Evans v. Griffin et al

Filing 122

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,
Plaintiff,
No. 13-CV-805(MAT)
Decision and Order

-vsCORRECTION OFFICER M.BALMER,
et al.,
Defendants.
__________________________________
I.

Introduction
Proceeding pro se,

Shawn Evans

(“Plaintiff”), instituted

this action pursuant to 42 U.S.C. § 1983 alleging that while he
was an inmate at Southport Correctional Facility (“Southport”),
the

Defendants,

who

are

employees

of

the

New

York

State

Department of Corrections and Community Supervision (“DOCCS”),
used excessive force against him

in violation of his Eighth

Amendment rights.
Currently

pending

before

the

court

is

the

Defendants’

Motion for Summary Judgment. Dkt. # 71.
II.

Factual Background and Procedural History
On

filing a

August

5,

2013,

Plaintiff

commenced

this

action

complaint alleging that on January 24, 2013,

by

while

incarcerated at Southport, Corrections Officers (“CO”) Balmer,
Paluch, and Tillinghast opened his cell door and “used excessive

-1-

force by punching [him] repeatedly in the face[.]” Dkt. # 1 at
4.
On

December

18,

2013

and

January

30,

2014,

Plaintiff

amended his complaint re-stating the allegations from the first
complaint, (Dkt. Nos. 5 at 4; 6 at 4), but later sought to have
the

amended

complaints

dismissed,

leaving

only

the

original

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
exhibits

Dkt.

#

100.

Plaintiff’s

“statement

of

undisputed

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).
admit

all

of

Defendants’

propounded

-2-

However, he appears to
material

facts

in

his

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

include

Plaintiff’s

deposition testimony.2
The

matter

is

now

fully

briefed

and

the

Court

has

considered carefully the parties’ submissions. For the reasons
that follow, the Defendants’ Motion for Summary Judgment (Dkt.
# 71) is granted in its entirety.

1

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.”
2

Plaintiff does not challenge Defendants’ submission of the deposition
transcript, and references it in his own opposition papers.
Mindful
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
contradicts
deposition
testimony,
it
should
also
not
allow
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).
-3-

A.

Facts Relevant to CO Balmer, CO Paluch, and CO
Tillinghast

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
at 30.
Plaintiff

later

gave

testimony

under

oath

in

connection

with the instant proceeding on April 22, 2014. Dkt. 71-5 (“Evans
Dep.”).

During

his

deposition,

Plaintiff

testified

that

on

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
Paluch,

and

CO

Tillinghast

were

responding

to

a

neighboring

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
assertions

that

all

three

defendants

committed the assault. Id. at 14, 21, 23.

-4-

opened

his

cell

and

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.
In

a

Specialist
stated

letter
dated

that

to

Paul

February

several

Annetts,

4,

2013

Corrections

Correctional

(Dkt.

Officers,

#

Facility

71-5),

Plaintiff

including

Balmer,

Paluch, and Tillinghast, “removed [that] inmate to the clinic.”
Id.
Plaintiff’s grievance, dated January 24, 2013, requested an
interview

in

connection

with

the

assault

by

all

three

defendants, but did not assert that CO Balmer and CO Paluch
failed to protect him. Dkt. # 24 at 30.
Sick

call

notes

from

the

morning

following

the

alleged

assault by CO Tillinghast reveal that Nurse Clement observed
redness

near

Plaintiff’s

eye,

which

appeared

to

be

self-

inflicted. Dkt. # 24 at 39.
With regard to his alleged injuries, Plaintiff testified
that his shoulder and back injuries referenced in the complaint
-5-

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.
B.

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
infirmary

by

stretcher.

transport

Plaintiff

When

from

Nurse

his

Fuller

cell,

was

he

required

allegedly

to

slapped

Plaintiff in the face. Plaintiff testified that Nurse Fuller
“was mad because he had to come lift me up, take me to see the
doctor.”

Dkt.

#

1

at

3;

Evans

Dep.

at

33.

At

deposition,

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.
another

nurse

to

According to Plaintiff, Nurse Fuller told
leave

the

infirmary,

and,

once

alone

with

Plaintiff, slapped him on the left side of his face. Id.
Physician
immediately

Assistant

thereafter,

(“PA”)
but

Oakes

Plaintiff

treated
did

not

Plaintiff
report

the

slapping to PA Oakes because he was “not going to do nothing”
about it. Id. at 38. Plaintiff testified that the slap “wasn’t
-6-

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.
III. Discussion
A.

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 . . . .

More

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
U.S.

242,

248

(1986)

(citation

omitted).

“The

party

seeking

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
-7-

of, the non-movant . . . . Summary judgment is improper if there
is any evidence in the record that could reasonably support a
jury’s
Inc.

verdict

v.

Simon,

for

the

310

non-moving

F.3d

280,

286

party.”
(2d

Marvel

Cir.

