Ellington v. County of Monroe et al

Filing 30

DECISION AND ORDER: For the reasons stated, Defendants' motion, ECF Nos. 17 , 25 , is GRANTED IN PART and DENIED IN PART, Plaintiff's sixth and seventh claims are dismissed, and his ninth claim survives. The Clerk of Court is directed to terminate the County of Monroe and Monroe County Sheriff Patrick M. O'Flynn as Defendants in this case. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 3/14/19. (JO)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHARLES R. ELLINGTON,
Plaintiff,
Case # 15-CV-6310-FPG
v.
DECISION AND ORDER

COUNTY OF MONROE,
MONROE COUNTY SHERIFF PATRICK M. O’FLYNN,
DEPUTY MATTHEW WHITING,
DEPUTY MICHAEL RIEGER, and
DEPUTY TODD SUTHERLAND,
Defendants.

INTRODUCTION
On December 17, 2018, the Court issued a decision and order granting Defendants’ motion
for summary judgment in part and denying it in part. ECF No. 22. It dismissed all of Plaintiff
Charles R. Ellington’s claims except the first, sixth, seventh, and ninth, and terminated only John
Does 1-12 as Defendants. Id. at 10.
On January 7, 2019, the Court held a status conference at which it granted Defendants’
request to provide supplemental briefing on their motion for summary judgment. ECF No. 24.
Before the Court is Defendants’ supplemental brief, ECF No. 25, to which Plaintiff responded,
ECF No. 27. Defendants’ now move for summary judgment on Plaintiff’s sixth, seventh, and ninth
claims. 1 ECF No. 25. The Court assumes the parties’ familiarity with the facts and the summary

1

Defendants claim that the Court incorrectly interpreted their initial motion to move for summary judgment on all but
Plaintiff’s sixth and ninth claims. ECF No. 25 at 1-2 (“Since [Defendants] moved to dismiss the sixth and ninth causes
of action, [they] respectfully ask the Court to issue a decision regarding those causes of action.”). Defendants are
correct that they moved for summary judgment on all of Plaintiff’s claims in their notice of motion. ECF No. 17 at 1
(moving for summary judgment on “all of [Plaintiff’s] counts, claims, and causes of action . . . .”). But their
memorandum of law contained no argument as to either claim. Consequently, the Court correctly declined to grant
Defendants summary judgment as to them. Cf. Rios v. City of New York, No. 14-cv-894 (KBF), 2016 WL 9022590,

judgment standard. For the following reasons, Defendants’ motion is GRANTED IN PART and
DENIED IN PART.
DISCUSSION
I.

Plaintiff’s Sixth Claim – Negligence
In support of Plaintiff’s sixth claim against Defendant Deputies Matthew Whiting, Michael

Rieger, and Todd Sutherland, he alleges that they “owed a duty to perform their police duties
without the use of excessive force” and that Plaintiff was injured “[a]s a proximate result of
[D]efendants [sic] negligent use of excessive force . . . .” ECF No. 1-5 ¶¶ 61-62.
Defendants argue that excessive-force and negligence claims cannot both rest on allegedly
intentional conduct. Plaintiff argues that a jury could find the Defendant Deputies negligent for
handcuffing Plaintiff to a pole outside and for handcuffing him tightly.
Plaintiff misses the point. A jury may have found those acts negligent, but his sixth claim
alleges that the Defendant Deputies negligently used excessive force during the course of
Plaintiff’s arrest. 2 See id. (explaining that Defendants had a duty not to use excessive force “when
[P]laintiff was unarmed and did not pose . . . a threat of death or grievous bodily injury to the
[D]efendants”). Plaintiff does not allege that they were negligent for handcuffing him. Id. More
importantly, Defendants are correct that a negligence claim cannot stand with an excessive-force
claim on the same facts alleging intentional conduct. Cummings v. Vill. of Port Chester, No. 08
Civ. 6940 (LMS), 2013 WL 12316854, at *9 (S.D.N.Y. July 3, 2013) (quoting Busch v. City of
New York, No. 00 CV 5211, 2003 WL 22171896, at *7 (E.D.N.Y. Sept. 11, 2003)) (“When a

at *3 (S.D.N.Y. May 17, 2016) (explaining that “the Court will not do” counsel’s work when she did not demonstrate
the basis for her summary judgment motion).
2

It is undisputed that none of the remaining Defendants physically used excessive force on Plaintiff or handcuffed
him when he was arrested. ECF No. 22 at 6-7. The remaining excessive force claim pertains to Mic, Rieger’s canine
partner, biting Plaintiff during his arrest. Id.

