Frederick v. Shehan et al

Filing 74

DECISION AND ORDER denying 68 Sgt. Holton's Motion for Summary Judgment. Sgt. Holton will remain a defendant in this case. (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 7/13/15. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL FREDERICK,
DECISION AND ORDER
No. 6:10-cv-06527(MAT)

Plaintiff,
-vsMICHAEL SHEAHAN, et al.,
Defendants.

I.

Introduction
Pro

se

plaintiff

Michael

Frederick

(“Frederick”

or

“Plaintiff”), an inmate in the custody of the New York Department
of Corrections and Community Supervision (“DOCCS”), instituted this
action pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional
Correctional
(Dkt

#4),

rights

Facility

Plaintiff

while

in

DOCCS’

(“Southport”).
names

the

In

custody
his

following

at

Southport

amended

complaint

individual

as

being

responsible for the constitutional violations alleged: Corrections
Officer Mark Vandergrift (“CO Vandergrift”); CO Patrick Murphy
(“CO Murphy”); CO Michael Robyck (“CO Robyck”); CO J. Robinson
(“CO Robinson”); Corrections Sergeant D. Holton (“Sgt. Holton”);
and Acting Superintendent Michael Sheahan (“Acting Supt. Sheahan”)
(collectively, “Defendants”). The Court granted in part and denied
in

part

Defendants’

first

motion

for

summary

judgment.

In

particular, the Court dismissed all of the official-capacity claims
against Defendants, all of the claims against Acting Supt. Sheahan,
and the claim against CO Murphy for filing a false misbehavior

report. Although the Court denied Defendants’ request to dismiss
Plaintiff’s claim against Sgt. Holton for failure to supervise, the
denial was without prejudice with leave to renew. Sgt. Holton now
has re-filed his motion for summary judgment. (Dkt #68). Plaintiff
filed. (Dkt #). Sgt. Holton filed a reply. (Dkt #). Plaintiff filed
a sur-reply in letter form. (Dkt # ).
II.

Factual Background
The following factual summary is based on the pleadings and

the parties’ submissions in conjunction with the two summary
judgment motions. The facts are viewed in the light most favorable
to Plaintiff, as non-movant.
On December 2, 2009, Plaintiff was locking on C-11 Gallery,
part of C-Block, Third Floor, at Southport. That day, all of the
inmates on C-11 Gallery were ordered to submit to a “Level III”
institutional search of the gallery. Officer Frisbee, who is not a
party to this action, and a second, as-yet unidentified officer,
came to Plaintiff’s cell and ordered him to turn around to be
handcuffed. After Plaintiff was handcuffed, the cell door opened,
and he waited to follow the officers’ commands. Instead, Plaintiff
says, he was shoved away from the door and pushed so he fell on the
bed. Turning around, Plaintiff saw CO Vandergrift, who punched
Plaintiff in the face multiple times, while several officers (CO
Murphy, CO Robyck, and CO Robinson) held his ankles, legs, and
feet. The officers then began striking Plaintiff on his bare feet

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with their batons. Plaintiff estimates that this assault lasted for
approximately 5 minutes. CO Vandergrift, CO Murphy, CO Robyck, and
CO Robinson then brought him to the front of his cell, where
CO Vandergrift “wrapped his hand around [Plaintiff’s] neck and
started choking him until [Plaintiff] passed out.” Plaintiff’s
Declaration (“Pl’s Decl.”), ¶ 9.
After that, Plaintiff “remembered being dragged down the
company and brought to a shower stall.” Id. His injuries were
photographed, and he underwent a medical exam at the facility
infirmary. In the section of the “Unusual Incident Report (“UIR”)”
titled “Medical Report,” DOCCS medical staff described Plaintiff’s
injuries as follows: A 4-inch by 3-inch red mark on the left side
of his neck with no observed swelling, bruising, pain, welts or
open areas; a bloodshot left eye, with no swelling, bruises, or
pain noted; complaints of pain in left ankle and left wrist with no
sign of injury noted in either area.
In his declaration submitted in support of the instant summary
judgment motion, Sgt. Holton relates that just prior to the use-offorce incident, he was supervising the inmates on C-11 Gallery
being prepared for the gallery frisk. Declaration of Donald Holton
(“Holton Decl.”) (Dkt #68-3) ¶ 7. While Sgt. Holton was answering
a question from another inmate about the gallery frisk, he was
notified about a “use of force” in C-11-13, Plaintiff’s cell, and
responded to the area. Upon his arrival, Sgt. Holton “ordered

