DeJesus v. Annucci et al

Filing 119

DECISION AND ORDER denying 100 Motion for Summary Judgment; granting in part and denying in part 114 Motion for Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 03/31/2021. (CDH)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DENNY DEJESUS,
Plaintiff,

DECISION AND ORDER

v.

6:16-CV-06470 EAW

CORRECTIONS OFFICER R. MALLOY
and C.O. JOHN DOE,1
Defendants.
___________________________________
I.

INTRODUCTION
Pending before the Court are competing motions for summary judgment related to

an alleged sexual assault occurring on June 12, 2015, at the Five Points Correctional
Facility (“Five Points C.F.”). (Dkt. 100; Dkt. 114). For the reasons set forth below, the
motion filed by defendant Corrections Officer R. Malloy (“Defendant”) is denied (Dkt.
100), and the motion filed by pro se plaintiff Denny DeJesus (“Plaintiff”) is granted in part
and denied in part (Dkt. 114).
II.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff commenced this lawsuit on July 6, 2016. (Dkt. 1). Plaintiff filed an

amended complaint on October 18, 2016. (Dkt. 8). On February 23, 2017, the Court issued

1

The docket continues to list C.O. John Doe as a defendant. However, that reference
was to the individual who has now been identified as defendant Corrections Officer R.
Malloy. (See footnote 2, infra). Therefore, the Clerk of Court is directed to terminate C.O.
John Doe as a defendant.
-1-

an Order denying Plaintiff’s request to proceed in forma pauperis (“IFP”) without
prejudice. (Dkt. 10). Plaintiff filed an updated IFP application (Dkt. 11), and on May 8,
2018, the Court issued an Order granting Plaintiff’s IFP application and screened the
amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), whereby all
claims were dismissed with leave to replead except Plaintiff’s Eighth Amendment claim
for sexual assault against Defendant.2 (Dkt. 19). On May 31, 2018, Plaintiff filed a second
amended complaint. (Dkt. 21). On December 11, 2018, the Court screened the second
amended complaint and allowed Plaintiff’s claims against Defendant pursuant to the Eighth
and Fourth Amendments to proceed but dismissed the remaining claims. (Dkt. 35). On
April 11, 2019, Defendant filed an answer to the second amended complaint (Dkt. 46), and
the Court referred the matter to Magistrate Judge Payson for the supervision of discovery
(Dkt. 47).
Plaintiff alleges in the second amended complaint that on June 12, 2015, while he
was housed at Five Points C.F., Defendant sexually assaulted him during a pat frisk while
he was on his way to the law library. (Dkt. 21 at 3). Plaintiff alleges that Defendant placed
his hand inside Plaintiff’s pants and boxer shorts and squeezed his penis and testicles,
causing Plaintiff “excruciating pain.” (Id.). Defendant then allegedly said to Plaintiff “you

2

At the time of the initial screening, Defendant was identified as C.O. John Doe. The
Court directed the Attorney General’s office to identify John Doe pursuant to Valentin v.
Dinkins, 121 F.3d 72 (2d Cir. 1997) (Dkt. 19 at 5-6), and that office initially responded
with the identity of C.O. Gates, but Plaintiff contended that the individual in question was
not C.O. Gates (see Dkt. 35 at 9-10). The Court directed both Plaintiff and the Attorney
General’s office to provide additional information (id.; see also Dkt. 39 & Dkt. 40), and
ultimately C.O. Malloy was identified as the corrections officer who pat frisked Plaintiff
on the date in question (Dkt. 42 at 2).
-2-

like that freak.” (Id.). After the alleged sexual assault, Plaintiff states that he noticed that
his penis and testicles had swollen and there was blood in his urine and a stinging sensation
when he urinated. (Id.). Plaintiff subsequently received medical treatment. (Id. at 5-9).
Defendant’s Motion for Summary Judgment
On July 6, 2020, Defendant filed a motion for summary judgment. (Dkt. 100).
Defendant seeks dismissal of “the cause of action for physical assault.” (Id. at 1). In
support of the motion, Defendant submitted a statement of undisputed facts addressing
Plaintiff’s medical situation after the alleged incident, wherein tests revealed microscopic
amounts of blood in Plaintiff’s urine on June 14, 2015, but there were no reports in the
medical records of any bleeding, bruising or redness to Plaintiff’s penis or testicles. (Dkt.
100-1 at ¶¶ 4-5). Trace amounts of blood were also found in Plaintiff’s urine on June 15
(Dkt. 100-3 at ¶ 8), but by June 18, there was no presence of blood. (Id. at ¶¶ 7 & 9). In
addition, a testicular sonagram was performed on June 30, and it found no abnormality,
inflammation, or signs of trauma. (Id. at ¶ 10). Defendant states that based on the opinion
of David Dinello, M.D., “[t]here is no biological mechanism explaining how blunt force
trauma could cause a microscopic hematuria which resolved in a couple of days and
showed no scarring or signs of abnormality on a sonogram of Plaintiff’s testicles.” (Id. at
¶ 11; see also Dkt. 100-3 at 4-6). David Dinello, M.D.,3 has submitted a declaration opining
that the blood in Plaintiff’s urine was not caused by trauma to the testicles or groin. (Id. at

