# Cooper v. State of New York

> District Court, N.D. New York · March 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10315686

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10315686

## How later opinions describe it (automated extraction)

- noting that a claim of “deliberate indifference to a serious medical . . . requires more than negligence”
- noting that objective prong of a deliberate indifference claim is met where “a condition of urgency, one that may produce death, degeneration, or extreme pain exists” (internal quotation marks and citation omitted)
- noting that a qualified immunity defense at the summary judgment stage requires that no dispute about material factual issues that inform that defense remain

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TRACY YVONNE COOPER,
9:19-cv-362
Plaintiff, (GLS/ML)
v.
CORRECTION OFFICER
PATRICK M. CLANCY et al.,
Defendants.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Beldock, Levine & Hoffman JONATHAN C. MOORE, ESQ.
99 Park Avenue, 26th Floor DAVID B. RANKIN, ESQ.
New York, NY 10016 REGINA POWERS, ESQ.
Hamilton Clarke, LLP JOSHUA S. MOSKOVITZ, ESQ.
48 Wall Street
Suite 1100
New York, NY 10005
FOR THE DEFENDANTS:
HON. LETITIA JAMES JORGE A. RODRIGUEZ
New York State Attorney General Assistant Attorney General
The Capitol
Albany, NY 12224
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Plaintiff Tracy Yvonne Cooper (hereinafter “Cooper”), as
Administrator of the Estate of Terry L. Cooper, Jr. (hereinafter “Terry”),
brings this action against defendants Correction Officer Patrick M. Clancy,

Correction Officer Steven W. Wood, Correction Officer Kolby M. Duffina,
Correction Officer Christopher J. Nichols, Correction Officer Neil J. Napper,
Correction Officer Christopher L. Gadway, Correction Sergeant Merit J.
Peck, Correction Sergeant Michael C. Thompkins, and Jeffrey H. Taylor,

alleging Eighth Amendment excessive force, failure to intervene, and
deliberate indifference claims pursuant to 42 U.S.C. § 1983, and a 42
U.S.C. § 1985 civil rights conspiracy claim. (2d Am. Compl., Dkt. No. 52.)

Now pending is defendants’ motion for summary judgment, (Dkt. No. 127),
and Cooper’s motion seeking permission to file a sur-reply, (Dkt. No. 140).
For the reasons that follow, defendants’ motion is granted in part and

denied in part, and Cooper’s motion is granted.1

1 Cooper “request[s] that the [c]ourt accept [her motion] as a sur-
reply to [d]efendants’ motion for summary judgment,” necessitated by the
fact that “arguments [that d]efendants made in their reply brief [were]
based on [an] exhibit . . . [that was] not part of [d]efendants’ initial moving
2
II. Background2
At all relevant times, Terry was incarcerated at Clinton Correctional

Facility (CCF) in Dannamora, New York. (Defs.’ Statement of Material
Facts (SMF) ¶ 1, Dkt. No. 127, Attach. 11.) Clancy, Duffina, Wood,
Nichols, Napper, Gadway, Peck, and Tompkins were all corrections

officers at CCF. (Id. ¶¶ 3-10.) Taylor was a registered nurse at CCF. (Id.
¶ 11.) Cooper is the mother of Terry and the administrator of his estate.
(Id. ¶ 2.)
On May 19, 2016, Terry activated a metal detector while passing

through a gate at CCF. (Id. ¶ 15.) Clancy and Duffina, who were stationed
at the gate, searched Terry and his effects, and then escorted him back to
his cell, located in CCF’s “B Block.” (Id. ¶¶ 16, 22.) When they arrived at

the B Block, Wood, who was stationed there, accompanied the escort of
Terry towards to his cell. (Id. ¶¶ 26-27.) Duffina, Clancy, and Wood then
“walked up to the landing on the third floor” of the B Block and stopped at a

security gate there. (Id. ¶ 28.) At that time, Clancy asked Terry to produce

papers.” (Dkt. No. 140.) The motion is granted, and the court accepts the
motion as Cooper’s sur-reply.
2 Unless noted otherwise, the facts are undisputed.
3
his identification documentation. (Id. ¶ 29.)3 Defendants assert that,
following the request that Terry produce his identification documentation,

