Evans v. Griffin et al
DECISION AND ORDER granting 71 Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on 03/24/2017. (CDH) (A copy of this Decision and Order was mailed to pro se plaintiff on 3/24/2017). -CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SHAWN EVANS, #111-A-0681,
Decision and Order
-vsCORRECTION OFFICER M.BALMER,
Proceeding pro se,
this action pursuant to 42 U.S.C. § 1983 alleging that while he
was an inmate at Southport Correctional Facility (“Southport”),
Department of Corrections and Community Supervision (“DOCCS”),
used excessive force against him
in violation of his Eighth
Motion for Summary Judgment. Dkt. # 71.
Factual Background and Procedural History
complaint alleging that on January 24, 2013,
incarcerated at Southport, Corrections Officers (“CO”) Balmer,
Paluch, and Tillinghast opened his cell door and “used excessive
force by punching [him] repeatedly in the face[.]” Dkt. # 1 at
amended his complaint re-stating the allegations from the first
complaint, (Dkt. Nos. 5 at 4; 6 at 4), but later sought to have
complaint Dkt. # 7. This Court entered an Order on April 3,
2014, dismissing the first and second amended complaints without
prejudice. Dkt. # 8.
Following discovery, the remaining defendants in this case
filed a Motion for Summary Judgment on May 18, 2016. Dkt. # 71.
After multiple extensions of time, Plaintiff has submitted his
opposition papers to Defendants’ motion (Dkt. # 100), to which
Defendants have replied. Dkt. # 113.
In support of his opposition, Plaintiff has submitted a
memorandum of law, statement of undisputed facts, and supporting
facts” indicates that, with the exception of eleven paragraphs,
he disputes all of Defendant’s factual assertions set forth in
their Rule 56 statement (Dkt. #, 100-1).
However, he appears to
memorandum of law, thus challenging Defendants’ motion solely on
legal grounds. Dkt. # 100.1
The pertinent facts are based on Defendants’ Local Rule 56
statement and supporting materials, which
considered carefully the parties’ submissions. For the reasons
that follow, the Defendants’ Motion for Summary Judgment (Dkt.
# 71) is granted in its entirety.
The Court notes that, despite Plaintiff having instituted multiple
civil rights lawsuits in this District, see 12-CV-365 and 12-CV-570,
he has nonetheless failed to comply with the parameters of
Loc.R.Civ.P. 56(a)(2), which states that “[e]ach numbered paragraph in
the moving party's statement of material facts will be deemed admitted
for purposes of the motion unless it is specifically controverted by a
correspondingly numbered paragraph in the opposing statement.”
Plaintiff does not challenge Defendants’ submission of the deposition
transcript, and references it in his own opposition papers.
of the Court’s obligation to liberally construe Plaintiff’s pro se
filings, the Court considers the transcript, including to the extent
that it contradicts the allegations in the complaint. See AB ex rel.
EF v. Rhinebeck Cent. Sch. Dist., 361 F.Supp.2d 312, 316 (S.D.N.Y.
2005) (“[J]ust as the court should not accept an affidavit that
inconsistent allegations made in a complaint to defeat summary
judgment in the face of contradictory testimony either.”); see also
Thomas v. Westchester Cty. Health Care Corp., 232 F. Supp. 2d 273, 279
(S.D.N.Y. 2002) (“Faced with [a] confounding contradiction [between
plaintiff’s allegations in her complaint and her sworn testimony], the
court has no basis for accepting as true the vague statements in [the]
complaint as opposed to [plaintiff’s] sworn testimony . . . . ”);
Linares v. Albrith, No. CIV03CV1408, 2009 WL 799969, at *4 (N.D.N.Y.
Mar. 25, 2009) (noting that discrepancy between verified complaint and
subsequent deposition would not serve to defeat summary judgment in
pro se prisoner case).