3

Dr. Dinello is employed by the Department of Corrections and Community
Supervision (“DOCCS”) as a physician at Five Points C.F. and he describes himself as
Plaintiff’s treating physician during the relevant time period. (Dkt. 100-3 at 4, ¶¶ 1-4).
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6, ¶¶ 17-18). Dr. Dinello states that the amount of blood in Plaintiff’s urine on or about
June 14, 2015, would not have been visible to the naked eye. (Id. at 4, ¶ 7). Included as
part of Defendant’s summary judgment motion is a certified copy of Plaintiff’s medical
records (id. at 8-51), and three pages of Plaintiff’s deposition transcript (id. at 52-55).
Defendant seems to bifurcate Plaintiff’s Eighth Amendment claim, characterizing it
as a claim for “physical and sexual assault” and contends that he is seeking summary
judgment on the “physical assault” aspect of the claim only. (Dkt. 100-4 at 2). Defendant
contends that it is impossible for the incident as described by Plaintiff to have occurred and
not have resulted in more significant physical injuries, and that Plaintiff should not be
permitted to testify that the alleged incident caused blood in the urine without expert
testimony.4 (Id. at 3-4). If summary judgment is not granted, Defendant alternatively
requests that Plaintiff be barred “from entering evidence or testifying about blood in his
urine as it is an impossibility for his microscopic hematuria to have been caused by a blunt
force trauma, from Defendant or anyone else.” (Id. at 5).
Plaintiff has opposed Defendant’s motion. (Dkt. 102). In opposition to the motion,
Plaintiff has submitted a response to Defendant’s statement of undisputed facts wherein he
contends that by the time he was seen by medical personnel after the incident, his penis’
swelling had reduced but his testicles were still swollen. (Dkt. 102-1 at 2). Plaintiff also
contends that if the blood in his urine was only microscopic as claimed by the defense, then

4

Plaintiff made a motion for the Court to appoint an expert witness and that motion
was denied by Judge Payson without prejudice. (Dkt. 109).
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he would not have been able to observe the urine and report it, as he did after the incident.
(Id. at 10).5 Plaintiff contends that the ambulatory health record progress note from June
18, 2015, supports his contention about swelling in his groin area (id. at 2; see id. at 6263), as does the record from June 15, 2015 (id. at 2, 58-61).6 Plaintiff further contests the
conclusiveness of the sonogram of his testicles, as no such study was performed on his
penis. (Id. at 4-5). Plaintiff also submits a declaration wherein he outlines the medical
treatment that he received after the incident, and his observations of blood in his urine, a
stinging sensation when urinating, and swollen testicles and penis. (Id. at 76-83). In
addition, Plaintiff submits portions of his deposition testimony (id. at 31-55), and the sickcall slip dated June 12, 2015 (id. at 56-57; see id. at 78, ¶ 4). Plaintiff states in his affidavit
that he first received medical attention for the incident on June 14, 2015, after making a
request for the same on the date of the incident. (Id. at 78-79, ¶¶ 4-6). This is consistent
with the medical records which indicate Plaintiff was first seen on June 14, 2015, at 1:30
a.m. (Dkt. 100-3 at 19).

5

A record Plaintiff attached to his motion for summary judgment supports the
conclusion that Plaintiff reported seeing blood in his urine prior to any tests revealing
microscopic levels of blood. (See Dkt. 114-2 at 9 (memo from Sgt. Atwood to
Superintendent Colvin dated June 14, 2015, reporting that Plaintiff observed blood in his
urine on June 13, 2015)). However, as noted in footnote 9, infra, this record has not been
properly authenticated and thus, the Court does not consider it on this motion for summary
judgment.

6

The record from June 15, 2015, includes the following notes: “no redness/swelling
of testicles noted”; “no lesions/redness”; “urethral measures WNL”; “no blood/discharge”;
and “genital exam unremarkable.” (Dkt. 102-1 at 60-61). It is not clear how Plaintiff
believes this record supports his claim that there was swelling in his groin area.
-5-

Defendant filed reply papers in further support of his motion for summary judgment,
consisting of a further declaration from Dr. Dinello with attached medical records. (Dkt.
103). In that reply declaration, Dr. Dinello states that the ambulatory health record progress
note from June 18, 2015, only supports a conclusion that Plaintiff told medical personnel
that a medical provider who examined him on June 15, 2015, found swelling—not that
there was objective evidence of the swelling. (Id. at ¶ 8). Dr. Dinello states that “[t]he
note is clear” in this regard and that it supports a conclusion that on June 18, 2015, Plaintiff
“lied to medical staff and falsely claimed that on June 15 he had been assessed with redness
and swelling.”7 (Id. at ¶¶ 8 & 10). Dr. Dinello further opines that the medical evidence
does not support a conclusion that Plaintiff suffered blunt force trauma to his penis that
caused blood in his urine. (Id. at ¶¶ 12-17).
Plaintiff’s Motion for Summary Judgment
On December 30, 2020, Plaintiff filed a motion for summary judgment. (Dkt. 114).
The motion seeks summary judgment in favor of Plaintiff on his Eighth Amendment claim
involving the alleged sexual assault on June 12, 2015. (Dkt. 114 at 8). In support of that
motion, Plaintiff submitted a statement of undisputed facts (id. at 3-6), a memorandum of

