Delacruz

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_____________________________________

KELVIN DELACRUZ,

Plaintiff,

-v- 9:24-CV-664 (AJB/DJS)

C.O. BRENDAN RICCI, et al.,

Defendants.

_____________________________________

Hon. Anthony Brindisi, U.S. District Judge:

DECISION and ORDER

I. INTRODUCTION

On May 15, 2024, plaintiff Kelvin Delacruz (“plaintiff”), an individual formerly in the

custody of the New York State Department of Corrections and Community Supervision

(“DOCCS”), commenced this 42 U.S.C. § 1983 action alleging that several correction officers

violated his constitutional rights while he was incarcerated at Greene Correctional Facility

(“Greene”) in Coxsackie, New York. See Dkt. No. 1 (“Compl.”).

The complaint arises from two alleged incidents of excessive force. First, plaintiff alleges

that, on July 13, 2023, correction officer Brendan Ricci (“C.O. Ricci”) violently attacked him in

the mess hall at Greene. See Compl. ¶¶ 4–6, 26–29. Second, plaintiff alleges that, on August 15,

2023, C.O. Ricci and correction officers Todd Shoemaker (“C.O. Shoemaker”) and Dustin

Vanhouse (“C.O. Vanhouse”) assaulted plaintiff in a protracted attack unfolding at multiple

locations throughout the facility. Id. ¶ 4–12, 30, 33–34. According to plaintiff, other DOCCS

officers witnessed the August 15, 2023, attacks but failed to intervene. Id. ¶¶ 13–21, 30–37.

Following a period of discovery, defendants moved for partial summary judgment pursuant

to Federal Rule of Civil Procedure (“Rule”) 56. Dkt. No. 26. The motion has been fully briefed,

see Dkt. Nos. 33, 34, and will be considered on the basis of the submissions without oral argument.

II. BACKGROUND1

On July 13, 2023, plaintiff exited the mess hall at Greene with an orange in his pocket

when C.O. Ricci approached him. See Pl.’s Add’l Facts, Dkt. No. 33-2 ¶ 1; Pl.’s Decl., Dkt. No.

33-1 ¶ 2; Pl.’s Dep., Dkt. No. 26-4 at 24–25. According to plaintiff, C.O. Ricci took the orange,

grabbed plaintiff by his shirt collar, dragged him down a corridor, and shoved him against a wall.

Pl.’s Add’l Facts ¶ 2; Pl.’s Decl. ¶ 2. Then, plaintiff claims that C.O. Ricci smashed the orange

against plaintiff’s head multiple times and forced portions of the orange into plaintiff’s mouth.

Pl.’s Add’l Facts ¶¶ 3–4; Pl.’s Decl. ¶¶ 4–5. Plaintiff contends that he neither disobeyed any orders

nor did anything else to provoke the encounter. Pl.’s Add’l Facts ¶¶ 5–6; Pl.’s Decl. ¶¶ 6–7. C.O.

Ricci, for his part, testified that he does not recall this incident. Ricci Dep., Dkt. No. 26-9, at 48.

Following the incident, plaintiff reported to the infirmary complaining of head and neck

pain. Pl.’s Add’l Facts ¶ 7; Pl.’s Decl. ¶ 8. There, medical staff examined plaintiff and observed

that plaintiff’s oral cavity was intact, he had a full range of motion in his neck and extremities, and

he exhibited no visible abrasions or injuries. Pl.’s Resp. to Def.’s Facts (“Pl.’s Resp.”), Dkt. No.

33-2 ¶¶ 4–6;2 see July 13 Sec. Exam, Dkt. No. 26-11. Plaintiff nevertheless reported left-sided

neck pain that he rated as an eight on a ten-point scale. Pl.’s Resp. ¶ 5; July 13 Sec. Exam.

1 The following facts are taken from a comparison of the parties’ Local Rule 56.1 Statements. Compare Dkt. No. 26-

2, with Dkt. No. 33-2. Because plaintiff is the non-movant, the Court will adopt his version of events, to the extent

those events are supported with non-conclusory citations to the record in accordance with the requirements of Local

Rule 56.1.

2 Plaintiff’s responses to defendants’ statement of material facts, see Dkt. No. 33-2 at 1-8, and plaintiff’s statement of

additional material facts, see id. at 9-12, are contained in the same document. For the sake of clarity, the Court cites

to plaintiff’s responses to defendants’ statement of material facts as “Pl.’s Resp.” and to plaintiff’s statement of

additional material facts as “Pl.’s Add’l Facts.”

