Douglas v. City Of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

GREGORY DOUGLAS,

Plaintiff,

18 Civ. 9327 (KPF)

-v.-

OPINION AND ORDER

CITY OF NEW YORK and C.O. CAROL

GARCIA, Shield No. 17515,

Defendants.

KATHERINE POLK FAILLA, District Judge:

On July 23, 2018, a fight broke out between Plaintiff Gregory Douglas

and another inmate at the Bellevue Hospital Prison Ward. Plaintiff alleges that

during this fight, New York City Department of Correction (“DOC”) Officer Carol

Garcia slapped him in the face, injuring his eye. In consequence, Plaintiff

brought this civil rights action under 42 U.S.C. § 1983 against Officer Garcia

and the City of New York (the “City,” and together with Officer Garcia,

“Defendants”), alleging that Officer Garcia applied excessive force, thereby

violating Plaintiff’s constitutional rights. Defendants now move for summary

judgment. For the reasons that follow, the Court grants Defendants’ motion for

summary judgment in full.

BACKGROUND1

A. Factual Background

The alleged use of excessive force in this case was the culmination of a

series of altercations between Plaintiff and another inmate (the “Inmate”) that

1 The facts in this Opinion are drawn primarily from Defendants’ Statement of Material

Facts pursuant to S.D.N.Y. Local Civil Rule 56.1 (“Defendants’ 56.1 Statement” or “Def.

occurred on the afternoon of July 23, 2018, while both were pretrial detainees

at Bellevue Hospital’s Prison Ward. According to Plaintiff, the Inmate

confronted Plaintiff as Plaintiff was having a heated conversation with Officer

Garcia. (Pl. Dep. 20:7-22). After Garcia left the area, and despite the efforts of

prison inmates and staff to deescalate the situation, the war of words between

Plaintiff and the Inmate took a turn for the physical. Despite having been

previously separated, the Inmate approached Plaintiff’s room with the apparent

intent to use physical force against Plaintiff. (Def. 56.1 ¶¶ 1-4; Pl. Dep. 32:9-

12, 40:5-41:9). The Inmate swung at Plaintiff and missed, and Plaintiff

responded by punching the Inmate twice and knocking him to the ground.

(Def. 56.1 ¶¶ 5-6; Pl. Dep. 41:10-13, 42:5-43:4). As the Inmate attempted to

get up, he grabbed Plaintiff by the waist, causing Plaintiff to believe that the

Inmate was going to pull him to the ground. (Def. 56.1 ¶¶ 7-8; Pl. Dep. 42:13-

43:10). In response to this perceived threat, Plaintiff wrapped his hand around

the Inmate’s neck to prevent the Inmate from getting up. (Def. 56.1 ¶ 9; Pl.

Dep. 42:13-43:4, 49:17-22). With the Inmate’s neck still firmly in Plaintiff’s

grasp, Plaintiff “got slammed on the floor,” at which time Bellevue staff,

56.1” (Dkt. #74)) and Plaintiff’s deposition taken on January 7, 2021 (Dkt. #86, Ex. A

(“Pl. Dep.”)). The Court’s consideration of the materials in the record is discussed

further in the text of this Opinion.

For ease of reference, the Court refers to Defendants’ memorandum of law in support of

their motion for summary judgment as “Def. Br.” (Dkt. #75). The Court understands

Plaintiff’s letter dated May 18, 2021, to have been submitted in opposition to

Defendants’ motion for summary judgment and refers to it as “Pl. Opp.” (Dkt. #78).

The Court refers to Defendants’ reply brief as “Def. Reply” (Dkt. #82).

including nurses and correction officers, “came running.” (Def. 56.1 ¶ 10; Pl.

Dep. 43:20-44:6, 44:25-45:9).

As the physical struggle continued, Plaintiff ended up lying on his back

with both hands wrapped around the Inmate’s neck, while the Inmate was

positioned on top of Plaintiff, biting Plaintiff’s abdomen. (Def. 56.1 ¶¶ 14-15;

Pl. Dep. 43:11-15, 43:20-44:13). A nurse attempted to break up the

altercation, interposing her arm near the Inmate’s neck and ordering Plaintiff

to “get off his neck,” but Plaintiff would not comply. (Def. 56.1 ¶¶ 16-18; Pl.