7

The Court does not agree with Dr. Dinello’s view as to the clarity of this note. The
statement “found to have swelling” is contained in the “assessment” portion of the note,
and Dr. Dinello does not claim to be the author of the note. Moreover, as Plaintiff points
out (see Dkt. 108 at 1-2), there appears to be a period in the note separating the comments
about what Plaintiff reported and what the medical provider found during an examination
on June 15, 2015. In other words, the note actually appears to read: “States he was
inappropriately pat frisked on 6/11/15. Was evaluated 6/15/15 for this claimed incident by
a provider—found to have swelling.” (See Dkt. 100-3 at 17).
-6-

law (id. at 7-16), Plaintiff’s declaration made under penalty of perjury (Dkt. 114-1 at 1012), and exhibits consisting of documents related to the grievance filed by Plaintiff (id. at
1-8), a videotape of the incident (id. at 13)8, the sick-call note from June 12, 2015, whereby
Plaintiff requested medical attention (id. at 14-15), portions of Plaintiff’s deposition
transcript (Dkt. 114-2 at 1-7), and various other documents related to the incident.9
Defendant’s opposition to Plaintiff’s motion for summary judgment consists of a
three-page memorandum of law. (Dkt. 117). Although Defendant’s opposition appears to
incorporate the evidence submitted in support of his motion for summary judgment,
Defendant did not directly submit any evidentiary proof in opposition to Plaintiff’s motion,
nor did he respond to Plaintiff’s statement of undisputed facts.
Plaintiff filed a reply memorandum in further support of his motion for summary
judgment wherein, among other things, he argues that Defendant failed to provide an
affidavit or evidentiary proof in opposition to the motion for summary judgment, thus
justifying granting Plaintiff’s motion. (Dkt. 118).

8

This is the videotape referenced in footnote 2, supra. The videotape is part of the
Court’s file in this case, and the undersigned has reviewed it again in connection with the
pending motions.

9

These other documents consist of medical records and certain internal DOCCS
records. (See Dkt. 114-2 at 8-44). Plaintiff is not a proper record custodian so as to
authenticate these records. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 269 F.3d
114, 123 (2d Cir. 2001) (“It is appropriate for a district court ruling on summary judgment
to consider only admissible evidence.”). A certified copy of the medical records was
submitted with Defendant’s motion for summary judgment, and arguably can be
considered by the Court in evaluating Plaintiff’s summary judgment motion since
Defendant appears to incorporate them into his opposition memorandum. However, the
other internal DOCCS records attached to Plaintiff’s motion will not be considered by the
Court.
-7-

III.

DISCUSSION AND ANALYSIS
A.

Summary Judgment 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 of showing 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
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, 477 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
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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., 477 U.S. 242, 247-48 (1986). “Moreover, even when both parties move for summary
judgment, asserting the absence of any genuine issues of material fact, a court need not
enter judgment for either party. Rather, each party’s motion must be examined on its own
merits, and in each case all reasonable inferences must be drawn against the party whose
motion is under consideration.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir.
2001).
In addition, “[i]t is well-settled that pro se litigants generally are entitled to a liberal
construction of their pleadings, which should be read to raise the strongest arguments that
they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotations
and citation omitted); see also Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (“It
is well-established that ‘when [a] plaintiff proceeds pro se . . . a court is obliged to construe
his pleadings liberally, particularly when they allege civil rights violations.’” (alteration in
original) (internal citation omitted)), overruled on other grounds by Ross v. Blake, ___ U.S.
___, 136 S. Ct. 1850 (2016). Moreover, “a pro se litigant should be afforded every
reasonable opportunity to demonstrate that he has a valid claim.” Satchell v. Dilworth, 745
F.2d 781, 785 (2d Cir. 1984).
This District’s Local Rule of Civil Procedure 56(a) requires the submission of a
statement of undisputed facts in support of a summary judgment motion, and requires the
opposing party to provide a response. Pursuant to Local Rule of Civil Procedure 56(a)(2),
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“[e]ach numbered paragraph in the moving party’s statement of material facts may be
deemed admitted for purposes of the motion unless it is specifically controverted by a
correspondingly numbered paragraph in the opposing statement.” Although a district court
should not deem unopposed facts to be admitted when those facts are unsupported by the
record, Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001), a district court has
discretion to deem facts admitted for lack of compliance with its local rules, see N.Y. State
Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49
(2d Cir. 2005) (it was within district court’s discretion to deem the moving party’s
statement of material facts admitted where the opposing party “offered mostly conclusory
denials” and “failed to include any record citations” contrary to the district’s local rules);
Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (because plaintiff failed to respond
to defendant’s statement of material facts submitted in accordance with local rules, “the
material facts contained in his statement are deemed to be admitted as a matter of law”).
B.

Eighth Amendment Legal Standard

There are two elements to a prisoner’s claim that his Eighth Amendment right to be
free from cruel and unusual punishment was violated: “First, the prisoner must allege that
the defendant acted with a subjectively sufficiently culpable state of mind.” Harris v.
Miller, 818 F.3d 49, 63 (2d Cir. 2016) (internal quotations and citations omitted). “Second,
[the inmate] must allege that the conduct was objectively harmful enough or sufficiently
serious to reach constitutional dimensions.” Id. at 64 (internal quotations and citations
omitted).

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In order to satisfy the subjective component of an Eighth Amendment claim, the
prisoner must show that the defendant corrections officer “had the necessary level of
culpability, shown by actions characterized by wantonness in light of the particular
circumstances surrounding the challenged conduct.” Id. at 63 (internal quotations and
citations omitted).

