Head v. Artus et al

Filing 138

DECISION AND ORDER denying 111 Motion for Summary Judgment; granting in part and denying in part 119 Motion for Summary Judgment. The Clerk of Court is directed to terminate Captain Brown as a defendant in this matter. The remaining defendants are directed to file an answer to the second amended complaint within 14 days of entry of this Decision and Order. Signed by Hon. Elizabeth A. Wolford on 03/22/2019. (CDH)(A copy of this Decision and Order was mailed to Plaintiff)-CLERK TO FOLLOW UP-

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UNITED STATES DISTRICT COURT

MAR 2 2 2019

WESTERN DISTRICT OF NEW YORK

MICHAEL HEAD,

Plaintiff,

DECISION AND ORDER

V.

6:I4-CV-06546 LAW

SERGEANT MARTIN EBERT, CAPTAIN
KEVIN BROWN,C.O. ANDREW DANNHEIM,
C.O. JAMES PICHETTE, C.O. JOSEPH
KAPELKE, C.O. PAUL WEAVER,and C.O.

LLOYD NOLAN, in their individual capacities,
Defendants.

INTRODUCTION

Pro se plaintiff Miehael Head ("Plaintiff), a prisoner in the eustody of the New
York State Department of Corrections and Community Supervision ("DOCCS") and
currently confined at the Clinton Correctional Facility, asserts various claims under 42
U.S.C. § 1983 related to an incident at the Attica Correctional Facility ("Attica") on
January 22, 2014. (See Dkt. 98). Currently pending before the Court are Plaintiffs motion
for summary judgment (Dkt. Ill) and Defendants' cross-motion for partial summary
judgment (Dkt. 119). For the reasons set forth below. Plaintiffs motion is denied and
Defendants' cross-motion is granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND

At all times relevant to the instant action, Plaintiff was incarcerated at Attica. On

August 29, 2013, Plaintiff sent a letter to Attica's superintendent in which he alleged that.

two years earlier, he had witnessed "more than ten officers" assaulting an inmate. (Dkt.
111-3 at 2). Plaintiff further stated that he had made a contemporaneous complaint and
that, in retaliation, two officers had searched his cell and "left a mess . .. three days in a
row." (Jd.). Plaintiff went on to claim that in July 2013, he had been sent to the special

housing unit (the "SHU")because he wrote a letter to his family in which he complained
of mistreatment by corrections officers. {Id. at 3). Plaintiffs letter states that in August

2013, after he was released from the SHU, he was placed in C-Block housing and was
threatened by a corrections officer. {Id.). Plaintiff flirther reported to the superintendent
that in late August 2013, the water for the sinks in C-Block was turned off for more than

10 hours and the inmates were deprived of any water despite the heat and humidity. {Id.).
Plaintiff indicated that the inmates in C-Block were frequently verbally and physically
assaulted and otherwise harassed by corrections officers. {Id. at 5). Plaintiffs August
2013 letter does not mention any Defendant in this matter.

On October 16, 2013, Deputy Superintendent William Hughes sent Plaintiff a
memorandum responding to his August 29th letter. {Id. at 6).

Deputy Superintendent

Hughes indicated that he could not comment on incidents that had allegedly occurred two
years prior, that Plaintiffs complaints related to the misbehavior report that resulted in his
SHU confinement should have been raised during his hearing, and that staff reported that
supplies in C-Block had been issued "in accordance with schedule." {Id.).

On January 22, 2014, Plaintiff and several Defendants were involved in a physical

altercation, the facts of which are contested. Plaintiff alleges that at approximately 5:50
p.m. on the date in question, defendants James Pichette ("Officer Pichette") and Joseph
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Kapelke ("Officer Kapelke") came to his cell stating that they needed to do a cell search.
(Dkt. 98 at ^ 22). Plaintiff claims that he was "alarmed" because he was "aware that it was

around this time of day that C-block officers used pretense cell searches to beat up
inmates." {Id. at ^ 23). At his deposition, Plaintiff testified that Officer Pichette told him

to step out of his cell and that Plaintiff stepped away from the doorway and asked to see a
sergeant. (Dkt. 119-3 at 166). Officer Pichette continued to tell Plaintiffto step out ofthe
cell, and Plaintiff "started backing away from the doorway." {Id.). Plaintiff claims that
Officer Pichette entered Plaintiffs cell and pulled out his baton, at which point Plaintiff

grabbed a pen from his desk and "began screaming for [Officer Pichette] to get out
[Plaintiffs] cell [sic]." {Id. at 169-70). Plaintifftestified that Officer Pichette then attacked

Plaintiff with his baton, whereupon he swung at Officer Pichette with the pen. {Id. at 170).
Plaintiff acknowledges that he struck Officer Pichette in the face with the pen. (Dkt. 98 at
1126).

Plaintiff claims that after he struck Officer Pichette with the pen. Officer Pichette
dropped his baton, grabbed Plaintiff, and held him down on the bed. {Id. at

27).

According to Plaintiff, Officer Kapelke then entered the cell and assisted Officer Pichette

in placing Plaintiffin mechanical restraints. {Id.). At that point. Plaintiff alleges, defendant
Paul Weaver("Officer Weaver")and defendant Lloyd Nolan("Officer Nolan"),along with

other unnamed corrections officers, entered his cell and began to punch him. {Id. at

28-

29). Plaintiff also specifically alleges that Officer Pichette punched him "several times in
the forehead with closed fist punches." {Id. at f 29). Plaintiff claims that he started
shouting that Officers Pichette, Kapelke, Weaver, and Nolan were trying to kill him, at
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which time an unnamed officer said "that's enough, let's get him off the company." (Jd.
at ^ 31). According to Plaintiff, he was "brought to his feet and half-carried half-dragged

from his cell." {Id. at T| 32). He was then "handed to other officers" who dragged him
down to the staircase and down the first flight of stairs. {Id).

