Horace v. Gibbs et al

Filing 89

REPORT AND RECOMMENDATIONS RE: 71 MOTION miscellaneous Relief for Dispositive Motion and Prisoners Petition Objection filed by John L. Horace; 78 MOTION Documents and or any other physical objects in opponents possession filed by John L . Horace; and 80 MOTION for Summary Judgment filed by Kevin Gibbs, Dawn Anderson.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 6, 72.Signed by Hon. Hugh B. Scott on 10/9/2018. (GAI)(Copy of this Report and Recommendation mailed by first-class mail to:John L. Horace, 97-B-0833CENTRAL NEW YORK PSYCHIATRIC CENTERBox 300Marcy, NY 13403.)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
John L. Horace,
Plaintiff,

Report and Recommendation
14-CV-655S

v.
Kevin Gibbs and
Dawn Anderson,
Defendants.

I.

INTRODUCTION
Defendants Kevin Gibbs (“Gibbs”) and Dawn Anderson (“Anderson”) were among the
New York State parole officers who arrested plaintiff John Horace (“Horace”) on December 3, 2013
and searched his residence for evidence of parole violations. Horace insists that, during the arrest
and the search, Gibbs and Anderson handcuffed him so tightly that he suffered permanent damage
to his wrists. Horace subsequently filed suit, claiming that Gibbs and Anderson used excessive force
in violation of his Fourth Amendment rights. Familiarity with other facts in the record is presumed.
The parties now have three motions pending, including cross-motions for summary
judgment under Rule 56 of the Federal Rules of Civil Procedure. (Dkt. Nos. 71, 78, 80.) In short,
Horace has repeated his assertions about the nature of his wrist injuries, while Gibbs and Anderson
have emphasized the absence in the medical record of any complaints about or treatments for wrist
injuries. District Judge William M. Skretny has referred this case to this Court under 28 U.S.C.
§ 636(b). (Dkt. No. 76.) The Court has deemed the motions submitted on papers under Rule 78(b).
For the reasons below, the Court respectfully recommends granting Gibbs and Anderson’s motion.

II.

BACKGROUND
This case concerns allegations of excessive force used during a parole arrest—force applied

by way of excessively tight handcuffs. From 1996 until early 2013, Horace was incarcerated in state
prison on charges related to sexual abuse of comatose and other helpless medical patients; theft of
several thousand dollars’ worth of medical equipment and products; and attempts to operate a
fraudulent sex therapy practice and to bill insurance carriers for sex therapy. Horace was released to
parole supervision on March 4, 2013. Over the next few months, parole officers developed reasons
to believe that Horace was violating multiple conditions of parole—conditions such as avoiding
operation of motor vehicles and avoiding any representation of himself as a sex therapist. An
investigation led to an arrest warrant for violation of parole conditions. On December 3, 2013,
parole officers, including Gibbs and Anderson, arrested Horace and searched his residence.
Detaining Horace involved handcuffing him for about 2-1/2 hours, starting at his residence and
ending at the Monroe County Jail. Gibbs and Anderson have denied that Horace complained about
his handcuffs being too tight or about any medical symptoms involving his wrists. Horace insists
that the handcuffs were applied so tightly that they caused pain, swelling, and a permanent mark on
his left hand. Horace asserts that Gibbs and Anderson ignored him when he reported the pain and
swelling.
Horace filed suit on July 16, 2014. (Dkt. No. 1.) Horace claimed a number of civil rights
violations, but during Rule 12 motion practice, Judge Skretny narrowed Horace’s claims to one claim
of excessive force in violation of the Fourth Amendment. (Dkt. No. 42 at 12.) The alleged
excessive force concerned the handcuffs.
The medical information that appears in the record makes no mention of handcuffs. On
December 10, 2013, Horace requested medical attention for what reads like an abscess in one of his
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gums. (Dkt. No. 62 at 86.) Horace made a repeat request for dental attention on December 13,
2013. (Id. at 87.) Other requests for medical attention in December 2013 covered low blood sugar;
additional dental problems; burning eyes; and back pain. (Id. at 88–91.) Requests in early 2014
covered an oral sore; dry skin; lower back and right knee pain; eyeglasses; an ingrown toenail; and
more dental care. (Id. at 100–22.) Other records addressed an ankle ulcer; prescription renewals;
cold-like symptoms; foot pain; dry skin; compression stockings; diabetes; and other issues from 2014
forward. (Dkt. No. 67.) These medical records do not contain any mention of Horace’s wrists.
During the numerous medical visits that generated his medical records, Horace at no time
mentioned any problem or symptom related to his wrists. Two photographs of Horace’s wrists
from 2017 appear to show some discoloration but nothing that would contradict the complete
absence in the medical records of any mention of his wrists. (Dkt. No. 70 at 3, 5.)
The parties now have moved to dispositive motion practice. Horace has filed a mix of
dispositive and non-dispositive motions. (Dkt. Nos. 71, 78.) These motions rehash discovery issues
that have since been closed; arguments dismissed previously by Judge Skretny; and long discussions
about the underlying substance of his state parole violations. The Court will not address that
material, only the portions of Horace’s papers that can be construed as a motion for summary
judgment on his surviving claim. On July 13, 2018, Gibbs and Anderson filed their motion for
summary judgment. (Dkt. No. 80.) Gibbs and Anderson note the ways in which Horace tries to
relitigate dismissed claims. As for the Fourth Amendment claim, Gibbs and Anderson point to the
absence of medical documentation to argue that, even if Horace suffered any injury from the
handcuffs, the injury was de minimis and not subject to further legal action. Gibbs and Anderson also
make a brief argument that they are entitled to qualified immunity for the events of December 3,
2013.
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III.