“For excessive force claims, as contrasted with other actions or

inactions that rise to the level of Eighth Amendment violations, the test for wantonness ‘is
whether the force was used in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.’” Id. at 63 (quoting Scott v. Coughlin, 344 F.3d
282, 291 (2d Cir. 2003)). Several factors must be considered by a court in this context to
determine whether a defendant acted maliciously or wantonly: “the extent of the injury and
the mental state of the defendant, as well as ‘the need for the application of force; the
correlation between the need and the amount of force used; the threat reasonably perceived
by the defendant[]; and any efforts made by the defendant[] to temper the severity of a
forceful response.’” Id. (citations omitted). “The absence of serious injury is . . . relevant
to the Eighth Amendment inquiry, but does not end it.” Scott, 344 F.3d at 291 (quoting
Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In addition, the subjective prong may be
satisfied by claims of sexual abuse. “Where no legitimate law enforcement or penological
purpose can be inferred from the defendant’s alleged conduct, the abuse itself may, in some
circumstances, be sufficient evidence of a culpable state of mind.” Boddie v. Schnieder,
105 F.3d 857, 861 (2d Cir. 1997); see also Delee v. Hannigan, 729 F. App’x 25, 30 (2d
Cir. 2018) (“True, intent may be inferred from statements made by a corrections officer;
from the use of demeaning sexualized remarks; from the timing of an assault; or from a
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lack of any ‘legitimate law enforcement or penological purpose for the defendant’s alleged
conduct.’” (internal citations omitted)).
As to the objective prong, it is “context specific, turning upon contemporary
standards of decency.” Harris, 818 F.3d at 64 (quotations and citations omitted); see
Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (“Although not ‘every malevolent
touch by a prison guard gives rise to a federal cause of action,’ the Eighth Amendment is
offended by conduct that is ‘repugnant to the conscience of mankind.’ Actions are
repugnant to the conscience of mankind if they are ‘incompatible with evolving standards
of decency’ or involve ‘the unnecessary and wanton infliction of pain.’” (citations
omitted)). In the excessive force context, the malicious use of force to cause harm will
constitute an Eighth Amendment violation per se “because when prison officials
maliciously and sadistically use force to cause harm, contemporary standards of decency
are always violated.” Harris, 818 F.3d at 64 (quotations and citations omitted). In
Crawford, the Second Circuit Court of Appeals clarified the rule for sexual assaults set
forth in Boddie, holding: “A corrections officer’s intentional contact with an inmate’s
genitalia or other intimate area, which serves no penological purpose and is undertaken
with the intent to gratify the officer’s sexual desire or to humiliate the inmate, violates the
Eighth Amendment.” 796 F.3d at 257. “In determining whether an Eighth Amendment
violation has occurred, the principal inquiry is whether the contact is incidental to
legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast
whether it is undertaken to arouse or gratify the officer or humiliate the inmate.” Id. at

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257-58. “[A] single act of sexual abuse may violate the Eighth Amendment if . . . it is
entirely gratuitous and devoid of penological purpose.” Id. at 256.
C.

Defendant’s Motion for Summary Judgment

The Court turns first to Defendant’s motion for summary judgment which, by his
own admission, only seeks judgment in his favor on the “physical assault” aspect of
Plaintiff’s claim. (Dkt. 100-4 at 2). The Court interprets this as Defendant suggesting that
Plaintiff has asserted a claim for both excessive use of force in violation of the Eighth
Amendment, and sexual assault in violation of the Eighth Amendment, based on the same
pat frisk. The Court is not convinced that this accurately portrays Plaintiff’s claims, which
are not divided in that manner in the second amended complaint (Dkt. 21), nor were they
interpreted in that manner by the Court in its screening of the second amended complaint
(Dkt. 35).
Rule 56(a) permits a party to move for summary judgment on part of a claim. See
Miller v. Terrillion, 436 F. Supp. 3d 598, 600 (E.D.N.Y. 2020) (“A party may move for
summary judgment only as to part of a claim.”); Travelers Indem. Co. v. Northrup
Grumman Corp., 416 F. Supp. 3d 290, 297 (S.D.N.Y. 2019) (“The rule permits motions
on particular issues, rather than entire claims. . . .”), on reconsideration in part, No. 16
CIV. 8778 (LGS), 2020 WL 1469550 (S.D.N.Y. Mar. 26, 2020); In re Am. Express AntiSteering Rules Antitrust Litig., 361 F. Supp. 3d 324, 334 (E.D.N.Y. 2019) (“Finally, it bears
noting that ‘[s]ummary judgment is not an all-or nothing proposition.’ A party may move
pursuant to Rule 56(a) for summary judgment as to an entire claim or defense, as well as
‘part of a claim or defense.’” (citations omitted)). In addition, Rule 56(g) gives a district
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court discretion if it “does not grant all the relief requested by the motion” to “enter an
order stating any material fact—including an item of damages or other relief—that is not
genuinely in dispute and treating the fact as established in the case.” See D’Iorio v.
Winebow, Inc., 68 F. Supp. 3d 334, 356 (E.D.N.Y. 2014) (explaining that the purpose of
Rule 56(g) “is twofold: to salvage some of the judicial effort involved in the denial of a
motion for summary judgment and to streamline the litigation process by narrowing the
triable issues” (citations and quotations omitted)); see also Coene v. 3M Co. ex rel.
Minnesota Min. & Mfg. Co., No. 10-CV-6546-FPG, 2015 WL 5773578, at *6 (W.D.N.Y.
Sept. 30, 2015) (“The Advisory Committee has offered the following note on Rule 56(g):
‘Even if the court believes that a fact is not genuinely in dispute it may refrain from
ordering that the fact be treated as established. The court may conclude that it is better to
leave open for trial facts and issues that may be better illuminated by the trial of related
facts that must be tried in any event.’”). Thus, the Court will consider the merits of
Defendant’s motion addressed to the “physical assault” aspect of Plaintiff’s claim.
It is true that most of the medical records10 submitted by Defendant, along with Dr.
Dinello’s declarations, support the conclusion that the pat frisk did not involve blunt force
trauma to Plaintiff’s groin area or result in any injuries. However, it is also true that
Plaintiff was not seen by medical personnel until June 14, 2015, for this incident
purportedly occurring on June 12, 2015. And Plaintiff has submitted a sworn declaration

