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finding only a de minimis force used where officer swung keys at the plaintiff, making contact with his head and causing a bump
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05 Civ. 10460 (RWS).
September 20, 2006
ALEX VIRELLA Plaintiff Pro Se # 06-A-3860 Sing Sing Correctional Facility Ossining, NY.
HONORABLE CHARLENE M. INDELICATO Westchester County Attorney Attorneys for Defendants White Plains, NY By: JANE HOGAN FELIX, Assistant County Attorney Of Counsel.
OPINION
Defendant Eric Belton ("Belton") has moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., against pro se plaintiff Alex Virella ("Virella"), an inmate in the custody of the New York State Department of Correctional Services. For the reasons set forth below, Belton's motion for summary judgment is granted and Virella's complaint is dismissed in its entirety.
The Parties
At all times relevant to his complaint, Virella was a pretrial detainee at Valhalla Correctional Facility ("Valhalla") in the custody of the Westchester County Department of Correction.
At all times relevant to the complaint, Belton was a correction officer at Valhalla.
Prior Proceedings
Virella filed his complaint pursuant to 42 U.S.C. § 1983 on December 13, 2005, alleging that Belton and four co-workers at Valhalla — Commissioner Rocco Pozzi ("Pozzi"), Assistant Warden Anthony Ammucucci ("Ammucucci"), Assistant Warden Charles Turner ("Turner"), and Grievance Coordinator Captain Orlando ("Orlando") (collectively, "Defendants") — violated his rights under the Fourteenth Amendment by using excessive force against him and exhibiting deliberate indifference to his serious medical needs.
On March 6, 2006, Defendants moved to dismiss Virella's claims against Pozzi, Ammucucci, Turner, and Orlando for failure to allege their personal involvement in the events giving rise to his section 1983 claim. The motion was granted on April 13, 2006.
The instant motion for summary judgment and to dismiss the remaining claims against Belton was filed on June 20, 2006. On August 3, 2006, the Court granted Virella's request for an additional thirty days in which to oppose the motion for summary judgment. No opposition having been filed, the motion was marked fully submitted on September 6, 2006.
Facts
The facts as set forth below are taken from Defendants' Statement of Material Facts Pursuant to Local Civil Rule 56.1 and from the transcript of Virella's deposition. Virella did not respond to Defendants' Rule 56.1 statement as required by Local Rule 56.1(b), and thus the facts set forth therein are deemed admitted where supported by the record. See Local Rule 56.1(c);Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003); Evans v. City of New York, 308 F. Supp. 2d 316, 319 n. 2 (S.D.N.Y. 2004). The facts are not in dispute except as indicated below.
On July 26, 2005, Virella was a pretrial detainee at Valhalla in the custody of the Westchester County Department of Correction. At approximately 1:30 p.m., Virella was returning to his cell from the dayroom to lock in before the count when he became involved in an altercation with Belton. At deposition, Virella described the incident as follows:
I tell [Belton], excuse me, I would like for you to open the door so I could lock in. He says wait, wait, wait. I said no, no, no, no . . . open the gate. So he says, he says, yeah. He ignores me. . . . I said you heard me. . . . I want to lock in. . . . One thing leads to another. He wants to argue I said listen man just lock me in all right. He steps up to me, I stepped up to him and I said what you going to do right. He come out, he says what you going to do. I said we going to go word for word, you know, just lock me in, I'm not interested in this man, lock me in man, boom, I've been waiting out here enough.
[H]e said yeah, that's what you better do lock in. . . . We going down the catwalk and while we walking something tells me, you know, look back so I look back and I see him coming at me with the keys to swing at me so he swang [sic] at me. I waited for him to make a little contact. I bend down at the same time I come around him I grab him and I slammed him against the gate. I held him and I put him down on the floor and I said what you trying to do. . . . The keys go flying, right.
(Virella Dep. at 32-33, Hogan Felix Decl. Ex. F.)
Defendants dispute Virella's account that Belton initiated the altercation, but accept it as true for purposes of this motion for summary judgment. The internal report prepared after the incident states that "Officer Belton was escorting inmate Virella from the dayroom to his cell . . . when inmate Virella suddenly, and without provocation turned and struck Officer Belton in his face with a closed fist." (Report of Sergeant P. Woods, Hogan Felix Decl. Ex. C.)