In Plaintiffs version of events, when he reached the second flight of stairs, he saw
defendant Andrew Dannheim("Officer Dannheim")standing at the bottom ofthe staircase.
{Id. at 33). Plaintiff claims that Officer Dannheim told the officers holding Plaintiff that
he "want[ed] a piece of [Plaintiff] too," whereupon the officers "slid plaintiff face first
down the flight of stairs." {Id. at Tf 33). According to Plaintiff, he was then dragged into
the C-Block lobby and "stomped and punched by several officers as he lay on his side with
his hands cuffed behind his back." {Id. at ^ 34). Plaintiff specifically alleges that Officer
Dannheim kicked him in the left eye and that Plaintiff thereafter became unconscious.

{Id.). Plaintiff testified at his deposition that the next thing he remembers is waking up in
the hospital. (Dkt. 119-3 at 173).
Defendants' version ofthe events ofJanuary 22,2014,is very different. Defendants
deny that Officer Pichette was the initial aggressor or that Plaintiff was acting in selfdefense. (Dkt. 119-3 at 5). According to Defendants, defendant Sergeant Martin Ebert
("Sergeant Ebert") had authorized a search of Plaintiffs cell, but Plaintiff refused Officer

Pichette's direction to exit the cell and instead grabbed a pen from his desk and
immediately began to stab Officer Pichette. {Id.). The use offorce report completed at the
time ofthe incident states that after he was stabbed by Plaintiff, Officer Pichette used both
hands to push Plaintiff backward, whereupon Plaintiff "again charged [Officer Pichette]
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stabbing him." {Id.). Officer Pichette then allegedly grabbed Plaintiff around the chest
and used "both hands" to "forc[e] a violently struggling [Plaintiff] to the bed." {Id.). The
use of force report states that Plaintiff continued to struggle and that Officer Kapelke then
struck Plaintiff twice with his baton on his left torso before grabbing Plaintiffs right arm.
{Id.). Plaintiff purportedly kicked Officer Kapelke in the shin and attempted to stab him,
whereupon Officer Weaver, who had responded to the scene, struck Plaintiff in the legs
with his baton four times. {Id.). Officer Weaver reported that he had grabbed Plaintiffs
legs but Plaintiff violently kicked himself free, causing Officer Weaver to use his own legs
to hold Plaintiffs legs down. {Id.). Officer Nolan responded to the scene and attempted
to retrieve a dropped baton, and Plaintiff struck Officer Nolan in the nose. {Id.). Officer
Nolan then purportedly struck Plaintiff in the head four times with a closed fist, and
Plaintiff responded by biting Officer Nolan's leftjacket sleeve, whereupon Officer Nolan

struck him again with a closed fist. {Id.). According to the use of force report. Officer

Kapelke then took control of Plaintiffs arms and forced them behind his back, allowing
Officer Weaver to place Plaintiff in mechanical restraints, and "at that point [Plaintiff]
became compliant." {Id.).

Plaintiff was taken to the infirmary and then to Wyoming County Community

Hospital after the incident and was treated for a left orbital floor fracture and loss of
consciousness. (Dkt. 120-1 at 10). Plaintiff was transferred to the Erie County Medical
Center for further assessment. {Id. at 63). He was noted to have bruises and abrasions on

his extremities but no deformities. {Id.). Officers Pichette, Kapelke, Weaver, and Nolan

were all treated for injuries after the incident. (Dkt. 119-3 at 8-120). Officer Kapelke
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suffered a sprained ankle {id. at 9-10), while Officer Nolan suffered injuries to his nose,
knuckles, wrist, neck, and back {id. at 21-31). Officer Pichette was taken to the emergency
room with five puncture wounds and an injured hand. {Id. at 38). Moreover, Officer
Pichette's fall onto Plaintiffs bed caused him to suffer from a hemiated disc. {Id. at 48).

Officer Weaver suffered injuries to his nose, ribs, and shoulder. {Id. at 120; Dkt. 111-3 at
11).

Plaintiffclaims that defendant Captain Kevin Brown("Captain Brown")falsely told
the New York State Police during an investigation into the incident that Plaintiff was
"conscious and uncooperative" at the time he was taken to the infirmary. (Dkt. 98 at ^ 46).

Plaintiff further claims that Sergeant Ebert did not actually authorize a search of his cell
and that there is no "logbook entry" of any such authorization. {Id. at ^ 37).

As a result ofthe incident on January 22,2014,Plaintiff was criminally charged and
ultimately convicted of two counts of assault in the second degree for his actions towards
Officer Pichette. (Dkt. 119-3 at 177). Plaintiff was sentenced to seven years of

incarceration on each count, to run consecutively. {Id.). Plaintiff was also the subject of a

prison disciplinary hearing, at which he was charged with assault, refusing a frisk,
possessing a weapon, violent conduct, and disobeying a direct order. {Id. at 174). Plaintiff
pled guilty to the charges of disobeying a direct order and violent conduct and was found
guilty on the counts of assault, possessing a weapon, and refusing a frisk. {Id.). Plaintiff
was sentenced to 60 months in the SHU(12 months suspended)and 60 months loss ofgood
time credits. {Id. at 161, 175).