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[Plaintiff] to comply with the officers’ instructions and to stop
struggling, but [Plaintiff] continued to struggle aggressively.”
Id. ¶ 9. Sgt. Holton observed

CO Murphy “use[ ] body holds to

force [Plaintiff] back into his cell and onto his bed[,]” id. ¶ 11.
CO Robinson and CO Robyck “then arrived to assist in the use of
force.” Id. ¶ 12. According to Sgt. Holton, “CO Murphy and CO
Robinson used body holds to gain control of Mr. Frederick[,]” id.
¶ 13, and “[a]fter control was gained, CO Robyck applied leg
restraints to [him].” Id. ¶ 14. CO Murphy then assisted Plaintiff
to his feet and out of the cell. Id. ¶ 15. Sgt. Holton indicates
that Plaintiff was escorted to the shower area “without incident.”
Id.
III. General Legal Principles
In an action under 42 U.S.C. § 1983, “‘personal involvement of
defendants in alleged constitutional deprivations is a prerequisite
to an award of damages. . . . .’” Wright v. Smith, 21 F.3d 496, 501
(2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d
880, 885 (2d Cir. 1991)). Respondeat superior cannot form the basis
of liability under Section 1983. Blyden v. Mancusi, 186 F.3d 252,
264 (2d Cir. 1999). Thus, a Section 1983 defendant “may not be held
liable for damages for constitutional violations merely because he
held a high position of authority.” Black v. Coughlin, 76 F.3d 72,
74 (2d Cir. 1996). Rather, Section 1983 imposes liability “only

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upon those who actually cause a deprivation of rights[.]” Wright,
21 F.3d at 501.
Summary

judgment

may

be

granted

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In
determining whether summary judgment is appropriate, the reviewing
court

“resolve[s]

all

ambiguities

and

draw[s]

all

reasonable

inferences against the moving party.” Skubel v. Fuoroli, 113 F.3d
330, 334 (2d Cir. 1997) (citing Cifarelli v. Village of Babylon, 93
F.3d 47, 51 (2d Cir. 1996)).
IV.

Discussion
In his amended complaint, Plaintiff asserts that Sgt. Holton

violated

his

Eighth

Amendment

rights

by

“maliciously

and

sadistically causing harm to [Plaintiff] by not supervising the
gallery and witnessing all inmates being escorted out of our cell
[sic], by the officers conducting the institutional search. The
force used was not a necessary part of prison discipline.” Amended
Complaint

(“Compl.”),

“Par.

8”

(Dkt

#).

At

his

deposition,

Plaintiff explained that he was suing Sgt. Holton because he was
the area supervisor. (Frederick 66:16-18). Plaintiff admitted that,
in one of his interrogatory responses, Sgt. Holton stated that he

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did not see Plaintiff. Instead, Sgt. Holton indicated that he had
come onto the gallery but had left and was not there during the
use-of-force incident. (Id. 66:19-25). Plaintiff testified that he
saw Sgt. Holton walk by when the institutional frisk started, but
he admitted he did not see Sgt. Holton after that. (Id. 67:21-24;
67:1-20). Plaintiff stated, “I just felt that it was his duty to
observe prisoners coming out of their cell[s] since there’s no
cameras on the gallery.” (Id. 68:1-6).
In

its

previous

order,

the

Court

noted

that

Plaintiff

“essentially ha[d] conceded Sgt. Holton’s lack of direct personal
involvement

in

the

use-of-force

incident”

but

observed

that

Defendants had misinterpreted Plaintiff’s amended complaint, which
alleges that Sgt. Holton is liable due to his failure to properly
supervise his subordinate officers for attacking Plaintiff without
provocation. As discussed further below, the Court concludes that
Plaintiff has a viable claim against Sgt. Holton based on his
failure to supervise his subordinates (CO Vandergrift, CO Murphy,
CO Robyck, and CO Robinson) as well as a claim based on Sgt.
Holton’s failure to intervene in what Plaintiff contends was an
excessive use of force.
While supervisory officials may not be held liable merely
because they held a position of authority at the time of the
alleged wrongs, Black, 76 F.3d at 74, they may be found “personally
involved”