Virella stated at deposition that he held Belton to the floor for a period of time before letting him stand up. Belton promptly summoned the Emergency Response Team ("ERT"), the members of which forcibly placed Virella in handcuffs and shackles. Virella stated that he was "manhandled" by the ERT, and suffered dislocation of his shoulder as well as cuts and abrasions to the wrists and ankles from the handcuffs and shackles. (Virella Dep. at 40, Hogan Felix Decl. Ex. F.) When examined by nurse practitioner Diercksen, Virella stated that he had been "assaulted by [the] ERT," and that he also had a bump on his head from Belton striking him with the keys. (Id. at 42.) Diercksen found that Virella had minor scratches to his neck and minor abrasions to his ankles, neither of which required medical intervention.
Belton was taken to the Westchester Medical Center Emergency Room and treated for pain in his right knee and back as well as a swollen right eye and scratched right forearm.
Virella has long suffered from back pain. He was diagnosed with a degenerative disk condition in the early 1990's, and has been provided with both prescription and over-the-counter pain medication for his back throughout his time at Valhalla. After the incident with Belton, Virella continued to take the same medication for back pain. Discussion
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of showing that there are no material facts in dispute, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970), and can discharge this burden by demonstrating that there is an absence of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party then must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), as to every element "essential to that party's case, and on which that party will bear the burden of proof at trial."Celotex, 477 U.S. at 322.
The Court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion."Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1187 (2d Cir. 1987);Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985). However, the Court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party" and grant summary judgment where the nonmovant's evidence is not sufficiently probative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). Because Virella is proceeding pro se, the Court has an obligation to "read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Section 1983 imposes liability on individuals who, while acting under color of state law, deprive a plaintiff of rights, privileges, or immunities guaranteed by the Constitution or laws of the United States. See Gomez v. Toledo, 446 U.S. 635, 640 (1980).
"[T]he right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment." United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999). The Second Circuit applies the same standard to excessive force claims brought under the Fourteenth Amendment as under the Eighth Amendment. Id. at 48. To establish a constitutional violation, and hence a claim pursuant to section 1983, a plaintiff must meet both a subjective and an objective requirement. Id. at 48-49. Subjectively, the plaintiff must demonstrate that the defendant acted wantonly.Hudson v. McMillian, 503 U.S. 1, 7 (1992). The essential question is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. Objectively, the plaintiff must show that the violation is "sufficiently serious or harmful." Walsh, 194 F.3d at 50. Not "every push or shove, even if it may later seem unnecessary in the peace of the judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973). As the Supreme Court has made clear, "[t]he 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 (internal quotation marks omitted).
Even accepting Virella's deposition testimony as true, the alleged assault by Belton and the resulting injuries do not constitute a violation of Virella's constitutional rights. Belton is alleged to have swung his keys at Virella, making "a little contact" with Virella's head (Virella Dep. at 33, Hogan Felix Decl. Ex. F), and causing a bump, but no other injury. Such conduct represents only a de minimis use of force that does not give rise to a constitutional claim. See, e.g., Yearwood v. LoPiccolo, No. 95 Civ. 2544 (DC), 1998 WL 474073, at 1, 7 (S.D.N.Y. Aug. 10, 1998) (choking plaintiff, hitting his head with a pair of keys, and punching him in the lip constituted de minimis force); see also Espinal v. Goord, No. 00 Civ. 2242 (AJP), 2001 WL 476070, at *13 n. 46 (S.D.N.Y. May 07, 2001) (striking plaintiff in face two or three times, causing his face to turn red, but causing no other injuries only de minimis force) (citing cases).
Absent any allegation of his personal involvement, Belton cannot be held liable for any injuries to Virella caused by members of the ERT. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."). Although Virella alleges in his complaint that Belton's actions caused "substantial bodily harm" to his "head, face, chest, back, wrist and ankles" (Compl. ¶ III), there is no evidence that any such injuries other than the bump on his head were caused by Belton. Virella specifically stated at deposition that the scratches and abrasions he suffered were caused by the handcuffs and shackles used by the ERT. Given Virella's history of chronic back pain, and the relative insignificance of Belton's alleged assault compared with the actions of the ERT in restraining Virella, no reasonable finder of fact could conclude on this record that Belton was responsible for any worsening of Virella's back pain that may have occurred.
In his complaint, Virella also alleges that he "was denied medical attention for two full weeks and when seen by medical staff, I was put on the list for x-rays (which I have yet to receive) and all I was given ordered [sic] was anti-biotic cream for my cuts and scrapes and busted lip." (Compl. at 3.) Even if read to allege a claim of deliberate indifference to Virella's serious medical needs, these allegations do not support recovery pursuant to section 1983. Because Virella has not alleged that Belton, the only remaining Defendant, was personally involved in the denial of medical treatment, his deliberate indifference claim also must be dismissed.
Conclusion
For the foregoing reasons, Belton's motion for summary judgment is granted and Virella's complaint is dismissed in its entirety.
Submit judgment on notice.
It is so ordered.