Opinion
Civil Action No. 9:15-CV-0198 (LEK/DEP)
08-18-2016
JOSEPH J. BELILE, Plaintiff, v. TIMOTHY AMO, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: JOSEPH J. BELILE, Pro Se No. 14-A-3897 Wende Correctional Facility P.O. Box 1187 Alden, NY 12953 FOR DEFENDANTS: HANCOCK ESTABROOK LLP 1500 AXA Tower I 100 Madison Street Syracuse, NY 13221 OF COUNSEL: ZACHARY M. MATTISON, ESQ.
APPEARANCES: FOR PLAINTIFF: JOSEPH J. BELILE, Pro Se
No. 14-A-3897
Wende Correctional Facility
P.O. Box 1187
Alden, NY 12953 FOR DEFENDANTS: HANCOCK ESTABROOK LLP
1500 AXA Tower I
100 Madison Street
Syracuse, NY 13221 OF COUNSEL: ZACHARY M. MATTISON, ESQ. DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro Se plaintiff Joseph Belile, a prison inmate who is currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), has commenced this action, pursuant to 42 U.S.C. § 1983, claiming that two St. Lawrence County corrections employees violated his civil rights while he was a pretrial detainee confined in the St. Lawrence County Correctional Facility ("SLCCF"). Specifically, plaintiff's complaint alleges that Corrections Sergeant Timothy Amo used excessive force against him, and Corrections Officer Robert Rusaw failed to protect him from that use of force, in violation of plaintiff's constitutional rights.
Currently pending before the court is a motion brought by the defendants requesting the entry of summary judgment dismissing plaintiff's claims. In their motion, defendants argue that there is no evidence in the record from which a reasonable factfinder could conclude either that plaintiff was subjected to excessive force or that defendant Rusaw had a duty to intervene but failed to do so. For the reasons set forth below, I recommend that defendants' motion be denied. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS at the Wende Correctional Facility located in Alden, New York. Dkt. No. 25. At the times relevant to his complaint, plaintiff was confined at the SLCCF as a pretrial detainee. Dkt. No. 1 at 4.
On the morning of May 28, 2014, plaintiff was in the shower room in SLCCF's booking area changing into clothes to be worn during his trial in St. Lawrence County Court. Dkt. No. 1 at 4. While he was changing, defendant Amo instructed plaintiff to "hurry up" so that the facility's first court transport would not leave without him. Id. As plaintiff emerged from the changing area, he noticed that he had missed the first transport from the facility to court. Id. at 5. Plaintiff asked defendant Amo to instruct the transport to wait for him. Id. Defendant Amo, who was on the telephone at the time, responded by directing plaintiff to enter a holding cell located near the shower room where plaintiff had changed his clothes, and to wait there until the transport returned to take him to court, stating, "'[G]et in 4 cell & close the fucking cell door.'" Id. Plaintiff "took offense to the rude and duragatory [sic] manner of Defendant SGT Amo and stated 'dont [sic] talk to me like that you fucking shitbag!'" Id.
According to defendant Amo, upon learning that the transport left without him, plaintiff became "upset" and began to "yell and curse." Dkt. No. 26-7 at 1. Plaintiff denies having yelled or cursed. Dkt. No. 31-1 at 1-2.
At his deposition, plaintiff testified that, in response to defendant Amo's instruction to enter the holding cell, he said, "'Fuck you, suck my dick. Don't talk to me like that, you fucking asshole[.]'" Dkt. No. 26-4 at 9.
As instructed, plaintiff entered the holding cell. Dkt. No. 1 at 5. Plaintiff maintains that the door of the holding cell locked behind him. Dkt. No. 26-4 at 10. Defendant Amo, however, states that plaintiff "did not shut the door all the way as to engage the latch." Dkt. No. 26-7 at 2.
Plaintiff alleges that the holding cell's door is electronic and can only be opened by computer control, which defendant Rusaw was operating. Dkt. No. 1 at 5; Dkt No. 26-4 at 10.
