# Nelson v. Disorbo

> District Court, N.D. New York · November 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10313454

## Case

- **Court:** District Court, N.D. New York
- **Decided:** November 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DENNIS T. NELSON,
Plaintiff,
-against- 9:18-CV-657 (LEK/CFH)
D.P. DISBORO,
Defendant.

DECISION AND ORDER
I. INTRODUCTION
On June 5, 2018, pro se plaintiff Dennis T. Nelson brought this action, alleging violations
of her1 constitutional rights while she was confined at Great Meadow Correctional Facility

(“Great Meadow C.F.”). Dkt. No. 1 (“Complaint”). At this stage, only an Eighth Amendment
claim against Defendant D.P. Disboro remains. In a Report-Recommendation issued on May 20,
2020, the Honorable Christian F. Hummel, U.S. Magistrate Judge, recommended granting
Defendant’s motion for summary judgment as to this claim. Dkt. No. 42 (“Report-
Recommendation”). On June 1, 2020, Plaintiff filed objections. Dkt. No. 43 (“Objections”). For
the reasons that follow, the Court modifies the Report-Recommendation with respect to its
reasoning, while adopting its conclusion that Defendant’s motion for summary judgment should
be granted.

II. BACKGROUND
The facts of this case are detailed in the Report-Recommendation, familiarity with which
is assumed. In short, Nelson alleges that Disboro raped her shortly before 12:00 a.m. on October
1 In her pleadings, Plaintiff identifies herself as “a transgender female.” Dkt. No. 1 at 5.
4, 2017, while she was in a hospital room in the Behavioral Health Unit at Great Meadow C.F. R.
& R. at 2–3. Disboro denies having committed the assault and maintains he was not present at
the facility from October 2 to October 4, 2017. Id.
In the Report-Recommendation, the magistrate judge found that Nelson had exhausted

her administrative remedies, but granted summary judgment for Disboro largely on the basis that
Nelson’s testimonial evidence, on which she exclusively relied in opposing summary judgment,
was not credible. See generally R. & R.
Nelson objects in general terms to the Report-Recommendation. See Objs.
III. STANDARDS OF REVIEW
A. Report-Recommendation
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are timely
filed, a court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b).
However, if no objections are made, or if an objection is general, conclusory, perfunctory, or a
mere reiteration of an argument made to the magistrate judge, a district court need review that
aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013
WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07

(N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange,
748 F.3d 471 (2d Cir. 2014). “A [district] judge . . . may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” § 636(b).
2
B. Summary Judgment
Federal Rule of Civil Procedure 56 instructs courts to grant summary judgment if “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). A fact is “material” if it “might affect the outcome of the suit under

the governing law,” and a dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude
summary judgment, “summary judgment will not lie if . . . the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d
43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).

The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
has failed “to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Id. at 322.
IV. DISCUSSION
Because Nelson’s objections are general in nature, the Court reviews the Report-

Recommendation for clear error. See Barnes, 2013 WL 1121353, at *1.
With respect to the magistrate judge’s findings regarding exhaustion, to which no party
has objected, the Court finds no clear error.
3
In assessing the merits of Nelson’s claim, the magistrate judge relied on Jeffreys v. City
of New York, in which the Second Circuit held that a plaintiff’s uncorroborated version of events
was so improbable that “[n]o reasonable person would undertake the suspension of disbelief
necessary to give credit to the allegations made in [the] complaint.” 426 F.3d 549, 555 (2d Cir.

