, No. 17-CV-0939, 2019 WL 4306999, at *9 (N.D.N.Y. Aug. 15,
2019), adopted by 2019 WL 4305443 (N.D.N.Y. Sept. 11, 2019); Terry, 2018 WL 4682784, at
*9; Jackson v. Downstate Corr. Facility, No. 16-CV-0267, 2018 WL 3650136, at *8 (S.D.N.Y.
July 31, 2018).
Here, the essential factual allegations bearing on whether Plaintiff may be excused from
exhausting his administrative remedies, which are supported by documentary evidence and
deposition testimony, are, at bottom, indistinguishable from Williams. Those essential allegations
include that Plaintiff (1) was placed in isolation in the infirmary or solitary confinement in the
SHU and therefore had to rely on correction officers to file his grievances, (2) timely gave his
grievance to prison officials to file, (3) believed the prison officials had filed a grievance on his
behalf, and (4) failed to appeal the grievance.

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Plaintiff has claimed, on multiple occasions, that he attempted to file a grievance at
Fishkill by handing a grievance complaint form to prison officials. In his Complaint he alleged
that he filed a grievance related to the January 13 Incident, but the grievance was “never
processed.” (Compl. at 4). In his opposition to Defendants’ motion to dismiss, Plaintiff argued
that he filed grievances related to the January 13 Incident. (Doc. 8 ¶¶ 27-28). At his deposition,
Plaintiff testified that he filed a grievance at Fishkill related to the January 13 Incident “a day or
two days after” he returned from Mount Vernon. (Thompson Dep. at 87:24-88:12; see also id. at
103:3-6 (testifying that he filed a grievance “as soon as [he] got back to [Fishkill] in January of
2014.”)). Plaintiff’s Declaration provides additional detail regarding his attempts to file
grievances. (See generally Thompson Decl.). Overall, Plaintiff claims that he attempted to file
three separate grievances at Fishkill related to the January 13 Incident between January 18, 2014
and January 25, 2014. (Id. at 6 ¶ 24; id. at 6-7 ¶ 28; id. at 8 ¶ 34). Additionally, Plaintiff annexed
to his Declaration what he represents to be copies of the latter two grievances. (Id. at 14, 16).
These grievances, had they been filed, were timely, see 7 NYCRR § 701.5(a)(1) (inmate must
file grievance within twenty-one days), and related to the January 13 Incident (see Thompson
Decl. at 14 (grievance dated January 20, 2014 provides, “On 1-13-14 at Fishkill . . . I was
assaulted . . . .”); id. at 16 (grievance dated January 25, 2014 provides “On 1/13/14 at Fishkill . . .
I was physically abuse[d] . . . .”)). Plaintiff claims he never got any response to these grievances,
that they were never filed, and that he should thus be excused for his failure to appeal the
grievances. Given the evidence in the record, Plaintiff maintains, that at the very least, and
consistent with Williams and its progeny, there is an issue of fact as to whether administrative
remedies were available to Plaintiff.9

9

Any grievance complaints filed by Plaintiff at Great Meadow Correctional Facility are irrelevant as
Plaintiff was not transferred to Great Meadow until on or about March 3, 2014, which is well-beyond the
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The Represented Defendants argue in reply that Plaintiff is improperly attempting to
create an issue of fact regarding his unavailability defense that is not supported by the record.
(Reply at 5-10). While the Represented Defendants are correct that Plaintiff’s testimony and
subsequent grievance forms filed at Great Meadow are not completely consistent regarding
Plaintiff’s apparent history of filing grievances related to the January 13 Incident at Fishkill, this
Court, at the summary judgment stage, will not weigh in on the factual dispute or make
credibility determinations regarding Plaintiff’s sometimes conflicting testimony. Such factual
disputes and credibility determinations are to be resolved by the fact-finder, not this Court on a
summary judgment motion. The Court finds, “drawing all inferences in Plaintiff's favor, there is
a dispute of material fact regarding whether Plaintiff’s grievance went unfiled,” Terry, 2018 WL
4682784, at *10, and because Plaintiff “need not exhaust remedies if they are not
‘available,’” Ross, 136 S. Ct. at 1855, Defendants’ motion for summary judgment based upon
lack of exhaustion is denied.
II.

Peterson’s Motion for Summary Judgment
Peterson, who is proceeding pro se, separately moves for summary judgment.10 The only

allegation levied against Peterson in the Complaint is that after the January 13 Incident,
“Peterson failed to take pictures [] for medical purposes.” (Compl. at 3). Plaintiff makes no
further mention of Peterson in his Complaint. To the extent Judge Karas, in the Motion to
Dismiss Decision, considered additional factual allegations alleged in Plaintiff’s opposition to
twenty-one-day period in which an inmate must file a grievance.
The form of Peterson’s motion is not in compliance with the Local Civil Rules. Peterson did not, for
example, file a notice of motion or a 56.1 statement with citations to admissible evidence. While a pro se
litigant is not excused from complying with the court’s Local Civil Rules, the court, in its discretion, may
excuse a pro se litigant’s failure to comply. See Wilton Reassurance Life Co. of New York v. Smith, No.
12-CV-5131, 2015 WL 631973, at *10 (E.D.N.Y. Feb. 13, 2015) (“The Court will
also excuse Defendants’ failure to comply with Local Rule 56.1.” (citing Holtz v. Rockefeller & Co., 258
F.3d 62, 73 (2d Cir. 2001))). The Court exercises that discretion here.
10