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Plaintiff commenced the instant action on September 18, 2014. (Dkt. 1). Plaintiff
thereafter filed an amended complaint on June 15,2015. (Dkt. 9). On September 19,2016,
Sergeant Ebert, Captain Brown, and Officers Pichette, Dannheim, and Kapelke filed an
answer to the amended complaint. (Dkt. 19). Officers Pichette and Kapelke also asserted

counterclaims against Plaintiff for assault and battery. {Id. at 3-7).'
Officers Nolan and Weaver had not been served at the time the other defendants

filed their answer. (Dkt. 21). Officers Nolan and Weaver were subsequently served and
defense counsel entered a notice of appearance on their behalves(Dkt. 23; Dkt. 24), but no

answer to the amended complaint appears to have been filed by Officer Nolan or Officer
Weaver.

On February 8, 2017, Plaintiff filed a motion for leave to file a second amended

complaint. (Dkt. 48). Defendants opposed the request in part. (Dkt. 53). On July 11,
2017, United States Magistrate Judge Marian W. Payson entered a Decision and Order

granting Plaintiffs request in part and denying it in part. (Dkt. 91). In particular. Judge
Payson denied Plaintiffs request to the extent he sought to add new defendants but granted
it to the extent Plaintiff sought to add new factual allegations regarding the incident and to
modify the amount of damages sought. {Id. at 5). In accordance with Judge Payson's
Decision and Order,Plaintifffiled an second amended complaint on August 9,2017. (Dkt.

'

The answer purports to assert these claims on behalf of Officers Weaver and Nolan,

as well. However, the answer was expressly filed only on behalf of the "Served
Defendants"(Dkt. 19 at 1)which, at that time, did not include Officers Weaver and Nolan.
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98). There is no indication on the docket in this matter that Defendants ever filed an answer
to the second amended complaint.

Plaintiff filed a motion for summary judgment on October 24, 2017. (Dkt. 111).

Defendants thereafter filed their opposition to Plaintiffs motion and a cross-motion for
partial summary judgment on November 28, 2017. (Dkt. 119). Plaintiff filed a reply in
further support of his motion and a response to Defendants' cross-motion on January 11,
2018. (Dkt. 127). Defendants filed a reply in further support of their motion on January

30, 2018(Dkt. 129), and Plaintiff filed a sur-reply on February 5, 2018(Dkt. 131).
DISCUSSION

I.

Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment

should be granted if the moving party establishes "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). The Court should grant summary judgment if, after considering the evidence in

the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007)(citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586-87 (1986)).

"The moving party bears the burden ofshowing the absence of a genuine dispute as

to any material fact. . . ." Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486

(2d Cir. 2014). "Where the non-moving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by showing the evidentiary
materials of record, if reduced to admissible evidence, would be insufficient to carry the
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non-movant's burden of proof at trial." Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y.2011)(citing Celotex Corp. v. Catrett, All U.S.317,322-23(1986)). Once the

moving party has met its burden, the opposing party "must do more than simply show that
there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation." Robinson v. Concentra Health Servs., Inc.,
781 F.3d 42, 44(2d Cir. 2015)(quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011)). Specifically, the non-moving party "must come forward with specific

evidence demonstrating the existence of a genuine dispute of material fact." Brown, 654
F.3d at 358. Indeed, "the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., All U.S. 242, 247-48(1986).
II.

Failure to Answer Second Amended Complaint

As a threshold matter, the Court notes that Defendants have not filed an answer to

the second amended complaint despite the fact that it was filed in August 2017. While

Defendants have filed a motion for partial summary judgment, that motion was filed after
the time for filing an answer had expired and, in any event, "[wjhile a motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure automatically extends

the time under which a defendant must file an answer,there is no parallel rule governing a
defendant's obligation to answer a complaint when he files a pre-answer motion for
summary judgment pursuant to Rule 56." Hall v. Annucci, No. 9:17-CV-1069 GTS DBF,

2018 WL 6607600, at *3(N.D.N.Y. Nov. 7, 2018), report and recommendation adopted,
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2018 WL 6605618 (N.D.N.Y. Dec. 17, 2018). There is therefore no valid reason for

Defendants to have failed to timely file an answer to the second amended complaint.

Defendants' failure to file an answer to the second amended complaint is not fatal
to their motion for summary judgment. See Cygielman v. Cunard Line Ltd., 890 F. Supp.
305, 308 (S.D.N.Y. 1995)(finding that defendant who had failed to timely file an answer

could nonetheless move for summary judgment because(1)"plaintiff never took, and thus
waived, a default," and (2) pursuant to Rule 56, a motion for summary judgment may be

made "at any time"). Nor does Defendants' failure to file an answer to the second amended

complaint constitute an abandonment of the counterclaims asserted in the answer to the
amended complaint. See Yahui Zhang v. Akami Inc., No. 15-CV-4946 (VSB), 2017 WL
4329723, at *9 (S.D.N.Y. Sept. 26, 2017) (noting that courts have found that
"counterclaims can survive a subsequent amended complaint" and that failing to reassert a
counterclaim in response to an amended complaint does not waive it because
"counterclaims do not need to be contained in an answer but only a pleading"); see also
Ground Zero Museum Workshop v. Wilson, 813 F. Supp. 2d 678, 705-06(D. Md. 2011)
("Plaintiffs . . . cite no case law in support of their theory that failure to reassert

counterclaims when responding to an amended complaint results in waiver or abandonment
of the counterclaims.... Several courts have held that failure to reassert counterclaims in

response to an amended complaint does not waive the counterclaims or otherwise affect
their viability.").