Terry reached into his pocket, as if to comply with Clancy’s request, but
then removed his closed fist and struck both Clancy and Wood in the face.
(Id. ¶¶ 30-32.) Cooper maintains that Terry did not strike any of the

officers. (Pl.’s SMF ¶¶ 30-32, 167, Dkt. No. 133.) In an attempt to restrain
Terry, Clancy “bear hug[ged]” Terry from behind, Wood grabbed Terry’s
arm, and they both “brought [Terry] to the ground.” (Defs.’ ¶¶ 34-35.4)
Once Terry was brought to the ground, he “continued to resist . . . and

prevent[ed] the officers from placing his hands in mechanical restraints.”
(Id. ¶ 36.)5 Duffina then grabbed Terry’s legs, but Terry continued to resist.

3 Although Cooper disputes a portion of the facts in this paragraph
of defendants’ statement of material facts, the facts cited here are not
disputed.
4 Cooper “disputes” the facts asserted in these paragraphs of
defendants’ statement of material fact, but fails to cite to support in the
record that shows an actual dispute; accordingly, the facts are deemed
admitted pursuant to Local Rule 56.1(b). The same is true for paragraphs
37, 39, and 43 of defendants’ statement of material facts.
5 Cooper “disputes” the facts asserted in paragraph 36 of
defendants’ statement of material fact, but cites only to a physician’s
report noting that “the available autopsy photographs of Terry’s right hand
. . . showed no visible contusion and [a right hand contusion was] neither
observed nor documented . . . during [his] autopsy,” (Dkt. No. 134, Attach.
4
(Id. ¶ 37.) “Clancy [then] applied approximately two closed-fisted strikes
with his right hand to the right side of [Terry’s] upper torso, in order to gain

compliance.” (Id. ¶ 39.) Eventually, Wood and Clancy secured both of
Terry’s arms and placed them in mechanical restraints, and, at that time,
Terry stopped resisting. (Id. ¶¶ 40-41, 43.) Ultimately, defendants assert

that the use of force incident lasted approximately one minute, “[a]part from
the [two closed-fist] strikes to the side of [Terry]’s upper torso and the
grabs and holds used to bring him to the ground and restrain him, no other
force was used,” and the aforementioned use of force resulted in “no

visible injuries” to Terry. (Id. ¶¶ 47-48, 50.)
However, Cooper asserts that the officers used their batons to strike
Terry while he pleaded for them to stop for approximately three to five

minutes. (Pl.’s SMF ¶¶ 48, 50, 152-54.) Additionally, Cooper contends
that Terry’s injuries were extensive and, ultimately, fatal. (Id. ¶¶ 47, 157,
160-63, 169.)

The parties do not dispute that “[s]hortly after the use-of-force
incident, [Terry] was turned over to . . . Napper and Nichols,” who were

4 ¶ 7), which does not controvert what is asserted by defendants, and,
accordingly, the facts are deemed admitted.
5
instructed to bring Terry to the medical building, that Peck arrived and
joined the escort of Terry in B Block, as it began, and then, at a later point

during the escort, Tompkins joined Napper, Nichols, and Peck. (Defs.’
SMF ¶¶ 64-65, 70,6 72-73, 78.) However, the parties disagree regarding
Terry’s method of transport to the medical building. Defendants maintain

that Terry “was walking under his [own] power” when the escort began, but,
as it progressed, Terry began breathing heavily, and, just before reaching
the medical building, began expressing that he could not breathe and that
he needed his “asthma pump.” (Id. ¶¶ 68, 74, 79 (quotation marks

omitted).) “Shortly thereafter, [Terry] fell to his knees” and “[w]ithin
seconds” of his collapse, Nichols, Napper, Thompson, and Peck all picked
Terry up and carried him the rest of the way to the infirmary. (Id. ¶¶ 80,

85.) Cooper contends that, approximately fifteen to twenty-five minutes
after the use of force incident that rendered Terry unconscious, his “lifeless
body” was dragged down the stairs and out of the B Block. (Pl.’s SMF ¶¶

67-68, 70, 74, 79-81, 85, 154-56.)

