Washington v. Crowley et al
DECISION AND ORDER: Defendants' Motion for Summary Judgment, ECF No. 36, is DENIED. This case is ready for trial, and the Court will schedule a trial date status conference by separate order. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/9/17. A copy of the Decision and Order and NEF have been mailed to the pro se Plaintiff. (SCE)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHNNIE P. WASHINGTON,
DECISION AND ORDER
KAREN CROWLEY, et al.,
Pro se Plaintiff Johnnie P. Washington (“Plaintiff”), an inmate currently housed at the
Sing Sing Correctional Facility filed this action seeking relief under 42 U.S.C. § 1983, and
alleging that his civil rights were violated while he was housed at the Southport Correctional
Facility (“Southport”) and other facilities. ECF No. 1. After the Court screened the Complaint,
the remaining claims were: (1) a claim against Karen Crowley, Deputy Superintendent of
Programs at Wende Correctional Facility, alleging that Plaintiff was wrongfully placed on the
New York State Sex Offender Registry, and (2) an excessive force claim at Southport against
Officer M. Smith, Officer Testani, II, and Sergeant Ayers. ECF No. 11. A Motion to Dismiss
brought by Defendant Crowley was granted on August 14, 2015. ECF No. 23. The remaining
Defendants have moved for summary judgment, ECF No. 36, and Plaintiff has filed a response to
the Motion, ECF No. 40.
For the following reasons, Defendant’s Motion is DENIED.
On October 7, 2013, while housed at Southport, Plaintiff was accused by a female staff
member of lewd conduct and was escorted from his cell by Officers Testani and Smith, and
Sergeant Ayers. Plaintiff was handcuffed and escorted down the corridor to the day room.
While in the day room, Plaintiff claims he was assaulted by the three Defendants. Plaintiff
claims he was first struck in the groin area from behind by Officer Smith, who had wrapped the
waist chain around his wrist, and then Officer Testani grabbed Plaintiff by the arm and spun him
around. According to Plaintiff, the entire time he was spinning, he was upright and never fell to
the floor. While spinning, Plaintiff claims he was repeatedly kicked in his head by Sergeant
Ayers with a martial arts type of kick and was struck in the groin by Officer Smith with his fist.
He then claims his face was smashed into the console. The attack lasted between 3-5 minutes.
Following the alleged assault on October 7, 2013, Plaintiff did not report any injuries or
seek medical treatment. He first saw a doctor three days later. An hour after the incident,
Plaintiff claims he felt “extreme pain” in his groin. Plaintiff wrote a Grievance on the date of the
incident which stated:
On Oct. 7, 2013, 7-3 tour I were [sic] accused of exposing my parts of privacy to
Office [sic] removed me from my cell A-4-10 and beat with chains kicked me
repeatedly in my groin and kidneys and my head slammed me against the control
console and continued to beat me and kick me along A-1 Company. I’ve urinated
blood, my kidney’s [sic] are swollen.
Except as otherwise noted, the following undisputed facts are taken from the parties' respective
Local Rule 56 Statements. See ECF No. 36-1; ECF No. 40-2, 40-3.
ECF No. 36-4 at 102.2 On October 10, 2013, Plaintiff wrote in an Inmate Injury Report that on
October 7, 2013 he was “[b]eaten and kicked by officers M. Smith, w/chains kicked repeatedly
in groin, legs, back and kidneys.” Id. at 76-77, 105-106.
At his deposition, Plaintiff was asked “after you went through the incident you just
described were you injured in any way” and he testified, “I got that in the records. Never, no, not
at all.” ECF No. 36-4 at 65-66. He also testified that he did not report any injuries and that there
were no visible signs of injuries that required medical treatment. There were no “abrasions,”
“cuts” “nothing  that required medical treatment.” “I didn’t require stitches. None of that. I
didn’t get a broken nose or a broken jaw, none of that.” Id. at 88-89. He did testify that he had
swelling in the groin. Id. at 88.
When Plaintiff was first seen by a doctor three days after the incident, he claims he was
examined but not treated. Plaintiff was told to pull down his pants and when the Doctor looked
at his groin, he told Plaintiff to get out of his office. ECF No. 40-3 at 3, ¶ 23.
Defendants deny that the incident occurred. ECF No. 36-3 at 1, ¶¶ 5-6.
I. Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). On the other hand, the non-moving party may defeat a summary judgment
motion by producing sufficient facts to establish that there is a genuine issue of material fact for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Page references are to those generated by the Court’s Case Management and Electronic Case
Filing System (CM/ECF).
When reviewing a motion for summary judgment, the court must resolve genuinely
disputed facts in favor of the non-moving party and must view inferences to be drawn from the
facts in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378
(2007). However, a party may not “rely on mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804
F.2d 9, 12 (2d Cir. 1986).