No clerk's entry of default has ever been entered against Defendants. Plaintiff also
has not sought default judgment as a result of Defendants' failure to file an answer to the
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second amended complaint, nor would the Court have been inclined to grant such a motion,
given that the failure to answer was clearly a result ofinadvertence, no prejudice to Plaintiff
resulted from the failure to answer the second amended complaint, and Defendants have
asserted potentially meritorious defenses to Plaintiffs claims. See Meehan v. Snow, 652

F.2d 274, 277 (2d Cir. 1981)("[T]he principal factors bearing on the appropriateness of
relieving a party of a default are whether the default was willful, whether setting it aside
would prejudice the adversary, and whether a meritorious defense is presented.").
Nevertheless, the lack of an answer to the second amended complaint unnecessarily
procedurally complicates this case. Accordingly, the Court orders Defendants to file an

answer to the second amended complaint within 14 days of entry of this Decision and
Order.

III.

The Parties' Motions for Summary Judgment

Plaintiff seeks summary judgment as to the following claims: (1) retaliation; (2)
excessive use of force; and (3) failure to intervene by Sergeant Ebert and Captain Brown.
{See Dkt. 111-2). Defendants oppose Plaintiffs motion and seek summary judgment as

to: (1) Plaintiffs retaliation claim; (2) Plaintiffs claims against Captain Brown and
Officers Pichette, Kapelke, Nolan, and Weaver; and (3) Officer Pichette's counterclaims

against Plaintiff. {See Dkt 119-5). The Court considers each ofthe claims at issue below.
A.

Retaliation Claim

Plaintiff seeks summary judgment on his claim for retaliation, arguing that

Defendants assaulted him on January 22, 2014, in retaliation for the letter he sent to the

Attica superintendent in August 2013, in violation of his First Amendment rights.
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Defendants contend in opposition and in support of their cross-motion that there is no
evidence of any causal relationship between Plaintiffs letter sent in August 2013 and the
incident on January 22, 2014. For the reasons below, the Court finds that Defendants are
entitled to summary judgment on this claim.

"To establish a case of retaliation in violation of the First Amendment, a plaintiff
must demonstrate that:(1)he engaged in protected conduct;(2)the defendant took adverse
action against him; and (3) there was a causal connection between the two." Linares v.

McLaughlin,423 F. App'x 84, 86(2d Cir. 2011). The parties have focused in their briefs
on the third ofthese elements, and so the Court will presume for purposes of assessing this
claim that(1)Plaintiffs August 2013 letter constituted protected speech and(2)the alleged
cell frisk and attack on Plaintiff constituted adverse action.

In considering whether there is a "causal connection between the protected speech
and the adverse action, a court may consider a number offactors, including any statements

made by the defendant coneeming his motivation and the temporal proximity between the
protected activity and the defendant's adverse action." Roseboro v. Gillespie, 791 F. Supp.
2d 353, 366 (S.D.N.Y. 2011)(quotations omitted); see also Tuitt v. Chase, No. 9:11-CV0776 DNH/TWD, 2013 WL 877439, at *7 (N.D.N.Y. Jan. 30, 2013), report and
recommendation adopted, 2013 WL 877617(N.D.N.Y. Mar. 8, 2013)(factors relevant to

a consideration of causal connection "include: (i) the temporal proximity between the
protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary
record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant

concerning his or her motivation"). The Second Circuit has "held that temporal proximity
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between protected conduct and an adverse action constitutes circumstantial evidence of

retaliation," but has also "consistently required some further evidence ofretaliatory animus
before permitting a prisoner to proceed to trial on a retaliation claim." Washington v. Afify,
681 F. App'x 43,46(2d Cir. 2017).

Here, the sole argument made by Plaintiff in support of his request for summary
judgment on his retaliation claim is that the "close timing" ofhis letter to the superintendent
and the incident of January 22, 2014, is evidence of retaliation. {See Dkt. 111-2 at 4-6).

This argument is unavailing, and Defendants are correct that Plaintiff has failed to produce
sufficient evidence to support a retaliation claim. "Temporal proximity alone is not
sufficient for the plaintiffs claim to survive summary judgment." Ziemba v. Thomas, 390
F. Supp. 2d 136, 157(D. Conn. 2005). Plaintiff has not identified, nor has the Court found

in its review of the record, any other evidence that even circumstantially supports the
existence of a causal cormection between Plaintiffs letter and the alleged assault. To the
contrary, no Defendant in this case was named in Plaintiffs letter, nor was any Defendant

investigated as a result of it, and Plaintiff has produced no evidence to suggest that

Defendants were even aware of his August 2013 letter.^
Plaintiff does generally suggest that it is questionable whether Sergeant Ebert
actually authorized a search of his cell on the evening of January 22,2014, because(1)his

^

Plaintiff states in his memorandum of law that when he first arrived on C-Block in

August 2013 he was"threatened by a C-block officer who stated...'over here we'll handle
you.'" (Dkt. 111-2 at 2, 4-5). However, this unnamed C-Block officer is not a defendant
in this case, nor has Plaintiff otherwise made any attempt to tie this alleged threat to the
events of January 22, 2014.
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cell had already been searched earlier that day,(2) Sergeant Ebert "contradicted" himself
at Plaintiffs disciplinary hearing by stating that the search had been authorized by the
watch commander, non-defendant Lieutenant Meegan (Dkt. 111-2 at 12), and (3)there is
no logbook entry stating that Sergeant Ebert authorized the search. These arguments by
Plaintiff do not demonstrate a causal connection between his August 2013 letter and the
incident on January 22, 2014.