Dep. 45:17-46:1, 49:3-25, 55:1-3). The Inmate struggled to break free from

Plaintiff’s hold, while the nurse grabbed Plaintiff’s arm in an unsuccessful

attempt to dislodge the two combatants. (Def. 56.1 ¶¶ 19-20; Pl. Dep. 49:15-

22, 55:1-21). Plaintiff then “got slapped” in the face one time. (Def. 56.1 ¶ 21;

Pl. Dep. 54:17-46:1).

Though alleging that Officer Garcia slapped him, Plaintiff did not actually

see her slap him. (Def. 56.1 ¶ 22; Pl. Dep. 50:1-23). Rather, Plaintiff says that

after he felt a slap, he looked up to see Officer Garcia standing over him. (Def.

56.1 ¶ 23; Pl. Dep. 50:9-23, 54:6-19).2 Even after being slapped, however,

Plaintiff still did not release his hold on the Inmate’s neck. (Def. 56.1 ¶ 24; Pl.

Dep. 49:3-12, 53:3-7). A captain intervened, grabbing Plaintiff to separate him

from the Inmate, while another officer placed his hands on the Inmate’s

2 Defendants deny Plaintiff’s allegation that Officer Garcia ever slapped Plaintiff. (Def.

Br. 6). However, Defendants accept Plaintiff’s allegation as true for purposes of this

motion and argue that even taking Plaintiff’s allegations as true, they are entitled to

summary judgment. (Id.).

shoulder, causing the Inmate to fall backwards. (Def. 56.1 ¶¶ 25-26; Pl.

Dep. 53:3-7, 54:6-19, 56:8-17). Only then did Plaintiff let go of the Inmate’s

neck. (Def. 56.1 ¶ 27; Pl. Dep. 53:3-7, 56:8-17).

B. Procedural Background

Plaintiff filed a request for leave to proceed in forma pauperis (“IFP”) (Dkt.

#1) and a complaint (the “Complaint” or “Compl.” (Dkt. #2)) on October 12,

2018; he initially brought claims against a “Jane Doe” Correction Officer and

then-DOC Commissioner Cynthia Brann. The Court granted Plaintiff’s IFP

application on November 7, 2018. (Dkt. #4). On November 13, 2018, the

Court issued an Order dismissing Plaintiff’s claims against Brann; directing the

Clerk of Court to add the City of New York as a Defendant under Federal Rule

of Civil Procedure 21; and directing the Office of the Corporation Counsel to

“ascertain the identity of the Jane Doe correction officer whom Plaintiff seeks to

sue” pursuant to Valentin v. Dinkins, 21 F.3d 72, 76 (2d Cir. 1997). (Dkt. #6).

On January 14, 2019, the City identified three female DOC employees

who were present during the alleged incident. (Dkt. #11). The following day,

the Court found that the City had complied with the Court’s Valentin Order and

directed the Clerk of Court to substitute the Jane Doe defendant with the three

female officers: Correction Officer Tasha Capers (Shield No. 12801), Correction

Officer Carol Garcia (Shield No. 17515), and Captain Marie Milord (Shield

No. 669). (Dkt. #12). The Court cautioned Plaintiff, however, that failure to

provide further identifying information with regard to the Jane Doe defendant

might result in dismissal of the Complaint. (Id.).

On February 1, 2019, Plaintiff provided further identifying information

regarding the female correction officer involved in the altercation. (Dkt. #13).

After obtaining several extensions, the City informed the Court on October 15,

2019, that the individual whom Plaintiff sought to name as the “Jane Doe”

officer was Officer Garcia. (Dkt. #24). Accordingly, the Court directed the

Clerk of Court to dismiss Officer Capers and Captain Milord as defendants in

this suit. (Dkt. #25). Plaintiff filed a letter on October 28, 2019, requesting

that the Court not dismiss Captain Milord from this action. (Dkt. #29). The

City opposed Plaintiff’s request on October 31, 2019, arguing that the request

was moot and that Plaintiff could not add new claims against additional parties

without amending the Complaint. (Dkt. #30). The Court denied Plaintiff’s

request, advising him that he would need to seek leave from the Court to

amend the Complaint if he wished to bring claims against any defendants

beyond the single Jane Doe officer, whom the City had identified as Officer

Garcia. (Dkt. #31).

