The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
MICHAEL HEAD,
Plaintiff, DECISION AND ORDER
-v- 6:14-CV-06546 EAW
SERGEANT MARTIN EBERT, et al.,
Defendants.
___________________________________
INTRODUCTION
Plaintiff Michael Head (“Plaintiff” or “Head”), a former inmate of Attica
Correctional Facility (“Attica”), commenced this lawsuit on September 18, 2014, asserting
various 42 U.S.C. § 1983 claims relating to a physical altercation with several correction
officers at Attica on January 22, 2014 (the “Altercation”). (See Dkt. 1). After two 28
U.S.C. § 1915 screenings and a summary judgment motion (see Dkt. 7; Dkt. 15; Dkt. 138),
Head’s remaining causes of action include excessive force claims against Attica officials
Sergeant Martin Ebert (“Ebert”), C.O. Andrew Dannheim (“Dannheim”), C.O. James
Pichette (“Pichette”), C.O. Joseph Kapelke (“Kapelke”), C.O. Paul Weaver (“Weaver”),
and C.O. Lloyd Nolan (“Nolan”) (collectively, “Defendants”) based on their alleged use of
force on Head during and after a search of his cell. (See generally Dkt. 138). Defendants
have also asserted counterclaims against Head based on his alleged actions during the
Altercation. (See Dkt. 139).
Defendants have now moved for summary judgment on 1) all claims against Ebert,
2) all claims against Dannheim, 3) all counterclaims against Head, and 4) the issues of fact
that Head did not use self-defense, that Head initiated the Altercation, and that the search
of Head’s cell was lawful. (See Dkt. 172).1 For the reasons discussed below, Defendants’
summary judgment motion is denied.
BACKGROUND
Head was an inmate at Attica at all times relevant to these claims. (See Dkt. 175-
10 at ¶ 1). On January 22, 2014, Pichette and Kapelke arrived at Head’s cell and asked
him to step out. (Id.). Defendants claim that they were there to conduct a search of Head’s
cell. (Dkt. 172-1 at ¶ 1). Head alleges that the cell search was merely a pretext for the
officers to harass him. (Dkt. 175-10 at ¶ 3). After Head refused to step out of the cell, (id.
at ¶ 2), the Altercation began, the details of which are contested.
Defendants allege that Head attacked both officers, stabbing Pichette with a pen
multiple times. (Dkt. 172-1 at ¶ 3). After an ensuing struggle and call for help, Weaver
and Nolan entered the cell and all four officers began striking Head, after which they
eventually were able to restrain him. (Id. ¶¶ 4-6). Head, on the other hand, alleges that he
“fought with” Pichette after he entered the cell “using a pen,” immediately after which
Weaver and Nolan entered the cell as if they were anticipating a physical struggle. (Dkt.
175-10 at ¶¶ 3-5).
1 Head initially cross-moved for leave to amend his answer to Defendants’
counterclaims and for summary judgment against Defendants’ counterclaims (see Dkt.
175), but has since withdrawn the motions (see Dkt. 177).
Head did not see Ebert during the fighting, and claims he was unable to specifically
identify several other prison officials involved in the Altercation and its aftermath at the
time it was happening. (Id. at ¶ 9). Head learned of Ebert’s involvement through Ebert’s
statements during disciplinary proceedings relating to the Altercation. (Id.). Head was
also initially unable to name the specific officer who allegedly kicked him in the face after
he was already restrained, but was able to identify him as Dannheim after describing him
to other inmates and recognizing him while still at Attica. (Id. at ¶¶ 13-17).
At a subsequent misbehavior hearing for Head’s conduct during the Altercation,
Head pled guilty to one count of violent conduct and one count of disobeying a direct order.
(Id. at ¶ 8). Head was also found guilty of one count of possessing a weapon and one count
of assault on staff. (Id.). The hearing packet containing Head’s charges and the hearing
officer’s findings do not state what specific conduct constituted these offenses. (See
generally Dkt. 172-3 at 4-28). Head was criminally charged and convicted of two counts
of assault in the second degree for attacking Pichette during the Altercation. (Id. at ¶ 10).