The Court initially notes that Plaintiffs claim that Sergeant Ebert "contradicted"

himself is unsupported by the record. The transcript of Plaintiffs disciplinary hearing
indicates that Sergeant Ebert reported that he authorized the search, and that he did so on
instructions from Lieutenant Meegan. {See Dkt. 111-3 at 48). There is no inconsistency

between Sergeant Eberfs statements that he authorized Officers Pichette and Kapelke to
search Plaintiffs cell and his testimony at Plaintiffs disciplinary hearing that he gave that
authorization pursuant to instructions from Lieutenant Meegan.

Plaintiff also has not submitted any evidence to suggest that it was impermissible

for staff to search his cell twice in one day if they reasonably suspected he possessed
contraband. The Supreme Court has acknowledged that cell searches are "perhaps the most
effective weapon of the prison administrator in the constant fight against the proliferation
of knives and guns, illicit drugs, and other contraband." Hudson v. Palmer,468 U.S. 517,

528 (1984);

also Lashley v. Wakefield, 367 F. Supp. 2d 461, 470 (W.D.N.Y. 2005)

(noting prison superintendent's uncontested statements that in a maximum security prison,
cell searches are necessary to "maintain discipline and security, and to search for weapons
and contraband"). Defendants have produced records indicating that the search was based
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on suspicion that Plaintiffwas in possession ofcontraband {see Dkt.47-1 at 2), and Plaintiff
has failed to produce or identify any evidence to the contrary. Plaintiffs speculation that
the search was impermissibly motivated is insufficient to survive a motion for summary

judgment. See Whitfield v. Imperatrice, All F. App'x 806,809(2d Cir. 2012)(speculation
as to a defendant's motivations cannot support a retaliation claim).
Finally, while Plaintiff is correct that there is no logbook entry showing that
Sergeant Ebert authorized the search. Defendants have explained that logbook entries are
made after the search is completed and that, in this case, the search was interrupted by the

physical altercation, and so no logbook entry was made. {See Dkt. 103; Dkt. 119-5 at 4).
The DOCCS directive that Plaintiff cites pertaining to documentation of cell searches is
indeed phrased in such a way as to indicate that logbook entries are to be made after the

search, not before. {See Dkt. 111-3 at 73 (directive provides that the logbook entry should
include a "[IJist of contraband found" and a "[l]ist of any State or inmate property
damaged")). Moreover,Defendants have produced a logbook entry from January 22,2014,
that notes that Officer Pichette was stabbed by Plaintiff during a cell frisk. (Dkt. 47-6 at

2). Plaintiff has failed to produce any evidence from which a reasonable factfinder could
conclude that Defendants deliberately failed to document the aborted cell search, much less
that they did so because ofsome retaliatory intent.

No other factors support a finding of a causal connection in this case. Plaintiff did

not have a prior good disciplinary record. To the contrary. Defendants have shown that
Plaintiff had been found guilty at approximately 20 different disciplinary hearings (most
involving multiple charges) over 15 years of incarceration. {See Dkt. 119-3 at 161-63).
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Plaintiff also was not vindicated at a subsequent hearing but instead either pled guilty or
was found guilty as to all charges. (See id. at 161). On the record before the Court, no

rational jury could find in Plaintiffs favor on his retaliation claim. Accordingly, the Court
denies Plaintiffs motion for summary judgment and grants Defendants' cross-motion for
summary judgment with respect to the retaliation claim.
B.

Excessive Force Claims

Plaintiff claims that Officers Pichette, Kapelke, Nolan, Weaver, and Dannheim all
used excessive force against him on January 22, 2014, and seeks summary judgment as to
those claims. Defendants oppose Plaintiffs request and argue that his excessive force
claims against each of these Defendants except Officer Dannheim are barred as a result of

his criminal conviction and the outcome of his disciplinary hearing, pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641 (1997). For the

following reasons, the Court finds that no party is entitled to summary judgment as to
Plaintiffs excessive force claims. However, at any trial of this matter. Plaintiff will be
prohibited from testifying that Officer Pichette was the initial aggressor or asserting a
self-defense affirmative defense and the jury will be instructed that Plaintiff assaulted
Officer Pichette.

Considering first Plaintiffs motion for summary judgment, the Court finds that he
has not borne his burden of demonstrating that no genuine issues of material fact exist. To

the contrary. Plaintiffs excessive force claims turn almost exclusively on a question of

credibility—^that is, a factfinder would be called upon to determine whether Plaintiff or
Defendants are telling the truth about what happened on January 22, 2014. "Assessments
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of credibility and choices between conflicting versions of the events are matters for the

jury, not for the court on summary judgment." Jeffreys v. City ofN.Y., 426 F.3d 549, 553
(2d Cir. 2005)(quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). Plaintiffs
contention that his injuries after the incident were inconsistent with Defendants' version of

events does not change this conclusion. Defendants' medical expert. Dr. Jadow Rao, has
submitted a sworn declaration stating that Plaintiffs injuries are not consistent with
Plaintiffs version of events. {See Dkt. 119-4 at ^ 22). Again, this type of factual
disagreement is not amenable to resolution on a motion for summary judgment. A rational
jury could find for Defendants on the record before the Court, which precludes any grant
of summary judgment to Plaintiff.
Turning to Defendants' arguments based on Heck and Edwards, Heck bars a
plaintiff from pursuing a § 1983 claim if judgment in favor of the plaintiff would
necessarily imply the invalidity of a criminal conviction. See Poventud v. City ofN.Y, 750
F.3d 121, 132(2d Cir. 2014). However,'Heck does not automatically bar a § 1983 claim

simply because the processes ofthe criminaljustice system did not end up in the plaintiffs
favor." Id. (quoting VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006)). To the
contrary,"many violations of constitutional rights, even during the criminal process, may
be remedied without impugning the validity ofa conviction." Id. InEdwards,the Supreme

