Green v. Lewalski

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

DARNELL GREEN,

Plaintiff,

DECISION AND ORDER

v.

1:18-CV-774 EAW HKS

SERGEANT LEWALSKI,

CORRECTIONAL OFFICER HORBETT,

CORRECTIONAL OFFICER RIVERA,

CORRECTIONAL OFFICER MANCINI,

CORRECTIONAL OFFICER PECORA,

DR. JAQUILIME LEVITT, DR.

GUSMAN, AND DR. WOLF,

Defendants.

INTRODUCTION

Pro se plaintiff Darnell Green (“Plaintiff”), a state prisoner currently housed at the

Sullivan Correctional Facility, filed a complaint under 42 U.S.C. § 1983 alleging claims

against defendants Sergeant Lewalski (“Lewalski”), Correctional Officers Horbett,

Rivera, Mancini, and Pecora, and Drs. Levitt, Gusman, and Wolf (collectively

“Defendants”) in connection with events that took place while he was housed at the

Wende (“Wende”) and Sullivan (“Sullivan”) Correctional Facilities. (Dkt. 1). Currently

before the Court is Lewalski’s motion for summary judgment. (Dkt. 69). Because only

Lewalski has filed a motion for summary judgment, the Court considers only the

excessive force claim against Lewalski for the purpose of summary judgment. For the

reasons set forth below, Lewalski’s motion is denied.

FACTUAL BACKGROUND

The following facts are taken from Lewalski’s Statement of Undisputed Facts

(Dkt. 69), Plaintiff’s complaint (Dkt. 1), and the exhibits submitted by the parties. Unless

otherwise noted, the facts set forth below are undisputed.

On February 9, 2017, at approximately 8:40 a.m., Plaintiff was attending a

classical music event at Wende. (Dkt. 69-2 at ¶ 13). Plaintiff requested to be returned to

his cell multiple times during the event and ultimately requested to speak to a sergeant.

(Id. at ¶ 14). Eventually, correctional officers escorted Plaintiff to speak to Lewalski or

to his cell. (Id. at ¶ 15; Dkt. 69 at ¶ 9).1 Lewalski instructed correctional officers to lock

Plaintiff up. (Dkt. 69-2 at ¶ 16). Plaintiff argued with the instruction that he be locked

up. (Id. at ¶ 17). A “use of force incident then occurred” in which, Plaintiff testified, he

was pushed from behind into Lewalski who fell into a wall. (Id. at ¶ 19). Lewalski

punched Plaintiff in the face and lip and another correctional officer struck Plaintiff with

a stick on his head. (Id. at ¶ 21, 24; Dkt. 1 at 5). Other correctional officers eventually

escorted Plaintiff to the regional medical unit. (Id. at ¶ 28).

On February 27, 2017 and June 21, 2017, Drs. Levitt, Gusman, and Wolf told

Plaintiff that he did not have any broken ribs. (Dkt. 1 at 5-6). On October 3, 2017,

Plaintiff had a series of x-rays while housed at the Green Haven Correctional Facility

1 Lewalski’s submissions are inconsistent as to whether Plaintiff was escorted from

the music event to speak to Lewalski who immediately informed Plaintiff and

correctional officers that Plaintiff was to be locked up (Dkt. 69-2 at ¶ 15) or whether

Plaintiff was escorted toward his cell, behaved disruptively while being escorted, and

Lewalski then instructed officers to lock Plaintiff up (id. at ¶ 9).