The submissions of a pro se litigant are read liberally and interpreted “to raise the
strongest arguments that they suggest.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009). The
Local Rules of Civil Procedure for the Western District of New York require a party moving for
summary judgment to provide a statement, in numbered paragraphs, of the material facts as to
which the moving party contends there is no genuine dispute. Local. R. Civ .P. 56(a)(1).
Likewise, a party opposing summary judgment must provide a response to the moving party's
statement of material facts, and “[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.” Local R.
Civ P. 56(a)(2).
Defendants argue they are entitled to summary judgment on the grounds that: (1)
Plaintiff’s deposition testimony to the effect that he suffered no injuries following the incident
requires dismissal of Plaintiff’s claim for compensatory damages inasmuch as the Prisoner
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), precludes the recovery of damages for
mental or emotional injury in the absence of physical injury; and (2) based on Plaintiff’s
deposition testimony, which directly contradicts the Grievance and Inmate Injury Report,
Plaintiff’s claims are incredible as a matter of law. ECF No. 36-5 at 4-8.
II. Excessive Force-Eighth Amendment
An Eighth Amendment excessive force claim requires a plaintiff to prove both an
objective element and a subjective element. Hudson v. McMillian, 503 U.S. 1, 7-8 (1992);
Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). The objective element is “contextual and
responsive to contemporary standards of decency,” Hudson, 503 U.S. at 9-10, and requires that
“the injury actually inflicted is sufficiently serious to warrant Eighth Amendment protection,”
Blyden, 186 F.3d at 262.
The subjective component of an excessive force claim requires a showing 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. Sims
v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) (citation omitted). Whether conduct in an excessive
force case was “wanton” turns on “whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.” Blyden, 186 F.3d at 262-63.
Defendants do not challenge either element of Plaintiff’s Eighth Amendment claim.
Rather, they argue that the incident did not occur and that Plaintiff’s claim that it did occur is
incredible as a matter of law.
A. Physical Injury Requirement
Defendants submit that Plaintiff’s deposition testimony that he suffered no injuries, as
supported by the medical records, establish the lack of any physical injury and, therefore,
Plaintiff cannot recover compensatory damages. The PLRA provides that: “no Federal civil
action may be brought by a prisoner confined in a . . . prison . . . for mental or emotional injury
suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e).
“Section 1997e(e) applies to claims in which a plaintiff alleges constitutional violations so that
the plaintiff cannot recover damages for mental or emotional injury for a constitutional violation
in the absence of a showing of actual physical injury.” Thompson v. Carter, 284 F.3d 411, 417
(2d. Cir 2002). However, the Second Circuit went on in Thompson to determine that “Section
1997e(e) does not deprive prisoners of adequate methods for contesting constitutional wrongs”
and that “Section 1997e(e) does not limit the availability of nominal damages for the violation of
a constitutional right or of punitive damages.” Id. at 418. The Second Circuit concluded that the
limitation on civil actions in Section 1997e(e) did not bar all claims and that “compensatory
damages for actual injury, nominal, and punitive damages remain available.”
Id. at 419
Plaintiff submits that an hour following the incident he experienced “extreme pain” in his
groin, Depo. Transcript at 71-72, and that he did not receive any medical attention until three
days later when he spoke with a Lieutenant and showed him that he “had urine in a cup with
blood in it, and he immediately got me down to medical attention.” Id. at 74-75. Plaintiff’s
Grievance also states that he was repeatedly kicked in the groin, he urinated blood and his
kidneys were swollen. ECF No. 36-4 at 102.
Plaintiff’s own testimony creates a credibility issue regarding whether he suffered from
any physical injury as a result of the alleged assault. When asked by Defendants’ counsel
whether he suffered an injury after the “incident he went through,” Plaintiff testified that “I got
that in the records. Never, no not at all.” Id. at 65-66. Also, when asked whether “there any
marks to your face or head,” Plaintiff testified that:
No. I told you that, and no, I was treated for none. I mean, usually if you’re
marked, especially if your head is slammed up against the console, if the skin is
broken, you’re going to require medical attention. No, there were no abrasions.
There were no cuts, nothing, that required medical attention. My face was just
slammed against the console. There was nothing wrong with me after that. When
my face was slammed against the console, I didn’t receive a cut or bruise. I didn’t
receive a cut or bruise. I didn’t require stitches. None of that. I didn’t get a broken
nose or a broken jaw, none of that. I told you that.
ECF No. 36-4 at 88-89.