On December 20, 2019, Defendants filed their Answer. (Dkt. #33). An

initial pretrial conference in the matter was held on January 23, 2020. (See

Minute Entry for January 23, 2020). The following day, the Court entered a

civil case management plan and scheduling order, which set a discovery

schedule. (Dkt. #41). On May 19, 2020, the Defendants requested a ninety-

day stay of discovery in this action due to the coronavirus pandemic, which

request the Court granted the same day. (Dkt. #52, 53). The Court

subsequently issued two revised civil case management plans and scheduling

orders, on August 19, 2020 (Dkt. #56), and on December 15, 2020 (Dkt. #64).

The Court convened a second pre-motion conference on March 18, 2021,

during which the parties discussed lingering discovery issues and the Court set

a briefing schedule for Defendants’ motion for summary judgment. (See

Minute Entry for March 18, 2021). Defendants filed their motion for summary

judgment on April 22, 2021. (Dkt. #72-77). In response, Plaintiff filed a letter

on May 21, 2021 (Dkt. #78), which the Court understands to have been

submitted in opposition to Defendants’ motion for summary judgment (see Dkt.

#79). The Court directed Defendants to investigate certain discovery issues left

open from the March 18, 2021 conference — namely, whether there was a

Caucasian female with “glasses, reddish brown hair, short hair” who was also

present during the incident — and to include an update on their findings in

their reply brief. (Dkt. #79). Defendants filed their reply on June 25, 2021, in

which they noted that they had been unable to identify the witness based on

the description provided. (Dkt. #82-83).3 Accordingly, the Court deems

Defendants’ motion to be fully briefed and ripe for decision.

3 The Court notes that during discovery, and again when briefing this motion, Plaintiff

raised the issue of Defendants’ failure to produce video footage of the incident. (See

Dkt. #48; Pl. Opp. 2). However, as far back as March 13, 2020, the City notified the

Court and Plaintiff that “upon information and belief, there is no video footage of the

alleged July 23, 2018 use of force.” (Dkt. #50). Therefore, the Court considers that

issue resolved.

DISCUSSION

A. Motions for Summary Judgment Under Federal Rule of Civil

Procedure 56(a)

Under Federal Rule of Civil Procedure 56(a), a “court shall grant

summary judgment if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).4 A fact is “material” if it “might affect the outcome of the suit under the

governing law,” and it is genuinely in dispute “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); see also Jeffreys v. City of New

York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A court “must resolve

all ambiguities and draw all reasonable inferences in the non-movant’s favor.”

Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.

2004).

“The moving party bears the initial burden of showing that there is no

genuine dispute as to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse

Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (internal quotation marks and

alteration omitted). If the movant has met its burden to show that no genuine

4 The 2010 Amendments to the Federal Rules of Civil Procedure revised the summary

judgment standard from a genuine “issue” of material fact to a genuine “dispute” of

material fact. See Fed. R. Civ. P. 56, advisory comm. notes (2010 Amendments) (noting

that the amendment to “[s]ubdivision (a) ... chang[es] only one word — genuine ‘issue’

becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment

determination.”). This Court uses the post-amendment standard but continues to be

guided by pre-amendment Supreme Court and Second Circuit precedent that refer to

“genuine issues of material fact.”

factual dispute exists, “its opponent must do more than simply show that there

is some metaphysical doubt as to the material facts” and, toward that end,

“must come forward with specific facts showing that there is a genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-

87 (1986) (internal quotation marks and citations omitted). The nonmoving

party may not rely on “mere speculation or conjecture as to the true nature of

the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins.

Co., 804 F.2d 9, 12 (2d Cir. 1986).

In light of Plaintiff’s pro se status, the Court “afford[s] [him] a special

solicitude[,]” and, in this regard, will liberally construe his pleadings and

opposition papers. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010).

Under this directive, the Court will read Plaintiff’s “submissions to raise the

strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864

F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v. United States, 478 F.3d 489,

491 (2d Cir. 2007)).

The Court’s task on this motion has been complicated by Plaintiff’s

failure to submit a Local Civil Rule 56.1 Statement of Material facts in response

to Defendants’ motion for summary judgment. Local Rule 56.1 requires that

“[t]he papers opposing a motion for summary judgment shall include a

correspondingly numbered paragraph responding to each numbered paragraph

in the statement of the moving party,” Local Civil Rule 56.1(b), and that each

statement “be followed by a citation to evidence which would be admissible, set

forth as required by Fed. R. Civ. P. 56(c),” Local Civil Rule 56.1(d). The rule

further provides that “[e]ach numbered paragraph in the statement of material

facts ... will be deemed to be admitted for purposes of the motion unless

specifically controverted by a correspondingly numbered paragraph in the

statement required to be served by the opposing party.” Local Civil Rule

56.1(c). Indeed, Defendants argue that as a consequence of Plaintiff’s failure to

comply with Local Civil Rule 56.1, the Court should deem the facts in

Defendants’ 56.1 Statement to be admitted for purposes of this motion. (Def.