Medical staff ultimately diagnosed plaintiff with a neck strain, prescribed him ibuprofen,

and instructed him to perform stretching exercises and use ice to relieve his neck pain. Pl.’s Resp.

¶ 7. Plaintiff’s head and neck pain subsided approximately two days later, and it has not returned

since. Id. ¶¶ 8–9; Pl.’s Dep. at 36–37.

A second alleged incident occurred on the morning of August 15, 2023. See Pl.’s Add’l

Facts ¶ 9. According to plaintiff, C.O. Ricci approached him inside plaintiff’s dormitory cube,

motioned for him to come over, grabbed him by the back of the neck, and demanded that he “spit

it out.” Pl.’s Dep. at 45–46. But plaintiff maintains that he had nothing in his mouth at that time.

Id. at 45.

Plaintiff testified that C.O. Ricci then began striking him, causing plaintiff to dive

underneath his bed and attempt to shield himself from further blows. Pl.’s Dep. at 46. After that,

C.O. Ricci, C.O. Shoemaker, and C.O. Vanhouse pulled plaintiff from beneath the bed, C.O.

Shoemaker handcuffed him, and the three C.O.s pinned him to the ground. Id. at 46 (“I threw my

. . . hands behind my back so I could get cuffed. I get cuffed by [C.O.] Shoemaker, and . . . [C.O.]

Ricci is laying on the front side of me. [C.O.] Shoemaker ended up . . . getting on top of me and

[C.O.] Vanhouse is . . .around my leg area.”). According to plaintiff, C.O. Ricci kicked him in the

head while C.O. Shoemaker and C.O. Vanhouse twisted his ankle, causing plaintiff to lose

consciousness. Id. at 46–47.

At the time of the alleged assault, C.O. Bullock was plaintiff’s dorm officer. Pl.’s Add’l

Facts ¶¶ 10, 13; see Bullock Dep., Dkt. No. 26-10. Plaintiff estimates that the assault in his cube

lasted between one and three minutes. Pl.’s Add’l Facts ¶ 11; Pl.’s Decl. ¶ 12. According to

plaintiff, C.O. Bullock remained at the bubble area immediately outside plaintiff’s cube and had a

direct view of the incident but took no action to stop it. Pl.’s Add’l Facts ¶¶ 13–15; Pl.’s Decl. ¶¶

14–15.

Plaintiff further alleges that, once he regained consciousness, he heard C.O. Shoemaker

telling Sgt. Pape that plaintiff had physically resisted the officers. Pl.’s Dep. at 47. (“I’m getting

back some of my . . .consciousness and I hear . . . [C.O.] Shoemaker speaking to [Sgt.] Pape, telling

him nothing but lies, that I was resisting, throwing kicks when I was doing nothing of that nature.”).

Plaintiff denied resisting, and C.O. Shoemaker pinned his knee against plaintiff’s neck. Id. (“[M]y

first instinct was reacting and I said something like, no, no, you didn’t, or whatever. And he

decided to throw his knee on top of my neck and push down.”). After plaintiff was escorted to the

infirmary, C.O. Ricci headbutted him. Id. at 63–64.

Defendants characterize the incident differently. In a contemporaneous use-of-force

memorandum, C.O. Ricci reported that he observed plaintiff swallow a bag containing an unknown

substance. See Ricci Use of Force Mem., Dkt. No. 26-17 at 1. According to C.O. Ricci, plaintiff

refused orders to regurgitate the substance, pushed C.O. Ricci, and dove underneath his bed, at

which point, “force became necessary.” Id. C.O. Ricci further reported that plaintiff kicked and

struck staff members from beneath the bed and that officers employed body holds to gain control

of plaintiff and apply mechanical restraints. Id. at 3.

C.O. Bullock initially testified that he observed several correction officers arriving on the

unit immediately before the use-of-force incident. Bullock Dep. at 31–32, 40, 63. But C.O.

Bullock later recalled being in Greene’s day room, rather than outside of plaintiff’s cube, at the

time of the alleged incident. Id. at 55–57; see also id. at 56–57 (“Q: To the extent there are

programs going on in the day room and there’s still incarcerated individuals in the dorm, are you

taking measures to continue to monitor the dorm area? A: You have your senses, smell, like your

. . . hearing sense.”).