6 Although Cooper disputes a portion of the facts in this paragraph
of defendants’ statement of material facts, the facts recited here, namely,
the timing of Peck’s joining the escort, are not disputed.
6
Once in the infirmary, the treatment Terry received is largely
undisputed. Upon arrival, “Taylor conducted an assessment of [Terry] and

found him to be apneic, non-responsive[,] and pulseless.” (Defs.’ SMF
¶ 93.) Then, defendants contend, Taylor “directed the medical staff to
contact Telemed and emergency medical services, and to start

cardiopulmonary resuscitation.” (Id. ¶ 95.) Cooper asserts that Taylor did
not instruct “medical staff” to perform CPR on Terry, rather Taylor
instructed Gadway, another correctional officer who had reported to the
medical building, to perform CPR. (Pl.’s SMF ¶ 95; Defs.’ SMF ¶ 99.)

Tayor then placed an automated external defibrillator (AED) on Terry.
(Defs.’ ¶ 97.) Thereafter, “Napper and Gadway assisted with CPR efforts
by providing chest compressions, while [a n]urse . . . assisted . . . to

provide respiration.” (Id. ¶ 100.) Once in contact with Telemed, Taylor
informed the Telemed physician of Terry’s condition, and the Telemed
physician directed Taylor to administer two IV lines of saline and a dose of

Narcan to Terry. (Id. ¶¶ 104-05.) Defendants contend that Taylor
complied with the Telemed doctor’s instruction, (id. ¶ 106), while Cooper
asserts that Taylor delayed sometime before inserting the first and second

7
saline lines,7 and before administering Narcan, (Pl.’s SMF ¶¶ 106, 177,
181). Shortly thereafter, emergency medical services personnel from

Champlain Valley Physician’s Hospital (CVPH) arrived at the infirmary, and
Taylor “ceded primary care” to them, but remained in the infirmary to
provide assistance. (Defs.’ SMF ¶¶ 108, 110, 111.) Terry never regained

a pulse or began breathing, and was ultimately declared deceased. (Id.
¶¶ 115-16.) Additionally, Cooper maintains that Taylor, Napper, and
Gadway provided an insufficient rate of compressions during their CPR
administration and “failure[d] to utilize the CPR backboard that was

immediately available [to] them.” (Pl.’s SMF ¶¶ 176, 181.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 56 is well settled and

will not be repeated here. For a full discussion of the governing standard,
the court refers the parties to its prior decision in Wagner v. Swarts, 827 F.
Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489

7 Cooper posits inconsistent evidence with respect to the length of
the alleged delay in Taylor’s administering of the saline lines. (Compare
Pl.’s SMF ¶¶ 106, 177 (asserting an eight and twenty minute delay,
respectively), with id. ¶ 181 (asserting a fifteen and forty-five minute delay,
respectively).)
8
F. App’x 500 (2d Cir. 2012).
IV. Discussion

A. Excessive Force
Cooper brings an excessive force claim against Clancy, Duffina, and
Wood. (2d Am. Compl. ¶¶ 55-60.) Defendants argue that they are entitled

to summary judgment on that claim because their actions were not
objectively excessive in light of the circumstances, given that Terry “was
the initial aggressor” and Clancy, Duffina, and Wood’s “measured

response was aimed only at stopping [Terry’s] attack and subduing” him.
(Dkt. No. 127, Attach. 12 at 14.) Additionally, defendants assert that
Clancy, Duffina, and Wood did not “possess[] the necessary culpable state
of mind.” (Id. at 15.) Cooper maintains that “there is ample evidence” that

Duffina, Clancy and Wood used excessive force, including witness
testimony and Terry’s autopsy report. (Dkt. No. 132 at 9-10.)
The Eighth Amendment prohibits “cruel and unusual punishments.”

U.S. Const. amend. VIII. “Although not every malevolent touch by a prison
guard gives rise to a federal cause of action, inmates have the right to be
free from the unnecessary and wanton infliction of pain at the hands of
prison officials.” Randolph v. Griffin, 816 F. App’x 520, 522 (2d Cir. 2020)

9
(internal quotation marks and citations omitted).
Eighth Amendment excessive force claims have both an objective

and subjective component. See id. at 523; see also Harris v. Miller, 818
F.3d 49, 63-65 (2d Cir. 2016). With respect to the subjective component, a
plaintiff must show “that the defendant acted with a subjectively sufficiently

culpable state of mind.” Harris, 818 F.3d at 63 (internal quotation marks
and citation omitted). In making such a determination a court will consider:
(1) “the extent of the injury and the mental state of the defendant”; (2) “the
need for the application of force;” (3) “the correlation between that need

and the amount of force used;” (4) “the threat reasonably perceived by the
defendant[]; and” (5) “any efforts made by the defendant[] to temper the
severity of a forceful response.” Bradshaw v. City of New York, 855 F.