Reply 2, 4-5).

While “[p]ro se litigants are ... not excused from meeting the

requirements of Local Rule 56.1,” the Court retains discretion “to consider the

substance of the plaintiff’s arguments” even where there is incomplete

compliance with the rule. See Wali v. One Source Co., 678 F. Supp. 2d 170,

178 (S.D.N.Y. 2009) (internal citations omitted); see also Holtz v. Rockefeller &

Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a court is not required to consider

what the parties fail to point out in their Local Rule 56.1 Statements, it may in

its discretion opt to conduct an assiduous review of the record even where one

of the parties has failed to file such a statement.” (internal quotation marks

omitted)); accord Kennedy v. Arias, No. 12 Civ. 4166 (KPF), 2017 WL 2895901,

at *4 (S.D.N.Y. July 5, 2017) (collecting cases). The Court will exercise its

discretion to: (i) consider the materials submitted by Plaintiff and (ii) deem

admitted those portions of Defendants’ 56.1 Statement that are not

controverted by any other evidence in the record. See Kennedy, 2017 WL

2895901, at *4; Chambliss v. Rosini, 808 F. Supp. 2d 658, 662 (S.D.N.Y. 2011)

(exercising discretion to consider a sworn declaration containing factual

assertions and the plaintiff’s deposition testimony where plaintiff failed to

submit a proper Rule 56.1 statement).

B. Analysis

Construing Plaintiff’s pleadings liberally, the Court determines that the

Complaint can fairly be read to assert a claim under Section 1983 against

Officer Garcia for her alleged use of excessive force. (See Compl. 4 (“Jane Doe

was threat[en]ing to slap me in my face[.]”); id. at 4-5 (“I [felt a] hand come

down across the right side of my face and eye and I look[ed] up to see who had

hit me and it was … Jane Doe who was ready to take an[o]ther swing at me

again but the [Captain] stop[ped] her[.]”)). The Court also discerns from the

Complaint state-law claims for assault and battery, which in this context are

“nearly identical” to federal excessive force claims. See Kennedy, 2017 WL

2895901, at *12. The Court resolves Defendants’ summary judgment motion

with these claims against Officer Garcia in mind.5

5 While the City is a named defendant in this action, Plaintiff has not actually asserted

any claims against it in the Complaint or his opposition papers. Notably, Plaintiff

makes no assertion of a policy or practice that could conceivably give rise to municipal

liability against the City under Section 1983. See Monell v. Dep’t of Soc. Serv. of the City

of New York, 436 U.S. 658, 690 (1978) (explaining that municipal liability under Section

1983 may lie where “the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body's officers.”). In any event, as discussed below, Plaintiff has

failed to establish an underlying violation of his constitutional rights, which is a

prerequisite for a claim of municipal liability. See City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986) (“If a person has suffered no constitutional injury at the hands of the

individual police officer, the fact that the departmental regulations might have

authorized the use of constitutionally excessive force is quite beside the point.”).

Accordingly, the Court dismisses the City from this case.

1. Officer Garcia’s Alleged Use of Force Was Not Objectively

Unreasonable

“[42 U.S.C. § 1983] creates no substantive rights; it merely provides

remedies for deprivations of rights established elsewhere.” City of Oklahoma

City v. Tuttle, 471 U.S. 808, 816 (1985). There are two essential elements to

any claim raised under Section 1983: “[i] the defendant acted under color of

state law; and [ii] as a result of the defendant’s actions, the plaintiff suffered a

denial of her federal statutory rights, or her constitutional rights or privileges.”

Annis v. City of Westchester, 136 F.3d 239, 245 (2d Cir. 1998). Here, Plaintiff’s

claim that Officer Garcia applied excessive force in attempting to intervene in

the altercation between Plaintiff and the Inmate implicates his rights under the

Fourteenth Amendment.

“While the Eighth Amendment’s protection does not apply ‘until after

conviction and sentence,’ the right of pretrial detainees to be free from

excessive force amounting to punishment is protected by the Due Process

Clause of the Fourteenth Amendment[.]” Ross v. Willis, No. 16 Civ. 6704 (PAE)

(KNF), 2021 WL 3500163, at *9 (S.D.N.Y. Aug. 9, 2021) (quoting United States

v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999)). In contrast to an excessive force

claim brought under the Eighth Amendment, a pretrial detainee asserting such

a claim under the Fourteenth Amendment “must show only that the force

purposely or knowingly used against him was objectively unreasonable.”

Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015).6

6 The Second Circuit previously required pretrial detainees asserting excessive force

claims to “satisfy two requirements: [i] the ‘subjective requirement’ that a defendant had

Objective unreasonableness “turns on the facts and circumstances of

each particular case,” and is to be evaluated “from the perspective of a

reasonable officer on the scene, including what the officer knew at the time, not

with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. The Supreme

Court has identified a number of non-exclusive factors that bear on the

reasonableness of force used: “[i] the relationship between the need for the use

of force and the amount of force used; [ii] the extent of the plaintiff’s injury;

[iii] any effort made by the officer to temper or to limit the amount of force;

[iv] the severity of the security problem at issue; [v] the threat reasonably

perceived by the officer; and whether the plaintiff was actively resisting.” Id.

Consistent with the “fact-specific nature of the inquiry, granting summary

judgment against a plaintiff on an excessive force claim is not appropriate

unless no reasonable factfinder could conclude that the officers’ conduct was

objectively unreasonable.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,

123 (2d Cir. 2004).

“The Second Circuit has long made clear that ‘[n]ot every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers,

violates a prisoner’s constitutional rights.’” Quinones v. Rollison, No. 18 Civ.

1170 (AJN), 2020 WL 6420181, at *4 (S.D.N.Y. Nov. 1, 2020) (quoting Boddie v.

a ‘sufficiently culpable state of mind’ and [ii] the ‘objective’ requirement that the

‘deprivation alleged is objectively sufficiently serious or harmful enough.’” Ross v.

Willis, No. 16 Civ. 6704 (PAE) (KNF), 2021 WL 3500163, at *9 n.10 (S.D.N.Y. Aug. 9,

2021) (citations omitted). However, in Kingsley, the Supreme Court removed the

subjective component for pretrial detainees. See Kingsley v. Hendrickson, 576 U.S. 389,

396-97 (2015).

Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)). In other words, a “plaintiff must

show that the harm incurred was more than de minimis.” Berry v. City of New

York Dep’t of Corr., No. 12 Civ. 7819 (RWS), 2014 WL 2158518, at *5 (S.D.N.Y.

May 22, 2014), aff’d sub nom. Berry v. N.Y.C. Dep’t of Correction, 622 F. App’x

10 (2d Cir. 2015) (summary order). Because running a prison “is an

inordinately difficult undertaking,” Kingsley, 576 U.S. at 399, courts must

“afford prison officials some latitude to make ‘good-faith effort[s] to maintain or

restore discipline,’” Taylor v. Nieves, No. 17 Civ. 7360 (AJN), 2020 WL

7028907, at *2 (S.D.N.Y. Nov. 30, 2020) (quoting Boddie, 105 F.3d at 862).

Officers facing disturbances “are often forced to make split-second

judgments — in circumstances that are tense, uncertain, and rapidly evolving.”

Kingsley, 576 U.S. at 399 (quoting Graham v. Connor, 490 U.S. 386, 397

(1989)). If the force was “applied in a good-faith effort to maintain or restore

discipline, it is unlikely to be repugnant to the conscience of mankind, and will

not amount to excessive force under Second Circuit law.” Quinones, 2020 WL

6420181, at *4 (quoting Adilovic v. Cnty. of Westchester, No. 08 Civ. 10971

(PGG), 2011 WL 2893101, at *6 n.12 (S.D.N.Y. July 14, 2011)).

It is undisputed that Plaintiff was involved in a physical altercation with

the Inmate in the moments before and after Officer Garcia allegedly slapped

him. (See Def. 56.1 ¶¶ 9-24). Specifically, Plaintiff had his hands wrapped

around the Inmate’s neck, and maintained this chokehold despite orders to let

go, and despite a nurse’s attempt to stop Plaintiff by grabbing his arm. (See id.

at ¶¶ 16-20, 24). Indeed, Plaintiff maintained his hold on the Inmate’s neck

even after being slapped. (See id. at ¶ 24).

Courts in this District have repeatedly held that “a single slap that

results in no injury constitutes unactionable, de minimis force.” Lewis v.