Facts Relevant to CO Balmer, CO Paluch, and CO
Plaintiff alleges in his complaint that, on one occasion
while incarcerated at Southport, CO Balmer, CO Paluch, and CO
Tillinghast opened his cell door and “used excessive force by
punching [him] repeatedly in the face[.]” Dkt. # 1 at 4. He
filed a grievance concerning the January 24, 2013 incident, in
which he stated that “several officers” assaulted him. Dkt. # 24
with the instant proceeding on April 22, 2014. Dkt. 71-5 (“Evans
January 24, 2013, at approximately 4:01pm, CO Tillinghast opened
and entered his cell and punched him one time in the eye. Id. at
11-12, 19. The alleged assault took place while CO Balmer, CO
inmate who was suicidal. The incident lasted approximately three
seconds. Id. at 9-10, 15, 19. Plaintiff described his eye as
“swollen,” for a couple of days. Id. at 42.
Plaintiff further testified that CO Balmer and CO Paluch
did enter his cell and did not touch him, despite his previous
committed the assault. Id. at 14, 21, 23.
His testimony indicated that, at the time Plaintiff was
punched by CO Tillinghast, CO Balmer was removing a neighboring
inmate from his cell to the infirmary. Id. at 10, 25. With
respect to CO Paluch, Plaintiff recalled that he was the “area
supervisor” and had “actual notice of . . . misconduct being
used by one of his subordinates.” Id. at 19-21.
The DOCCS Log Books indicate that on January 24, 2013 at
4:01pm, CO Balmer and CO Paluch escorted Plaintiff’s neighboring
inmate to the infirmary. Dkt. # 24 at 102.
Paluch, and Tillinghast, “removed [that] inmate to the clinic.”
Plaintiff’s grievance, dated January 24, 2013, requested an
defendants, but did not assert that CO Balmer and CO Paluch
failed to protect him. Dkt. # 24 at 30.
assault by CO Tillinghast reveal that Nurse Clement observed
inflicted. Dkt. # 24 at 39.
With regard to his alleged injuries, Plaintiff testified
that his shoulder and back injuries referenced in the complaint
did not relate to the incident involving CO Tillinghast. Evans
Dep. at 47. He further testified that he had no “outstanding
injuries,” and that this eye was better. Id.
Facts Relevant to Nurse Fuller
Plaintiff filed a grievance against Nurse Fuller on August
21,l 2012, in which he alleged that he called him derogatory
names and slapped Plaintiff in the face. Dkt. # 71-4.
In his complaint, Plaintiff alleged that his back “went
out” on August 21, 2012, and that he was transported to the
Plaintiff in the face. Plaintiff testified that Nurse Fuller
“was mad because he had to come lift me up, take me to see the
however, Plaintiff stated that unknown escort officers responded
and “had to carry [him] down the stairs on a stretcher.” Evans
Dep. at 35. Those officers left the clinic and returned to their
posts. Id. at 36.
According to Plaintiff, Nurse Fuller told
Plaintiff, slapped him on the left side of his face. Id.
slapping to PA Oakes because he was “not going to do nothing”
about it. Id. at 38. Plaintiff testified that the slap “wasn’t
really bad. It didn’t leave no marks or nothing, [the eye] was
just puffy, that’s it.” Id. at 42.
Plaintiff testified that he had no injury as a result of
that incident, or the incident involving CO Tillinghast. Id. at
47. He did not receive treatment for the injuries alleged, nor
did he anticipate any future treatment for them. Id. at 47-48.
General Principles of Law
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “As to materiality, the substantive law will identify
which facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment . . . .
important for present purposes, summary judgment will not lie if
the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
summary judgment has the burden to demonstrate that no genuine
issue of material fact exists. In determining whether a genuine
issue of material fact exists, a court must examine the evidence
in the light most favorable to, and draw all inferences in favor
of, the non-movant . . . . Summary judgment is improper if there
is any evidence in the record that could reasonably support a
omitted). “Where, as here, the nonmovant would bear the burden
of proof at trial, the movant may show prima facie entitlement
to summary judgment by either
(1) pointing to evidence that
negates its opponent’s claims or (2) identifying those portions
of its opponent’s evidence that demonstrate the absence of a
genuine issue of material fact.” Barlow v. Male Geneva Police
Officer, 434 Fed.Appx. 22, 25 (2d Cir. 2011) (summary order)
(internal quotation and editorial marks and citation omitted).