10

The Court indicates that “most” of the medical records support this conclusion
because, as outlined in footnote 7, supra, the note from June 18, 2015, is not clear about
whether medical personnel acknowledged swelling.
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that he observed blood in his urine after the incident, prompting him to request medical
attention, and that he also experienced a stinging sensation when urinating and swollen
testicles and penis, with the swelling reduced to some degree by the time he was seen by
medical personnel.

Moreover, there is no dispute that the medical tests revealed

microscopic amounts of blood in Plaintiff’s urine on June 14, 2015, which then resolved a
few days later—at least suggesting that the level of blood in Plaintiff’s urine diminished
over the course of time (and thus, could have been more significant on the date of the
alleged incident).
An excessive force claim under the Eighth Amendment does not require that the
victim “suffer serious, or significant injury, as long as the amount of force used is not de
minimis.” Harris, 818 F.3d at 64. Here, considering the evidence on Defendant’s motion
for summary judgment in the light most favorable to Plaintiff, the Court concludes that
Plaintiff has submitted sufficient evidence to raise an issue of fact as to the extent of force
directed toward his groin area during the pat frisk. See Bellamy v. City of New York, 914
F.3d 727, 746 (2d Cir. 2019) (“Contrary to the district court’s analysis, a § 1983 plaintiff’s
testimony alone may be independently sufficient to raise a genuine issue of material fact.”);
Wright v. Goord, 554 F.3d 255, 269 (2d Cir. 2009) (Eighth Amendment claims have
proceeded to trial “even where the plaintiff’s injury was slight and the proof of excessive
force was weak.” (collecting cases)); Scott, 344 F.3d at 289 (although the plaintiff’s
medical records “do not indicate that he suffered as much harm as his affidavit suggests,
the records standing alone are inconclusive” and where the plaintiff submitted an affidavit
describing the extent of his injuries, those “sworn statements are more than mere
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conclusory allegations subject to disregard; they are specific and detailed allegations of
fact, made under penalty of perjury, and should be treated as evidence in deciding a
summary judgment motion”); LaPorte v. Fisher, No. 11-CV-9458 PKC HBP, 2014 WL
2924992, at *8 (S.D.N.Y. June 27, 2014) (even where the plaintiff’s testimony was largely
unsubstantiated by the medical record, his testimony was given under penalty of perjury
and corroborated by other witness statements, and this was sufficient to create an issue of
fact to defeat a summary judgment motion); Smith v. Fields, No. 95-cv-8374 (DAB), 2002
WL 342620, at *6 (S.D.N.Y. Mar. 4, 2002) (“Although the apparent lack of any indication
in the medical records suggesting that Plaintiff was in fact slapped and kicked about the
head casts some doubt on his claim, it is for the fact finder to determine the veracity of the
Plaintiff’s account and whether his allegations, even if standing alone, amount to excessive
force.”). As cautioned by the Second Circuit in Scott: “By finding against [the plaintiff]
on the basis of the disparity between some of [his] medical records and statements in his
affidavit, the district court made an impermissible credibility determination and weighed
contradictory proof. The credibility of [the plaintiff’s] statements and the weight of
contradictory evidence may only be evaluated by a finder of fact.” 344 F.3d at 289-90.
With respect to Defendant’s alternative request that the Court preclude Plaintiff
from testifying about blood in his urine, “[t]his is not a motion in limine; it is a motion for
summary judgment.” Rasmussen v. City of New York, 766 F. Supp. 2d 399, 404 (E.D.N.Y.
2011) (concluding that “the jury will be required to determine whether excessive force was
used to effectuate the arrest in the whole context in which it happened; it will not be asked
to slice it into individual pieces to determine whether any of those pieces standing alone
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constituted excessive force”). Particularly where Plaintiff’s prior request to have an expert
appointed was denied without prejudice, the Court finds it inappropriate to deal with
Defendant’s request in this regard in the context of this motion. Rather, any requests in
that regard may be renewed as part of a motion in limine prior to trial.
D.