(“Green Haven”) which showed that he had a “fracture [to the] anterior aspect l[eft] 10th

rib. No other rib fracture[s].” (Dkt. 1-1 at 3).2

PROCEDURAL BACKGROUND

Plaintiff filed the instant action on July 13, 2018. (Dkt. 1). The Court screened

Plaintiff’s complaint pursuant to 28 U.S.C §§ 1915(e)(2)(B) and 1915A, construing

Plaintiff’s claims against the correctional officers as claims for excessive force and his

claims against medical staff as a claim for deliberate indifference to a serious medical

need in violation of the Eighth Amendment. (Dkt. 14 at 5-7). This matter was referred to

United States Magistrate Judge H. Kenneth Schroeder, Jr. for all pretrial matters

excluding dispositive motions. (Dkt. 29). Magistrate Judge Schroeder ordered that

dispositive motions be submitted on or before July 16, 2021, after several extensions

based on then-outstanding discovery disputes. (Dkt. 68). Lewalski filed a motion for

summary judgment on July 16, 2021. (Dkt. 69). Plaintiff timely filed his response on

August 10, 2021. (Dkt. 72).

2 Lewalski’s counsel’s declaration in support of Lewalski’s motion states that

Plaintiff’s complaint is among the documents supporting Defendant’s motion for

summary judgment. (Dkt. 69-2 at ¶ 31). However, the complaint and attached exhibits

are inconsistent with paragraph 31 of Lewalski’s statement of material facts that doctors

“clarified that nothing was wrong with [Plaintiff].” (Compare Dkt. 1 at 5-6; Dkt. 1-1 at

3, with Dkt. 69-2 at ¶ 31). 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). Given the inconsistency in the record, the Court cannot

deem the fact asserted in paragraph 31 admitted.

DISCUSSION

As a preliminary matter, Lewalski’s motion for summary judgment fails to comply

with a number of the Court’s Local Rules of Civil Procedure. The motion does not

comply with Local Rule of Civil Procedure 7(a)(1), which requires a notice of motion

that “must state the relief sought, the grounds for the request, the papers submitted in

support, and the return date for the motion, if known.”

Lewalski has also failed to comply with Local Rule of Civil Procedure 56(a)(3),

which requires that “all cited evidence, such as . . . relevant deposition testimony . . . that

has not otherwise been filed in conjunction with the motion” to be filed as an appendix to

the statement of material facts. Lewalski’s motion includes what appears to have been

intended as an appendix, listing Plaintiff’s examination before trial (“EBT”) as its sole

exhibit. (Dkt. 69-3 at 1). However, the appendix does not include a copy of the EBT,

despite quoting heavily from it in Lewalski’s counsel’s declaration (Dkt. 69),

memorandum of law (Dkt. 69-1), and statement of material facts not in dispute (Dkt. 69-

2).

Lewalski additionally failed to comply with Local Rule of Civil Procedure 56(b),

which requires a party moving for summary judgment against a pro se litigant to file and

serve with the motion papers a “Notice to Pro Se Litigant Regarding Rule 56 Motion for

Summary Judgment” in the form provided by the Court. There is no indication in

Lewalski’s moving papers that Lewalski served the required notice upon Plaintiff.

Plaintiff has also failed to comply with the Court’s Local Rules of Civil Procedure.

The Court issued a notice to Plaintiff indicating that his response to Lewalski’s motion

for summary judgment should include “(1) a memorandum of law containing relevant

factual and legal argument; (2) one or more affidavits in opposition to the motion; and (3)

a separate, short, and concise statement of material facts as to which Plaintiff contends

there exists a genuine issue to be tried.” (Dkt. 70 at 2). Plaintiff’s response does not

conform to the filing requirements set forth in the Court’s notice to Plaintiff, neither do

plaintiff’s response papers comply with Local Rule 56 or Local Rule 7(a). Local Rule

56(a)(2) provides that “[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.” L. R.

Civ. P. 56(a)(2). A district court has discretion to deem facts admitted for lack of

compliance with its local rules. See N.Y. State Teamsters Conf. Pension & Ret. Fund v.

Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005).

However, “in a pro se case, the court must view the submissions by a more lenient

standard than that accorded to ‘formal pleadings drafted by lawyers.’” Govan v.

Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404

U.S. 519, 520 (1972)) (other citations omitted). The Court of Appeals for the Second

Circuit has held that district courts are obligated to make “reasonable allowances to

protect pro se litigants from inadvertent forfeiture of important rights because of their

lack of legal training.” Moor v. Gardner, 201 F. App’x 803, 804 (2d Cir. 2006) (quoting

Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

Although Plaintiff’s submissions do not take the form of a memorandum of law,

separate affidavits, and statement of facts not in dispute as required by Local Rule 56(a),

Plaintiff’s response contains relevant arguments raising genuine issues of material fact,

and it includes an appendix consisting of, inter alia, medical records and grievances

related to his complaint. Additionally, “[a] plaintiff’s verified complaint is to be treated

as an affidavit.” Zielinksi v. Annucci, No. 9:17-CV-1087 (GTS/CFH), 2020 WL

7074845, at *7 (N.D.N.Y. Nov. 12, 2020) (citing Colon v. Coughlin, 58 F.3d 865, 872

(2d Cir. 1995) (“A verified complaint is to be treated as an affidavit . . . and therefore will

be considered in determining whether material issues of fact exist. . . .”)). Especially in

light of Lewalski’s multiple instances of noncompliance with the Local Rules, the Court

will consider the substance of Plaintiff’s response where it presents more than conclusory

allegations. See Samuels v. Schultz, 11-CV-6255, 2017 WL 1194376, *2 (W.D.N.Y.

Mar. 30, 2021) (considering the merits of defendant’s motion and plaintiff’s response for

summary judgment despite defendant’s and pro se plaintiff’s noncompliance local rules).

Lewalski’s noncompliance with several local rules raises concerns for the Court

particularly with regard to his failure to serve the required notice upon Plaintiff.3

Nonetheless, the Court finds it appropriate to address the merits of Lewalski’s motion

rather than defer ruling pending correction of these errors and submission of the EBT

transcript, because even accepting Lewalski’s representations of Plaintiff’s testimony,

Lewalski has failed to show that there are no genuine issues of material fact such that he

is entitled to judgment as a matter of law. See Samuels, 2017 WL 1194376, at *2.

3 The Court notes that while Lewalski’s failure to include an appendix containing

the deposition testimony appears to be inadvertent, pursuant to Local Rule of Civil

Procedure 5.2(f)(1)(C), he was required to file the transcript of Plaintiff’s EBT on the

docket.

I. 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 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).

“Where one party is proceeding pro se, the Court reads the pro se party’s papers

liberally and interprets them “to raise the strongest arguments that they suggest.” Thorne

v. Lewis, No. 3:19cv24 (VLB), 2021 WL 4324475, at *2 (D. Conn. Sept. 23, 2021)

(quoting Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks

and citation omitted)). Despite this liberal approach, allegations unsupported by

admissible evidence “do not create a material issue of fact” and cannot overcome a

properly supported motion for summary judgment. Weinstock v. Columbia Univ., 224

F.3d 33, 41 (2d Cir. 2000).

II. Excessive Force Claim

The Eighth Amendment prohibition against cruel and unusual punishment

encompasses the use of excessive force against an inmate. To state an excessive force

claim under the Eighth Amendment, a prisoner must allege “that the defendant acted with

a subjectively sufficiently culpable state of mind” and “that the conduct was objectively

harmful enough or sufficiently serious to reach constitutional dimensions.” Bradshaw v.

City of N.Y., 855 F. App’x 6, 9 (2d Cir. 2021) (summary order) (citing Harris v. Miller,

818 F.3d 49, 63, 64 (2d Cir. 2016)). The key inquiry into a claim of excessive force is

“whether force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Hudson v. McMillan, 503 U.S. 1, 7 (1992)

(citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Wilkins v. Gaddy, 559

U.S. 34, 37 (2010) (“[T]he nature of the force applied is the core judicial inquiry in

excessive force cases—not whether a certain quantum of injury was sustained.”).