Huebner, No. 17 Civ. 8101 (KMK), 2020 WL 1244254, at *6 (S.D.N.Y. Mar. 16,

2020). Although Plaintiff submits that his “right eye was red and hurting for a

few days” and that “at times [he] was seeing [stars] out [of] the corner of [his]

right eye” following the alleged incident (Compl. 5), that claim alone is

insufficient to give rise to a constitutional violation absent medical evidence or

other evidentiary support of injury. See Santiago v. City of Yonkers, No. 13 Civ.

1077 (TPG), 2015 WL 6914799, at *8 (S.D.N.Y. Oct. 30, 2015) (explaining that

“an open-handed slap ... with no medical evidence and no other evidentiary

support of injury, does not rise to the level of a constitutional violation.”

(citation and quotation mark omitted)); Perry v. Stephens, 659 F. Supp. 2d 577,

582 (S.D.N.Y. 2009) (finding that the small bruise and minor pain resulting

from Plaintiff being slapped four times was “not sufficiently serious or harmful

to ‘reach constitutional dimensions,’” particularly considering “the

circumstances … and the need to restore discipline”); Santiago v. Campisi, 91

F. Supp. 2d 665, 674 (S.D.N.Y. 2000) (“[I]t is [ ] clear under the law of this

Circuit that an open-handed slap ... is not sufficiently ‘repugnant to the

conscience of mankind’ to give rise to an Eighth Amendment claim.”).7

7 At his deposition. Plaintiff sought to explain the lack of medical evidence by saying that

his efforts to receive medical attention were thwarted by prison personnel. This

assertion is belied by the medical records that were produced to Plaintiff in discovery

Plaintiff attempts to raise a genuine dispute of material fact as to the

objective reasonableness of the conduct by arguing that Officer Garcia’s use of

force was premeditated. Putting to the side for the moment the fact that

premeditated conduct does not necessarily equal excessive force, and that the

relevant inquiry is an objective one, the Court also finds that Plaintiff is wrong

as to the factual predicates of his argument. In his deposition, Plaintiff claimed

that he had a verbal altercation with Officer Garcia earlier in the day, during

which she said to him, “keep talking [and] I’m going to smack you.” (Pl.

Dep. 24:15-21). However, the supposed trigger for physical contact did not

occur — namely, Plaintiff did not continue speaking to Officer Garcia after he

was approached by the Inmate. (Pl. Dep. 32:3-7). Indeed, Officer Garcia was

not even present when the physical altercation between Plaintiff and the

Inmate began. (See Pl. Dep. 32:3-5, 40:2-9). Furthermore, the record is clear

that the slap occurred not because of any earlier conversation between Plaintiff

and Officer Garcia, but because Plaintiff and another inmate engaged in a

violent altercation that could not be stopped by other prison staff.

Plaintiff also attempts to raise a genuine dispute of material fact by

claiming Officer Garcia would have used additional force had a superior officer

and filed under seal in this case. These records clearly demonstrate that Plaintiff

received medical attention from two separate medical professionals on July 24, 2018,

for injuries received during the altercation. (Dkt. #86-2 at 11-14 (Bellevue Hospital

Discharge Summary, written by Maya Madhaven, MD, and dated July 24, 2018, at

10:32 a.m.); Dkt #86-3 at 10-12 (MDC Injury Report #199, written by Dr. Eugenio

Mateo, MD, and dated July 24, 2018, at 10:20 p.m.)). Even accepting that Plaintiff had

temporary pain and blurred vision following the incident that was not recorded by the

medical professionals, Plaintiff concedes that these symptoms ceased within a day or so

of the incident. (Pl. Dep. 108:3-25).

not admonished her to stop. (Pl. Dep. 50:17-19). More specifically, Plaintiff

suggests that Officer Garcia was prepared to slap him a second time, but that

her supervising officer, known as “Captain OG,” “pulled her back to the side

and started telling her like, listen, we don’t do that, don’t do that,” presumably

referring to the slap. (Pl. Dep. 51:16-21). Again, Plaintiff’s argument is legally

tenuous, insofar as the conduct ascribed to Garcia, even if different from that

of other correction officers in the ward, would not for this reason qualify as

excessive. But again, Plaintiff is wrong on the facts. Later in his deposition,

Plaintiff told a far less certain version of the story, clarifying, “I had looked up

and she was pretty much like in the position about to hit me again[.] And

that’s when Captain OG came from, but I guess he was standing — I couldn’t

see him behind[.] So I guess [Captain] OG pretty much grabbed her and told

her to stop.” (Pl. Dep. 54:8-11). And when asked how far away Captain OG

was standing, Plaintiff replied, “I can’t tell you that because I wasn’t paying

attention to him, my focus was on the inmate.” (Pl. Dep. 54:20-25). Such rank

speculation on Plaintiff’s part cannot suffice to raise a triable issue.