The parties' versions concerning the events that followed differ markedly. For their part, defendants maintain that plaintiff "continued to yell and curse about missing the initial transport." Dkt. No. 26-7 at 2; see also Dkt. No. 26-9 at 2. Defendant Amo claims that, as a means of "calming the disturbance," he approached plaintiff's cell and gave plaintiff a verbal order "to stop yelling and to sit on the bench[.]" Dkt. No. 26-7 at 2 "As [defendant Amo] approached [the cell], Plaintiff opened the door to confront him," and defendant Amo then "directed [plaintiff] back into [the cell.]" Id; see also Dkt. No. 26-9 at 2. Because plaintiff "stood his ground with an aggressive stance," defendant Amo pushed him back into the cell and continued to verbally direct him to sit on the bench. Dkt. No. 26-7 at 2. When plaintiff refused to comply with those instructions, defendant Amo "walked toward Plaintiff, who stepped toward[s] him[, and t]hen, again[,] [defendant Amo] pushed Plaintiff towards the bench." Id. As defendant Amo "walked Plaintiff towards the bench . . ., Plaintiff grabbed [defendant Amo's] shirt by the collar with his right hand and grabbed [defendant Amo's] right bicep with his left hand." Id.; see also Dkt. No. 26-9 at 2. According to defendant Amo, plaintiff then "leaned backwards onto the bench, bringing [defendant Amo] down," at which point defendant Amo "struck Plaintiff three (3) times in the face to force him to release his grip[.]" Dkt. No. 26-7 at 2; see also Dkt. No. 26-9 at 2.
Plaintiff, on the other hand, alleges that, once he was inside the holding cell, he "sat down on the bench by the window and quietly waited" for the next transport to the courthouse. Dkt. No. 1 at 5; see also Dkt. No. 26-4 at 9-10. He alleges that approximately two minutes later, defendant Amo hung up the telephone and ordered defendant Rusaw to open the cell door in a "loud tone." Dkt. No. 1 at 5. Alarmed, plaintiff stood up and faced the cell door as defendant Amo walked toward him. Id. at 6. Once the cell door was "clicked open," defendant Amo "whipped [it] wide open, and immediately started violently shoving plaintiff[, causing] plaintiff [to lose] his footing, and ended up sitting on the bench by the window again." Id. Defendant Amo then stepped on plaintiff's feet and yelled at him saying, "[n]ot while Im [sic] on the phone scumbag[.]" Id.; see also Dkt. No. 26-4 at 11. Plaintiff contends that he then "calmly put his right & left hands, palms flat, out & softly touched" defendant Amo's chest "to try to get space and stop [defendant Amo] from stepping on [his] feet." Dkt. No. 1 at 6; see also Dkt. No. 26-4 at 12. Defendant Amo then punched plaintiff three times with a closed fist in the face "causing a black & swollen eye with a small laceration which bled[.]" Dkt. No. 1 at 6; see also Dkt. No. 26-4 at 12, 13-14. Plaintiff denies defendants' allegation that he grabbed defendant Amo's shirt or bicep during the altercation. Dkt. No. 26-4 at 12-13.
Although defendants have submitted a video recording of the altercation between defendant Amo and plaintiff, it does not contain any audio of the incident. Dkt. No. 28 (filed by traditional means; not available electronically). In addition, the quality of the recording is such that a viewer cannot discern whether plaintiff opened the cell door or defendant Amo did after defendant Rusaw unlocked it using a computer control. Id. The video recording does, however, show that plaintiff was not seated in the cell, as he alleges, prior to defendant Amo hanging up the telephone and approaching plaintiff's cell. Id. Instead, plaintiff can be seen standing behind the window of the holding cell's door from the time he entered the cell until defendant Amo entered the cell and shoved him backwards. Id. The recording also shows that defendant Rusaw stood in the doorway of the cell during almost the entire incident before entering and assisting defendant Amo in handcuffing plaintiff. Id.; see also Dkt. No. 1 at 6; Dkt. No. 26-7 at 3; Dkt. No. 26-9 at 2. Finally, the video recording also confirms plaintiff's allegation that defendant Rusaw did not "step in and try to stop" defendant Amo's use of force. Dkt. No. 28. The video, however, is not dispositive as it does not clearly show the sequence of events occurring in the portion of the cell where some of the physical altercation occurred.
As a result of the incident, plaintiff suffered a small laceration or bruise under his left eye that measured one-quarter to one-third of an inch in length. Dkt. No. 26-4 at 15. He was treated by the medical staff at the SLCCF and also underwent an x-ray of his face, which did not reveal any fractures. Id. at 14-15.