After the incident in the dormitory, officers escorted plaintiff from the housing unit,

handcuffed him, and transported him to the infirmary by van. Pl.’s Add’l Facts ¶¶ 15–18. Plaintiff

alleges that, during the transport, C.O. Shoemaker dragged plaintiff to the transport van, sat on

plaintiff’s back, forced plaintiff to his knees inside the van, repeatedly punched him in the head,

and continued doing so despite plaintiff’s complaints that he could not breathe. Id. ¶¶ 17–20; Pl.’s

Decl. ¶ 17–21.

C.O. LeConey was driving the transport van. LeConey Dep., Dkt. No. 26-8 at 35–36.

Though she could not recall exactly where plaintiff was seated on that particular day, she testified

that she generally ensures that inmates are within her line of vision. See LeConey Dep. at 38–39

(“[W]henever I am escorting an inmate or driving an inmate anywhere, especially as a female

officer, I always make sure that they have cuffs on and I make sure that they’re sitting to the right

of me at the front so that I could see them out of the corner of my eye.”). But according to plaintiff,

C.O. LeConey did not attempt to stop C.O. Shoemaker’s conduct or otherwise intervene. Pl.’s

Add’l Facts ¶¶ 1, 21; Pl.’s Decl. ¶¶ 19, 21. Though plaintiff could not recall C.O. LeConey’s

identity at the time of his deposition, see Pl.’s Dep. at 61, he subsequently became aware of her

name after reviewing DOCCS paperwork. Pl.’s Decl. ¶ 29.

Shortly after the August 15 incident, plaintiff underwent another medical examination. See

Pl.’s Resp. ¶ 10; Aug. 15 Sec. Exam, Dkt. No. 26-12; Aug. 15 Injury Rep., Dkt. No. 26-20; Aug.

15 Use of Force Rep., Dkt. No. 26-21. During that examination, medical staff noted that plaintiff’s

oral cavity was intact and he was able to walk. See id. But he had scratches to his forehead,

abrasions to his shoulder, cuts and scrapes to his right wrist, lower lip, and both knees, and

complaints of rib pain. See Pl.’s Resp. ¶ 11; Aug. 15 Sec. Exam; Aug. 15 Injury Rep.; Aug. 15

Use of Force Rep.

Around that time, officers searched plaintiff’s cell and issued him a contraband receipt for

a broken fan. Pl.’s Resp. ¶ 12; Cell Frisk/Contraband Rep., Dkt. No. 26-23. Plaintiff also received

a misbehavior report authored by C.O. Ricci. Pl.’s Resp. ¶¶ 13–15; Dkt. No. 26-26. Later that

day, plaintiff refused placement in voluntary protective custody, and he was subsequently

transferred to Coxsackie Correctional Facility under contraband watch. Dkt. No. 26-24; Dkt. No.

26-25.

The following week, plaintiff had a disciplinary hearing where he was found guilty of all

disciplinary charges. Pl.’s Resp. ¶ 16; see Dkt. No. 26-28. Plaintiff was sanctioned with a term in

the Special Housing Unit and corresponding loss of privileges, although those penalties were later

modified on administrative review. See Pl.’s Resp. ¶¶ 16–19.

III. LEGAL STANDARD

The entry of summary judgment is appropriate 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). A fact is “material” if it “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a

material fact is considered “genuine” when “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Id. In conducting this analysis, the court must draw all

reasonable inferences in the light most favorable to the non-movant. Id. at 255. Even so, there is

no genuine issue for trial “[w]here the record taken as a whole could not lead a rational trier of fact

to find for the non-moving party.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

IV. DISCUSSION

Plaintiff asserts claims under 42 U.S.C. § 1983 arising from the alleged uses of force on

July 13 and August 15, 2023. See Compl. Defendants now move for partial summary judgment

on plaintiff’s Eighth Amendment excessive force claim against C.O. Ricci based on the July 13

incident, plaintiff’s Eighth Amendment failure-to-intervene claims against C.O. Bullock and C.O.

LeConey based on the August 15 incident, and plaintiff’s state-law assault and battery claim. Dkt.

No. 26.3 Plaintiff opposes summary judgment on his federal claims.4 Pl.’s Mem., Dkt. No. 33-3

at 6.