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Defendants’ motions to dismiss as part of the operative pleading (see Op. & Order at 2), Plaintiff
further alleges that after the January 13 Incident “Peterson injected Plaintiff with some
substance, after which Plaintiff began feeling relaxed and tired” and that “after being seen by
Defendant Peterson, plaintiff was transported to St. Luke’s Hospital.” (Doc. 80 at 6).11
Peterson’s motion and Plaintiff’s opposition brief interpret Plaintiff’s allegations as an
Eighth Amendment claim for relief under § 1983 related to deliberate indifference to Plaintiff’s
medical needs. (See Peterson Br. at 3 (the Complaint “maintains that Defendant Peterson
violated [Plaintiff’s] Eighth Amendment rights by failing to render proper medical attention.; Pl.
Opp’n at 23 (“Plaintiff has established genuine issues of material fact as to whether Defendant
Peterson acted with deliberate indifference to plaintiff’s serious medical needs.”)). Because
Plaintiff was proceeding pro se at the time he filed his Complaint and opposition to Defendants’
motions to dismiss, the Court applies the required liberality to a pro se Plaintiff’s pleading and
interprets the Complaint as asserting an Eighth Amendment deliberate indifference claim against
Peterson.
An inmate can establish an Eighth Amendment claim related to inadequate medical care
by establishing that a prison official was “deliberate[ly] indifferen[t] to [his] serious medical
needs.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle v. Gamble, 429
11

The Court will not consider additional factual allegations made by Plaintiff for the first time in
Plaintiff’s opposition brief to Peterson’s motion for summary judgment. While it is appropriate to
consider allegations in a pro se plaintiff’s opposition to a motion to dismiss that are consistent with his
pleading, see Vail v. City of New York, 68 F. Supp. 3d 412, 427 (S.D.N.Y. 2014) (“Where new allegations
in a pro se plaintiff’s opposition memoranda ‘are consistent with the allegations contained’ in the
Complaint, they may be read ‘as supplements to th[e] pleadings’” (quoting Boyer v. Channel 13, Inc., No.
04-CV-2137, 2005 WL 2249782, at *6 (S.D.N.Y. Mar. 9, 2005))), Plaintiff secured counsel after the
Motion to Dismiss Decision was issued. Plaintiff did not file an Amended Complaint and thus the Court
will not, at this late stage, permit Plaintiff to amend his pleading through new allegations raised in his
opposition to Peterson’s motion for summary judgment. For example, Plaintiff’s allegation that Peterson
“had time to review Plaintiff’s medical records” but “did not review his medical records in enough detail
to know that he had a history of seizures” (Pl. Opp’n at 24-25) is not considered.

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U.S. 97, 104 (1976)). The deliberate indifference standard includes an objective and subjective
component which requires the inmate to prove that the alleged deprivation was objectively
“sufficiently serious” and that the defendant subjectively acted “with a sufficiently culpable state
of mind.” Id. (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)).
Peterson argues that the medical care she provided to Plaintiff on the night of January 13
was appropriate and that there is no genuine dispute of material fact regarding the subjective
component of an Eighth Amendment deliberate indifference claim. The Court agrees.
Plaintiff’s sparse allegations in no way establish that Peterson “knew of and disregarded
the plaintiff's serious medical needs.” See Chance, 143 F.3d at 703. In fact, the opposite is true.
After Plaintiff was transported to the Fishkill Medical Unit after the January 13 Incident,
Peterson gave Plaintiff medication that made Plaintiff feel “relaxed and tired” at which time
Plaintiff was transported to St Luke’s Hospital for additional treatment. (Doc. 80 at 6). Based on
these allegations, no reasonable jury could find that Peterson acted with a sufficiently culpable
state of mind.
Accordingly, the Eighth Amendment deliberate indifference claim against Peterson is
dismissed.
III.

Plaintiff’s Motion for Sanctions
Plaintiff moves to strike Booth’s Answer pursuant to Federal Rule of Civil Procedure 37.

Plaintiff’s motion is unopposed.12 Plaintiff argues that Booth failed to appear for his deposition
and has otherwise failed to participate in this action. (Sanctions Br. at 1). A brief recitation of the
relevant procedural history regarding Booth is necessary to adjudicate Plaintiff’s motion.