Head commenced the instant action on September 18, 2014. (Dkt. 1). After several
screening orders and motions, Head’s second amended complaint is now the operative
pleading. (Dkt. 98). On August 15, 2023, Defendants moved for summary judgment.
(Dkt. 172). Head filed his opposition and a cross-motion for partial summary judgment on
Defendants’ counterclaims on September 29, 2023. (Dkt. 175). Defendants filed their
reply on October 13, 2023. (Dkt. 176). On October 20, 2023, Head withdrew his cross-
motion. (Dkt. 177).
DISCUSSION
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).
II. Claims Against Ebert and Dannheim
Defendants argue that Ebert and Dannheim are entitled to summary judgment
because there is no evidence indicating either of them were personally involved in the
Altercation with Head. (See Dkt. 172-4 at 6-11). However, Head has demonstrated a
material dispute regarding the respective roles of Ebert and Dannheim.
“As a fundamental prerequisite ‘[t]o establish[ing] a § 1983 claim, a plaintiff must
show the defendants’ personal involvement in the alleged constitutional violation.’” Keesh
v. Quick, 19-CV-08942 (PMH), 2022 WL 2160127, at *5 (S.D.N.Y. June 15, 2022)
(quoting Boley v. Durets, 687 F. App’x 40, 41 (2d Cir. 2017)). Personal involvement in
claims arising from a correction officer’s use of force may be established “through facts
suggesting the officer was either personally involved in the use of force or was present
during the use of force and failed to intervene.” Allen v. Muratore, 6:16-CV-6539 EAW,
2017 U.S. Dist. LEXIS 78290, at *5 (W.D.N.Y. Mar. 2, 2017) (quoting Piper v. City of
Elmira, 12 F. Supp. 3d 577, 596 (W.D.N.Y. 2014)).
Defendants argue that Head cannot establish that Ebert was involved with or present
during the Altercation because Head admitted that he never saw Ebert and only identified
him because he saw his name on paperwork relating to the Altercation. (See Dkt. 172-4 at
6). However, this argument mischaracterizes deposition testimony. Head stated that he
did not see Ebert during the Altercation because he could not specifically identify him in
“a sea of blue uniforms.” (Dkt. 172-3 at 143). Head did not affirmatively admit that Ebert
was not there. In fact, Ebert appears to have stated on multiple occasions that he was at
least present during the Altercation. (See Dkt. 175-5 at 2 (letter from Ebert stating that he
arrived at the scene of the Altercation while the other officers were defending themselves);
Dkt. 175-6 at 2 (Ebert’s testimony from disciplinary hearing stating same); Dkt. 175-8 at
3 (response to interrogatory eight stating Ebert was present after Head was placed in
restraints)). Because Ebert’s presence and purported failure to intervene on Head’s behalf
are sufficient to avoid summary judgment, see Allen, 2017 U.S. Dist. LEXIS 78290, at *5,
summary judgment with respect to Head’s claim against Ebert is denied.
Defendants further argue that Head has failed to establish Dannheim’s personal
involvement in the Altercation because there is no admissible evidence indicating
Dannheim was the “John Doe” initially identified in the complaint. (See Dkt. 172-4 at 6-
11). A failure to definitively identify a specific attacker is not necessary to establish
personal involvement in a § 1983 claim. See McGowan v. Town of Evans, 15-CV-672-
RJA-MJR, 2017 WL 5633389, at *10 (W.D.N.Y. Sept. 13, 2017) (rejecting lack of
personal involvement argument based on failure to identify defendant as attacker during
deposition because “[a]n arrestee’s ‘inability to positively identify those who allegedly
violated his rights is not per se fatal to his claims’”), adopted, 15-CV-672-A, 2017 WL
5598855 (W.D.N.Y. Nov. 21, 2017). This failure to specifically identify an individual is
more properly assessed by a jury. See Hattar v. Carelli, No. 09 CV 4642(VB), 2012 WL
246668, at *3 (S.D.N.Y. Jan. 11, 2012) (“Defendants argue plaintiffs’ excessive force
claims are deficient because plaintiffs cannot identify any specific individual officer who
used excessive force . . . . This is ultimately a credibility issue for the jury to determine
and is not fatal to plaintiffs’ claims.”); see also Ricks v. O’Hanlon, No. 07 Civ.