While Plaintiff’s testimony creates a question regarding whether he suffered any physical
injury, the Court cannot say as a matter of law that Plaintiff did not suffer any physical injury
proximately caused by the alleged assault. Plaintiff did testify that he experienced extreme pain
in his groin and swelling an hour after the alleged incident, id. at 72, and wrote that in his
Grievance. He also testified that it was not until he showed a Lieutenant three days later a cup of
urine with blood in it that he was taken down for medical attention. He claims that before that
other officers had ignored his requests for medical attention. ECF No. 36-4 at 74-75. Whether
Plaintiff suffered any compensable physical injuries is a question that turns on credibility, and
raises a genuine issue of material fact that must be resolved by the trier of fact. See, e.g.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a
2. Plaintiff’s Claims Incredible as a Matter of Law
Acknowledging that the Court cannot make credibility determinations on a summary
judgment motion, Defendants argue that there is a “rare exception” when a plaintiff’s claims are
incredible as a matter of law. ECF No. 36-5 at 5-6. They claim that Plaintiff’s deposition
testimony as to how the assault occurred is simply unbelievable and the Court should find
Plaintiff’s claim of an assault incredible as a matter of law and dismiss it. Defendants cite to
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), in support of this proposition.
In Jeffreys, “the Second Circuit recognized that there is a narrow exception to this wellestablished rule in the ‘rare circumstances’ where the sole basis for the disputed issues of fact is
the plaintiff's ‘own testimony’ which is so lacking in credibility that no reasonable juror could
find for the plaintiff.” Sanders v. Garden City Police Dept., No. 09-CV-2393 (JFB)(SIL), 2015
WL 5518589, at *2 (E.D.N.Y. Sept. 16, 2015) (quoting Jeffreys, 426 F.3d at 554). In affirming
the grant of summary judgment, the panel in Jeffreys stated:
[W]e hold that the District Court did not err in granting defendants' motion for
summary judgment on the basis that Jeffeys's testimony—which was largely
unsubstantiated by any other direct evidence was so replete with inconsistencies
and improbabilities that no reasonable juror would undertake the suspension of
disbelief necessary to credit the allegations made in his complaint.
Id. at 555. (internal quotations and citations omitted).
Plaintiff claims that he was first struck in the groin area from behind by Officer Smith,
who had the waist chain wrapped around his wrist, and then Officer Testani grabbed Plaintiff by
the arm and spun him around. While he was spinning, he claims he was repeatedly kicked in his
head by Sergeant Ayers with a martial arts type of kick and was struck in the groin by Officer
Smith. He then claims his face was smashed into the counsel. He claims that the attack lasted
between 3 and 5 minutes. Defendants deny that the attack occurred and Sergeant Ayers avers
that he cannot lift his leg in the manner described by Plaintiff. ECF No. 36-3 at 1.
The Court recognizes that Plaintiff’s deposition testimony could be difficult to believe as
to the manner in which Defendants allegedly assaulted Plaintiff, but the Court cannot say that
“the facts alleged are so contradictory that doubt is cast upon their plausibility, [such that the
. . . dismiss the claim.” Aziz Zarif Shabbaz v. Pico, 994 F.Supp. 460, 470 (S.D.N.Y. 1998)
(internal quotation marks omitted) (cited in Jeffreys, 426 F.3d at 555).
The Court’s role on sum
gment is to determine f
from the record as a w
whether there are any genuine iss
sues of mate
erial fact. Se Jeffreys, 4 F.3d at 5
554. In doin so,
the Cour “must co
onstrue the evidence in the light m
most favorab to the n
drawing all inference in that pa
arty's favor.” Id. (citing Niagara Mo
Mohawk Powe Corp. v. J
Chem., Inc., 315 F.3d 171, 175 (2d Cir.2003
3)). “[T]he judge must ask . . . not whether . . . the
evidence unmistakab favors on side or th other but whether a f
fair-minded jury could r
a verdict for the plai
intiff on the evidence pr
Anderson, 47 U.S. at 2
252. Viewin the
evidence in the light most favora to Plaint and draw
wing all infer
rences in his favor, the C
cannot sa that “a fai
ir-minded ju could [no return a v
verdict for P
Plaintiff,” id., on the evid
presented herein. While the evi
idence may be sparse a to whethe an attack occurred an the
nature of the alleged attack, the Court finds that Plaint
tiff’s testimo is not s incredible as a
matter of law that sum
mmary judgment should be granted to Defendan
Accordingly, because material issue of fact ex
dants’ Motio for Sum
Judgmen is DENIED
For the reason stated abo Defenda
ants’ Motion for Summa Judgmen ECF No. 36,
is DENIE This ca is ready for trial, and the Court w schedule a trial date s
by separa order.
IT IS SO ORD
Augus 9, 2017
ester, New York
HON. FRAN P. GER
United State District C
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