Court held that the rule enunciated in Heck also applies to § 1983 claims that, if successful,
would "necessarily imply the invalidity of the deprivation of [a plaintiffs] good-time
credits." 520 U.S. at 646.

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In this case, Defendants concede that Plaintiffs criminal conviction and the

outcome of his disciplinary hearing do not, under Heck and Edwards, bar his claim that
Officer Dannheim kicked him in the head and otherwise assaulted him after he was

removed from his cell. (See Dkt. 119-5 at 10). However, Defendants do contend that

Plaintiff cannot validly pursue any claims against Officers Pichette, Kapelke, Weaver, and
Nolan for their purported actions during the altercation in his cell. (See id.). The Court

disagrees, and notes that the Second Circuit considered a factually similar claim in Shapard
V. Attea, 710 F. App'x 15(2d Cir. 2017)and reached a conclusion contrary to Defendants'
position.

In Shapard,the plaintiffclaimed that three officers, including an officer named John
Attea ("Attea") had "punched and kicked him and beat him with a baton." Id. at 16. The
plaintiff had pled guilty to a criminal charge of second degree assault in connection with
the incident and had admitted to injuring Attea. Id. at 17. The district court granted
summary judgment on the plaintiffs excessive force claims based on Heck. Id.

The

Second Circuit reversed,finding that the plaintiffs claims did not"depend on the invalidity
ofhis assault conviction" and that even though the plaintiff contended he had not assaulted
Attea, he also contended that the amount of force used by the officers was excessive
regardless of whether or not he was the initial aggressor. M at 17-18. The Second Circuit

explained that "the elements of excessive force and second degree assault under [the New
York Penal Law] are not incompatible," and that rather than dismissing the plaintiffs

claims, the district court should have "take[n] appropriate steps to prevent [the plaintiff]

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from disputing the assault, including limiting his testimony and instructing a jury that he
assaulted Officer Attea." Id. at 18.

In this case, Plaintiffs factual allegations are in some respects inconsistent with his

criminal convictions and the outcome of his disciplinary hearing. In particular. Plaintiffs
contention that he was acting in self-defense cannot be reconciled with his conviction for
having assaulted Officer Pichette. However, Plaintiffs actual claim, as set forth in the

second amended complaint, is that Defendants "beat[]...[him] into unconsciousness after

[he was] placed in mechanical restraints[.]" (Dkt. 98 at ^ 57). Indeed, in his factual
allegations. Plaintiff contends that Officer Pichette punched him in the head several times
after he was restrained and that Officers Weaver,Nolan, and Kapelke also struck him. {Id.
at

27-30).

Like the claim in Shapard, Plaintiffs claim of post-restraint excessive force is not
necessarily incompatible with his criminal conviction, because it is entirely possible that
Plaintiff assaulted Officer Pichette and was subdued and that after Plaintiff was restrained

and no longer presented a threat. Officers Pichette, Kapelke, Nolan, Weaver, and
Dannheim continued to hit him. See Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008)
("A contention that a guard struck back after being hit is compatible with Heck. Otherwise
guards (and for that matter any public employee) could maul anyone who strikes them,

without risk ofcivil liability as long as the private party is punished by criminal prosecution
or prison discipline for the initial wrong."); Griffin v. Crippen, 193 F.3d 89,91-92(2d Cir.
1999) ("[D]ismissal of the excessive force claim was inappropriate because there are

genuine issues of material fact concerning what transpired after appellant was handcuffed
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and whether the guards maliciously used force against him. . . . The assault charges to

which appellant pled guilty certainly cast doubt on his claim. They do not, however,
preclude a reasonable jury from finding that excessive force was used against him on the
day in question."). Plaintiffs excessive force claims are also not necessarily incompatible
with the outcome of his disciplinary hearing—^to the contrary. Plaintiff acknowledged at
his disciplinary hearing that he had disobeyed an order and engaged in violent conduct, and
the findings of guilty as to the weapon, assault, and refusing a frisk charges are all
compatible with a version of events where Plaintiff was the initial aggressor but was
attacked after he was subdued and restrained.

Defendants argue that Plaintiffs claims cannot be reconciled with his assault
convictions because Officers Pichette, Kapelke, Weaver, and Nolan testified at Plaintiffs
criminal trial and that "[f]or Plaintiff to emerge victorious in this case as to the events in

the cell, a jury would have to believe that substantially all of the prosecution's witnesses
had lied about the[] material facts." (Dkt. 119-5 at 11). However, Defendants have failed

to produce any evidence as to the substance ofDefendants' testimony at Plaintiffs criminal
trial. This is insufficient to satisfy Defendants' burden on a motion for summaryjudgment.
Moreover, a jury may choose to believe or disbelieve portions of testimony, and could
accept Defendants' testimony that Plaintiff attacked Officer Pichette but reject their

testimony that they did not hit Plaintiff after he was restrained.