A. Compliance with Local Rule 56.1

As an initial matter, plaintiff argues that defendants’ motion should be denied because

defendants failed to submit an “accurate and complete” Statement of Material Facts as required by

Local Rule 56.1. Pl.’s Mem. at 9–11. Local Rule 56.1(a) provides:

Statement of Material Facts: Any motion for summary judgment

shall contain a separate Statement of Material Facts. The Statement

of Material Facts shall set forth, in numbered paragraphs, a short and

concise statement of each material fact about which the moving

party contends there exists no genuine issue. Each fact listed shall

set forth a specific citation to the record where the fact is established

. . . Failure of the moving party to submit an accurate and complete

Statement of Material Facts shall result in a denial of the motion.

N.D.N.Y. Local Rule 56.1(a) (emphasis in original). Specifically, plaintiff contends that

defendants violated this rule by referencing facts in their memorandum of law that do not appear

in their Statement of Material Facts. Id.

3 Defendants previously argued that summary judgment is proper because plaintiff failed to exhaust his administrative

remedies as required by the Prison Litigation Reform Act. See Dkt. No. 26-1 (“Def.’s Mem.”) at 10–17. Defendants

have since withdrawn that point, Dkt. Nos. 31, 32, and plaintiff does not oppose defendants’ request for summary

judgment on his state-law assault and battery claim. Accordingly, the Court addresses only defendants’ remaining

arguments regarding plaintiff’s Eighth Amendment excessive force and failure to intervene claims.

4 Because plaintiff has not opposed defendants’ request for summary judgment on plaintiff’s third cause of action for

assault and battery under New York law, see Pl.’s Mem., Dkt. No. 33-3 at 5, that claim will be dismissed.

The Court declines to deny the motion on that basis. To be sure, the Local Rules “are not

empty formalities, and courts within this District have routinely denied a party’s motion for

summary judgment based on their failure to file a Statement of Material Facts.” Heylinger v. West,

2021 WL 5605231, at *1 (N.D.N.Y. Nov. 2, 2021) (Dancks, M.J.) (collecting cases), report and

recommendation adopted, 2021 WL 5585929 (N.D.N.Y. Nov. 30, 2021) (McAvoy, J.). But still,

the Second Circuit has consistently expressed its strong “preference for adjudication of cases on

their merits rather than on the basis of formalities.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d

Cir. 1988); Miller v. Apfel, 210 F.3d 355 (2d Cir. 2000) (expressing a “clear preference for

adjudication on the merits”); Jackson v. Mahoney, 116 F.3d 465 (2d Cir. 1997) (same).

Plaintiff has responded to defendants’ factual assertions, submitted a counterstatement of

additional material facts, and the parties have fully briefed the merits of the motion. In addition,

the Court has independently reviewed the record submitted by the parties and is satisfied that the

motion may be resolved on its merits. Accordingly, the Court rejects plaintiff’s procedural

challenge and proceeds to defendants’ substantive arguments.

B. C.O. Ricci’s Motion for Summary Judgment on the July 13, 2023 Excessive Force

Claim

Defendants next argue that C.O. Ricci is entitled to summary judgment on plaintiff’s Eighth

Amendment excessive force claim stemming from the July 13, 2023, incident because plaintiff’s

injuries were insufficiently serious to constitute a constitutional violation. See Defs.’ Mem. at 17–

21.

The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the

hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429

U.S. 97, 104 (1976). This includes punishments that “involve the unnecessary and wanton

infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). To prevail on an Eighth

Amendment excessive-force claim, a plaintiff must satisfy a subjective and an objective

component: (1) subjectively, that the defendant acted “wanton[ly],” i.e., “maliciously and

sadistically to cause harm,” and (2) objectively, that the defendant’s actions violated

“contemporary standards of decency.” Blyden v. Mancusi, 186 F.3d 252, 262–63 (2d Cir. 1999)

(quoting Hudson v. McMillian, 503 U.S. 1, 7–8 (1992)); see also Davidson v. Flynn, 32 F.3d 27,

30 (2d Cir. 1994) (“The key inquiry [as to the subjective element] is whether the alleged conduct

involved ‘unnecessary and wanton infliction of pain.’”) (quoting Whitley v. Albers, 475 U.S. 312,

320 (1986)).

Defendants’ argument focuses exclusively on the objective element. In particular,

defendants note that plaintiff exhibited no visible injuries following the incident, retained full

range of motion in his neck and extremities, received only conservative treatment, and testified

that any pain resolved within approximately two days. See Pl.’s Resp. ¶¶ 4–9; Def.’s Mem. at 19–

20.