Because Plaintiff is proceeding pro se, the court must “construe
strongest arguments that it suggests.” Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (citation and internal quotations
Plaintiff brings this action under 42 U.S.C. § 1983, which
secured by the constitution and laws.” 42 U.S.C. § 1983. In
other words, to recover under this section, a plaintiff must
show a violation of a federal constitutional or statutory right.
The merits of Plaintiff’s specific claims are addressed as
Failure to Intervene
repeatedly punching him inside of his cell on January 24, 2013.
contradicted the allegations in the complaint, see Evans Dep. at
15, Plaintiff now seeks to re-frame his allegations against CO
Balmer and CO Paluch as a “failure to protect [him] claim” based
on their presence in the area during Plaintiff’s encounter with
CO Tillinghast.3 Dkt. # 100 at 2-3 (indicating that Plaintiff was
“suing the other two defendants because they were there.”)
constitutional rights of citizens from infringement by other law
enforcement officers in their presence.” Terebesi v. Torreso,
764 F.3d 217, 243 (2d Cir. 2014) (quoting Anderson v. Branen, 17
The Court interprets Plaintiff’s claim as one alleging a failure to
intervene. “Where, as here, a plaintiff alleges that an officer failed
to intercede in a presently occurring assault perpetrated by another
officer, the claim is properly analyzed under the standard . . . for
failure to intervene in a use of excessive force, rather than under
the Farmer standard for failure to protect a prisoner from a dangerous
condition of confinement.” Stephens v. Venettozzi, No. 13-CV-5779,
2016 WL 929268, at *14 (S.D.N.Y. Feb. 24, 2016), report and
recommendation adopted sub nom. Stephens v. Venetozzi, No. 13 CIV.
5779, 2016 WL 1047388 (S.D.N.Y. Mar. 10, 2016), and report and
recommendation adopted, No. 13-CV-5779, 2016 WL 4272376 (S.D.N.Y. Aug.
F.3d 552, 557 (2d Cir. 1994)). To establish liability under a
failure to intervene theory, a plaintiff must prove the use of
excessive force by someone other than the individual and that
the defendant under consideration: 1) possessed actual knowledge
of the use by another of excessive force; 2) had a realistic
opportunity to intervene and prevent the harm from occurring;
refusing or failing to take reasonable measures to end the use
of excessive force. Curley v. Vill. of Suffern, 268 F.3d 65, 72
(2d Cir. 2001).
Figueroa v. Mazza, 825 F.3d 89, 107–08 (2d Cir. 2016)
evaluating a failure to intervene claim is whether “under the
‘tacit collaborator’ in the unlawful conduct of another.” 825
F.3d 89 at 107-08 (citing O'Neill v. Krzeminski, 839 F.2d 9, 11–
bright-line rule based on the duration of an alleged assault,
defendant had a realistic chance to intercede will turn on such
placement, the environment in which they acted, the nature of
the assault, and a dozen other considerations.” Id. at 107.
Balmer, CO Paluch, and CO Tillinghast responded to a neighboring
inmate who was suicidal “to prevent him from harming himself.”
Evans Dep. at 15. According to Plaintiff, the three defendants
“responded to an incident of my neighbor hanging up [sic].”
Tillinghast punched me in my eye and kept moving.” Id. at 10. He
recalled that the entire incident lasted about three seconds.
Id. at 19. Plaintiff testified further, and it is undisputed on
this record, that neither CO Balmer nor CO Paluch went into
Plaintiff’s cell on that date, and did not touch him. Id. at 14,
suggested CO Balmer and CO Paluch were being sued based on an
alleged failure to protect. Id. at 19, 23. Plaintiff did not
grieve their involvement with respect to the incident. Id. at 23
(“there’s no paperwork involved with this incident.”)
reasonable trier of fact could conclude that either Corrections
Officer had a realistic opportunity to prevent the alleged harm
by CO Tillinghast, which consisted of a single strike, occurring
over the course of three seconds. Evans Dep. at 10, 19. Even if
the Court assumes that CO Tillinghast’s actions were unlawful,
Plaintiff has not presented or identified probative evidence in
the record from which a reasonable factfinder could find in his
Corrections Officer defendants. Plaintiff presents no evidence
realistic opportunity to prevent CO Tillinghast from striking
Plaintiff’s cell when the alleged assault occurred, during which
time CO Balmer was responding to a neighboring inmate. Evans
Dep. at 13-17. With respect to CO Paluch, Plaintiff stated only
that “he was there, he had knowledge of the incident, he did
nothing about it.” Evans Dep. 14-23. DOCCS Log Books likewise
indicate that that on January 24, 2013 at 4:01pm, CO Paluch,
along with CO Balmer, escorted Plaintiff’s neighboring inmate to
the infirmary. Dkt. # 24 at 102.