App’x 6, 9 (2d Cir. 2021) (citation omitted).
Regarding the objective component, the conduct must be “objectively
harmful enough or sufficiently serious to reach constitutional dimensions.”

Harris, 818 F.3d at 64 (internal quotation marks and citation omitted). “The
objective component of the Eighth Amendment test is . . . context specific,
turning upon contemporary standards of decency.” Id. (internal quotation
marks and citation omitted). However, “malicious use of force to cause

10
harm, constitute[s an] Eighth Amendment violation[] per se . . . . [B]ecause
when prison officials maliciously and sadistically use force to cause harm,

contemporary standards of decency are always violated.” Id. (citations
omitted).
Here, there are disputes regarding the extent of the force used

against Terry, the duration for which the force was applied, and the
necessity of the degree of force used, which preclude summary judgment.
On one hand, defendants argue that their use of force was minimal,
including two closed-fists strikes to the side of Terry’s upper torso, and

“body holds and restraints,” which were utilized only after Terry attacked
them and resisted their attempts to restrain him, pointing to the
declarations of Clancy, Duffina, and Wood. (Dkt. No. 127, Attach. 12 at

14-15; see id., Attach. 2 ¶¶ 34-42, 70-71; id., Attach 3 ¶¶ 27-34, 41-42; id.,
Attach. 10 at 18-26, 29-32, 51.) On the other hand, Cooper adduces
testimony from a witness stating that Terry was beaten by officers for three

to five minutes while pleading for the officers to stop, that the officers’
batons were used, and that Terry was subsequently dragged down the
stairs while his feet and head were “dangling” and he was bleeding from

11
his head, (Dkt. No. 134, Attach. 6 at 109, 141, 190).8 Additionally, Cooper
points to forensic evidence demonstrating more extensive injuries suffered

by Terry than that which would be consistent with the amount of force
defendants argue was used. (Dkt. No. 134, Attach. 4 ¶ 6; id., Attach. 20 at
43, 71-72, 75-76.) Accordingly, there is a factual dispute necessitating a

trial, and, for that reason, defendants’ motion must be denied with respect
to Cooper’s excessive force claim.
B. Failure to Intervene
Cooper alleges a failure to intervene claim against Clancy, Duffina,

and Wood. (2d Am. Compl. ¶ 56.) Defendants argue that, because “[t]he
facts clearly show that [Terry] was the aggressor, and [d]efendants acted
with the intent to prevent further injury to the persons involved and to

restrain [Terry] from continuing to assault staff,” that “there is no admissible

8 Defendants attempt to discredit this testimony, in part, by using
call logs from CCF to attempt to call into question the witness’s timeline of
events. (Dkt. No. 139, Attach. 18 at 4-5). The court will not engage in a
credibility determination. See Knox v. County of Putnam, No. 10 Civ.
1671, 2012 WL 446201, at *5 (S.D.N.Y. Sept. 27, 2012) (“It is well-settled
that a district court may not make credibility determinations on a motion
for summary judgment.”) (citation omitted); see also Manganiello v. City of
New York, 612 F.3d 149, 161 (2d Cir.2010) (“Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”).
12
factual proof suggesting that during the use-of-force incident . . . Clancy,
Wood or Duffina had reason or opportunity to intervene to protect” Terry.

(Dkt. No. 127, Attach. 12 at 16.) Cooper counters that, “because there is
substantial evidence that the use-of-force [against Terry] was unjustified” it
cannot be said that “there was no need to intervene to stop it.” (Dkt. No.

