The opinion
NORTHERN DISTRICT OF NEW YORK
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KEITH I. HURST,
Plaintiff,
-v- 9:16-CV-1062
(DNH/TWD)
A. MOLLNOW Correctional Officer, Washington
Correctional Facility; and EISENSCMIDT,
Sergeant, Washington Correctional Facility,
Defendants.
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APPEARANCES: OF COUNSEL:
ABDELLA LAW OFFICES CHRISTOPHER MATTHEW
Attorneys for plaintiff STANYON, I, ESQ.
8 West Fulton Street
P.O. Box 673
Gloversville, NY 12078
HON. LETITIA JAMES MARK G. MITCHELL, ESQ.
Attorney General for the State of New York Ass't Attorney General
Attorneys for defendants
The Capitol
Albany, NY 12224 RICHARD C. WHITE, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
Plaintiff Keith Hurst brings the present complaint under 42 U.S.C. § 1983, alleging that
defendants A. Mollnow and Sergeant Eisenschmidt subjected him to excessive force in
violation of his Eighth Amendment rights against cruel and unusual punishment. The action
is scheduled for trial beginning Monday, September 9, 2019, at 9:00 a.m. before this Court in
purpose of identifying material facts which are not in dispute.
Under Federal Rule of Civil Procedure ("Rule") 56(f), this Court may "consider
summary judgment on its own after identifying for the parties material facts that may not be
genuinely in dispute," so long as it first gives the parties "reasonable time to respond." Rule
56(f)(3). A dispute concerning a material fact is not genuine unless "the evidence is such that
a reasonable jury could return a verdict for the nonmoving party." Roberts v. Univ. of
Rochester, 573 F. App'x 29, 31 (2d Cir. 2014) (summary order) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
To prove an Eighth Amendment violation for excessive force, a plaintiff must prove
that there was an objective harm done which does not comport with "contemporary standards
of decency." See Hudson v. McMillian, 503 U.S. 1, 7-8 (1992). The extent of injury may
provide some indication of the amount of force applied by corrections officers and, thus,
whether that force was excessive. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). "The Eighth
Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force is
not of a sort repugnant to the conscience of mankind." Id. at 37-38.
Additionally, under the doctrine of qualified immunity, state officials "operating under
color of state law are . . . entitled to summary judgment when they can establish that either
(1) a constitutional right was not violated or (2) the right was not clearly established at the
time of the violation." Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014) (internal
citations, quotation marks, and footnote omitted).
Upon review of the parties' submissions in advance of trial, this Court can identify no
genuine dispute as to whether Hurst suffered a harm beyond a de minimis use of force, if
including kicking his face and slamming his head into a wall.1 Plaintiff's own exhibits
demonstrate that on July 2, 2016, the day after the alleged incident, he had no lesions or
rashes anywhere on his body, and his only complaints were of pain in his right elbow and left
arm. Dkt. 86, p. 37.
On July 6, 2016, five days after the alleged beating, the sum total of Hurst's injuries
were a half inch scab on his left forearm, a quarter inch scab on his right elbow, and a minute
scratch on his right shoulder, which required no care. Dkt. 86, pp. 8, 35, 41. Photographs
taken that day confirm these facts. Dkt. 86, p. 8. Beyond that, his only complaints were pain
in his chest/rib area, which the treatment notes describe as "all better," and a rash on his
neck. Dkt. 86, pp. 35, 41. Nowhere does plaintiff allege that these minor injuries were
caused by defendants. It strains credulity that Hurst's injuries from being kicked in his face,
punched in his head, face, and chest, and having his head struck repeatedly against a wall
would have healed to that extent in only a day, or even five. As a result, the evidence plaintiff
himself presents suggests that if any force were used against him, it was de minimis and not
of a kind repugnant to the conscience of mankind.
Given that Hurst's own exhibits seem to flatly contradict his anticipated testimony that
defendants savagely beat him, this Court finds that on the facts presented, no reasonable
factfinder could conclude that plaintiff suffered anything worse than a de minimis use of force,
and not force of a sort repugnant to the conscience of mankind.2 By extension, his Eighth
Amendment claims cannot survive summary judgment. See, e.g., Taylor v. Schmidt, 2018
WL 2021537, at *5-6 (N.D.N.Y. Mar. 26, 2018) (granting motion to dismiss where plaintiff's
1 Plaintiff's only witness is himself.
2 Plaintiff pleaded guilty at a disciplinary hearing to creating a disturbance and swearing at Mollnow on the day in
question, which would justify any de minimis force used by the defendants.
complaint is "flatly contradicted by his own exhibits"); Jones v. Fischer. 2013 WL 5441353, at
*6 n.6 (N.D.N.Y. Sept. 27, 2013) (noting on summary judgment that "there is no question of
fact" where plaintiff's exhibits contradict his statements).
Accordingly, unless Hurst can marshal some further evidence that he suffered an
actual injury at the hands of Mollnow and Eisenschmidt,? the Court must grant summary
judgment for defendants on the grounds that his Eight Amendment rights were not violated,
and/or that defendants were protected by qualified immunity because plaintiff cannot identify
a constitutional right that defendants did violate.
Therefore, it is ORDERED that
1. The trial in this case scheduled for September 9, 2019 is adjourned pending the
resolution of this order;
2. Plaintiff Keith Hurst may furnish arguments and evidence as to why this Court
should not grant summary judgment for defendants on the basis of an absence of a
genuine dispute of material fact and/or qualified immunity no later than 12:00 p.m.
on Friday, September 13, 2019; and
3. Defendants may also furnish arguments in support of summary judgment on the
basis of an absence of a genuine dispute as to material fact and/or qualified
immunity no later than 12:00 p.m. on Friday, September 13, 2019.
IT IS SO ORDERED.
U.S. Disfrict Judge
Dated: September 4, 2019
Utica, New York.
3 With no concrete evidence, plaintiff's mere Statements his letters and affidavit are not sufficient.