-2-

plaintiff asserts excessive force and assault claims which are premised upon a defendant’s
allegedly intentional conduct, a negligence claim with respect to the same conduct will not lie.”).
Consequently, Defendants’ motion for summary judgment is GRANTED as to Plaintiff’s sixth
claim.
II.

Plaintiff’s Seventh Claim – Respondeat Superior
Because Plaintiff’s sixth claim, the only remaining state-law claim, is dismissed, his

seventh claim for respondeat superior against Defendant County of Monroe must also be
dismissed. Lozada v. City of New York, No. 12 Civ. 0038(ILG)(JMA), 2013 WL 3934998, at *8
(E.D.N.Y. July 29, 2013) (“[T]hose respondeat superior claims whose underlying claims fail must
be dismissed as a matter of law.”). Defendants’ motion for summary judgment is therefore
GRANTED as to Plaintiff’s seventh claim.
III.

Plaintiff’s Ninth Claim – Denial of Medical Care
Plaintiff’s ninth claim alleges that Whiting and Sutherland denied him medical care in

violation of his Fourteenth Amendment rights. ECF No. 1-5 ¶¶ 68-75.
The Fourteenth Amendment governs a pretrial detainee’s claims of deliberate indifference
to his serious medical needs since “pretrial detainees have not been convicted of a crime and thus
may not be punished in any manner.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (quoting
Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)) (quotation marks omitted).
A deliberate indifference claim under the Fourteenth Amendment has two prongs. Lloyd
v. City of New York, 246 F. Supp. 3d 704, 717 (S.D.N.Y. 2017). First, “the alleged deprivation of
adequate medical care must be ‘sufficiently serious.’” Id. (quoting Spavone v. New York State
Dep’t of Corr. Servs., 719 F.3d 127, 139 (2d Cir. 2013)). Second, the Court must determine

-3-

“whether the official ‘knew, or should have known,’ that his or her conduct ‘posed an excessive
risk to health or safety.’” Id. (quoting Darnell, 849 F.3d at 33, 35). 3
The facts, viewed in a light most favorable to Plaintiff as the nonmovant, are as follows.
First, the night Plaintiff was arrested—January 27, 2017—was particularly cold: approximately
two degrees below zero Fahrenheit. ECF No. 17-10 at 6. When Plaintiff was arrested, an unknown
individual handcuffed him tightly. ECF No. 20-2 at 11. Plaintiff claims that he twice told Whiting
that the handcuffs were tight: once when he entered Whiting’s police car and once during the trip
to the substation. Id. at 13, 16. Whiting claims that he did not speak with Plaintiff during the ride
to the substation, ECF No.17-16 at 10, but he knew that Plaintiff complained about an injury to
his hands because an ambulance was called for him. Id. at 13. Sutherland also knew that his hands
hurt because Plaintiff complained that his hands were hurting. ECF Nos. 17-17 at 12, 20-6 at 4.
Additionally, Plaintiff asked Sutherland to loosen his handcuffs “multiple times” inside and
outside of the substation. ECF No. 20-2 at 38. Plaintiff’s hands were also discolored when
emergency medical technicians from Henrietta ambulance examined them. ECF No. 20-2 at 18.
Plaintiff consistently felt that his hands were tingling, but he did not complain of it to any
of the Defendants.

Id. at 18, 24.

All told, Plaintiff was in custody and handcuffed for

approximately two-and-a-half hours; the handcuffs were not removed when the EMTs examined
his hands. See ECF Nos. 17-11 at 2-3, 17-14 at 5-6. Plaintiff asked to go to a hospital after the
EMTs examined and treated his hands for lacerations, but he was instead released to his mother
approximately one-and-a-half hours later. See ECF Nos. 17-14 at 6, 20-2 at 20.

3

The Second Circuit recently concluded, based on the Supreme Court’s decision in Kingsley v. Hendrickson, 135 S.
Ct. 2466 (2015), that the subjective prong of a deliberate indifference claim under the Fourteenth Amendment is
“defined objectively,” unlike the second prong of deliberate indifference claims under the Eighth Amendment.
Darnell, 849 F.3d at 35.