Plaintiff’s Motion for Summary Judgment

In support of his motion for summary judgment, Plaintiff submits a statement of
undisputed facts, stating that on June 12, 2015, during a pat frisk, Defendant “placed his
left hand in plaintiff[’]s pants grabing [sic] and squeezing plaintiff[’]s penis and testicals
[sic] while pulling which caused the plaintiff to feel escruciating [sic] pain to the penis and
testicals [sic].” (Dkt. 114 at 3-4, ¶ 2). In support of that statement, Plaintiff relies upon,
among other things, his declaration. (See Dkt. 114-1 at 10, ¶ 1 (“On my way to law library
on 6-12-2015 at approx. 1:01 pm, I walked threw [sic] a metal detector to continue to law
library, in which I was stoped [sic] by the Defendant, once on the wall, the Defendant
started to pat-frisk me, once he got to my mid section, he placed his left hand in the front
of my pants and grabed [sic] and squeezed my testicals [sic] to the point of pain for approx.
8 seconds.”); see also Dkt. 114-2 at 4-5 (Plaintiff’s deposition testimony wherein he
describes Defendant putting his left hand inside Plaintiff’s pants and boxers, grabbing
Plaintiff’s penis and testicles, and squeezing and pulling on his genitalia multiple times)).
Plaintiff further states that Defendant “stated to plaintiff while sexually assaulting him ‘you
like that freak,’” citing to his declaration (id. at 2, ¶ 1) and his sworn deposition testimony
(Dkt. 114-2 at 4) (See Dkt. 114 at 4, ¶ 3). Plaintiff goes on to state that he put in a sickcall request that day, citing to the sick-call note dated June 12, 2015 (Dkt. 114-1 at 14-15),
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and his sworn deposition testimony (Dkt. 114-2 at 6), and that he first was seen by medical
personnel on June 14, 2015 (see Dkt. 114 at 4-5, ¶¶ 5, 8). Plaintiff submits both his
statement of undisputed facts and his declaration under penalty of perjury, swearing that
the statements contained therein are true and correct. (Id. at 6; Dkt. 114-1 at 12). See
LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999)
(28 U.S.C. § 1746 requires substantial compliance with its requirements, and letter that did
not contain exact language of section but stated “[u]nder penalty of perjury, I make the
statements contained herein” was sufficient).
As noted above, Defendant responded with only a three-page memorandum of law.
In his memorandum of law, Defendant states:
Defendant expressly denies Plaintiff’s statement of ‘uncontested’ facts.
Strictly speaking, (and, in light of the prior paragraph, somewhat ironically),
Plaintiff phrases several of his uncontested facts as ‘Plaintiff states. . .’ (D.N.
114 p.3). Defendant does not deny that Plaintiff has stated that an assault
occurred but denies the veracity of content of each of his statements of
uncontested facts alleging an assault occurred.
(Dkt. 117 at 2-3). But this attempt to raise disputed issues of fact in a memorandum of law
is wholly insufficient. First, it blatantly disregards Local Rule 56(a)(2)’s requirement that
Defendant respond to Plaintiff’s statement of undisputed facts by corresponding paragraph
number in an opposing statement. Second, even if the Court was willing to disregard
Defendant’s lack of compliance with the Local Rule—it is not—Defendant “must come
forward with specific evidence demonstrating the existence of a genuine dispute of material
fact.” Brown, 654 F.3d at 358. Defendant has failed to do so.

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Defendant appears to incorporate his own motion for summary judgment in
opposition to Plaintiff’s motion, relying on the medical records and Dr. Dinello’s opinion.
(Dkt. 117 at 2). However, as noted above, Defendant’s motion was not addressed to
whether a sexual assault occurred, but rather whether a physical assault occurred. In other
words, Defendant’s motion dealt with the amount of force used during the alleged touching
of Plaintiff’s penis and testicles, and whether the blood in Plaintiff’s urine could have been
caused by blunt force trauma. Thus, construing the evidence presented in Defendant’s
motion for summary judgment in the light most favorable to Defendant on Plaintiff’s
motion for summary judgment, that evidence establishes that a physical assault resulting
in injuries did not occur on the date in question. It does not refute Plaintiff’s evidence that
on the date in question, Defendant reached inside Plaintiff’s pants, grabbed and squeezed
his penis and testicles for approximately 8-10 seconds, and said “you like that freak.”
The Court has also reviewed the surveillance footage from Five Points C.F. (see
Dkt. 114-1 at 13), and while the Court questions whether the video is of sufficient quality
to show Defendant grabbing Plaintiff’s penis and testicles (as claimed by Plaintiff (see Dkt.
114 at 13-14)), it does show that at approximately 1:00:50 p.m., an individual matching
Plaintiff’s description entered the metal detector. At approximately 1:01:15 p.m., that
individual is placed on the wall for a pat frisk, which lasts until approximately 1:02:15 p.m.
In other words, the video evidence certainly supports the conclusion that the pat frisk
occurred on the date and time in question. The video evidence also depicts other inmates
being subjected to pat frisks by other corrections officers, and none of those other pat frisks
appear to involve an officer reaching inside an inmate’s pants to squeeze his genitalia.
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To the extent Defendant attempts to attack Plaintiff’s credibility because he
purportedly “waited a significant period of time . . . before seeking medical attention,”
(Dkt. 117 at 1), this is simply not supported by the record which suggests that Plaintiff
submitted a sick-call request on the date of the incident (Dkt. 114-1 at 15), but was not seen
by medical personnel until June 14, 2015.
Defendant also claims in his memorandum of law that “Plaintiff’s own pleading
provides documents indicating no assault occurred,” and he cites to an internal DOCCS
document concerning Plaintiff’s grievance that was attached to Plaintiff’s motion papers.
(Dkt. 117 at 1; see Dkt. 114-1 at 8). First, as noted in footnote 9, supra, this document has
not been properly authenticated.