12

A Certificate of Service was annexed to Plaintiff’s Notice of Motion indicating that Plaintiff had served
his motion on Booth at his home address. (Doc. 152 at 2).
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On April 5, 2017, Booth was served with a summons and complaint (Doc. 53) and on
April 12, 2017, the AG’s Office entered a Notice of Appearance on Booth’s behalf (Doc. 48). On
October 8, 2019, Plaintiff served a Notice of Deposition on Booth through his then-counsel, the
AG’s Office. (Id. at 2). After Plaintiff was informed that Booth was unavailable for deposition
prior to the January 31, 2020 discovery cut-off date, Plaintiff filed a pre-motion conference letter
in anticipation of moving to compel Booth’s deposition. (Doc. 130). On January 23, 2020, the
AG’s Office filed a motion to withdraw as counsel for Booth. (Doc. 132). On January 25, 2020,
Judge Karas referred this matter to Chief Magistrate Judge Davison for all general pretrial
matters. (Doc. 134). Judge Davison held a pre-motion conference on February 6, 2020 to address
Plaintiff’s anticipated motion to compel Booth’s deposition. (Doc. 137). Following the
conference, Judge Davison granted Plaintiff permission to move to compel. (Feb. 6, 2020 Min.
Entry). On February 12, 2020, Plaintiff filed his motion to compel (Doc. 138), and on February
13, 2020, the motion to compel was granted, which directed Booth to appear for his deposition
by March 3, 2020 (Doc. 140). Booth did not appear for his scheduled March 3, 2020 deposition.
(Sanctions Br. at 3). The AG’s Office notified Plaintiff that it had attempted to serve Booth with
his deposition notice and to notify Booth of his deposition date. (Id.). On April 3, 2020, the Court
granted the AG’s Office’s motion to withdraw as counsel for Booth. (Doc. 142). To date, no
substitute counsel has appeared on Booth’s behalf and Booth has not entered a pro se notice of
appearance. In fact, since the AG’s Office’s motion to withdraw as counsel was granted, Booth
has not communicated with the Court in any way.
According to Plaintiff, he has tried to serve court papers on Booth on various occasions,
but the mail has consistently been returned as undeliverable. (Sanctions. Br. at 3). Plaintiff’s
counsel did, however, speak with Booth by phone on May 5, 2020. (Id.). On that day, Plaintiff’s

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counsel called Booth to notify Booth that a conference was scheduled in this matter for May 11,
2020. (Id.). Booth answered the phone, but after counsel identified himself, Booth hung up. (Id.
at 4). Booth did not appear at the May 11, 2020 conference and the Court granted Plaintiff’s
request to move for sanctions pursuant to Rule 37, including moving for an order striking
Booth’s Answer. (May 11, 2020 Min. Entry).
Rule 37 provides that “[i]f a party . . . fails to obey an order to provide or permit
discovery . . . the court where the action is pending may issue further just orders” including
“striking pleadings in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(iii). Rule 37 further provides
“[t]he court where the action is pending may, on motion, order sanctions if . . . a party . . . fails,
after being served with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P.
37(d)(1)(A)(i). While striking a litigant’s pleading is a “drastic” remedy, it is appropriate to
impose such a remedy where the party’s disobedience with a court order “has been willful, or in
bad faith, or otherwise culpable.” Beattie v. Bolla Taxi, Inc., No. 01-CV-1270, 2003 WL
22070538, at *2 (S.D.N.Y. Sept. 5, 2003) (quoting Luft v. Crown Publishers, Inc., 906 F.2d 862,
865 (2d Cir. 1990)). “[T]he decision to impose such sanctions is committed to the sound
discretion of the district court and may not be reversed absent an abuse of that discretion.” Luft,
906 F.2d at 865.
The Court finds that Booth’s failure to obey the court order directing him to appear at a
March 3, 2020 deposition coupled with his refusal to speak to counsel on May 5, 2020, appear
for the May 11, 2020 court conference, file opposition to Plaintiff’s motion for sanctions, or
communicate with the Court in any way since the AG Office’s motion to withdraw as counsel
was granted on April 3, 2020, demonstrate the type of willful and bad faith conduct that justifies
the striking of Booth’s Answer. See, e.g., Lopez v. J & K Floral USA, Inc., 307 F. Supp. 3d 257,

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260 (S.D.N.Y. 2018) (“Given Defendants’ past and repeated disregard of discovery requests and
this Court's orders, . . . [s]triking the Answer is warranted.”).
Accordingly, Plaintiff’s motion for sanctions is granted and Booth’s Answer (Doc. 113)
is stricken.
CONCLUSION
The Represented Defendants’ motion for summary judgment is DENIED, Peterson’s
motion for summary judgment is GRANTED, and Plaintiff’s motion for sanctions is
GRANTED.
The Clerk is directed to terminate Defendant Charlotte Peterson from the docket, to strike
Defendant Sgt. Booth’s Answer from the docket (Doc. 113), and to terminate the pending
motions (Docs. 152, 156).
The Clerk is directed further to mail a copy of this Memorandum Opinion and Order to
Defendant Peterson at the address on the docket and to Defendant Booth at 11 Tillson Avenue,
Apartment 2, Highland, NY 12528.

The Court shall hold a Case Management Conference on April 7, 2021 at 12:00 p.m. At
the time of the scheduled conference all parties shall call [phone]; access code: 3456831.

SO ORDERED.
Dated: White Plains, NY
March 10, 2021
______________________________
Philip M. Halpern
United States District Judge

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