A. Culpable State of Mind

To assess the subjective component the Court considers “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 that need and the amount of force used; the threat reasonably

perceived by the defendants; and any efforts made by the defendants to temper the

severity of a forceful response.” Harris, 818 F.3d at 63 (citation omitted). Lewalski

argues that he exercised only such force as was necessary to defend himself from Plaintiff

and that such force was warranted to “maintain order and institutional security.” (Dkt. 69

at 12 (quoting Kingsley v. Hendrickson, 576 U.S. 389, 399-400 (2015)). In support of his

argument, Lewalski cites Plaintiff’s deposition testimony in which Plaintiff speculates

about what might have caused the underlying altercation. Plaintiff purportedly stated:

Well, it seemed like when I turned my head—because I wasn’t bound or

had handcuffs on or anything. When I turned a certain way, that could have

caused it. Maybe because they probably figured I was probably – I have a

few assaults on corrections officers. You know he can’t be trusted. That’s

what the officers always say. I don’t know. I just know I was pushed into

[Lewalski].

(Dkt. 69 at 4). Plaintiff speculates that in response to Plaintiff turning his head,

correctional officers pushed Plaintiff into Lewalski who “hit [Plaintiff] in the face and

lip.” (Dkt. 69-2 at ¶ 21). Despite admitting to striking Plaintiff, Lewalski argues that

Plaintiff’s disruptive behavior warranted what Lewalski characterizes as de minimis use

of force, which was necessary to subdue Plaintiff. (Dkt. 69-1 at 4-5). Namely, “Lewalski

struck [Plaintiff] in the head, face[,] and lip . . . in an effort to get [Plaintiff] off of him.”

(Dkt. 69-1 at 4). Thereby, Lewalski argues, Plaintiff has failed to show that Lewalski had

the requisite state of mind to establish an excessive force claim. (Id. at 5).

Plaintiff argues that he wanted to be returned to his cell, which correctional

officers obliged. (Dkt. 72 at 5). Therefore, Plaintiff argues, Lewalski’s assertion that

Plaintiff behaved disruptively is not credible given that correctional officers were

providing him the service he had requested. (See id.). Furthermore, Plaintiff asserts that

he was “pushed or struck into [S]ergeant Lewalski[.]” (Id. at 3-4). Drawing all

inferences in Plaintiff’s favor, Plaintiff’s contested facts and related arguments indicate

genuine issues of material fact as to “the need for the application of force; the correlation

between that need and the amount of force used; the threat reasonably perceived by the

defendants; and any efforts made by the defendants to temper the severity of a forceful

response.” Harris, 818 F.3d at 63. In other words, the fundamental question is not

whether Plaintiff was propelled into Lewalski, but rather whether Lewalski’s response

was subjectively reasonable under the circumstances. Even if the Court were to deem

admitted Lewalski’s statement of material facts, he has failed to establish that there are

no genuine issues of material fact that would permit the Court to determine that his force

was needed or warranted. Thus, summary judgment is inappropriate.

B. Objectively Serious or Harmful Behavior

Additionally, genuine issues of material fact remain as to the second prong of

Plaintiff’s excessive force claim—whether the conduct was objectively harmful enough

or sufficiently serious. See Harris, 818 F.3d at 64. Lewalski argues that Plaintiff’s

injuries were de minimis and do not rise to the level of a constitutional violation.4

Plaintiff alleges that he sustained a broken rib, bruises, and a laceration to his head

requiring stitches and has submitted medical records documenting bruising, superficial

lacerations, ongoing abdominal pain, and a broken rib. (See Dkt. 1 at 5; Dkt. 72 at 6, 15,

21-24, 28).

The Supreme Court has cautioned that, “[a]n inmate who complains of a push or

shove that causes no discernible injury almost certainly fails to state a valid excessive

force claim.” Wilkins, 559 U.S. at 38. “Injury and force, however, are only imperfectly

correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten

by guards does not lose his ability to pursue an excessive force claim merely because he

has the good fortune to escape without serious injury.” Id. The Supreme Court has held

that “blows directed at [an inmate], which caused bruises, swelling, loosened teeth, and a

cracked dental plate, are not de minimis for Eighth Amendment purposes.” Hudson, 503

U.S. at 10.