DISCUSSION

A. Summary judgment generally
“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 of, the non-movant . . . . Summary judgment is improper if there is any evidence
in the record that could reasonably support a jury’s verdict for the non-moving party.” Marvel
Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (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 who Arrested me on Jan. 2005, 434 F. App’x
22, 25 (2d Cir. 2011) (summary order) (internal quotation and editorial marks and citation omitted).
The standard for summary judgment does not change when both sides file cross-motions
seeking the same relief. “When each side has moved for summary judgment, the district court in
entertaining the motions—and the court of appeals in reviewing the district court’s decisions—are
required to assess each motion on its own merits and to view the evidence in the light most
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favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party.”
Wachovia Bank, Nat. Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir.
2011) (citations omitted). “[W]hen both sides move for summary judgment, neither side is barred
from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of
law, against it. When faced with cross-motions for summary judgment, a district court is not
required to grant judgment as a matter of law for one side or the other.” Heublein, Inc. v. United States,
996 F.2d 1455, 1461 (2d Cir. 1993) (citation omitted).
Additionally, the Court is mindful of Horace’s pro se status. “It is well established that the
submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest
arguments that they suggest. This policy of liberally construing pro se submissions is driven by the
understanding that implicit in the right of self-representation is an obligation on the part of the court
to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important
rights because of their lack of legal training.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75
(2d Cir. 2006) (internal quotation and editorial marks and citations omitted). The Court also realizes
that Horace’s pro se status places him at a relative disadvantage with respect to the development of
his case. “While it is undoubtedly the duty of district courts not to weigh the credibility of the
parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost
exclusively on his own testimony, much of which is contradictory and incomplete, it will be
impossible for a district court to determine whether the jury could reasonably find for the plaintiff,
and thus whether there are any ‘genuine’ issues of material fact, without making some assessment of
the plaintiff’s account. Under these circumstances, the moving party still must meet the difficult
burden of demonstrating that there is no evidence in the record upon which a reasonable factfinder

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could base a verdict in the plaintiff’s favor.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.
2005) (internal quotation marks and citations omitted).

