Summary
upholding summary judgment as to prisoner's assertion guard punched him in the face as “fail[ing] in light of the contradictory video and medical evidence” which “conclusively shows that Loesch did not punch him”
Summary of this case from Grissom v. PalmOpinion
No. 20-308
03-29-2021
JAY BRADSHAW, Plaintiff-Appellant, v. THE CITY OF NEW YORK, JASON LOESCH, SCOTT TEBBENS, CAPTAIN LAWANDA GREEN, SHIELD # 1272, PA GERARD AUGUSTE, MD, TOWHID SHIBLEE, CAPTAIN RUSSELL LEE, SHIELD # 1382, CORRECTION OFFICER SADOC GENOVES, SHIELD # 17683, CAPTAIN DANIELLE LABRUZZO, NEW YORK CITY HEALTH AND HOSPITAL CORPORATION, DO FRANK FLORES, WARDEN CAROLYN SAUNDERS, WARDEN AT OTIS BANTUM CORRECTIONAL CENTER, CLINIC ADMINISTRATOR OF OTIS BANTUM CORRECTIONAL CENTER, OFFICER JOHN DOE 1-3, JOHN DOE 1-2, CAPTAIN WILLIS, #732, CITY OF NEW YORK, Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: Jay Bradshaw, pro se, Pine City, NY FOR DEFENDANTS-APPELLEES: Ellen Ravitch and Devin Slack, of counsel, for James E. Johnson, Corporation Counsel of the City of New York, New York, NY
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 29th day of March, two thousand twenty-one. PRESENT: ROBERT A. KATZMANN, GERARD E. LYNCH, WILLIAM J. NARDINI, Circuit Judges. FOR PLAINTIFF-APPELLANT: Jay Bradshaw, pro se, Pine City, NY FOR DEFENDANTS-APPELLEES: Ellen Ravitch and Devin Slack, of counsel, for James E. Johnson, Corporation Counsel of the City of New York, New York, NY
On appeal from the United States District Court for the Eastern District of New York (William F. Kuntz, II, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
Plaintiff-Appellant Jay Bradshaw, pro se and incarcerated, appeals from a judgment of the district court, entered December 12, 2019, granting summary judgment in favor of the defendant prison officials and municipal entities on all claims. Bradshaw argues on appeal that the court erred when granting summary judgment on his Fourth, Eighth, and Fourteenth Amendment claims because there were genuine disputes of material fact from which a jury could have found that correctional guards, acting in accordance with official policy, used excessive force against him, and that medical staff were deliberately indifferent to his injuries. He also argues that the court erred when denying him additional discovery and appointed counsel. We assume the reader's familiarity with the record.
We review a grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Sotomayor v. City of New York, 713 F.3d 163, 164 (2d Cir. 2013). We review decisions to limit discovery and denials of requests for appointment of counsel for abuse of discretion. In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008) (discovery rulings); Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68 (2d Cir. 2011) (appointment of counsel).
I. Two of Bradshaw's three excessive force claims fail.
Bradshaw's amended complaint alleges that two correctional officers—Jason Loesch and Scott Tebbens—used excessive force when they tackled and restrained him for refusing to comply with an order, when Loesch punched him in the face, and when Tebbens broke his finger after he had been restrained. We analyze Bradshaw's claims in that order, and we hold that the district court erred only when granting summary judgment on his claim against Tebbens.
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." Harris v. Miller, 818 F.3d 49, 63, 64 (2d Cir. 2016) (internal quotation marks and citations omitted). As to the subjective component, a 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." Id. at 63 (internal quotation marks and citation omitted). Here, Bradshaw clearly failed to prove the culpability of Loesch's and Tebbens's states of mind when they tackled and restrained him. It is uncontroverted that Bradshaw refused to interlace his fingers behind his head when Loesch ordered him to do so, and the split-second decision to bring Bradshaw to the ground and subdue him to eliminate the security risk that the officers believed he posed was not excessive. Thus, the district court properly granted summary judgment on Bradshaw's excessive force claim as it relates to the initial tackle.
As to Bradshaw's other claims of excessive force, Bradshaw's sworn testimony sharply conflicts with that of the officer defendants. The district court granted summary judgment on the ground that "Mr. Bradshaw fails to point to any evidence in support of his claims beyond his own deposition testimony - which alone cannot withstand a summary judgment motion." App'x at 19. That is not accurate as a general statement of the law. A single witness's sworn testimony, if believed by a jury, can support a verdict, and is enough to raise a genuine issue of fact precluding summary judgment. See Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d Cir. 2001); see also Owens v. New York City Hous. Auth., 934 F.2d 405, 410 (2d Cir. 1991) (stating that the defendant's contention that the plaintiff's proffered testimony "is uncorroborated and not credible is a jury argument inappropriate on a motion for summary judgment"). Where, however, "opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007). The defendants argue that such is the case here, because Bradshaw's version of events is contradicted by video and medical evidence.
That standard is satisfied as to Bradshaw's claim that Loesch used excessive force by punching him in the face after he was on the ground, subdued and handcuffed. That claim fails in light of the contradictory video and medical evidence. See Jeffreys v. City of New York, 426 F.3d 549, 551 (2d Cir. 2005). Bradshaw alleged and testified that Loesch punched him after he was handcuffed, but the video footage of the event conclusively shows that Loesch did not punch him, such that there is no genuine issue of material fact in this regard. Medical records also undermine Bradshaw's allegation that Loesch punched him on the left side of his face, as the records show that he sustained a bruise on the right side of his face.
The district court erred, however, when granting summary judgment on Bradshaw's claim that Tebbens used excessive force and broke his finger. Although the medical evidence showed that Bradshaw's finger was not actually broken, Bradshaw also testified that Tebbens threatened to break his finger, and then twisted and bent it painfully. Bradshaw's and Tebbens's hands are obscured during portions of the video submitted by defendants. Accordingly, we cannot say with the requisite degree of certainty that Bradshaw's factual assertion is, as a matter of law, something that no rational jury could accept. Thus, we vacate this portion of the district court's judgment.
Bradshaw does not appeal the dismissal of his state law claims, so we do not reach those claims.
II. Bradshaw's deliberate indifference claim fails.
Bradshaw's Eighth Amendment claim for deliberate indifference to his medical needs also fails, because he cannot show that (1) his medical condition was objectively serious (the objective test); and (2) the defendant acted with deliberate indifference to his medical needs (the subjective test). See Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). The objective test requires a showing that: (a) prison staff did not act "reasonably" in response to the inmate's health risk, Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 845 (1994)), and (b) the condition complained of is "sufficiently serious," id. at 280. In determining whether a condition is sufficiently serious, courts consider "whether a reasonable doctor or patient would find it important and worthy of comment," "whether the condition significantly affects an individual's daily activities," and "whether [the condition] causes chronic and substantial pain." Id. (internal quotation marks, citation, and alteration omitted).
We find that the prison staff acted reasonably when treating Bradshaw. Medical professionals treated him for his injuries on the day he sustained them, and again more than a dozen times after that. While Bradshaw was not sent to an orthopedist despite multiple rescheduled appointments for this purpose, he has not shown that this was unreasonable, given that his finger suffered only a contusion and not a new fracture. Moreover, there is no evidence that the contusion significantly affected his daily activities. Id. Accordingly, the defendants were entitled to summary judgment on the deliberate indifference claim.
Bradshaw also alleged Monell claims against municipal entities. See Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978). To the extent Bradshaw's excessive force and deliberate indifference claims fail, his related Monell claims against the municipal defendants also fail. A Monell claim based on Bradshaw's surviving excessive use of force claim fails because Bradshaw has not put forward evidence—apart from a list of court cases—to support his conclusory allegation that the alleged finger twisting was pursuant to a municipal policy or custom.
III. The district court did not abuse its discretion when denying Bradshaw additional discovery or appointed counsel.
We detect no abuse of discretion in the district court's denial of Bradshaw's motion to appoint counsel based on its conclusion, on the record before it, that Bradshaw probably would not prevail in this action. A court may appoint counsel pursuant to 28 U.S.C. § 1915(e)(1), but the plaintiff must first demonstrate some likelihood of merit. See Smith v. Fischer, 803 F.3d 124, 127 (2d Cir. 2015); Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989). Now that Bradshaw's claim against Tebbens has survived a motion for summary judgment, we express no view as to the potential merit of any renewed application for appointed counsel. Any such renewed motion is confided to the district court's wise discretion.
With respect to Bradshaw's request for additional discovery to identify the John Doe officers named in his amended complaint, a district court "abuses its discretion only 'when the discovery is so limited as to affect a party's substantial rights.'" In re "Agent Orange", 517 F.3d at 103 (quoting Long Island Lighting Co. v. Barbash, 779 F.2d 793, 795 (2d Cir. 1985)). Since identifying the John Doe officers would not have helped Bradshaw establish that he had suffered a constitutional deprivation and would not have otherwise advanced his deliberate indifference claims, the district court's decision did not affect his substantial rights. Therefore, it was not an abuse of discretion.
We have considered all of Bradshaw's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court in all respects excepting its judgment on the excessive force claim against Tebbens, which we VACATE and REMAND for further proceedings consistent with this order.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk of Court