Defendants’ argument is unavailing. “When prison officials use force to cause harm

maliciously and sadistically, ‘contemporary standards of decency always are violated.’” Wright

v. Goord, 554 F.3d 255, 268–69 (2d Cir. 2009) (quoting Hudson, 503 U.S. at 9). And even

assuming plaintiff’s injuries were relatively minor, the absence of significant injury does not

foreclose an Eighth Amendment excessive force claim. See Hudson, 503 U.S. at 7 (“The absence

of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it.”).

Indeed, the “core judicial inquiry” is “not whether a certain quantum of injury was

sustained, but rather ‘whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.’” Wilkins v. Gaddy, 559 U.S. 34, 37

(2010) (quoting Hudson, 503 U.S. at 7); see also Wright, 554 F.3d at 269 (finding summary

judgment improper “even where the plaintiff’s evidence of injury was slight and the proof of

excessive force was weak” when “a prisoner’s allegations and evidentiary proffers could

reasonably, if credited, allow a rational factfinder to find that corrections officers used force

maliciously and sadistically”).

The Second Circuit has identified five factors which courts should consider in determining

whether prison officials acted maliciously or sadistically:

the extent of the injury and the mental state of the defendant[;] . . .

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.

Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (internal quotation marks and citations

omitted).

Applying those factors to the available evidentiary record, a reasonable jury could conclude

that C.O. Ricci acted maliciously and sadistically, thus, violating contemporary standards of

decency. According to plaintiff, C.O. Ricci grabbed him by the shirt collar, dragged him down a

corridor, shoved him against a wall, smashed an orange against his head multiple times, and forced

pieces of the orange into his mouth. See Pl.’s Add’l Facts ¶ 1–4; Pl.’s Decl. ¶ 2–5. Plaintiff further

testified that he complied with C.O. Ricci’s directives and did nothing to provoke the encounter.

Pl.’s Add’l Facts ¶ 5–6; Pl.’s Decl. ¶ 6–7.

Viewed in the light most favorable to plaintiff, C.O. Ricci’s alleged use of force was

gratuitous and unrelated to any legitimate penological objective. See Abascal v. Fleckenstein,

2012 WL 638977, at *6 (W.D.N.Y. Feb. 27, 2012) (denying summary judgment where, although

the plaintiff’s injuries were minor, the alleged assault was “unprovoked and unrelated to any effort

to maintain or restore discipline”). Further, as plaintiff points out, C.O. Ricci testified that he does

not recall the July 13 incident and therefore offers no competing account of the encounter. Pl.’s

Mem. at 11 n.3; Ricci Dep., Dkt. No. 26-9, at 48.

In the absence of any evidence disputing plaintiff’s account of the encounter or otherwise

establishing that the force allegedly used was employed in a good-faith effort to maintain or restore

discipline, the Court cannot conclude that plaintiff’s excessive force claim arising from the July

13, 2023 incident fails as a matter of law. 5 See Oakley v. Dolan, 980 F.3d 279, 284 (2d Cir. 2020)

(noting that the reasonableness inquiry is often a jury question).

C. Plaintiff’s Failure-to-Intervene Claims

Defendants next seek summary judgment on plaintiff’s § 1983 failure-to-intervene claims

against C.O. Bullock and C.O. LeConey based on the alleged August 15, 2023, incident.

Specifically, defendants argue that neither officer had a realistic opportunity to intervene in either

alleged use of force or, alternatively, that both officers are entitled to qualified immunity. See

Defs.’ Mem. at 23–28.

“The Eighth Amendment requires prison officials to take reasonable measures to guarantee

the safety of inmates in their custody.” Hayes v. New York City Dept. of Corrs., 84 F.3d 614, 620

(2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). This duty extends to

situations where an officer witnesses another officer’s use of excessive force. See Anderson v.

Branen, 17 F.3d 552, 557 (2d Cir. 1994) (collecting cases). Indeed, “[i]t is widely recognized that

all law enforcement officials have an affirmative duty to intervene to protect the constitutional

rights of citizens from infringement by other law enforcement officers in their presence.” Id. This

5 Defendants also briefly argue that any failure-to-intervene claim concerning the July 13, 2023, incident must be

dismissed because plaintiff identified only Ricci as a participant in that incident and did not identify any named

defendant who had an opportunity to intervene. Defs.’ Mem. at 21–23. The Court need not reach this argument. The

Complaint does not appear to assert a failure-to-intervene claim arising from the July 13 incident, and plaintiff’s

opposition papers address only the August 15, 2023 failure -to-intervene claims against Bullock and LeConey. See

Compl. ¶¶ 26–29; Pl.’s Mem. at 11–14.

is because “the officer, by failing to intervene, becomes a ‘tacit collaborator’ in the illegality.”