Plaintiff raised an identical claim in Evans v. Murphy, No.
12-CV-365, 2014 WL 4437771, at *9 (W.D.N.Y. Mar. 13, 2014),
which was dismissed for Plaintiff’s failure to establish that
the defendants had knowledge and/or a reasonable opportunity to
claims in a conclusory manner, and alleged that one defendant
simply failed to “investigate the situation.” Id.
Plaintiff’s repeated assertions that CO Paluch is subject
supervisor,” Id. at 21-23) are insufficient here, as they were
found to be in Plaintiff’s previous litigation.
See Evans, 2014
WL 4437771, at *9 (“Evans does not point to any evidence that
Pulsifer possessed knowledge that Rozell and Reppert were going
investigate the situation or reprimand Rozell or Reppert after
the alleged incident took place . . . .
This is insufficient to
maintain a claim based upon a failure to intervene or protect.”)
On this record, Plaintiff does not proffer any evidence to
raise a triable issue of fact as to whether CO Balmer and CO
Paluch had a reasonable opportunity to intercede and prevent CO
Tillinghast’s alleged unlawful conduct. Dismissal of this claim
is therefore warranted. See Raffaele v. City of N.Y., No. 13-CV4607, 2017 WL 1040369, at *4 (E.D.N.Y. Mar. 16, 2017) (granting
summary judgment to police officer defendants where there was no
another police officer during three-second encounter); see also,
e.g., Tafari v. McCarthy, 714 F.Supp.2d 317, 342 (N.D.N.Y. 2010)
(“The liquid throwing incident began and ended within a matter
of seconds, an increment of time too ‘sudden and brief’ to give
Defendants a ‘realistic opportunity’ to respond and intervene on
F.Supp. 2d 416, 429 n.9 (N.D.N.Y. 2009)).
Finally, as discussed in further detail below, CO Balmer
and CO Paluch cannot be liable to failing to intervene where the
alleged force was de minimis, and therefore not actionable. See
Cicio v. Graham, No. 08CV534, 2010 WL 980272, at *5 (N.D.N.Y.
Mar. 15, 2010).4
Amendment have 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). To satisfy the first component, the
plaintiff must show “that the defendant had the necessary level
of culpability, shown by actions characterized by wantonness in
light of the particular circumstances surrounding the challenged
conduct.” Id. (internal quotation marks and citation omitted).
Wantoness “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 v. McMillan,
503 U.S. 1, 7 (1992)). The objective inquiry, on the other hand,
focuses on “the nature of the force—specifically, whether it was
Alternatively, this claim is subject to dismissal based upon
Plaintiff’s failure exhaust his administrative remedies under the
Prison Litigation Reform Act (“PLRA”), as there appears to be no
dispute that he did not file a grievance against CO Balmer and CO
Paluch for their alleged failure to intervene (Evans Dep. at 23). See
Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011) (“There being no
evidence that a grievance ever was filed against Williams by Hill, the
exhaustion requirement of the PLRA has not been satisfied, and no
genuine issue of material fact stands in the way of summary judgment
in her favor.”)
nontrivial and ‘was applied . . . maliciously and sadistically
injuries ultimately inflicted is not dispositive, see id., “de
constitutional recognition.’” Hogan v. Fischer, 738 F.3d 509,
515 (2d Cir. 2013) (quoting Wilkins, 559 U.S. at 37).
Here, Plaintiff concedes that he suffered “no outstanding
injuries,” see Evans Dep. at 47; and the record is devoid of any
anything other than swelling in or near his eye. Id. at 42.