132 at 12.)
To be found liable for failing to intervene, an officer “must have . . .
failed to intervene, despite having a realistic opportunity to do so, to
prevent another officer from applying excessive force.” McGrier v. City of

New York, 849 F. App’x 268, 272 (2d Cir. 2021) (internal quotation marks
and citation omitted). Because of the above-noted factual disputes as to
the force used against Terry, see supra Part IV.A., defendants’ motion is

denied with respect to Cooper’s failure to intervene claim.
C. Deliberate Indifference
Cooper alleges deliberate indifference to serious medical needs, in

violation of the Eighth Amendment against Nichols, Napper, Thompkins,
Peck, Taylor, and Gadway. (2d Am. Compl. ¶¶ 61-65.) Defendants argue
that they are entitled to summary judgment because the actions taken by
Nichols, Napper, Tompkins and Peck while escorting Terry to the medical

13
building do not evince deliberate indifference. (Dkt. No. 127, Attach. 12 at
19-20.) Specifically, Nichols, Napper, Tompkins and Peck assert that none

of them saw visible injuries on Terry or found him to be in distress, and,
after Terry collapsed, they immediately carried him to the infirmary to
receive medical treatment. (Id.) Additionally, defendants contend that

Cooper “fails to establish a cause of action for deliberate indifference with
regard to the treatment [Terry] received . . . in the infirmary.” (Id. at 20.)
Specifically, defendants maintain that Taylor assessed Terry “immediately
[and then] acted to provide [him] with emergency medical treatment,”

including CPR and an AED device, with the assistance of Gadway,
Napper, and a Telemed physician until CVPH EMTs arrived and “took over
the [primary] medical care of” Terry with defendants remaining to assist.

(Id. at 20-21.) Cooper argues that Terry did not receive prompt CPR, and
when he did receive CPR it was of “poor quality”— despite defendants
being trained in the proper technique—due to “an inadequate rate of

compressions . . . [,] failure to utilize the [available] CPR backboard,” and
Taylor’s poor instruction. (Dkt. No. 132 at 15-17.) Additionally, Cooper
maintains that Taylor delayed eight and twenty minutes, respectively, in
inserting two saline solution IV lines. (Id. at 18.) Further, Cooper asserts

14
that, after the use of force incident, “fifteen minutes or more passed before
the officers took [Terry] to the infirmary.” (Id. at 17.)

“[T]o establish an Eighth Amendment claim arising out of inadequate
medical care, a prisoner must prove ‘deliberate indifference to [his] serious
medical needs.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)

(internal quotation marks and citation omitted). “A deliberate indifference
claim contains two requirements.” Spavone v. N.Y. State Dep’t of Corr.
Servs., 719 F.3d 127, 138 (2d Cir. 2013). “The first requirement is
objective: the alleged deprivation of adequate medical care must be

sufficiently serious.” Id. (internal quotation marks and citations omitted).
The alleged deprivation is sufficiently serious when “a condition of urgency,
one that may produce death, degeneration, or extreme pain exists.”

Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
marks and citations omitted). Subjectively, the charged official must act
with a sufficiently culpable state of mind, requiring at least “reckless in their

denial of medical care.” See Spavone, 719 F.3d at 138 (citation omitted).
This means “that the charged official [must] act or fail to act while actually
aware of a substantial risk that serious inmate harm will result.”
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006); see Dukes v.

15
Deputy Supt. of Sec., 153 F. App’x 772, 773 (2d Cir. 2005) (noting that a
claim of “deliberate indifference to a serious medical . . . requires more

than negligence”).
Here, Cooper has satisfied the objective prong of his deliberate
indifference claim. See Hathaway, 99 F.3d 550, 553 (2d Cir. 1996) (noting

that objective prong of a deliberate indifference claim is met where “a
condition of urgency, one that may produce death, degeneration, or
extreme pain exists” (internal quotation marks and citation omitted)).
However, regarding the treatment provided to Terry at the infirmary,

Cooper has failed to meet the subjective prong, and, thus, summary
judgment is granted in favor of defendants. Cooper points to instances of
allegedly inadequate care provided to Terry in the infirmary, including an

inadequate rate of CPR chest compressions, the failure to use a CPR back
board, and minutes-long delays in administering two IV lines to Terry, (Dkt.
No. 123 at 16-20), however, assuming this conduct constitutes some

degree of malpractice, incompetence, or misjudgment, it does not amount
to deliberate indifference. Cooper’s argument that Taylor, Napper and
Gadway did not properly provide CPR or competently insert an IV, (id.),
would constitute, at the most, negligence, see Burgess v. County of