2002)

Characters,
(citations

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
[the]

complaint

liberally

and

interpret

it

to

raise

the

strongest arguments that it suggests.” Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (citation and internal quotations
omitted).
Plaintiff brings this action under 42 U.S.C. § 1983, which
imposes
deprives

liability
a

person

on
“of

anyone

who,

any

rights,

under

color

privileges,

of
or

state

law,

immunities

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.

-8-

The merits of Plaintiff’s specific claims are addressed as
follows.
B.

Failure to Intervene

Plaintiff
Balmer,

CO

initially

Paluch,

and

alleged
CO

in

his

complaint

Tillinghast

assaulted

that

CO

him

by

repeatedly punching him inside of his cell on January 24, 2013.
Dkt.

#1

at

4.

Acknowledging

that

his

sworn

testimony

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.”)
“It
have

an

is

widely

recognized

affirmative

duty

that
to

law

enforcement

intervene

to

officials

protect

the

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
3

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.
5, 2016).
-9-

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;
and

3)

nonetheless

disregarded

that

risk

by

intentionally

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).
In
the

Figueroa v. Mazza, 825 F.3d 89, 107–08 (2d Cir. 2016)

Second

Circuit

held

that

the

essential

inquiry

when

evaluating a failure to intervene claim is whether “under the
circumstances
intervene

actually

permits

a

presented,

reasonable

an

officer’s

conclusion

that

failure
he

to

became

a

‘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–
12

(2d

Cir.

1988).

The

Circuit

Court

cautioned

against

any

bright-line rule based on the duration of an alleged assault,
reasoning

that,

“[i]n

each

case,

the

question

whether

a

defendant had a realistic chance to intercede will turn on such
factors

as

the

number

of

officers

present,

their

relative

placement, the environment in which they acted, the nature of
the assault, and a dozen other considerations.” Id. at 107.
-10-

Plaintiff

testified

that,

on

the

date

in

question,

CO

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].”
at

9.

CO

Tillinghast

then

“backtracked,

opened

my

Id.
cell,

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,
19,

21.

It

was

not

until

Plaintiff’s

deposition

that

he

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.”)
Plaintiff

has

not

articulated

a

basis

upon

which

a

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
-11-

favor

on

his

failure

to

intervene

claim

against

the

other

Corrections Officer defendants. Plaintiff presents no evidence
that

CO

Balmer

or

CO

Paluch

saw

the

altercation

or

had

a

realistic opportunity to prevent CO Tillinghast from striking
Plaintiff

during

Plaintiff

has

the

three-second

testified

only

incident.

that

CO

To

Balmer

the

was

contrary,

outside

of

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
intervene

in

an

alleged

assault

where

he

characterized

his

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
to

liability

one

the

sole

basis

that

he

was

the

“area

supervisor,” Id. at 21-23) are insufficient here, as they were
-12-

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
to

punch

him,

but

instead

argues

that

Pulsifer

did

not

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
realistic

opportunity

to

intervene

in

“very

rapid

acts”

by

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
behalf

of

the

Plaintiff.”)

(quoting

Cusamano

v.

Sobek,

604

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
-13-

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
C.

Excessive Force

Claims

of

excessive

force

in

violation

of

the

Eighth

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
4

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.”)

-14-

nontrivial and ‘was applied . . . maliciously and sadistically
to

cause

(quoting

harm.’”
Hudson,

Wilkins
503

v.

U.S.

Gaddy,

at

7).

559

While

U.S.
the

34,

39

severity

(2010)
of

the

injuries ultimately inflicted is not dispositive, see id., “de
minimis

uses

of

force

are

‘necessarily

exclude[d]

from

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
competent

evidence

to

demonstrate

that

Plaintiff

suffered

anything other than swelling in or near his eye. Id. at 42.
Furthermore,

the

examined

Nurse

by

day

following

Clement

at

the

incident,

Southport,

who

Plaintiff

was

opined

that

Plaintiff had a self-inflicted injury to the eye. Dkt. #24 at
39.
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
-15-

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,
2016

WL

3661942,

at

*1

(W.D.N.Y.

July

11,

2016)

(accepting

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
were

either

three

open-fisted

slaps

or

three-closed

fisted

strikes. Regardless of whether the strikes were open-fisted or
closed-fisted,

given

the

lack

of

any

visible

injury

to

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
applied
Taylor

by
v.

CO
N.Y.

Tillinghast
Dep't

of

was

not

Corr.,

sufficiently

No.

10

CIV.

serious.

3819,

2012

2469856, at *4 (S.D.N.Y. June 27, 2012) (collecting cases).
-16-

See
WL

Likewise, Plaintiff’s claim that Nurse Fuller slapped him
in

the

face

must

fail

as

a

matter

of

law.

According

to

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

for

his

eye

and

did

not

anticipate

any

future

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
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(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).
Accordingly,

Defendants

are

entitled

to

summary

judgment

on

Plaintiff’s excessive force claim as to Nurse Fuller.
For

all

of

these

reasons,

Plaintiff

fails

to

raise

a

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.
IV.

Conclusion
For

the

reasons

stated

above,

Defendants'

Motion

for

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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