II. PROCEDURAL HISTORY
Plaintiff filed his complaint in this action, accompanied by an application for leave to proceed in forma pauperis ("IFP"), on or about February 23, 2015. Dkt. Nos. 1, 2. Named as defendants in that complaint are two SLCCF employees, Sergeant Timothy Amo and Corrections Officer Rusaw. Dkt. No. 1 at 1-2. Senior District Judge Lawrence E. Kahn issued a decision and order on May 15, 2015, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), granting plaintiff's IFP request and sua sponte dismissing the portion of plaintiff's excessive force claim that was based upon his allegation that defendants applied his handcuffs too tightly after the altercation with defendant Amo, but otherwise permitting the action to go forward. Dkt. No. 6.
On February 8, 2016, following the close of discovery, defendants moved for summary judgment seeking dismissal of plaintiff's complaint on the ground that the record evidence does not reveal the existence of a genuine dispute of material fact with respect to whether defendant Amo used force maliciously and sadistically against plaintiff, or defendant Rusaw failed to protect Belile from harm. See generally Dkt. No. 26-10 . Plaintiff has since responded in opposition to defendants' motion, Dkt. No. 31, and defendants have filed a reply brief in further support of the motion. Dkt. No. 33. Defendants' motion, which is now fully briefed, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Excessive Force Claim Asserted Against Defendant Amo
As a pretrial detainee, plaintiff's excessive force claim is properly analyzed under the due process clause of the Fourteenth Amendment. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009); see also Flake v. Peck, No. 12-CV-0517, 2014 WL 1289582, at *12 (N.D.N.Y. Mar. 31, 2014) (D'Agostino, J., adopting report and recommendation by Baxter, M.J.) ("The right of a pretrial detainee to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment, not the Eighth Amendment, which only relates to convicted prisoners." (emphasis omitted)). The legal standard governing plaintiff's Fourteenth Amendment claim, however, is the same as the one applicable to a convicted inmate's Eighth Amendment excessive force claim. United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999).
The Eighth Amendment prohibits prison conditions that are "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or 'involve[s] the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). The Eighth Amendment is violated by an "unnecessary and wanton infliction of pain." Whitley v. Albers, 475 U.S. 312, 319 (1986) (quotation marks omitted); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). "A claim of cruel and unusual punishment in violation of the Eighth Amendment has two components - one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson v. McMillian, 503 U.S. 1, 7-8 (1992); Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)).
To satisfy the subjective requirement in an excessive force case, the plaintiff must demonstrate that "the defendant had the necessary level of culpability, shown by actions characterized by wantonness in light of the particular circumstances surrounding the challenged conduct." Wright, 554 F.3d at 268 (quotation marks omitted). This inquiry turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson, 503 U.S. at 6 (quotation marks omitted); accord, Blyden, 186 F.3d at 262. The Supreme Court has emphasized that the nature of the force applied is the "core judicial inquiry" in excessive force cases - not "whether a certain quantum of injury was sustained." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
When considering the subjective element of the governing Eighth Amendment test, a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness. Wilkins, 559 U.S. at 37; Hudson, 503 U.S. at 9. Conversely, courts must bear in mind that "[n]ot every push or shove, even if it later may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (quotation marks omitted); see also Griffin, 193 F.3d at 91. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (quotation marks omitted).
"The objective component [of the excessive force analysis] . . . focuses on the harm done, in light of 'contemporary standards of decency.'" Wright, 554 F.3d at 268 (quoting Hudson, 503 U.S. at 8); see also Blyden, 186 F.3d at 263 (finding the analysis of the objective element "context specific, turning upon 'contemporary standards of decency'"). In assessing this component, a court must ask whether the alleged wrongdoing is objectively harmful enough to establish a constitutional violation. Wilson v. Seiter, 501 U.S. 294, 303 (1991); accord Hudson, 503 U.S. at 8; see also Wright, 554 F.3d at 268. "But when prison officials use force to cause harm maliciously and sadistically, 'contemporary standards of decency always are violated. This is true whether or not significant injury is evident.'" Wright, 554 F.3d at 268-69 (quoting Hudson, 503 U.S. at 9) (alterations omitted)). The extent of an inmate's injury is but one of the factors to be considered in determining whether a prison official's use of force was "unnecessary and wanton" because "injury and force . . . are imperfectly correlated[.]" Wilkins, 559 U.S. at 38. In addition, courts consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Hudson, 503 U.S. at 7; Whitley, 475 U.S. at 321; Romano, 998 F.2d at 105.