The Court also is not persuaded by Defendants' argument that Plaintiff cannot
pursue his excessive force claims because he maintains he acted in self-defense. The
Seventh Circuit's decision in Gilbert, which the Second Circuit cited with approval in
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Shapard, see 710 F. App'x at 18, is instructive in this regard. In Gilbert, a prison
disciplinary board had found that the plaintiff had punched a guard while his handcuffs

were being removed. 512 F.3d at 900. The plaintiff denied having struck anyone and
wanted to "tell a jury his story—^that the guards tripped him in the stairwell and continued
the assault..., all without provocation." Id. at 901. The Seventh Circuit found that it was
not necessary for the plaintiff to "confess in open court to striking a guard" in order to
pursue his claims. Id. at 902. Instead, the Seventh Circuit held that it "would have sufficed
[for the district court] to tell the jurors that [the plaintiff] struck the first blow during the

fracas. . ., that any statements to the contrary by Gilbert (as his own lawyer) or a witness
must be ignored, and that what the jurors needed to determine was whether the guards used
more force than was reasonably necessary to protect themselves from an unruly prisoner."
Id. The Second Circuit adopted a similar approach in Shapard,stating that the district court

could "take appropriate steps to prevent[the plaintiff] from disputing the assault, including
limiting his testimony and instructing a jury that he assaulted [the defendant guard]." 710
F. App'x at 18.

The Court finds that, like in Gilbert and Shapard,the mandate ofHeck and Edwards
can be fulfilled in this case by limiting Plaintiffs testimony and appropriate jury
instructions. The Court notes that Plaintiff"concedes that both his affirmative defense of

self-defense and any force used by defendant Pichette . . . before he was in mechanical
restraints are barred by Heck and Edwards." (Dkt. 131 at 6). At any trial in this matter,

the Court will prohibit Plaintiff from testifying that Officer Pichette was the initial
aggressor or that Plaintiff was acting in self-defense, will instruct the jury to ignore any
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statements by Plaintiffor any witness to the contrary, and will instruct thejury that Plaintiff
assaulted Officer Pichette. These precautions will adequately protect against any potential
violation of Heck or Edwards.

Finally, the Court rejects Defendants' argument that Plaintiff is "equitably estopped

from arguing that his claims do not imply the invalidity of his conviction as he has testified
that they do so." (Dkt. 119-5 at 10-11). Plaintiffdid testify at his deposition that he wanted
to use any favorable verdict in this matter to collaterally attack his criminal conviction and
the outcome of his disciplinary hearing. {See Dkt. 119-3 at 178-79). However,Plaintiff is

a layperson, unschooled in the law, and offered no plausible mechanism for how such a
collateral attack could be successful. Under Heck and Edwards, the issue is not whether

Plaintiff would like to undermine his criminal conviction or the outcome of his disciplinary

hearing, the issue is whether a verdict in his favor would necessarilv do so. Here, for all
the reasons discussed above, the Court finds that it would not. Defendants have cited no

authority for their equitable estoppel argument, nor has the Court found any in its own
research.

For all the foregoing reasons, the Court finds that no party is entitled to summary

judgment on Plaintiffs excessive force claims against Officers Pichette, Kapelke, Nolan,
and Weaver. However, at trial, the Court will impose limitations on Plaintiffs testimony
and instruct the jury as set forth above.
C.

Claims Against Sergeant Ebert and Captain Brown

Plaintiff does not contend that either Sergeant Ebert or Captain Brown directly

participated in the claimed unlawful use of force against him. Instead, he seeks summary
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judgment on his claim that Sergeant Ebert was "present during and observed the incident"
and "failed to report plaintiffs injury or condition in his written account of the incident,
and is therefore liable for failing to protect the plaintiff from correctional officers use of
excessive force,"(Dkt. 111-2 at 10-11), and his claim that Captain Brown made a false
statement to the New York State Police that Plaintiff was "conscious and uncooperative"

when he was taken to the infirmary {id. at 14). Defendants oppose Plaintiffs request for
summary judgement on his claims against Sergeant Ebert and Captain Brown and seek
summary judgment in Captain Brown's favor. (Dkt. 119-5 at 3-5).
With respect to Plaintiffs claim against Sergeant Ebert:
To establish ... a claim of failure to intervene, a plaintiff must prove the
following four elements: (1) that a constitutional violation was being
committed against the plaintiff; (2) that the officer knew, or deliberately
ignored, the fact that the constitutional violation was going to be, or was
being, committed; (3) that the defendant had a reasonable opportunity to
intervene and prevent the harm; and (4) that the defendant did not take
reasonable steps to intervene. With regard to the third and fourth elements,
when considering the reasonableness of any opportunity to intervene, one
must consider both(a)the duration ofthe constitutional violation, and(b)the
defendant's presence and proximity during the use of the constitutional
violation.

Thomas v. City of Troy, 293 F. Supp. 3d 282, 296 (N.D.N.Y. 2018)(citations omitted).