16
Rensselaer, No. 1:03-CV-00652, 2006 WL 3729750, at *8 (N.D.N.Y. Dec.
18, 2006) (“[A] claim of misdiagnosis, faulty judgment, or malpractice

without more to indicate deliberate indifference, is not cognizable under
[S]ection 1983.”); see also Warren v. N.Y.C. Dep’t of Corr. Med. Staff, No.
17-CV-1125, 2021 WL 1163105, at *9 (E.D.N.Y. Mar. 26, 2021) (“[I]t is

well-established that ‘mere medical malpractice is not tantamount to
deliberate indifference.’” (quoting Charles v. Orange County, 925 F.3d 73,
87 (2d Cir. 2019))).
However, regarding defendants’ argument that Taylor, Gadway,

Napper, Nichols, Thompkins, and Peck “unreasonably withh[e]ld[]
necessary medical care” by delaying “fifteen minutes or more . . . before”
taking Terry to the infirmary after the use of force incident, (Dkt. No. 131 at

17), there is a factual dispute such to preclude summary judgment with
respect to Napper and Nichols. Defendants contend that, “[w]ithin
seconds” of Terry collapsing, they carried him to the infirmary. (Defs.’ SMF

¶¶, 79-80, 85.) However, Cooper asserts that there was an approximately
fifteen- to twenty-five-minute delay after the use of force incident, which
rendered Terry unconscious, until his “lifeless body” was dragged down the
stairs and out of B Block. (Pl.’s SMF ¶ 156.) Such a factual dispute

17
precludes summary judgment. See Bozeman v. Orum, 422 F.3d 1265,
1273 (11th Cir. 2005) (concluding, under the substantially similar

Fourteenth Amendment deliberate indifference standard, “that the
[o]fficers, who knew [the prisoner] was unconscious and not breathing and
who then failed for fourteen minutes to check [his] condition, call for

medical assistance, administer CPR or do anything else to help,
disregarded the risk facing [him] in a way that exceeded gross
negligence”), abrogated on other grounds by Kingsley v. Hendrickson, 576
U.S. 389 (2015); see also Isaac v. City of New York, No. 17 Civ. 1021,

2018 WL 1322196, *3 (S.D.N.Y. Mar. 13, 2018) (“A claim of an
unconstitutional delay . . . is . . . cognizable if it reflects deliberate
indifference to . . . a life-threatening or fast-degenerating condition.”

(internal quotation marks and citation omitted). Regarding the alleged
delay with which Terry’s transport to the infirmary began, the undisputed
facts demonstrate that neither Taylor, Gadway, Tompkins, nor Peck
contributed to it, (Defs.’ SMF ¶¶ 70,9 72, 91, 99 (establishing that Peck and

9 As previously mentioned, see supra note 5, Cooper disputes a
portion of the facts in this paragraph of defendants’ statement of material
facts but the facts recited here—the timing of Peck’s joining the
escort—are not in dispute.
18
Tompkins did not become involved in the post-use of force transportation
of Terry until Napper and Nichols began the transport of Terry down B

Block staircase, and Taylor and Gadway only became involved at the
infirmary). Accordingly, defendants’ motion for summary judgment is
granted as to Taylor, Gadway, Napper, Nichols, Tompkins, and Peck with

respect Cooper’s deliberate indifference claim insofar as it is premised on
the care Terry received in the infirmary, and as to Taylor, Gadway,
Tompkins, and Peck with respect to alleged delay in beginning Terry’s
transport to the infirmary. Defendants’ motion is denied with respect to

Nichols and Napper regarding the alleged delay in beginning Terry’s
transport to the infirmary.
D. Conspiracy

Cooper alleges a conspiracy to violate Terry’s civil rights against all
defendants. (2d Am. Compl. ¶¶ 66-71.) Defendants argue that Cooper
“cannot produce any admissible evidence tending to show that [they]

engaged in any conspiracy to deprive [Terry] of his civil rights” as “the
record does not reflect any instances of communication or coordination by
[d]efendants to either deprive [Terry] of his rights or to cover up any
wrongful conduct.” (Dkt. No. 127, Attach. 12 at 22.) Cooper asserts that

19
defendants are misrepresenting the extent of the force used against Terry,
“fabricated reports to cover up their actions,” that Wood was seen poking

Terry with a baton and cursing at him before the use of force incident and
has been described as “racist” who “mistreat[s] black people,” and, finally,
that “fifteen minutes passed after the assault before [Terry] was removed

from the housing block,” indicating that “Napper, Nichols, Tompkins, and
Peck . . . conspired with Clancy, Duffina, and Wood to (a) cover-up the
excessive force, and (b) deny [Terry]’s Eighth Amendment right to
adequate medical care.” (Dkt. No. 132 at 23-25.)