if,

e.g.,

they

participated

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directly

in

the

constitutional violation; were grossly negligent in supervising
subordinates who committed the unconstitutional acts; or exhibited
deliberate indifference to inmates’ rights by failing to act on
information indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams
v. Smith, 781 F.2d 319, 323–24 (2d Cir. 1986)).
A corrections officer can be held liable under § 1983 for
failing to intervene in a situation where excessive force is being
used against a prisoner by another corrections officer. See O’Neill
v. Krzeminksi, 839 F.2d 9, 11 (2d Cir. 1988) (“A law enforcement
officer has an affirmative duty to intercede on the behalf of a
citizen whose constitutional rights are being violated in his
presence by other officers.”) (citations omitted). To establish
liability based on an officer’s failure to intervene, a plaintiff
must demonstrate that “(1) the officer had a realistic opportunity
to intervene and prevent the harm; (2) a reasonable person in the
officer’s position would know that the victim’s constitutional
rights were being violated; and (3) the officer does not take
reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F.
Supp.2d 501, 512 (S.D.N.Y. 2008) (citing O’Neill, 839 F.2d at 1112; other citations omitted).
Under the facts of this case, Plaintiff’s failure to supervise
claim overlaps with his failure to intervene claim against Sgt.
Holton. Even if Sgt. Holton was not present at the time that

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Plaintiff alleges he was shoved away from the door of his cell and
punched

in

the

face

by

saw

CO

Vandergrift,

Sgt.

Holton’s

declaration indicates that he was present during some part, if not
most, of the use-of-force incident in Plaintiff’s cell. Sgt. Holton
states that after being notified about the use-of-force in C-11-13,
he went to that cell and “ordered [Plaintiff] to comply with the
officers’ instructions and to stop struggling[.]” Holton Decl. ¶ 9.
According to Sgt. Holton, because Plaintiff continued to “struggle
aggressively,”

CO Murphy “use[ ] body holds to force [Plaintiff]

back into his cell and onto his bed[,]” id. ¶ 11. CO Robinson and
CO Robyck “then arrived to assist in the use of force.” Id. ¶ 12.
Sgt. Holton watched as “CO Murphy and CO Robinson used body holds
to gain control of” Plaintiff. Id. ¶ 13. Then, Sgt. Holton observed
CO Robyck apply leg restraints, following which Plaintiff was
“assisted . . . to his feet[.]” Id. ¶¶ 14-15.” Id. ¶ 23.
Based on the apparent duration of Sgt. Holton’s presence
during the use-of-force, Plaintiff has certainly raised a genuine
issue of material fact as to whether Sgt. Holton had a realistic
opportunity

to

intervene

continuing.

With

regard

and
to

prevent
whether

the
a

alleged

reasonable

harms

from

person

in

Sgt. Holton’s position would know that Plaintiff’s constitutional
rights were being violated, it was clearly established at the time
of the incident that a prisoner has the constitutional right to be
free from unreasonable searches or excessive force by prison

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officials.

The

Court

notes

that

the

injuries

sustained

by

Plaintiff, which were observed and documented by DOCCS’ medical
staff, are not inconsistent with Plaintiff’s assertion that he was
choked by CO Murphy (the welt on his neck and bloodshot eye) and
struck on his ankles and feet with batons (pain in his ankle area).
Moreover, CO Murphy’s description of how the event occurred does
not

account

for

any

of

Plaintiff’s

injuries.

According

to

CO Murphy, he only used a “body hold” to force Plaintiff to the
back wall after Plaintiff purportedly attempted to “head-butt” him.
Therefore,

the

Court

finds

that

there

are

genuine

issues

of

material fact as to whether Plaintiff’s constitutional right to not
be subjected to excessive force by prison officials was violated
during the gallery frisk and use-of-force incident in his cell.
Finally, based on Sgt. Holton’s declaration, he apparently did not
take any steps to intervene in his subordinates’ use of force and
restraint of Plaintiff. Accordingly, Sgt. Holton’s motion for
summary judgment with respect to Plaintiff’s claims against him
based on the failure to supervise and the failure to intervene is
denied.
V.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Sgt. Holton is denied. Sgt. Holton will remain a defendant
in this case, and Plaintiff’s claims against Sgt. Holton based on

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his failure to supervise and failure to intervene will be allowed
to proceed.
SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

July 13, 2015
Rochester, New York

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