On the undisputed facts of this case, shorn of Plaintiff’s speculation,

Officer Garcia came upon a violent altercation occurring between two inmates

and had seconds to assess the situation before acting. (See Def. 56.1 ¶¶ 12-

14). What is more, Plaintiff acknowledges that he was actively defying

instructions to release his chokehold on the Inmate at the time of the incident,

suggesting that the use of some force by facility personnel would have been

reasonable under the circumstances. (Id. at ¶¶ 16-20). An objective observer

would thus perceive the circumstances as warranting some amount of force to

put an end to an ongoing violent fight between two inmates. See Amnesty Am.,

361 F.3d at 123 (encouraging courts to consider, inter alia, whether the

plaintiff was actively resisting when analyzing the reasonableness of force used

under the Fourteenth Amendment); Quinones, 2020 WL 6420181, at *5 (finding

that an officer’s use of pepper spray to end a violent confrontation between two

inmates was not objectively unreasonable, even though plaintiff had suffered a

“serious, though not life-threatening, injury”); Berry, 2014 WL 2158518, at *6

(finding evidence that defendant officer used pepper spray to break up a violent

fight between inmates insufficient to raise a genuine dispute about excessive

force, and thus granting defendants summary judgment).

The Court concludes that, on this record, no reasonable jury could

conclude that Officer Garcia’s use of force was objectively unreasonable under

the circumstances. For this reason, Defendants are entitled to summary

judgment on Plaintiff’s excessive force claim.

2. Officer Garcia Would Be Entitled to Qualified Immunity as to

Plaintiff’s Excessive Force Claim

Plaintiff’s excessive force claim fails for the independent reason that

Officer Garcia would be entitled to qualified immunity. Qualified immunity

“shields government officials from civil damages liability unless the official

violated a statutory or constitutional right that was clearly established at the

time of the challenged conduct.” Ross, 2021 WL 3500163, at *10 (quoting

Reichle v. Howards, 566 U.S. 658, 664 (2012)). “Its purpose is to ‘give

government officials breathing room to make reasonable but mistaken

judgments’ and to protect ‘all but the plainly incompetent or those who

knowingly violate the law.’” Id. at *10 (quoting City & Cnty. of San Francisco v.

Sheehan, 575 U.S. 600, 611 (2015)).

“A constitutional right was clearly established if, at the time of the

officer’s conduct, ‘the law was sufficiently clear that every reasonable official

would understand that what he is doing is unlawful.’” Ross, 2021 WL 3500163,

at *10 (quoting Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). The

Supreme Court has “repeatedly stressed that courts must not define clearly

established law at a high level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the particular circumstances

that he or she faced.” Wesby, 138 S. Ct. at 590 (internal quotation marks

omitted). “Although a ‘case directly on point’ is not required, ‘existing

precedent must have placed the statutory or constitutional question beyond

debate.’” Ross, 2021 WL 3500163, at *10 (quoting Fabrikant v. French, 691

F.3d 193, 213 (2d Cir. 2012)). The clearly established right “must be defined

with specificity.” City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503

(2019). Defining the right as the “right to be free of excessive force” is “far too

general.” Id. “Even if the right at issue was clearly established in certain

respects, ... an officer is still entitled to qualified immunity if ‘officers of

reasonable competence could disagree’ on the legality of the action at issue in

its particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.

2007) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Summary judgment should be granted on the basis of qualified immunity

only if “no reasonable jury, looking at the evidence in the light most favorable

to, and drawing all inferences most favorable to, the plaintiff[ ], could conclude

that it was objectively reasonable for the defendant to believe that he was

acting in a fashion that did not clearly violate an established federally protected

right.” Ross, 2021 WL 3500163, at *10 (quoting Lennon v. Miller, 66 F.3d 416,

420 (2d Cir. 1995) (cleaned up)). Because qualified immunity is an affirmative

defense, defendants bear the burden of proof. Id. at *10 (citing Jackler v.

Byrne, 658 F.3d 225, 242 (2d Cir. 2011)).