Plaintiff had a self-inflicted injury to the eye. Dkt. #24 at
Plaintiff, who seems to recognize the deficiency in the
alleged facts and evidence of record, opposes Defendants’ motion
on the basis that “the case law is clear that a single punch
constitutes not a de minimis use of force and is actionable.”
Dkt. # 100 at 3, 14-17 (emphasis added). Fatal to Plaintiff’s
contention is that he has misstated the holdings of those cases,
which actually support the opposite of his proposition. See Mayo
v. Lavis, No. 11-CV-869, 2016 WL 2756545, at *7 (W.D.N.Y. May
12, 2016) (“even if Mayo properly exhausted his administrative
remedies, his Eighth Amendment claim would fail because even
assuming that Kelly pushed Mayo onto the bench, punched him in
the face, and threw him on the floor, the force used was de
minimis under the caselaw.”); Jackson v. Monin, No. 13-CV-4,
allegations that plaintiff was grabbed, slapped, and shoved as
true, there was no viable Eighth Amendment claim because the
alleged force used was, at most, de minimis); McEachin v. Bek,
No. 06-CV-6453, 2012 WL 1113584, at *7 (W.D.N.Y. Apr. 2, 2012)
(allegations that inmate was struck three times with a closed
fist de minimis) (citing Romaine v. Rawson, 140 F.Supp.2d 204,
212 (N.D.N.Y. 2001) (“[T]he prisoner was unable to show any
serious injury resulting from Defendant’s strikes to his head.
The testimony at trial indicated that the strikes to his head
strikes. Regardless of whether the strikes were open-fisted or
Plaintiff, the court concludes that Defendant’s application of
force against Plaintiff was de minimis.”)).
Thus, even crediting Plaintiff’s version of events, summary
judgment is appropriate for the Defendants because the force
2469856, at *4 (S.D.N.Y. June 27, 2012) (collecting cases).
Likewise, Plaintiff’s claim that Nurse Fuller slapped him
Plaintiff, he sought treatment on August 21, 2012 for a back
injury. Nurse Fuller allegedly slapped Plaintiff because he had
to retrieve Plaintiff from his cell to transport him to the
infirmary. Dkt. # 1 at 3; Evans Dep. at 7, 33. Assuming the
truth of Plaintiff’s allegation that Nurse Fuller slapped him on
the left cheek, he does not state a claim of excessive force
under the Eighth Amendment. It is undisputed that Plaintiff did
not report the slap at sick call immediately after the incident,
and he testified that the slap “wasn’t really bad. It didn’t
leave no marks or nothing, [the eye] was just puffy, that’s it.”
Evans Dep. at 42. He further testified that he had no injury as
a result of the slapping incident, and has not received any
treatment. Id. at 47.
Where, as here, the conduct alleged involves an open-handed
slap that caused no lasting injury, the objective component of
an Eighth Amendment excessive force claim cannot be met. See
Wright v. Goord, 554 F.3d at 269; Jones v. Goord, No. 05-CV0182, 2008 WL 904895, at *4 (W.D.N.Y. Mar. 31, 2008) (finding an
open-handed slap to be “considered a de minimis use of force,
especially in light of” the lack of any lasting injury); see
also Hogan v. Fischer, No. 09-CV-6225, 2012 WL 4845609, at *5
(W.D.N.Y. Oct. 10, 2012) (citing Jones favorably and reaching
the same conclusion in case where “a light slap” was alleged),
vacated in part on other grounds, 738 F.3d 509 (2d Cir. 2013).
Plaintiff’s excessive force claim as to Nurse Fuller.
triable issue of fact as to his excessive force and failure to
intervene claims against the named defendants. Defendants are
therefore entitled to judgment as a matter of law pursuant to
Fed.R.Civ.P. 56, and the complaint is dismissed in its entirety.
Summary Judgment (Dkt. # 71) is GRANTED in its entirety. The
Clerk is directed to enter judgment in favor of Defendants and
to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/ MICHAEL A. TELESCA
HONORABLE MICHAEL A. TELESCA
UNITED STATES DISTRICT JUDGE
DATED: Rochester, New York
March 24, 2017
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