Courts within this circuit have held that broken ribs are more than de minimis for

the purpose of an excessive force claim. E.g., Tranchina v. McGrath, 9:17-CV-1256

(MAD/ML), 2021 WL 1599189, at *5 (N.D.N.Y. Apr. 23, 2021) (upholding a jury

verdict that broken ribs and possible concussion were more than de minimis); Martinez v.

4 Lewalski addresses the seriousness of Plaintiff’s injuries with regard to the

subjective component of an excessive force claim. (See Dkt. 69-1 at 6). While relevant

to both inquiries, the Court will consider Lewalski’s arguments regarding the seriousness

of Plaintiff’s injuries under the objective component. See, e.g., Harris, 818 F.3d at 64-

65.

Thompson, No. 9:04-CV-0440 (DEP), 2008 WL 5157395, at *8, *19 (N.D.N.Y Dec. 8,

2008) (upholding a jury verdict that broken ribs and lumbar injury were more than de

minimis). Accordingly, Plaintiff’s lacerations, bruises, and broken rib are not de minimis

for the purpose of his Eighth Amendment claims of excessive force at this stage.

However, Lewalski argues that Plaintiff “admits Sgt [sic] Lewalski did not cause

his rib injury.” (Dkt. 69-1 at 6). Lewalski does not cite any evidence that supports this

claim. Instead, Lewalski cites Plaintiff’s deposition testimony in which Plaintiff states

that he does not know when he sustained the rib injury. (Id.). The motion for summary

judgment correctly summarizes that Plaintiff was originally not diagnosed with a broken

rib at Wende despite complaining of pain in his side. (Dkt. 69-1 at 6). He was diagnosed

with a broken rib while housed at Green Haven. (Id.; Dkt. 1-1 at 3).

The gravamen of Plaintiff’s deliberate indifference claim is precisely that he

sustained a broken rib in the altercation with correctional officers at Wende on February

9, 2017, but he was not diagnosed or treated for the broken rib until he was examined at

Green Haven. (Dkt. 1 at 6, 7; Dkt. 1-1 at 3). When Plaintiff sustained a broken rib is a

material fact both to his deliberate indifference claim and his excessive force claims.

And nothing in Lewalski’s motion demonstrates that there is no genuine issue as to this

fact. Furthermore, Lewalski cites Plaintiff’s deposition testimony in which he testified

that he did not know which correctional officer allegedly caused the injuries to his lip or

head. (Id.). However, Lewalski admits that he struck Plaintiff “several times in the side

of the head, face[,] and lip.” (See Dkt. 69-1 at 4).

Whether Lewalski’s participation in the altercation resulted in Plaintiff’s broken

rib is unclear from the record. However, even assuming Lewalski had shown that his

strikes incontrovertibly did not cause Plaintiff’s broken rib, this alone would not warrant

summary judgment. “[T]he extent of injury suffered by an inmate is one factor that may

suggest whether the use of force could plausibly have been thought necessary in a

particular situation.” Wilkins, 559 U.S. at 37. The ultimate question is whether the

alleged assault “was carried out ‘maliciously and sadistically’ rather than as part of ‘a

good-faith effort to maintain or restore discipline.’” Id. at 40 (quoting Hudson, 503 U.S.

at 7).

As discussed above, it is the movant’s burden of showing the absence of a genuine

dispute as to any material fact. See Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d

473, 486 (2d Cir. 2014). Based on the arguments presented, the Court “cannot say with

the requisite degree of certainty that [Plaintiff’s] factual assertion[s are], as a matter of

law, something that no rational jury could accept.” Bradshaw, 855 F. App’x at 10.

Accordingly, the Court finds that summary judgment as to Plaintiff’s claim for excessive

force against Lewalski is inappropriate.

CONCLUSION

For the foregoing reasons, Lewalski’s motion for summary judgment as to

Plaintiff’s claim for excessive force (Dkt. 69) is denied.

SO ORDERED.

ELIZABETHA. W

1ef Fudge

United States District Court

Dated: November 30, 2021

Rochester, New York

-14-