Second, the document is plainly hearsay and the

foundation for its admission as an exception to the hearsay rules has not been set forth in
this record. Cf. Hill v. Cty. of Montgomery, No. 9:14-CV-00933 BKS DJS, 2020 WL
819225, at *1 (N.D.N.Y. Feb. 19, 2020) (finding that inmate grievances were not
admissible as business records under Federal Rule of Evidence 803(6)); Kokoska v. City of
Hartford, No. 3:12-CV-01111 WIG, 2014 WL 4724875, at *3 (D. Conn. Sept. 23, 2014)
(“Recognizing the potential for self-serving statements by officers involved in excessive
force incidents, courts in this circuit have generally found that their incident reports were
inadmissible under Rule 803(6) because of the lack of indicia of reliability.”); Lewis v.
Velez, 149 F.R.D. 474, 489 (S.D.N.Y. 1993) (proffered records and reports concerning the
incident, including investigatory report, not admissible in excessive use of force trial).
Third, even if considered, this document proves nothing—it simply states that Plaintiff
could not identify the officer who engaged in the conduct and Plaintiff’s allegations
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remained unsubstantiated, but the matter was being investigated by the Office of Special
Investigations.
Put simply, there is no evidence in the record refuting Plaintiff’s version of events
that he was sexually assaulted. Defendant opted not to submit his own sworn testimony
either in support of his summary judgment motion or in opposition to Plaintiff’s motion.11
Thus, based on the record before the Court, the undisputed facts establish that on June 12,
2015, at Five Points C.F., at approximately 1:01 p.m., as Plaintiff was on his way to the
law library, Defendant conducted a pat frisk of Plaintiff during which he reached inside
Plaintiff’s pants and boxers, so that he was able to grab, pull, and squeeze Plaintiff’s penis
and testicles for approximately 8-10 seconds, causing Plaintiff pain. The undisputed facts
further establish that while doing this, Defendant said to Plaintiff, “you like that freak.”
Under the legal standards set forth above, the Court concludes that these undisputed
facts satisfy both the objective and subjective elements of Plaintiff’s Eighth Amendment
sexual assault claim. Considering the evidence in the light most favorable to Defendant,
no rational jury could conclude that there was a penological purpose associated with
Defendant reaching inside Plaintiff’s pants, grabbing and squeezing his genitalia, causing

11

The Court notes that, while not referred to or relied upon by Defendant in connection
with either of the pending summary judgment motions, the docket contains two documents
purporting to be interrogatory responses from Defendant. (Dkt. 75; Dkt. 90). However,
these interrogatory responses are not sworn to as required by Federal Rule of Civil
Procedure 33(b)(3), and as such, even if the Court was to go outside the evidence submitted
in connection with the pending summary judgment motions, see Fed. R. Civ. P. 56(c)(3)
(“The court need consider only the cited materials, but it may consider other materials in
the record.” (emphasis added)), these interrogatory responses do not constitute admissible
evidence in the record before the Court.
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Plaintiff pain, and stating “you like that freak” as he performed a pat frisk. It would be a
different situation if, for instance, Defendant had searched Plaintiff’s groin area outside his
pants. Cf. Shaw v. Prindle, 661 F. App’x 16, 19 (2d Cir. 2016) (affirming grant of summary
judgment in favor of defendant where pat frisk search conducted outside the plaintiff’s
clothing “took longer than it was supposed to” and included “excessive searching of [the
plaintiff’s] ‘crotch area and . . . in between [his] buttocks’ and massaging of his ‘rectum
and groin area,’” because there was no evidence from which the court could reasonably
infer that the defendant had intended to search the plaintiff with intent to arouse or gratify
his sexual desires or to humiliate the plaintiff). But that is not what occurred here. And
the search described by Plaintiff is different than what occurred with the pat frisks of other
inmates more clearly reflected in the video evidence.
As to the subjective prong of the test, Defendant’s intent “has to be inferred rather
than observed; judges and jurors are not mind readers.” Harris, 818 F.3d at 64 (quoting
Washington v. Hively, 695 F.3d 641, 643-44 (7th Cir. 2012)). Defendant’s “demeaning
comments” where he referred to Plaintiff as a freak as he was grabbing his genitalia inside
his pants with no penological purpose “suggest that [he] . . . undertook the search in order
to arouse himself, humiliate [Plaintiff] . . ., or both.” Crawford, 796 F.3d at 259; see Hayes
v. Dahlke, 976 F.3d 259, 275 (2d Cir. 2020) (“As a general matter, pat frisks ‘relate to the
safety and security of the facility by ensuring that inmates do not possess contraband, and
prison directives make clear that pat frisks necessarily entail contact with the genitalia and
buttocks, where inmates have been known to conceal drugs and weapons such as razor
blades. But the routine nature of these pat frisks alone does not shield an officer from
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liability, and the conduct described by [the plaintiff], if believed, could certainly support
an inference that [the defendant] engaged in conduct beyond what was required for a pat
search in order to ‘gratify [his] sexual desire’ or ‘humiliate’ [the plaintiff].”). In other
words, the evidence presented by Plaintiff supports the conclusion that Defendant engaged
in this behavior to humiliate Plaintiff and cause him pain, and Defendant has come forward
with no evidence from which a jury could conclude to the contrary. While it may not be
“entirely outside the realm of possibility” that Defendant had some other, unidentified
intent in reaching inside Plaintiff’s pants and painfully grabbing his genitalia, “those
inferences . . . are too speculative and unsubstantiated to defeat summary judgment.”
Comolli v. Huntington Learning Centers, Inc., 683 F. App’x 27, 30 (2d Cir. 2017) (finding
no genuine issue of fact as to parties’ intent to execute certain releases, because “the version
of events that [those parties] contend a reasonable jury could have credited” was based on
“conjecture”). As a result, the Court concludes that no rational jury could find that
Defendant did not act with a sufficiently culpable state of mind.
As to the objective prong, the Crawford court set forth the standard: “A corrections
officer’s intentional contact with an inmate’s genitalia or other inmate area, which serves
no penological purpose and is undertaken to gratify the officer’s sexual desire or to
humiliate the inmate, violates the Eighth Amendment.” 796 F.3d at 257. Moreover, a
single act of sexual abuse is sufficient to constitute an Eighth Amendment violation if “it
is entirely gratuitous and devoid of penological purpose.” Id. at 256. The undisputed facts
in the record establish that Defendant intentionally reached inside Plaintiff’s pants and
grabbed, squeezed and pulled his genitalia for no penological purpose.
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Moreover,