2005). Generally, credibility determinations are beyond the scope of summary judgment. See
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The Jeffreys exception to this general rule
applies when “1) the plaintiff relies almost exclusively on his own testimony; 2) the plaintiff’s
testimony is contradictory or incomplete; and 3) the plaintiff’s testimony is contradicted by the
evidence produced by the defense.” Morris v. Plummer, No. 09-CV-734, 2011 WL1135936, at
*9 (N.D.N.Y. Mar. 2, 2011) (internal quotation marks and citation omitted).
With respect to the first prong, the magistrate judge found that Nelson relied exclusively

on her Complaint and deposition testimony. R. & R. at 18.
With respect to the second prong, the magistrate judge highlighted what he described as
inconsistencies in Nelson’s deposition testimony. The magistrate judge noted that Nelson made
inconsistent statements regarding when the rape occurred, at one point stating that it occurred at
midnight, and at another point stating that it occurred one or two hours before. R. & R. at 19–20.
Relatedly, Nelson made inconsistent statements regarding how she knew the time of the incident,
at one point claiming that Disboro told her the time, and at another point claiming that she
viewed a clock outside the room. Id. Nelson also made conflicting statements regarding the

duration of the attack, at one point stating that it lasted an hour or two and at another point stating
that it lasted five to ten minutes. Id. at 20. Nelson also gave conflicting statements regarding
whether she had met Disboro prior to the incident and whether she had encountered him since.
4
See R. & R. at 20–22. She also testified both that the hospital door was closed during the rape
and that it was not, and gave conflicting statements about whether she reported the rape to a
social worker. Id. at 23.
With respect to the third prong, the magistrate judge noted that Nelson’s testimonial

evidence was contradicted by documentary and other evidence from Defendant. Defendant
presented logbook entries and payroll records indicating that Defendant was not at work between
October 2 and October 4, 2017, as well as declarations from two non-party witness correction
officers who were working at the infirmary during the relevant time period on the night of
October 3 until midnight, in which the declarants state that they did not see Disboro at the
infirmary and did not notice any disturbance during their shifts. See R. & R. at 17–18.
The Court finds that this case does not satisfy the Jeffreys exception to the general

prohibition on credibility determinations at the summary judgment stage. While the Court agrees
with Magistrate Judge Hummel’s analysis of the first and third prongs, the Court disagrees with
the magistrate Judge’s analysis of the second prong.
Several of the purported inconsistencies that the magistrate judge identified are either
minor or immaterial to Nelson’s claims. For instance, while Magistrate Judge Hummel states that
Nelson contradicted her initial statement in her deposition that the attack occurred at midnight on
October 4, she in fact never made such a precise representation. Rather, she initially provided
midnight as an approximate time, see Dkt. No. 34-17 at 16–17 (opposing counsel asks “[a]nd

about what time did this alleged incident occur,” and Nelson responds “at twelve a.m.”)
(emphasis added), and her subsequent testimony was roughly consistent with that representation.
And while Nelson presented contradictory recollections in her deposition testimony regarding the
5
duration of the sexual assault, the Court is unwilling to accept that a reasonable jury would
necessarily find on this basis that the rape allegation was wholly fabricated; surely, a victim can
have a cloudy memory of a traumatic incident. Moreover, while Nelson made inconsistent
representations regarding her prior and subsequent contact with Defendant, the details of such

interactions have no direct bearing on the veracity of her allegation that Disboro committed the
assault, apart from casting doubt on Nelson’s truthfulness as a general matter. Moreover, while
Nelson’s contradictory statements regarding her conversation with a social worker about the
assault may undermine Nelson’s credibility, they do not, even in combination with the other
minor inconsistencies mentioned, justify the extraordinary approach of usurping the jury’s
function of assessing credibility.
Importantly, Nelson has not made any representations in her testimony that would directly

undermine her entitlement to relief if true. This case thus presents a contrast with Dove v. City of
New York, on which Magistrate Judge Hummel relied. See R. & R. at 23. In Dove, in which the
plaintiff alleged Fourteenth Amendment due process violations in connection with a physical
assault in the course of an involuntary civil commitment, the extent of the plaintiff’s injuries
were material to his claim, which was subject to a standard assessing whether the plaintiff
enjoyed “conditions of reasonable care and safety” during his confinement. No. 03-CV-5052,
2007 WL 805786, at *7 (E.D.N.Y. Mar. 15, 2007). The court found inconsistencies in the
plaintiff’s testimony regarding the extent of his injuries, as plaintiff had alleged, at different

points in time, suffering no injuries from an assault by other patients, minor headaches,
unconsciousness, and brain damage. Id. at *6. If the court had credited the plaintiff’s
representation that minor or no injuries occurred, he would not have been entitled to relief. In this
6
case, the legally relevant question is simply whether Disboro committed rape. Crawford v.
Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). Nelson did not deny that the rape occurred at any
point in her deposition testimony, nor does the record indicate that she made such statements in
any other context. Rather, she has exhibited an imprecise recollection of details of tangential

relevance, such as when the attack occurred within a two-hour window, and how long the attack
lasted.
In short, while a jury could find on the basis of the these inconsistencies that Nelson’s
account of the incident is not credible, a reasonable jury would not necessarily find as such. A
reasonable jury could find, for instance, that in the context of a deposition, a seasoned
government lawyer would be capable of eliciting inconsistent statements about minor details of
events from any unrepresented plaintiff with mental health issues. A reasonable jury could also

find that Nelson experienced trauma that hindered a flawless and precise recollection of events.
The Court is not willing to establish a precedent holding otherwise.
Nevertheless, considering Disboro’s substantial evidence, both documentary and
testimonial, that he was not present in the facility at the time of the assault, in contrast with the
uncorroborated nature of Nelson’s assertion that Disboro committed the assault, summary
judgment is warranted. Importantly, Nelson does not dispute the authenticity of Disboro’s
documentary evidence. It is well-established that such an evidentiary imbalance demonstrates
that a factual dispute is not genuine. See, e.g., Scott v. Harris, 550 U.S. 372, 378–81 (2007) (in

light of unchallenged video that clearly contradicted plaintiff’s version of high-speed police
chase, court should not have adopted plaintiff’s version of events in upholding denial of
summary judgment on ground of qualified immunity); Zellner v. Summerlin, 494 F.3d 344, 371
7
(2d Cir. 2007) (“Incontrovertible evidence relied on by the moving party, such as a relevant
videotape whose accuracy is unchallenged, should be credited by the court on such a motion if it
so utterly discredits the opposing party’s version that no reasonable juror could fail to believe the
version advanced by the moving party.”); Makhoul v. Watt, Tieder, Hoffar & Fitzgerald, L.L.P.,

662 Fed. App’x. 33, 35 (2d Cir. 2016) (“Given the overwhelming documentary evidence to the
contrary, the District Court rightly found that Makhoul’s affidavit is so blatantly contradicted by
the record evidence that no reasonable jury could believe its version of events.”); Robinson v.
Pezzat, 818 F. 3d 1, 10 (D.C. Cir. 2016) (trial court need not accept as true evidence that “is so
undermined as to be incredible”); Liberty Lobby, 477 U.S. at 252 (“The mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.”).

Under these circumstances, it is somewhat of an understatement to say, as required by the
third prong of Jeffreys, that “the plaintiff’s testimony is contradicted by the evidence produced by
the defense.” See Morris, 2011 WL1135936, at *9. Defendant’s evidence conclusively
undermines plaintiff’s assertions, and a reasonable jury could not find otherwise. Summary
judgment is warranted for this reason alone.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 42) is ADOPTED in part and

MODIFIED in part; and it is further
ORDERED, that Defendant’s motion for summary judgment (Dkt. No. 34) is
GRANTED; and it is further
8
ORDERED, that the Clerk is directed to close this action; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.’
DATED: November30, 2020
Albany, New York

Lawrence E. Kahn
Senior U.S. District Judge

> Due to the delays and disruptions caused by the COVID-19 pandemic, some
cases/motions were not disposed of prior to the end of the reporting period.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313454. Public record. Not legal advice.