Smith v. Sawyer, 435 F. Supp. 3d 417, 438 (N.D.N.Y. 2020) (citing Figueroa v. Mazza, 825 F.3d

89, 106 (2d Cir. 2016)).

An officer may therefore be held liable for failing to intervene where “(1) the officer had a

realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer’s

position would know that the victim’s constitutional rights were being violated; and (3) the officer

does not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512

(S.D.N.Y. 2008).

1. C.O. Bullock

Defendants argue that C.O. Bullock lacked a realistic opportunity to intervene in the

alleged August 15 incident in plaintiff’s dormitory cube because he was not in a position to observe

it and, in any event, he was occupied with monitoring the remainder of the housing unit at that

time. Defs.’ Mem. at 23–25.

To be sure, “the officer faulted for failing to intervene must have had ‘a realistic

opportunity to intervene to prevent the harm from occurring.’” Martinez v. City of N.Y., 564 F.

Supp. 3d 88, 106 (E.D.N.Y. 2021) (quoting Branen, 17 F.3d at 557). But “[w]hether an officer

had sufficient time to intercede or was capable of preventing the harm being caused by another

officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could

not possibly conclude otherwise.” Branen, 17 F.3d at 557 (citing O’Neill v. Krzeminski, 839 F.2d

9, 11–12 (2d Cir. 1988)).

Importantly, there is no “bright-line rule” in a failure to intervene case. Figueroa, 825 F.3d

at 107. Rather, these claims arise “out of a limitless variety of factual circumstances.” Id. “In

each case, the question whether a defendant had a realistic chance to intercede will turn on such

factors as the number of officers present, their relative placement, the environment in which they

acted, the nature of the assault, and a dozen other considerations.” Id.

Here, the record contains competing accounts of Bullock’s ability to observe the incident

and his opportunity to intervene. In his declaration, plaintiff stated that C.O. Bullock was stationed

immediately outside plaintiff’s cube, had a direct view of C.O. Ricci’s, C.O. Shoemaker’s, and

C.O. Vanhouse’s alleged assault, and did nothing to stop it. Pl.’s Add’l Facts ¶¶ 13–15; Pl.’s Decl.

¶¶ 14–15. And by plaintiff’s estimate, the assault lasted between one and three minutes. Pl.’s

Add’l Facts ¶ 11; Pl.’s Decl. ¶ 12.

C.O. Bullock, on the other hand, testified that he was in the day room at the time of the

incident rather than immediately outside plaintiff’s cube. Bullock Dep. at 55–57. According to

Bullock, his responsibilities required him to monitor all of the inmates within the housing unit and,

during the alleged assault, he was busy with other inmates in the day room. Id.

It is true that an officer generally cannot be held liable for failing to intervene where the

alleged use of force occurred so “sudden[ly] and brief[ly]” that the officer had no realistic

opportunity to prevent the harm. Cusamano v. Sobek, 604 F. Supp. 2d 416, 428 n.9 (N.D.N.Y.

2009) (Suddaby, J.) (quoting Brown v. Mravintz, 2006 WL 3717417, at *6 (W.D. Pa. Dec. 14,

2006)). But the Second Circuit has declined to impose a rigid “temporal cutoff” in analyzing

failure to intervene claims. Figueroa, 825 F.3d at 108 (holding that plaintiff’s failure to intervene

claims “were for the jury to decide,” “even assuming that the assault lasted less than twenty

seconds”). Rather, “courts must evaluate each case on its own facts, keeping in mind that

circumstances other than an assault’s duration might bear significantly on an officer’s ability to

stop it from happening.” Id.

Accordingly, the fact that the alleged assault lasted only one to three minutes does not,

standing alone, entitle C.O. Bullock to summary judgment. See Pl.’s Add’l Facts ¶ 9. The relevant

question is whether, viewing the evidence in the light most favorable to plaintiff, a jury could

conclude that Bullock had a realistic opportunity to intervene. See Lucente v. Cnty. of Suffolk, 980

F.3d 284, 288–89 (2d Cir. 2020) (“Although this evidence was disputed, the district court, in the

context of a summary judgment motion, must view such evidence in the light most favorable to

plaintiffs and draw all reasonable inferences in their favor.”).