The record evidence now before the court clearly demonstrates the existence of genuine disputes of material fact with respect to whether defendant Amo used force against plaintiff maliciously and sadistically, or in an effort to protect himself or restore order. Plaintiff contends that he was sitting quietly when defendant Amo approached his holding cell, and did nothing to resist or antagonize Amo, other than to gently place his hands on the sergeant's chest after being pushed twice, and while defendant Amo stood on his feet. Dkt. No. 26-4 at 12-13; Dkt. No. 31 at 4. In contrast, defendants maintain that plaintiff created a disturbance by yelling after he learned he had missed the first transport to the courthouse, and continuing to yell after he entered the holding cell, and that the plaintiff initiated the confrontation through his aggressive actions. Dkt. No. 26-7 at 2; Dkt. No. 26-9 at 1-2.
According to defendant Amo, "[t]he only force that anyone used on Plaintiff during this entire incident were the three strikes that [he] utilized to try to force Plaintiff to release his grip[.]" Dkt. No. 26-7 at 3. Having reviewed the video recording of the incident, it is clear to me that plaintiff went into the holding cell and did not, as he contends, sit on the bench inside the cell, but instead remained standing in front of the cell's window. Dkt. No. 28. Without audio recording, however, I am unable to discern whether plaintiff was talking - or yelling, as defendants allege - while inside the cell. Id. The recording shows that defendant Amo entered the cell approximately thirty seconds after the plaintiff and, upon entering, pushed plaintiff toward the back of the cell. Id. In light of the dispute between the parties as to whether plaintiff was causing a disturbance, and the lack of audio recording, the video recording is susceptible of more than one reasonable interpretation regarding whether defendant Amo acted in good faith to restore order under the circumstances, and therefore raises a question of fact more appropriately resolved by a factfinder after trial. See Mack v. Howard, No. 11-CV-0303, 2014 WL 2708468, at *12 (W.D.N.Y. June 16, 2014) (finding that whether the video of the defendant showed malicious intent during use of force on the plaintiff was a question of fact).
On a motion for summary judgment, where the record evidence could reasonably permit a rational factfinder to find that corrections officers used force maliciously and sadistically, dismissal of an excessive force claim is inappropriate. See Wright, 554 F.3d at 269 (reversing summary dismissal the plaintiff's complaint, though suggesting that prisoner's evidence of an Eighth Amendment violation was "thin" as to his claim that a corrections officer struck him in the head, neck, shoulder, wrist, abdomen, and groin, where the "medical records after the . . . incident with [that officer] indicated only a slight injury") (citing Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003)). It is worth noting, moreover, that while there is no apparent dispute regarding the nature of plaintiff's injuries, which include only a small laceration or bruise under his left eye and no broken bones to his face, the Second Circuit has counselled that, in the context of an excessive force claim, it 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.'" Harris v. Miller, 818 F.3d 49, 65 (2d Cir. 2016) (quoting Wilkins, 559 U.S. at 37 (2010)).
In this case, plaintiff maintains that, in response to him yelling at defendant Amo for showing alleged disrespect, defendant Amo stormed into the holding cell, pushed him, stepped on his feet, and punched him multiple times. See, e.g., Dkt. No. 1 at 5-6. If plaintiff's version of the incident is credited, a reasonable factfinder could conclude that defendant Amo maliciously used force against plaintiff. Accordingly, at this juncture, plaintiff's seemingly de minimis injury is only marginally relevant and only one factor to be considered. Having concluded that the existence of material issues of fact exist, I recommend that defendants' motion be denied as it relates to plaintiff's excessive force claim.
C. Failure to Intervene Claim Asserted Against Defendant Rusaw
Plaintiff has also asserted a failure to intervene claim against defendant Rusaw based on that officer's alleged failure to protect plaintiff from defendant Amo's use of force. Dkt. No. 1 at 7. In support of their motion, defendants argue that the encounter between the plaintiff and defendant Amo occurred so rapidly that defendant Rusaw did not have a realistic opportunity to intercede. Dkt. No. 26-10 at 17-18.