-4-

After he was released, Plaintiff experienced extreme pain in his hands, was taken to
Rochester General Hospital, and was then transferred to Strong Memorial Hospital because his
injuries were too severe. ECF No. 20-2 at 25. Plaintiff was diagnosed with frostbite and received
treatment over approximately three months. See ECF Nos. 20-2 at 26; 20-8 at 1. The treatment
culminated with four surgeries: one to remove the tip of Plaintiff’s pointer finger on his right hand
and three to remove the entirety or majority of each of the four fingers on his left hand. ECF No.
20-2 at 27-29. Plaintiff now has difficulty with many tasks, including cooking, sewing, and
engaging in recreational activities, among other things. Id. at 32-36. Plaintiff also experienced
swelling in his knuckles and pain twice a week as of his deposition, which was taken nearly one
year after his surgeries. ECF No. 20-2 at 37-38. Finally, Plaintiff experiences emotional distress
because of the amputations. See id. at 40-41. He specifically mentioned that he cried on one
occasion because he could not throw a football to his children. Id. at 41.
Defendants argue that no reasonable jury could find that Plaintiff has satisfied the objective
prong since he was treated while in custody, he reported no pain when the EMTs treated him, and
his symptoms did not arise until after he was released. ECF No. 25 at 7-8.
The Court is not persuaded. First, there is no dispute that Whiting and Sutherland knew
that an ambulance was called for Plaintiff because of injuries to his hands and that Plaintiff told
Sutherland that his hands hurt. Second, Plaintiff’s claim is not foreclosed because he was treated.
Instead, “[w]here a plaintiff’s claim is based on a temporary delay or interruption in treatment,”
the Court considers “the severity of the temporary deprivation alleged by the detainee.” Watts v.
New York City Police Dep’t, 100 F. Supp. 3d 314, 327 (S.D.N.Y. 2015) (quoting Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)) (quotation marks omitted). That determination
includes “the actual medical consequences that flow from the alleged denial of care,” which is

-5-

“highly relevant” in “most cases.” Id. (quoting Carpenter, 316 F.3d at 186) (quotation marks
omitted). Here, the medical consequences that flowed from the alleged denial of care were full or
partial amputations of each finger on Plaintiff’s left hand and the tip of the pointer finger on his
right hand. Other courts in this Circuit have found that amputated digits are sufficient to satisfy
the first prong of a deliberate indifference claim, and this Court does as well given the number and
severity of the amputations. Richardson v. City of New York, No. 15 Civ. 543(LAK)(AJP), 2015
WL 7752143, at *12 (S.D.N.Y. Nov. 18, 2015), report and recommendation adopted, 2016 WL
1637997, at *1 (Apr. 22, 2016); but see Mikulec v. Town of Cheektowaga, 909 F. Supp. 2d 214,
222-23 (W.D.N.Y. 2012) (granting defendant’s motion for summary judgment on plaintiff’s
deliberate indifference claim where plaintiff sustained minor abrasions and bleeding from tight
handcuffs).
For the second prong, Defendants argue that “[t]here are no facts before this [C]ourt to
support a finding that any Monroe County Sheriff’s deputy knew that Ellington had a serious
medical need and knowingly disregarded a risk to his health or safety.” ECF No. 25 at 9-10.
There are several issues with Defendants’ argument. First, they misstate the law; a
defendant may satisfy the second prong if he knew that his conduct posed an excessive risk to a
plaintiff’s health or safety, but he may also satisfy it if he should have known that his conduct
posed such a risk. Lloyd, 246 F. Supp. 3d at 717 (quoting Darnell, 849 F.3d at 33, 35).
Regardless, the Court finds that there is a genuine dispute as to whether Plaintiff told
Whiting that his handcuffs were too tight, and a reasonable jury could find that Whiting and
Sutherland knew or should have known that their conduct posed an excessive risk to Plaintiff’s
health. It is undisputed that Whiting and Sutherland knew Plaintiff’s hands were injured because
an ambulance was called. Additionally, a jury could reasonably infer that Whiting and Sutherland

-6-

knew that Plaintiff’s hands had been exposed to the extreme cold for an extended period of time,
his hands were discolored, and leaving handcuffs on Plaintiff for close to three hours would hinder
blood circulation to his hands. Finally, and more importantly, a jury could reasonably infer that
Whiting and Sutherland knew Plaintiff’s handcuffs were too tight. It is undisputed that Plaintiff
asked Sutherland to loosen them multiple times. Cf. Ajala v. Tom, 658 F. App’x 805, 805-07 (7th
Cir. 2016) (vacating and remanding judgment of district court that dismissed plaintiff’s deliberate
indifference claim under qualified immunity where plaintiff sustained long-term injuries from tight
handcuffs after asking defendants to loosen them twice). Consequently, Defendants’ motion for
summary judgment is DENIED as to Plaintiff’s ninth claim.
CONCLUSION
For the foregoing reasons, Defendants’ motion, ECF Nos. 17, 25, is GRANTED IN PART
and DENIED IN PART, Plaintiff’s sixth and seventh claims are dismissed, and his ninth claim
survives. The Clerk of Court is directed to terminate the County of Monroe and Monroe County
Sheriff Patrick M. O’Flynn as Defendants in this case.
IT IS SO ORDERED.
Dated: March 14, 2019
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

-7-