9849(WHP), 2010 WL 245550, at *4 (S.D.N.Y. Jan. 19, 2010) (neither a “description [n]or
identification from a photo array” is necessary to withstand summary judgment “as long as
the plaintiff submits other competent evidence” of personal involvement).
A general physical description may be sufficient to establish a defendant’s personal
involvement in an incident. See Baines v. City of New York, 10-CV-9545 (JMF), 2017 WL
3425746, at *3 (S.D.N.Y. Aug. 9, 2017) (denying summary judgment, in part because
plaintiff “did provide a physical description of the three officers involved . . . . At trial,
therefore, he might very well be able to identify the involved [o]fficers.”); Tranchina v.
McGrath, 9:17-CV-1256 (MAD/ML), 2020 WL 1812684, at *6 (N.D.N.Y. Apr. 9, 2020)
(denying summary judgment based on physical description of one assailant matching
named defendant, despite plaintiff’s inability to specifically identify assailant during
attack); see also Finley v. Perry, No. 9:06-CV-1524 (FJS/ATB), 2010 WL 6427496, at *6
(N.D.N.Y. July 13, 2010), (“Although the plaintiff cannot identify, at least by name, which
of the three defendants administered particular blows, he adequately describes the personal
involvement of each officer who was admittedly involved in the incident.”), adopted, No.
9:06-CV-1524 FJS ATB, 2011 WL 1302248 (N.D.N.Y. Mar. 31, 2011).
Here, Head was initially unable to identify the correction officer who kicked him in
the head during the Altercation, (see Dkt. 1-2 ¶¶ 12, 16), but later amended his complaint
after recognizing the correction officer and being told by other inmates that his name was
Dannheim, (see Dkt. 175-9 ¶¶ 6-8). Head claims that he was familiar with the officer and
had seen him multiple times before and after the Altercation, but simply did not know his
name when he filed this case. (See id. ¶¶ 4-7). While the parties dispute the admissibility
of the other inmates’ identification of Dannheim, (see Dkt. 175-1 at 16; Dkt. 176 at 5), this
issue is inapposite. Head’s own ability to physically describe Dannheim and specifically
identify him at trial based on his recognition from past experiences with the officer is
sufficient to avoid summary judgment, despite Head not knowing Dannheim’s name when
this case was filed. See Tranchina, 2020 WL 1812684, at *6; Baines, 2017 WL 3425746,
at *3. Accordingly, summary judgment with respect to Head’s claim against Dannheim is
denied.
III. Counterclaims and Findings of Fact
Defendants argue that they are entitled to summary judgment on their counterclaims
because the Attica misbehavior hearing collaterally estops Head from denying certain
conduct during the Altercation. (See Dkt. 172-4 at 3-5). Defendants also argue that the
misbehavior hearing and his criminal conviction bar Head from arguing at trial that he
used self-defense, that he was not the initial aggressor, and that the search of his cell was
unlawful. (See id. at 5). For the reasons that follow, the Court concludes that the findings
from the misbehavior hearing are not specific enough to have a preclusive effect here. The
Court additionally concludes that the factual findings requested by Defendants do not
necessarily follow from either the misbehavior hearing or his criminal conviction, and that
no further limiting instructions beyond those previously ordered by the Court are
necessary.2
Collateral estoppel requires that the allegedly precluded issue be “necessarily
decided” in the previous proceedings. Narumanchi v. Am. Home Assur. Co., 317 F. App’x
56, 58 (2d Cir. 2009) (quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349
(1999)). When a misbehavior hearing results in less guilty counts than there are officers
involved in an incident, and the hearing officer does not specify which officers the guilty
counts apply to, the court has no means of determining which issues have been necessarily
decided. See Brown v. Jones, No. 15-CV-6108-EAW-MJP, 2021 WL 6427601, at *6
(W.D.N.Y. Oct. 15, 2021) (rejecting estoppel argument for four counterclaims where
underlying misbehavior hearing only resulted in two guilty counts because the hearing
results “d[id] not specify which [c]ounterclaimants the hearing officer found [p]laintiff
assaulted . . . . In other words, the undersigned would be guessing if he had to choose
which [c]ounterclaimants the hearing officer found [p]laintiff assaulted, which he cannot
do.”), adopted, 6:15-CV-06108-EAW-MJP, 2021 WL 5988417 (W.D.N.Y. Dec. 16, 2021).
At his misbehavior hearing, Head only pled to or was found guilty of one count each
of violent conduct, assault on staff, disobeying a direct order, and possessing a weapon.
(See Dkt. 172-3 at 5). Here, defendants Kapelke, Nolan, and Weaver all assert their own
2 The Court previously held that Plaintiff would be prohibited at trial from testifying
that Pichette was the initial aggressor or that Plaintiff was acting in self-defense when he
attacked Pichette and that the jury would be instructed to ignore any statements by Plaintiff
or any witness to the contrary and would further be instructed that Plaintiff assaulted
Pichette. (Dkt. 138 at 21-22).
counterclaims. (See Dkt. 98). The Court cannot determine from the barely legible hearing
packet which defendant the hearing officer found these counts applicable to. (See generally
Dkt. 172-3 at 7, 8). It is also possible that these counts applied only to Pichette, whose
counterclaim has already been resolved. (See Dkt. 138 at 25). Accordingly, granting
preclusive effect to this misbehavior hearing for any specific defendant would be
improperly speculative. See Brown, 2021 WL 6427601, at *6.
Defendants’ argument that it is DOCCS policy to only charge one count of any
given offense (Dkt. 176 at 1) is inapposite, as it fails to disambiguate the hearing results.
Likewise, the hearing officer’s reliance on evidence implicating all counterclaimants were
assaulted fails to establish a preclusive effect (id. at 1, 2) because the hearing officer did
not adopt these specific findings. Instead, he merely generally states that he relied, to an
unspecified degree, on these pieces of evidence. Accordingly, summary judgment cannot
be granted on these counterclaims.
For the same reasons, the Court cannot grant Defendants’ proposed findings of fact
regarding the Altercation. Because it is unclear from the hearing which Defendants Head
attacked and when, it is not clear whether he was the initial aggressor or defended himself
against any specific defendant besides Pichette. For example, Head may have been
attacked without provocation by Kapelke, Nolan, or Weaver, and legitimately defended
himself against them, but been the initial aggressor toward Pichette. The hearing does not
bar this or any other number of possible versions of the Altercation that are consistent with
Head’s criminal proceedings and this Court’s previous decision and order. (See Dkt. 138
at 16-22, 26). Likewise, nothing in the hearing packet indicates that the hearing officer
made any findings of fact regarding the legality of the cell search. (See generally Dkt. 172-
3 at 7, 8). While Head’s criminal proceedings indicate Pichette was performing a lawful
duty when attacked, Defendants offer nothing dictating a finding that the lawful duty was
a search of Head’s cell. Accordingly, Defendants’ motion is denied with respect to these
findings of fact.
To the extent Defendants argue that allowing Head to dispute these issues of fact at
trial would allow an improper collateral attack on his criminal conviction or misbehavior
proceedings, see Heck v. Humphrey, 512 U.S. 477, 484 (1994), this argument fails for the
same reasons as Defendants’ collateral estoppel argument. Finding that Head defended
himself or was not the initial aggressor against Kapelke, Nolan, or Weaver would not
“necessarily imply the invalidity” of the prior proceedings because Head’s criminal
conviction only pertained to Pichette and the disciplinary hearing was ambiguous as to
whom it applied. /d. at 487. Accordingly, Head may argue these points at trial without
collaterally attacking any prior proceedings.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 172) is
denied.
SO ORDERED. (
ELIZABEVH A. WOEEQRD_/
udge
United States District Court
Dated: February 20, 2023
Rochester, New York
-ll-