Crediting plaintiff’s version of events, C.O. Bullock stood immediately outside the cube,

had a direct view of the incident, and observed the assault for its duration. See Pl.’s Add’l Facts

¶¶ 13–15; Pl.’s Decl. ¶¶ 14–15. A reasonable jury could conclude that such circumstances afforded

C.O. Bullock sufficient time to recognize the alleged constitutional violation and intervene.

Because resolution of that question turns on disputed facts and witness credibility, summary

judgment is inappropriate. See O’Neill, 839 F.2d at 11–12. Accordingly, summary judgment is

inappropriate as to plaintiff’s failure to intervene claim against C.O. Bullock.

2. C.O. LeConey

Defendants similarly argue that summary judgment is proper because C.O. LeConey lacked

a realistic opportunity to intervene during plaintiff’s transport to the infirmary. Defs.’ Mem. at

25–26. This argument is rejected for substantially the same reasons.

Here, as with the alleged assault in plaintiff’s cube, the parties offer competing accounts of

the trip to the infirmary. Plaintiff alleges that C.O. Shoemaker forced him to his knees in the

transport van, sat on his back, repeatedly punched him in the head, and continued doing so while

plaintiff complained that he could not breathe. Pl.’s Add’l Facts ¶¶ 17–20; Pl.’s Decl. ¶¶ 17–21.

Plaintiff further alleges that this conduct occurred in C.O. LeConey’s presence and that C.O.

LeConey did not take any steps to stop it. Pl.’s Add’l Facts ¶ 21; Pl.’s Decl. ¶¶ 19, 21.

Defendants, for their part, argue that “[C.O.] LeConey could not intervene while driving,

and was attempting to transport the plaintiff to the infirmary as quickly as possible following what

to her knowledge was a medical emergency.” Def.’s Mem. at 26.

Although C.O. LeConey testified that she does not specifically recall where plaintiff was

seated during the transport, she explained that her general practice when transporting inmates is to

seat them on the passenger side of the van so that they remain within her field of vision. LeConey

Dep. at 38 (“I always make sure that they’re sitting to the right of me at the front so that I could

see them out of the corner of my eye.”). A reasonable jury could infer from this testimony that

C.O. LeConey was capable of observing plaintiff during the transport and therefore had an

opportunity to perceive any use of force occurring inside the vehicle.

Whether C.O. LeConey could have safely stopped the vehicle, directed C.O. Shoemaker to

cease the alleged assault, requested assistance, or otherwise intervened presents factual questions

that cannot be resolved on the present record. See O’Neill, 839 F.2d at 11–12. Because the record

does not permit that question to be resolved as a matter of law, summary judgment on plaintiff’s

failure to intervene claim against C.O. LeConey must be denied.

3. Qualified Immunity

Defendants raise a final argument that C.O. Bullock and C.O. LeConey are entitled to

qualified immunity with respect to plaintiff’s failure to intervene claims. See Defs.’ Mem. at 27–

28. The Court disagrees.

As an initial matter, defendants argue that, to the extent plaintiff seeks monetary damages

against defendants in their official capacities, those claims are barred by the Eleventh Amendment.

Defendants are correct that the Eleventh Amendment generally bars suits for damages against state

officials acting in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 169 (1985).

Here, however, plaintiff’s § 1983 claims are predicated on each defendant’s alleged

personal involvement in the asserted constitutional violations. Plaintiff does not seek to impose

official-capacity liability on the individual defendants. Accordingly, the Court need not further

address defendants’ sovereign immunity argument.

The Court therefore turns to defendants’ contention that Bullock and LeConey are entitled

to qualified immunity.

Qualified immunity shields government officials from civil damages liability unless either

(1) the official violated a statutory constitutional right, and (2) the right was “clearly established”

at the time of the challenged conduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Put

differently:

The issues on qualified immunity are: (1) whether plaintiff has shown facts making

out [a] violation of a constitutional right; (2) if so, whether that right was “clearly

established”; and (3) even if the right was “clearly established,” whether it was

“objectively reasonable for the officer to believe the conduct at issue was lawful.”

Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (citation omitted).

With these principles in mind, the Court turns to defendants’ qualified immunity

arguments. Here, defendants contend that, “assuming arguendo[ ] that . . . [C.O.s] Bullock and

LeConey did have the opportunity to intervene[,] it was objectively reasonable for both to believe

their conduct did not violate a clearly established right” because “LeConey was attempting to

transport the plaintiff to the infirmary as quickly as possible following what to her knowledge was

a medical emergency,” and “[C.O.] Bullock . . . was monitoring the rest of the incarcerated

individuals in the dorm while the alleged incident was taking place in Plaintiff’s cube.” Defs.’