The Court finds that genuine issues of material fact exist with respect to this claim. While

it appears to be undisputed that Sergeant Ebert was present for at least part ofthe incident
and escorted Plaintiff to the infirmary on January 22, 2014, as the Court has already

explained, the parties have offered competing versions of what happened in Plaintiffs cell
and on the way to the infirmary on that date. The viability ofPlaintiffs failure to intervene

claim against Sergeant Ebert rises and falls with his excessive force claims, and the Court
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cannot resolve the factual disputes on a motion for summary judgment. Accordingly,
Plaintiffs request for summary judgment as to his claim against Sergeant Ebert is denied.
Turning to Captain Brown, the Court agrees with Defendants that Plaintiff does
not have a viable claim. The sole claim Plaintiff asserts is that Captain Brown made a false
statement to the New York State Police that Plaintiff was conscious and uncooperative
when he arrived at the infirmary. The Court notes that there is evidence in the record to
support this statement by Captain Brown. {See 119-4 at

9-10 (Dr. Rao notes that

Plaintiff was responding to external stimuli and "talking and moaning" while he was in the
infirmary, which "could not have occurred if he was unconscious")). Moreover, even

accepting that this statement was false, a false statement by a prison guard does not "give

rise to a per se constitutional violation actionable under § 1983." Johnson v. Barney, 360
F. App'x 199, 201 (2d Cir. 2010);see also Freeman v. Rideout, 808 F.2d 949,951 (2d Cir.
1986)("[A] prison inmate has no constitutionally guaranteed immunity from being falsely
or wrongly accused of conduct which may result in the deprivation of a protected liberty

interest."). Instead, the issue is whether the false report in fact caused a deprivation ofthe
inmate's constitutional rights. See Aghoghoubia v. Noel, No. 17CV1927NGGSJB, 2019
WL 181309, at *8(E.D.N.Y. Jan. 11, 2019). In this case. Plaintiff has not come forth with
any evidence to suggest that Captain Brown's statement was determinative in either his

criminal trial or his disciplinary hearing or that Captain Brown's statement was in any other
way responsible for a deprivation of Plaintiffs constitutional rights.

Under these

circumstances. Plaintiff cannot pursue a claim against Captain Brown. The Court grants
Defendants' motion for summary judgment with respect to this claim.
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D.

Officer Pichette's Counterclaims

Finally, Defendants seek summary judgment with respect to Plaintiffs liability on
Officer Pichette's state law counterclaims for assault and battery. Defendants argue that
pursuant to principles of collateral estoppel and based on Plaintiffs conviction for having
assaulted Officer Pichette,"the issue of his liability has been decided in a prior proceeding
and cannot be disturbed." (Dkt. 119-5 at 13).

The Second Circuit has explained:

[A] criminal conviction, whether by jury verdict or guilty plea, constitutes
estoppel... in a subsequent civil proceeding as to those matters determined
by thejudgment in the criminal case. In order for collateral estoppel to apply
the court must determine that(1)the issues in both proceedings are identical,
(2) the issue in the prior proceeding was actually litigated and actually
decided, (3) there was full and fair opportunity to litigate in the prior
proceeding, and (4)the issue previously litigated was necessary to support a
valid and final judgment on the merits.

N.Y. V. Julius Nasso Concrete Corp., 202 F.3d 82, 86 (2d Cir. 2000) (citations and
quotations omitted and alteration in original).
Here, the Court agrees that Plaintiff is collaterally estopped from relitigating the

issue of his assault on Officer Pichette. Plaintiff acknowledges that he was convicted of
two counts of assault in the second degree for his assault on Officer Pichette. (Dkt. 119-3
at 177). In particular. Plaintiff was found guilty of having intentionally caused physical
injury to Officer Pichette. (See Dkt. 119-3 at 147-51); see also New York Penal Law

§ 120.05(7)(under New York law, a person is guilty of assault in the second degree if
"[hjaving been charged with or convicted of a crime and while confined in a correctional

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facility . . . pursuant to such charge or conviction, with intent to cause physical injury to
another person, he causes such injury to such person").
Officer Pichette's assault and battery counterclaims are asserted under New York
law. "Under New York law, a civil assault is the intentional placing of another in

apprehension ofimminent harmful or offensive contact. The elements of a civil battery are
(1) bodily contact, which is (2) harmful or offensive in nature, and (3) made with intent."
Doe V. Alsaud, 224 F. Supp. 3d 286, 294 (S.D.N.Y. 2016) (citations and quotations

omitted). In finding Plaintiff guilty of second degree assault as to Officer Pichette, the
criminaljury necessarily found that the elements ofcivil claims for assault and battery were
satisfied—^that is, that Plaintiff intentionally made harmful conduct with Officer Pichette

and that his actions placed Officer Pichette in imminent apprehension of that harmful
conduct. Accordingly, Plaintiff is collaterally estopped from relitigating his liability on
Officer Pichette's civil assault and battery claims. See id. (collecting cases wherein a

criminal assault conviction was found to collaterally estop relitigation of civil assault and

battery claims). The Court therefore grants summary judgment to Officer Pichette with

respect to liability on his counterclaims for civil assault and battery. The issue of damages
will be left to the jury.
CONCLUSION

For the foregoing reasons, the Court denies Plaintiffs motion for summary

judgment (Dkt. Ill) and grants in part and denies in part Defendants' cross-motion for
summary judgment(Dkt. 119). In particular, the Court grants Defendants' cross-motion
with respect to Plaintiffs retaliation claim and Plaintiffs claims against Captain Brown,
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and with respect to liability on Officer Pichette's counterclaims for assault and battery.
The Clerk of Court is directed to terminate Captain Brown as a defendant in this matter.
The remaining Defendants are instructed to file an answer to the second amended
complaint within 14 days of entry ofthis Decision and Order.
SO ORDERED.

ELIZj^ETH K WOLFORD
ritep States District Judge
Dated: March 22, 2019
Rochester, New York

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