"[A]ll 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." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994); see also Figueroa v. Mazza, --- F.3d ----, No. 14-4116, 2016 WL 3126772, at *11 (2d Cir. June 3, 2016). To establish liability on the part of a defendant for violating this duty and failing to protect an inmate from harm at the hands of fellow corrections officers, "the plaintiff must adduce evidence establishing that the officer had (1) 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) that officer [did] not take reasonable steps to intervene." Henry v. Dinelle, No. 10-CV-0456, 2011 WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011) (Suddaby, J.) (citing Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008)); see also Farmer, 511 U.S. at 842 ("[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.").
A plaintiff asserting a failure to protect claim of the nature now at issue must prove that the defendant actually knew of and disregarded an excessive risk of harm to his health and safety. Hayes v. N.Y. City Dep't of Corrs., 84 F.3d 614, 620 (2d Cir. 1996). This "reckless disregard" to a plaintiff's health and safety can be proven by evidence establishing "a pervasive risk of harm to inmates from other[s] . . . and a failure by prison officials to reasonably respond to that risk." Knowles v. N.Y. City Dep't of Corrs., 904 F. Supp. 217, 222 (S.D.N.Y. 1995) (quotation marks omitted).
Defendants' motion is focused upon whether defendant Rusaw had a realistic opportunity to intervene and protect the plaintiff from harm. In this regard, the Second Circuit recently reiterated that the inquiry will turn on several factors, including the duration of the assault, the number of officers present, the relative placement of the officers, the environment in which the officers acted, the nature of the assault, "and a dozen other considerations." Figueroa, 2016 WL 3126772, at *13. While the duration of the assault "will always be relevant and will frequently assume great importance," the Second Circuit has rejected attempts by district courts to engraft a "hard-and-fast temporal cutoff" onto the test for determining failure to intervene claims. Id.
In this case, the record evidence reflects that defendant Rusaw was present for and witnessed the encounter between defendant Amo and plaintiff. Specifically, plaintiff alleges that defendant Rusaw opened the door to the holding cell for defendant Amo using computer controls, Dkt. No. 1 at 7, and defendant Rusaw acknowledges in his declaration that he witnessed defendant Amo approach plaintiff's cell while he was seated approximately fifteen feet away. Dkt. No. 26-9 at 2-3. In addition, the video recording shows that from the time plaintiff emerged from the shower area, where he was changing his clothes, until the time the defendants exited the holding cell after plaintiff was handcuffed, approximately two minutes elapsed. Dkt. No. 28. In those two minutes, defendant Amo is seen inside plaintiff's cell for approximately one minute, and defendant Rusaw is shown to have arrived at the doorway of the cell only ten seconds behind defendant Amo. Id. The recording also shows that defendant Amo continued to use force against plaintiff after defendant Rusaw arrived at the cell. Id. While I am mindful that the duration of an assault is always relevant in the context of a failure to intervene claim, as noted above, the Second Circuit has rejected the idea that these claims are dictated by "a hard-and-fast temporal cutoff[.]" Figueroa, 2016 WL 3126772, at *13. Instead, courts considering a failure to intervene claim must "keep[] in mind that circumstances other than an assault's duration might bear significantly on an officer's ability to stop it from happening." Id.
In this instance, there is evidence suggesting that defendant Rusaw controlled the operation of plaintiff's cell door, was in close proximity to the cell at the time defendant Amo menacingly approached the cell, and was located either in the doorway of or inside the cell during the time that defendant Amo used force against plaintiff. Viewing all of the evidence in the light most favorable to plaintiff, I find that a reasonable factfinder could conclude that defendant Rusaw had, but failed to avail himself of, a realistic opportunity to intervene and protect plaintiff from defendant Amo's use of force. See Figueroa, 2016 WL 3126772, at * 13 (reversing the district court's dismissal of the plaintiff's failure to intervene claim where the district court concluded, as a matter of law, that "'assaults that take place in less than thirty seconds do not offer police sufficient time to intercede in order to prevent the assault'" (alterations omitted)). Accordingly, I recommend that defendants' motion be denied as to the claim asserted by the plaintiff against defendant Rusaw.
IV. SUMMARY AND RECOMMENDATION
Having reviewed the record evidence, including a video recording of the force used against plaintiff by defendant Amo, I find that plaintiff's excessive force claim, and similarly his claim of failure to intervene, cannot be determined on a motion for summary judgment, in light of the existence of disputed issues of fact that can only be resolved by a factfinder after a trial. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 26) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 18, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge