Horace v. Gibbs et al
DECISION AND ORDER GRANTING in part and DENYING in part Defendants' 27 Motion to Dismiss. Signed by William M. Skretny, United States District Judge on 9/29/2017. (MEAL) Copy mailed to Plaintiff.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN L. HORACE,
DECISION AND ORDER
KEVIN GIBBS, Field Parole Officer, and
DAWN ANDERSON, Senior Parole Officer,
In this action, pro se Plaintiff John L. Horace alleges under 42 U.S.C. § 1983 that
Defendants Kevin Gibbs and Dawn Anderson, two state parole officers employed by the
New York State Department of Corrections and Community Supervision, violated his
Eighth and Fourteenth Amendment rights when they used excessive force and were
deliberately indifferent to his medical needs while arresting him for a parole violation on
December 3, 2013.
Now before this Court is Defendants’ motion to dismiss Horace’s claims. (Docket
No. 27.) For the reasons that follow, Defendants’ motion is granted in part and denied in
The following facts, drawn from Horace’s complaint, are assumed true for
purposes of assessing Defendants= motion to dismiss. See ATSI Commc=ns, Inc. v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
At 12:30 p.m. on December 3, 2013, Defendants and other officers arrived at
Horace’s house to arrest him for violating the conditions of his parole and to search his
residence. (Complaint (“Compl.”), Docket No. 1, Section VI ¶ 14.) Upon entering the
house, Gibbs informed Horace that he violated parole by driving a car without Gibb’s
permission. (Compl. Section VI ¶ 14.) Gibbs then handcuffed Horace behind his back
“so tightly there w[as] hardly any space between [P]laintiff’s wrist and the handcuffs” and
ordered him to sit in a chair. (Compl. Section VI ¶ 14.)
At 12:40 p.m., Horace complained to Gibbs that his handcuffs were too tight and
were causing him pain. (Compl. Section VI ¶ 14.)
He asked Gibbs to loosen the
handcuffs because his hands were swelling and the pain was getting worse. (Compl.
Section VI ¶ 14.) Gibbs refused to loosen the handcuffs, and then he and Anderson
searched Horace’s residence while Horace waited in the chair. (Compl. Section VI ¶ 15.)
During the search, Horace “call[ed] out” and told Gibbs and Anderson that he was
diabetic, that he felt dizzy, and that his handcuffs were hurting his wrists. (Compl. Section
VI ¶ 16.) Defendants ignored Horace until approximately 1:00 p.m., when they told him
they would be downstairs shortly. (Compl. Section VI ¶¶ 16, 17.) Horace was upset and
worried that the tight handcuffs were causing him to have low blood sugar, that he could
fall off his chair, and that he could pass out from high blood pressure. (Compl. Section
VI ¶ 17.)
At 1:15 p.m., Defendants escorted Horace to their squad car and put him in the
back seat. (Compl. Section VI ¶ 19.) Horace claims that front seat of the car was pushed
back so that it was close to the back seat, which forced him into a position that put
pressure on his herniated disks in his lower back and caused pain in his right knee.
(Compl. Section VI ¶¶ 19, 20.) Defendants then took Horace to their offices. (Compl.
Section VI ¶ 20.)
At about 2:05 p.m., Gibbs transported Horace from the Division of Parole offices
to the Monroe County jail. (Compl. Section VI ¶ 21.) By this time, Horace’s wrists were
swollen, his fingers were numb, he was unable to move his wrists and fingers, and the
handcuffs were embedded into his skin, causing a permanent mark on his left hand.
(Compl. Section VI ¶ 21.)
At about 2:25 p.m., Gibbs and Horace arrived at the Monroe County jail, where a
Monroe County Sheriff Deputy “had a hard time removing the handcuffs” because of
Horace’s swollen wrists. (Compl. Section VI ¶ 21.)
Later that evening, medical staff at Monroe County jail kept Horace under
observation and gave him insulin for low blood sugar. (Compl. Section VI ¶ 22.)
Horace alleges that he sustained several injuries during the course of his arrest.
He claims that the handcuffs “cut into his skin,” embedded themselves into his wrists, and
caused his wrists to swell to twice their normal size. (Compl. Section III at 2; VI ¶ 21.)
He further contends that the handcuffs left “deep indentation[s] . . . on both wrists” and a
“permanent scar” on his left wrist. (Compl. Section III at 2.)
Horace also claims that Gibbs aggravated his pre-existing conditions in his back
(herniated discs) and knee (previous surgery) when he forced him to sit in “an
uncomfortable position” in the squad car while being transported, which put “tremendous
pressure” on his back and right knee. (Compl. Section III at 2, VI ¶ 20.)
Finally, Horace alleges emotional anguish and distress due to his fear that his
blood sugar was getting low and his circulation was being cut-off, which could aggravate
his diabetes. (Compl. Section III at 2.)
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally, and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This
is especially important when reviewing pro se complaints alleging civil rights violations.
See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).
Because Plaintiff is
proceeding pro se, this Court has considered his submissions and arguments
Horace asserts that Defendants used excessive force against him and were
deliberately indifferent to his serious medical needs, in violation of his Fourth1 and
Fourteenth Amendment rights. (Compl., Section II ¶ 7.) Defendants seek dismissal of
both claims for failure to state a claim upon which relief can be granted under Rule 12
(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 27.)
As noted, Horace identifies the Eighth Amendment as the source of his excessive force claim. In fact,
Horace’s claim properly arises under the Fourth Amendment, because the excessive force is alleged to
have occurred during a parolee’s arrest for a parole violation. See Cox v. Fischer, No. 14-CV-1862 (RA),
2017 WL 1215091, at *4 (S.D.N.Y. Mar. 31, 2017) (noting that “a parolee’s claim that he was subjected to
excessive force in the course of an arrest for a violation arises under the Fourth Amendment, not the Eighth
Amendment”). This Court will therefore consider Horace’s excessive force claim under the Fourth
Rule 12 (b)(6)
Rule 12 (b)(6) allows dismissal of a complaint for Afailure to state a claim upon
which relief can be granted.@ Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are
generally not stringent: Rule 8 requires only a short and plain statement of a claim. Fed.
R. Civ. P. 8 (a)(2). But the plain statement must Apossess enough heft to show that the
pleader is entitled to relief.@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007).
When determining whether a complaint states a claim, the court must construe it
liberally, accept all factual allegations as true, and draw all reasonable inferences in the
plaintiff=s favor. ATSI Commc=ns, 493 F.3d at 98. Legal conclusions, however, are not
afforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (Athe tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions@).
ATo survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). Labels, conclusions, or Aa formulaic recitation
of the elements of a cause of action will not do.@ Twombly, 550 U.S. at 555. Facial
plausibility exists when the facts alleged allow for a reasonable inference that the
defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678. The plausibility
standard is not, however, a probability requirement: the pleading must show, not merely
allege, that the pleader is entitled to relief. Id. at 1950; Fed. R. Civ. P. 8 (a)(2). Wellpleaded allegations in the complaint must nudge the claim Aacross the line from
conceivable to plausible.@ Twombly, 550 U.S. at 570.
A two-pronged approach is thus used to examine the sufficiency of a complaint,
which includes Aany documents that are either incorporated into the complaint by
reference or attached to the complaint as exhibits.@ Blue Tree Hotels Inv. (Can.), Ltd. v.
Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). This
examination is context specific and requires that the court draw on its judicial experience
and common sense. Iqbal, 556 U.S. at 679. First, statements that are not entitled to the
presumption of truth, such as conclusory allegations, labels, and legal conclusions, are
identified and stripped away. See id. Second, well-pleaded, non-conclusory factual
allegations are presumed true and examined to determine whether they Aplausibly give
rise to an entitlement to relief.@ Id. AWhere the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,@ the complaint fails to state a claim.
42 U.S.C. ' 1983
Civil liability is imposed under 42 U.S.C. ' 1983 only upon persons who, acting
under color of state law, deprive an individual of rights, privileges, or immunities secured
by the Constitution and laws. See 42 U.S.C. ' 1983. To properly plead a cause of action
under § 1983, a plaintiff’s complaint must include allegations that the challenged conduct
“(1) was attributable to a person acting under color of state law, and (2) deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United
States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997); Hubbard v. J.C.
Penney Dep’t Store, 05-CV-6042, 2005 WL 1490304, at *1 (W.D.N.Y. June 14, 2005).
Personal involvement in the deprivation of a federal constitutional right is the sine
qua non of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275,
280 (S.D.N.Y. 1999).
Thus, personal involvement by defendants in cases alleging
constitutional deprivations is a prerequisite to an award of damages under § 1983. See
McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977); Richardson v. Coughlin, 101
F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz, No. 99 Civ. 3957 (SAS), 2000
WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000).
The Second Circuit construes personal involvement in this context to mean “direct
participation, or failure to remedy the alleged wrong after learning of it, or creation of a
policy or custom under which unconstitutional practices occurred, or gross negligence in
managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement need not be
active participation. It can be found “when an official has actual or constructive notice of
unconstitutional practices and demonstrates gross negligence or deliberate indifference
by failing to act.” See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989). Thus,
personal involvement can be established by showing that
(1) the defendant participated directly in the alleged
constitutional violation; (2) the defendant, after
being informed of the violation through a report or
appeal, failed to remedy the wrong; (3) the
defendant created a policy or custom under which
unconstitutional practices occurred, or allowed the
continuance of such a policy or custom; (4) the
defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to
others’ rights by failing to act on information
indicating that constitutional acts were occurring.
Liner v. Goord, 582 F. Supp. 2d 431, 433 (W.D.N.Y. 2008) (citing Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995)); Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d
On its own, ' 1983 does not provide a source of substantive rights, but rather, a
method for vindicating federal rights conferred elsewhere in the federal statutes and
Constitution. See Graham v. Connor, 490 U.S. 386, 393-94,109 S. Ct. 1865, 104 L. Ed.
2d 443 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 145 n.3, 99 S. Ct. 2689, 61 L.
Ed. 2d 433 (1979)). Accordingly, as a threshold matter in reviewing claims brought
pursuant to ' 1983, it is necessary to precisely identify the constitutional violations
alleged. See Baker, 443 U.S. at 140. Here, Horace asserts claims under the Fourth and
Fourth Amendment Excessive Force Claim
Although Horace identifies the Eighth Amendment as the source of his excessive
force claim, it in fact arises under the Fourth Amendment, because the excessive force is
alleged to have occurred during a parolee’s arrest for a parole violation. See Cox v.
Fischer, No. 14-CV-1862 (RA), 2017 WL 1215091, at *4 (S.D.N.Y. Mar. 31, 2017) (noting
that “a parolee’s claim that he was subjected to excessive force in the course of an arrest
for a violation arises under the Fourth Amendment, not the Eighth Amendment”); see also
Rushion v. NYS Div. of Parole, No. 13-CV-4277 (RRM), 2016 WL 5255812, at *4
(E.D.N.Y. Sept. 21, 2016) (“Allegations by a parolee that he was subjected to excessive
force while being arrested by his parole officer for a parole violation are analyzed under
the Fourth Amendment.”); Rivera v. Madan, No. 10-CV-4136 (PGG), 2013 WL 4860116,
at *8 (S.D.N.Y. Sept. 12, 2013).
The Fourth Amendment is applicable to the States by way of the Fourteenth
Amendment. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135, 124 L.
Ed. 2d 334 (1993). The Fourth Amendment protects “[t]he right of the people to be secure
in their persons . . . against unreasonable . . . seizures.” U.S. Const. amend. IV. Fourth
Amendment excessive force claims are analyzed under a standard of objective
reasonableness. Graham, 490 U.S. at 394. Law enforcement officers' application of
force is excessive, and thus in violation of the Fourth Amendment, if it is objectively
unreasonable “in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation.” Roberites v. Huff, No. 11-CV-521S, 2013 WL
5416943, at *3 (W.D.N.Y. Sept. 26, 2013) (quoting Graham, 490 U.S. at 397).
determining whether an officer’s actions were reasonable, the actions “must be judged
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight . . . ‘Not every push or shove, even if it may later seem unnecessary in the
peace of a judge’s chambers’ . . . violates the Fourth Amendment.” Graham, 490 U.S. at
396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
“Law enforcement officers’ use of force in an arrest is excessive in violation of the
Fourth Amendment if it is ‘objectively unreasonable in light of the facts and circumstances
confronting them, without regard to the officers’ underlying intent or motivation.’” Mayes
v. Vill. of Hoosick Falls, 162 F. Supp. 3d 67, 88 (N.D.N.Y. 2016) (quoting Papineau v.
Parmley, 465 F.3d 46, 61 (2d Cir. 2006)). When the use of handcuffs gives rise to a
Fourth Amendment claim, the reasonableness of force is measured in light of (1) whether
the handcuffs were unreasonably tight; (2) whether the defendants ignored pleas that the
handcuffs were too tight; and (3) the degree of injury to the wrists. Roberites, 2013 WL
5416943, at *3; Mayes, 162 F. Supp. 3d at 88 (collecting case). This standard reflects
the balance between overly tight handcuffing and the need to use some degree of
physical coercion to maintain custody and prevent an arrestee’s hands from slipping out
of the handcuffs. Usavage v. Port Auth. of New York & New Jersey, 932 F. Supp. 2d 575,
592 (S.D.N.Y. 2013); Esmont v. City of New York, 371 F. Supp. 2d 202, 214–15 (E.D.N.Y.
2005). “This inquiry must reflect the totality of the circumstances, including any facts that
bear on whether use of an unusual degree of force may have been justified.” Roberites,
2013 WL 5416943, at *3.
The injury requirement is “particularly important.” Sachs v. Cantwell, No. 10 Civ.
1663 (JPO), 2012 WL 3822220, at *14 (S.D.N.Y. Sept.4, 2012). “Courts have found that
handcuffing can give rise to a § 1983 excessive force claim where plaintiff suffers an injury
as a result.” Gonzalez v. City of New York, No. 98 Civ. 3084, 2000 WL 516682, at *4
(E.D.N.Y. Mar.7, 2000); Sachs, 2012 WL 3822220, at *14 (“While the application of tight
handcuffs alone can give rise to a cause of action under § 1983, ‘the plaintiffs must suffer
some form of injury from the tight handcuffs in order for such a claim to be actionable.’”)
(quoting Vogeler v. Colbath, No. 04 Civ. 6071, 2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6,
2005)). “[I]f the application of handcuffs was merely uncomfortable or caused pain, that
is generally insufficient to constitute excessive force.” Gonzalez, 2000 WL 516682, at *4.
The injuries need not be “severe or permanent,” Vogeler v. Colbath, No. 04 Civ. 6071,
2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6, 2005), but must be more than merely “de
minimis,” Washpon v. Parr, 561 F. Supp. 2d 394, 407 (S.D.N.Y. 2008). See also Mesa
v. City of New York, No. 09 Civ. 10464 (JPO), 2013 WL 31002, at *18 (S.D.N.Y. Jan. 3,
2013) (“[W]hile a sustained injury that requires doctors' visits is not a necessary element
of a successful excessive force claim, where a plaintiff suffers from de minimis injury, it is
more difficult to establish that the force used was excessive in nature.” (citations omitted)).
The most common injuries found to satisfy the injury requirement in handcuff cases are
scarring and nerve damage. Roberites, 2013 WL 5416943, at *4; see, e.g., Washpon,
561 F. Supp. 2d at 407 (scarring); Esmont, 371 F. Supp. 2d at 214–15 (nerve damage);
Simpson v. Saroff, 741 F. Supp. 1073, 1078 (S.D.N.Y. 1990) (scarring).
Here, assuming the truth of Horace’s allegations, as required at this stage, this
Court finds that he sufficiently states a Fourth Amendment excessive force claim.
First, he alleges that his handcuffs were unreasonably tight. He alleges that Gibbs
applied the handcuffs “so tightly there w[as] hardly any space between [P]laintiff’s wrist
and the handcuffs.” (Compl. Section VI ¶ 14.) He further alleges that the handcuffs were
so tight that they caused indentations in his wrists, caused his wrists and fingers to go
numb, and caused his wrists to swell to twice their normal size. (Compl. Section VI ¶¶
Second, Horace alleges that Defendants ignored his pleas that the handcuffs were
too tight. He alleges that he asked Gibbs to loosen the handcuffs because his hands
were swelling and because the pain was getting worse, but Gibbs refused. (Compl.
Section VI ¶¶ 14, 15.) He further alleges that during the search of his residence, he
“call[ed] out” and told Gibbs and Anderson that he was diabetic, that he felt dizzy, and
that his handcuffs were hurting his wrists. (Compl. Section VI ¶ 16.) Defendants ignored
that plea as well. (Compl. Section VI ¶¶ 16, 17.)
Finally, Horace alleges that he suffered more than discomfort or de minimis
injuries. He alleges that the handcuffs “cut into his skin,” embedded themselves into his
wrists, and left “deep indentation[s] . . . on both wrists” and a “permanent scar” on his left
wrist. (Compl. Section III at 2; VI ¶ 21; Compl. Section III at 2.)
Accordingly, because Horace adequately alleges that his handcuffs were
unreasonably tight, that his pleas were ignored, and that he suffered permanent injury,
Defendants’ motion to dismiss Horace’s Fourth Amendment excessive force claim is
Fourteenth Amendment Deliberate Indifference Claim
A pre-trial detainee’s claim of deliberate indifference to serious medical needs is
governed by the Due Process Clause of the Fourteenth Amendment, not the Eighth
Amendment, which is the source of the same right for convicted prisoners. Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); Thomas v. Nassau County Corr. Ctr., 288 F.
Supp. 2d 333, 337 (E.D.N.Y. 2003). This is because “pretrial detainees have not been
convicted of a crime and thus may not be punished in any manner—neither cruelly and
unusually nor otherwise.” Darnell, 849 F.3d at 29 (citation and internal quotation marks
To sustain a Fourteenth Amendment deliberate indifference claim, a plaintiff must
allege deliberate indifference to a “sufficiently serious” medical need. Farmer v. Brennan,
511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). A medical need is “serious”
if “the failure to treat a prisoner’s condition could result in further significant injury or the
unnecessary and wanton infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136–37
(2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Chance
sets forth several factors relevant to this inquiry, including whether the plaintiff has “an
injury that a reasonable doctor or patient would find important and worthy of comment or
treatment; the presence of a medical condition that significantly affects an individual’s
daily activities; or the existence of chronic and substantial pain.” 143 F.3d at 702.
Here, Horace fails to allege a plausible claim for deliberate indifference to a serious
medical need. Horace’s distress related to his diabetes, low blood sugar, and high blood
pressure is not a sufficiently serious medical condition, and in any case, Horace concedes
that he was given insulin at the Monroe County jail. (Compl. Section VI ¶ 22.) Similarly,
Horace’s claims that he was seated in an uncomfortable position that aggravated his preexisting back and knee conditions are not actionable. (Compl. Section III at 2, VI ¶ 20.)
Finally, the temporary injuries Horace allegedly received from the handcuffs—pain,
swelling, cuts— are likewise not sufficiently serious because they lack permanence and
do not amount to conditions that may produce death, degeneration, or lasting extreme
pain. See White v. Schriro, 16 Civ. 6769 (PAE)(JCF), 2017 WL 3268202, at *3 (S.D.N.Y.
July 31, 2017) (quoting Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005), in turn
quoting, Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)).
Accordingly, Defendants’ motion to dismiss Horace’s Fourteenth Amendment
deliberate indifference claim is granted.
For the foregoing reasons, Defendants’ motion to dismiss is granted in part and
denied in part. Horace’s Fourth Amendment excessive force claim will proceed, but his
Fourteenth Amendment deliberate indifference claim is dismissed.
IT HEREBY IS ORDERED, that Defendants’ Motion to Dismiss (Docket No. 27) is
GRANTED in part and DENIED in part, consistent with the foregoing decision.
Dated: September 29, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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