B. Excessive force and the absence of medical evidence
The Court next examines Horace’s claim for excessive force. “As we have said many times,
§ 1983 is not itself a source of substantive rights, but merely provides a method for vindicating
federal rights elsewhere conferred. In addressing an excessive force claim brought under § 1983,
analysis begins by identifying the specific constitutional right allegedly infringed by the challenged
application of force.” Graham v. Connor, 490 U.S. 386, 393–94 (1989) (internal quotation marks and
citations omitted). Between Horace’s papers and Gibbs and Anderson’s arguments—including the
argument for qualified immunity—the Court discerns two slightly different Fourth Amendment
rights that potentially are in play. One right concerns excessive force in the decision to handcuff
Horace under any circumstances. (See Dkt. No. 80-1 at 19 (“Therefore, the dispositive inquiry in
this action is not whether excessive force violates the Fourth Amendment. To the contrary, this is
exactly the type of qualified immunity analysis rejected by our courts. Rather, the correct inquiry is
whether on December 3, 2013, Defendants Gibbs and/or Anderson were aware that placing
plaintiff in handcuffs for a short time while his residence was searched and he was transferred to the
Monroe County Sheriff’s custody violated any clearly established constitutional right of which a
reasonable person would have known.”).) The other right concerns excessive force in how tightly
Gibbs and Anderson handcuffed Horace and any injuries that might have resulted.
The Court will first address the latter right identified above because it fully resolves the
matter. “While handcuffs must be reasonably tight to be effective, handcuffs that are overly tight
may constitute an excessive use of force on the part of the officer using them. In evaluating the
reasonableness of handcuffing, a court is to consider evidence that: 1) the handcuffs were
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unreasonably tight; 2) the defendants ignored the plaintiff’s pleas that the handcuffs were too tight;
and 3) the degree of injury to the wrists. There is a consensus among District Courts in this Circuit
that tight handcuffing does not constitute excessive force unless it causes some injury beyond
temporary discomfort and bruising.” Hollins v. City of New York, No. 10 CIV. 1650 LGS, 2014 WL
836950, at *9 (S.D.N.Y. Mar. 3, 2014) (internal quotation and editorial marks and citations omitted).
Here, Horace has presented no information that raises a triable question of fact about any injuries
that he suffered from the handcuffing on December 3, 2013. The record shows that Horace
received medical attention numerous times in the years following the handcuffing. During all of
those medical visits, Horace presented numerous symptoms and complaints about different parts of
his body: dental problems, back pain, knee pain, cold-like symptoms, foot pain, dry skin, circulation
needing compression stockings, and diabetes, to name just a few. At no time did Horace say
anything about problems with his wrists, let alone problems with his wrists stemming from the
handcuffing. Cf. id. at *9 (summary judgment for handcuff “pain and bruising that lasted only a
day”); see also, e.g., Sachs v. Cantwell, No. 10 CIV. 1663 JPO, 2012 WL 3822220, at *15 (S.D.N.Y. Sept.
4, 2012) (“Plaintiff does not show that she sought medical attention for the injury to her wrists any
time after the incident, even though she was taken by EMS to Bellevue Hospital the night of the
incident, and visited Lenox Hill Hospital for knee pain the day after.”); Wilder v. Village of Amityville,
288 F. Supp. 2d 341, 344 (E.D.N.Y. 2003) (“Plaintiff’s allegation of sore, yet uninjured, wrists simply
does not rise to the level of objective excess that reasonable police officers would consider to be
unlawful conduct in an arrest situation.”). In the face of an undisputed medical record that is
conspicuously silent with respect to any wrist problems, Horace has only his own testimony.
Horace’s testimony suggests that any wrist problems that he experienced after the handcuffing were
minor and did not last long:
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Q. So at what point—you said you had numbness. At what point did that go away?
A. The numbness went away after I had the cuffs removed from my hands.
Q. Okay. You said you felt half numbness?
A. Well, it was complete numbness—half numbness, complete numbness. I didn’t
have any feelings in my finger, if that explains numbness. I couldn’t—I
rubbed my fingers behind my back and I couldn’t feel anything. My hands
were swollen twice the normal size.
Q. And let’s go back—
A. My fingers were swollen and I didn’t have any feelings at all.
Q. So when did the swelling go down?
A. After the cuffs was taken off.
Q. How long after?
A. Probably half hour to get back to normal.
Q. And the numbness you said went away within about the same time?
A. About the same time.
Q. Now you said you had cuts on your wrist?
A. Yes.
Q. Where were they?
A. All around, like here—
Q. Describe it for the record.
A. They wasn’t really deep cuts.
Q. Superficial cuts?
A. Yeah. Like broken skin.
Q. Was there bleeding or no?
A. The scar had a little bit of blood. They weren’t really bleeding.
(Dkt. No. 80-6 at 66–67.) Under these circumstances, even if the Court fully credited Horace’s
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testimony, no reasonable jury could conclude that Horace suffered an injury of enough severity to
cross the threshold of a Fourth Amendment violation.
With Horace unable to establish any triable issue of fact regarding injuries stemming from
the handcuffing, the Court need not address whether or how qualified immunity would apply in this
case. See Soares v. State of Connecticut, 8 F.3d 917, 922 (2d Cir. 1993) (“[T]here is still no clear authority
on whether and under what circumstances, if any, a person has a constitutional right not to be
handcuffed in the course of an arrest.”).
IV.

CONCLUSION
For all of the above reasons, the Court respectfully recommends granting Gibbs and

Anderson’s motion for summary judgment (Dkt. No. 80.) The Court further recommends denying
both of Horace’s pending motions (Dkt. Nos. 71, 78.)
V.

OBJECTIONS
A copy of this Report and Recommendation will be sent to Horace by first-class mail, and to
counsel for Gibbs and Anderson by electronic filing, on the date below. “Within 14 days after being
served with a copy of the recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2); see also 28
U.S.C. § 636(b)(1).
“As a rule, a party’s failure to object to any purported error or omission in a magistrate
judge’s report waives further judicial review of the point.” Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003) (citations omitted); see also Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Where parties receive clear notice of the consequences, failure timely to object to a magistrate’s
report and recommendation operates as a waiver of further judicial review of the magistrate’s
decision.”) (citation omitted). “We have adopted the rule that failure to object timely to a magistrate
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judge’s report may operate as a waiver of any further judicial review of the decision, as long as the
parties receive clear notice of the consequences of their failure to object. The rule is
enforced under our supervisory powers and is a nonjurisdictional waiver provision whose violation
we may excuse in the interest of justice.” United States v. Male Juvenile (95-CR-1074), 121 F.3d 34,
38–39 (2d Cir. 1997) (internal quotation marks and citations omitted).
“Where a party only raises general objections, a district court need only satisfy itself there is
no clear error on the face of the record. Indeed, objections that are merely perfunctory responses
argued in an attempt to engage the district court in a rehashing of the same arguments set forth in
the original papers will not suffice to invoke de novo review. Such objections would reduce the
magistrate’s work to something akin to a meaningless dress rehearsal.” Owusu v. N.Y. State Ins., 655
F. Supp. 2d 308, 312–13 (S.D.N.Y. 2009) (internal quotation and editorial marks and citations
omitted).
SO ORDERED.

__/s Hugh B. Scott________
DATED: October 9, 2018

Hon. Hugh B. Scott
United States Magistrate Judge

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