Even if a reasonable jury were to find that Officer Garcia violated

Plaintiff’s Fourteenth Amendment rights by using excessive force — and the

Court finds that one could not — she would still be entitled to summary

judgment. In the circumstances of this case, no reasonable jury “could

conclude that it was objectively reasonable for [Officer Garcia] to believe that

[she] was acting in a fashion that did not clearly violate an established federally

protected right.” Quinones, 2020 WL 6420181, at *5 (quoting Lennon, 66 F.3d

at 420).

Plaintiff contends that “any reasonable person would have let the time [ ]

pass” to “think [things] over” prior to using force under these circumstances.

(Pl. Opp. 1-2). This conclusory statement, however, is not enough to defeat

Officer Garcia’s claim to qualified immunity. After all, Officer Garcia did not

have any time to let pass. Even reading the record in the light most favorable

to Plaintiff, Officer Garcia responded to an ongoing inmate-on-inmate

altercation that involved Plaintiff’s chokehold on another inmate, at which

point she allegedly slapped Plaintiff across the face. Plaintiff has pointed to no

authority, and the Court has found none, suggesting that this use of non-

deadly force — a single open-handed slap — to regain control of a violent

situation between inmates violated a clearly established right.

To be sure, the Second Circuit has stated that “the use of entirely

gratuitous force is unreasonable and therefore excessive[.]” Tracy, 623 F.3d at

99 n.5 (finding that “no reasonable officer could have believed that he was

entitled to use pepper spray gratuitously against a restrained and unresisting

arrestee”); cf. Ben-Reuben v. Westchester County, No. 17 Civ. 9156 (KMK), 2019

WL 1406868, at *4 (S.D.N.Y. Mar. 28, 2019) (declining to dismiss an excessive

force claim based on an alleged slap where the court could not determine the

extent of the injuries from the complaint, and because the alleged use of force

was “entirely gratuitous”). Yet here, the undisputed facts establish that Officer

Garcia’s use of force was not gratuitous and, further, that Plaintiff continued

his violent conduct after being warned to desist. On summary judgment,

Plaintiff must offer more than bald allegations that Defendants’ conduct

constituted excessive force. Yet even reading the record favorably to Plaintiff,

no reasonable jury could conclude that Officer Garcia’s alleged slap was

gratuitous.

Because Officer Garcia did not violate a clearly established right, she is

entitled to qualified immunity on Plaintiff’s excessive force claim. See Quinones,

2020 WL 6420181, at *6 (granting qualified immunity to an officer who used

pepper spray in a “targeted and limited manner” under similar circumstances);

Berry, 2014 WL 2158518, at *7.

3. Plaintiff’s State-Law Claims of Assault and Battery Fail

“Federal excessive force claims and state law assault and battery claims

against police officers are nearly identical.” Kennedy, 2017 WL 2895901, at

*12 (internal citations omitted). “[W]ith the exception of the state actor

requirement, the elements of a Section 1983 excessive force claim and state law

assault and battery claims are substantially identical.” Id. (quoting Lloyd v.

City of New York, No. 14 Civ. 9968 (GHW), 2017 WL 1207838, at *19 (S.D.N.Y.

Mar. 31, 2017)). Therefore, for the reasons stated above, summary judgment is

granted as to the state-law claims of assault and battery against Officer Garcia.

See id. at *12; Kramer v. City of New York, No. 04 Civ. 106 (HB), 2004 WL

2429811, at *11 (S.D.N.Y. Nov. 1, 2004) (dismissing Plaintiff’s state-law assault

and battery claims where Plaintiff had not alleged excessive force in her § 1983

claim for false arrest, noting that “New York state law regarding assault and

battery parallels the federal laws regarding excessive force”); see also Castro v.

Cnty. of Nassau, 739 F. Supp. 2d 153, 178 (E.D.N.Y. 2010) (denying summary

judgment on state-law assault and battery claims where summary judgment

was denied on § 1983 excessive force claim because “the same standard

applies”).

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is

GRANTED in full. The Clerk of Court is directed to terminate all pending

motions, adjourn all remaining dates, and close this case. The Clerk of Court

is further directed to mail a copy of this Opinion and Order to Plaintiff’s

address of record.

The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from

this order would not be taken in good faith; therefore, in forma pauperis status

is denied for the purpose of an appeal. See Coppedge v. United States, 369

U.S. 438, 444-45 (1962).

SO ORDERED. _,

Dated: February 1, 2022

New York, New York

KATHERINE POLK FAILLA

United States District Judge

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