Mem at 28.

Defendants’ qualified immunity argument depends upon their version of the disputed facts.

This position misunderstands well-settled summary judgment principles. “When a defendant

official seeks summary judgment on the ground that he is entitled to qualified immunity, the

motion should be granted if either the evidence, viewed in the light most favorable to the plaintiff,

is insufficient to establish the violation of a statutory or constitutional right, or if that right was not

clearly established at the time of the alleged violation.” Soto v. Gaudett, 862 F.3d 148, 156 (2d

Cir. 2017). A right is “clearly established” when the “contours of the right [are] sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Carter v.

Broome County, 394 F. Supp. 3d 228, 244 (N.D.N.Y. 2019) (Hurd, J.) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

Measured against this general body of law, defendants’ qualified immunity arguments fall

short. It was clearly established in August of 2023 that an officer may not stand by and permit an

obvious violation of a person’s constitutional rights when the officer has a realistic opportunity to

intervene and prevent the harm. See, e.g., Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir.

2001); De Ponceau v. Bruner, 2012 WL 1030415, at *6 n.11 (N.D.N.Y. Feb. 21, 2012) (Peebles,

M.J.), report and recommendation adopted, 2012 WL 1014821 (N.D.N.Y. Mar. 23, 2012)

(Suddaby, J.).

As discussed above, plaintiff has adduced evidence from which a reasonable juror could

conclude that C.O. Bullock observed the alleged assault in the dormitory, and that C.O. LeConey

observed the alleged assault during plaintiff’s transport to the infirmary, yet neither officer

intervened. Accordingly, this dispute over the material historical facts precludes the court from

resolving the qualified immunity question as a matter of law.

Accordingly, defendants’ motion for summary judgment on qualified-immunity grounds

must be denied.

V. CONCLUSION

In sum, plaintiff’s Eighth Amendment excessive force claim against C.O. Ricci arising

from the July 13, 2023 incident survives summary judgment. Plaintiff’s Eighth Amendment

failure-to-intervene claims against C.O. Bullock and C.O. LeConey arising from the August 15,

2023 incident likewise survive summary judgment, and neither defendant is entitled to qualified

immunity at this stage. Plaintiff’s remaining claims arising from the August 15, 2023 incident—

including his excessive-force claims against C.O. Ricci, C.O. Shoemaker, and C.O. Vanhouse and

his failure-to-intervene claims against C.O. Ricci, C.O. Shoemaker, C.O. Vanhouse, and Sgt.

Pape—were not the subject of the present motion and therefore remain pending as pleaded in the

complaint and answer. See Dkt. Nos. 1, 14.

Plaintiff’s remaining claims are: (1) the First Cause of Action, alleging Eighth Amendment

excessive-force claims under 42 U.S.C. § 1983 against C.O. Ricci premised on the events of the

July 13, 2023 incident and against C.O. Ricci, C.O. Shoemaker, and C.O. Vanhouse arising from

the August 15, 2023 incident; and (2) the Second Cause of Action, alleging Eighth Amendment

failure-to-intervene claims under 42 U.S.C. § 1983 against C.O. Bullock and C.O. LeConey

concerning the August 15, 2023 incident, as well as the failure-to-intervene claims against C.O.

Ricci, C.O. Shoemaker, C.O. Vanhouse, and Sgt. Pape, which were not the subject of the present

motion.

Plaintiff does not oppose dismissal of his Third Cause of Action for assault and battery

under New York law, and that claim is therefore dismissed with prejudice. Defendants’ motion is

otherwise denied. Accordingly, the remaining claims shall proceed to trial.

Therefore, it is

ORDERED that

1. Defendants’ motion for summary judgment (Dkt. No. 26) is GRANTED in part and

DENIED in part;

2. Defendants’ motion is GRANTED with respect to plaintiff's Third Cause of Action

for assault and battery under New York law, and that claim is DISMISSED with

prejudice; and

3. Defendants’ motion is DENIED in all other respects;

4. Within thirty days of the date of this Decision and Order, counsel shall file

a joint status report reporting on status of settlement and provide the Court with

dates that the parties can commence trial.

The Clerk of the Court is directed to terminate the pending motions.

IT IS SO ORDERED.

Dated: July 23, 2026

Utica, New York.

Anthony J. =e

U.S. District Judg

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