42 U.S.C. § 1985(3) provides, in pertinent part:
If two or more persons in any State or Territory
conspire . . . for the purpose of depriving, either
directly or indirectly, any person or class of persons of
the equal protection of the laws, or of equal privileges
and immunities under the laws . . . the party so
injured or deprived may have an action for the
recovery of damages occasioned by such injury or
deprivation, against any one or more of the
conspirators.
To support a claim pursuant to Section 1985(3), a plaintiff must allege:
1) a conspiracy; 2) for the purpose of depriving . . .
any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities
under the laws; and 3) an act in furtherance of the
conspiracy; 4) whereby a person is either injured . . .
20
or deprived of any right or privilege of a citizen of the
United States.
Oliver v. N.Y. State Police, No. 1:19-cv-233, 2020 WL 1849484, at *9
(N.D.N.Y. Apr. 13, 2020) (quoting Dolan v. Connolly, 794 F.3d 290, 296

(2d Cir. 2015)). “The conspiracy must also be motivated by some racial or
perhaps otherwise class-based, invidious discriminatory animus.” Dolan,
794 F.3d at 296 (internal quotation marks and citation omitted).

As a preliminary matter, in responding to defendants’ motion, Cooper
does not provide any examples of Taylor’s participation in the alleged
conspiracy, and, thus, summary judgment is granted as to Taylor for lack
of personal involvement. With respect to the others, there are facts from

which a jury could infer that the remaining defendants entered into an
agreement to violate Terry’s rights. Specifically, Cooper argues that
defendants engaged in various acts that allegedly violated Terry’s civil

rights or covered up such a violation, including that defendants are
misrepresenting the extent of the force used against Terry, they “fabricated
reports to cover up their actions” and delayed in providing medical support
to Terry, “Wood was poking [Terry] with a baton and cursing at him as” he

was brought into the housing block, and some defendants “prepared their

21
paperwork together” or discussed the use of force incident among
themselves or with other non-defendant officers and union representatives.

(Dkt. No. 132 at 23-25.)10 Accordingly, summary judgment is denied as to
all defendants except Taylor.
V. Conclusion

WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Cooper’s letter motion requesting that the court
accept her submission as a sur-reply (Dkt. No. 140) is GRANTED; and it is

further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
127) is GRANTED IN PART and DENIED IN PART as follows:

GRANTED as to (1) Cooper’s conspiracy claim against Taylor;
(2) deliberate indifference claim insofar as it is premised on the
care Terry received in the infirmary; and (3) deliberate

10 Regarding defendants’ qualified immunity argument, that defense
is unavailable at this juncture in light of the factual disputes highlighted
above. See Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998) (noting
that a qualified immunity defense at the summary judgment stage requires
that no dispute about material factual issues that inform that defense
remain); see also Parker v. Donnelly, No. 9:21-CV-130, 2022 WL
7290103, at *12 (N.D.N.Y. July 15, 2022).
22
indifference claim insofar as it is premised on the alleged delay
of Terry’s transport to the infirmary after the use of force

incident against Taylor, Gadway, Tompkins, and Peck, and
DENIED in all other respects; and it is further
ORDERED that Taylor is DISMISSED from the action; and it is

further
ORDERED that the claims remaining for trial are: (1) Cooper’s
excessive force claim against Clancy, Wood, and Duffina, (2) failure to

intervene claim against Clancy, Wood, and Duffina, (3) deliberate
indifference claim insofar as it is premised on the alleged delay of Terry’s
transport to the infirmary after the use of force incident against Nichols and
Napper, and (4) conspiracy claim against Clancy, Wood, Duffina, Nichols,

Napper, Gadway, Peck, and Thompkins; and it is further
ORDERED that the case is now deemed trial ready and a trial order
will be issued in due course; and it is further

ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT IS SO ORDERED.

23
March 24, 2023 \
Albany, New York ey Set
S-District Judge

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10315686. Public record. Not legal advice.