Defendant’s conduct and words support the conclusion that he did this so as to humiliate
Plaintiff and inflict harm. See Shepherd v. Fischer, No. 08-CV-9297 (RA), 2018 WL
3122053, at *4 (S.D.N.Y. June 26, 2018) (“When evaluating the objective prong, courts
holistically consider the nature of a defendant’s conduct—they do not divorce the physical
and verbal components of the conduct.”).

The Court recognizes that the evidence

submitted by Defendant in support of his own summary judgment motion raises questions
as to the extent of the force used by Defendant and any injuries suffered by Plaintiff. But
even if Plaintiff was not injured, that does not impact the conclusion that Defendant
intentionally grabbed, squeezed and pulled Plaintiff’s genitalia for no penological purpose
and to humiliate Plaintiff and inflict harm. Based on the standard set forth by Crawford,
no reasonable jury could find in favor of Defendant on the objective prong.
The Court notes that qualified immunity was raised by Defendant as an affirmative
defense in his answer. (Dkt. 46 at 2-3). Qualified immunity “will shield [an] officer from
liability for damages if his ‘conduct d[id] not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Outlaw v. City of
Hartford, 884 F.3d 351, 366 (2d Cir. 2018) (quoting Mullenix v. Luna, 577 U.S. 7 (2015)).
“The qualified immunity standard is an objective standard, asking not whether the
defendant officer acted in good faith or what he himself knew or believed, but rather what
would have been known to or believed by a reasonable officer in the defendant’s position.”
Id. at 367. “Qualified immunity is an affirmative defense on which the defendant has the
burden of proof.” Id. At the summary judgment stage, a defendant bears the “burden of
showing that the challenged act was objectively reasonable in light of the law existing at
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that time.” Vasquez v. Maloney, No. 20-1070-CV, ___ F.3d ___, 2021 WL 826214, at *3
(2d Cir. Mar. 4, 2021) (citations omitted).
Here, the incident in question occurred shortly before the Second Circuit’s decision
in Crawford. Under the circumstances, Defendant could have argued that the unlawfulness
of his conduct was not clearly established at the time he engaged in it. See Shannon v.
Venettozzi, 749 F. App’x 10, 13 (2d Cir. 2018) (affirming grant of qualified immunity
based on sexual abuse occurring in 2011: “Although the conduct alleged in the amended
complaint is reprehensible both then and now, when it occurred in 2011, our precedent did
not establish that such conduct was clearly unconstitutional.”); Crawford v. Cuomo, 721 F.
App’x 57, 59 (2d Cir. 2018) (affirming grant of qualified immunity based on sexual abuse
occurring in 2011, because “[a] reasonable officer could thereafter have believed that the
sexual abuse here alleged, even if it might violate state criminal law or subject him to tort
liability, did not violate the Eighth Amendment”).
But Defendant never addressed this issue in his opposition to Plaintiff’s summary
judgment motion. “[I]n the case of a counseled party, a court may, when appropriate, infer
from a party’s partial opposition that relevant claims or defenses that are not defended have
been abandoned.” Jones v. Pawar Bros. Corp., 434 F. Supp. 3d 14, 20 (E.D.N.Y. 2020)
(quoting Jackson v. Fed. Express, 766 F.3d 189, 198 (2d Cir. 2014)). Defendant’s failure
to address the issue of qualified immunity is particularly inexcusable in view of the fact
that Plaintiff raised the issue of qualified immunity in his moving papers. (See Dkt. 114 at
14-15). Under the circumstances, the Court deems Defendant’s defense of qualified
immunity abandoned and so it does not prevent the grant of summary judgment in
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Plaintiff’s favor. See Crotona 1967 Corp. v. Vidu Bros. Corp., 925 F. Supp. 2d 298, 308
(E.D.N.Y. 2013) (where defendant failed to raise affirmative defenses set forth in answer
in opposition to summary judgment motion, court would not consider affirmative
defenses); Maxim Grp. LLC v. Life Partners Holdings, Inc., 690 F. Supp. 2d 293, 310
(S.D.N.Y. 2010) (where defendant failed to brief affirmative defenses in opposition to
plaintiff’s summary judgment motion, affirmative defenses deemed abandoned).
Therefore, Plaintiff is entitled to summary judgment in his favor on liability with
respect to his Eighth Amendment claim for sexual assault. The Court cannot, however,
determine damages based on the current record, and in fact, there are disputed issues of
fact as to the extent of any injuries suffered by Plaintiff. That issue will need to be resolved
by a jury.
IV.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is denied

(Dkt. 100) and Plaintiff’s motion is granted in part and denied in part (Dkt. 114).
SO ORDERED.

___________________________________

ELIZABETH A. WOLFORD
United States District Judge
Dated:

March 31, 2021
Rochester, New York

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