Opinion
9:19-CV-1203 (GTS/TWD)
12-22-2021
ROBERT REED, Plaintiff, v. R. MCGRATH, et al., Defendants.
ROBERT REED Plaintiff, pro se LETITIA JAMES Attorney General of the State of New York Counsel for Defendants LAUREN ROSE EVERSLEY, ESQ. Assistant Attorney General
ROBERT REED Plaintiff, pro se
LETITIA JAMES Attorney General of the State of New York Counsel for Defendants
LAUREN ROSE EVERSLEY, ESQ. Assistant Attorney General
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I.INTRODUCTION
Robert Reed (“Plaintiff”), an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this pro se action pursuant to 42 U.S.C. § 1983, asserting his constitutional rights were violated at Franklin Correctional Facility (“Franklin”). (Dkt. No. 1.) The claims remaining are Eighth Amendment excessive force, Eighth Amendment failure to protect, and Fourteenth Amendment equal protect claims 1 against R. McGrath, G. Dupra, D. Healey, D. Yelle, G. Smythe, Titus, Sr., K. Compo, and K. Bedore (collectively, “Defendants”). (Dkt. No. 8.)
This defendant's name is spelled “Dupro” in the caption. Defendant spells his surname “Dupra” according to the declaration he filed with the Court. (Dkt. No. 53-8.) The Clerk is directed to amend the caption to reflect the correct spelling of Dupra.
Plaintiff now moves for summary judgment. (Dkt. No. 49.) Defendants filed a response and cross-moved for partial summary judgment. (Dkt. No. 53.) Plaintiff responded to Defendants' motion. (Dkt. No. 54.)
The parties' cross-motions have been referred for a Report-Recommendation by the Honorable Glenn T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). For the reasons that follow, the Court recommends Plaintiff's motion for summary judgment be denied and Defendants' cross-motion for partial summary judgment be granted in part and denied in part.
II. RELEVANT BACKGROUND
The verified complaint alleges that on October 24, 2016, at 1:16 p.m. in the E-2 dormitory entryway of Franklin, Plaintiff was “repeatedly kicked and punched” by corrections officers McGrath, Dupra, Healey, Yelle, Smythe, Titus, Sr., and corrections sergeants Compo and Bedore. (Dkt. No. 1 at 4.) Plaintiff was also called a racial slur during the assault. Id. “Some of the officers attempted to break [Plaintiff's] legs and one attempted to pull [his] eye out of the socket.” Id. As a result of the assault, Plaintiff suffered abrasions to his knee, wrist, and lip, redness and bruising on his left shoulder, two black eyes, a “large lump near [his] testicles[, ]” 2 a “lasting back injury[, ]” chest pains, “convulsions[, ] and severe headaches.” Id. Plaintiff also lost a tooth. Id.
Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
Plaintiff seeks summary judgment because “there is not enough evidence to dispute [his] claim that Sergeant Compo used force on [him] and there is not enough evidence to dispute [his] claim that Sergeant Compo used excessive force.” (Dkt. No. 49 at 1.) Defendants oppose Plaintiff's motion and Titus, Sr. and Bedore cross-move for summary judgment for lack of personal involvement. (Dkt. Nos. 53, 53-1.)
It is undisputed that a documented use of force incident occurred on October 24, 2016. (Dkt. No. 53-2 at ¶ 5.) According to Defendants, Compo, McGrath, Dupra, Healey, Smythe, and Yelle reported to the E-2 dormitory in response to a “red dot” alarm wherein a non-party officer alleged that Plaintiff had become “very irate and caused a scene in front of approximately 55 other inmates.” Id. at ¶ 4. Compo avers that he ordered Plaintiff to “assume the pat-frisk position, ” but Plaintiff “came of the wall” and punched Compo. (Dkt. No. 53-3 at ¶¶ 5, 6.) At approximately 1:10 p.m., a documented use of force occurred. (Dkt . No. 53-2 at ¶ 5.)
Titus, Sr. and Bedore seek summary judgment because they were not personally involved in the incident at issue. (Dkt. No. 53-1 at 5-11.) To that end, Defendants submit evidence that Titus, Sr. was not present at the facility on October 24, 2016, as it was his regularly scheduled day off. (Dkt. No. 51-2 at ¶¶ 6, 7.) Defendants submit evidence that Bedore arrived at the E-2 dormitory after the use of force had ceased and “[h]is only involvement-if it could be described as such-was that, at the request of [Compo], he documented the use of force in the necessary logbook.” (Dkt. No. 53-1 at 9-11, Dkt. No. 53-2 at ¶¶ 8-10.) Neither Titus, Sr. nor Bedore are listed on the Use of Force Report. Id. at ¶ 11. 3
In response to Defendants' cross-motion, Plaintiff requests that “Officer Titus be removed from this matter[.]” (Dkt. No. 54 at 1.) However, Plaintiff argues “there is legally sufficient evidence to conclude that Sergeant Bedore was present” and participated in the alleged constitutional violations and, therefore, Bedore should be denied summary judgment. Id. at 3.
III. MOTIONS FOR SUMMARY JUDGMENT
A. Standard of Review
A court “shall grant summary judgment 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). 4
The Second Circuit instructs that on summary judgment motions, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] 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).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (credibility issues, which are questions of fact for resolution by a jury, are inappropriately decided by a court on a motion for summary judgment).
“Where, as here, the parties have cross-moved for summary judgment, a reviewing court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” United States v. Bedi, 453 F.Supp.3d 563, 570 (N.D.N.Y. 2020) (cleaned up). “In undertaking this analysis, it 5 bears noting that a district court is not required to grant judgment as a matter of law for one side or the other.” Id.; see also Residential Mgmt. (N.Y.) Inc. v. Fed. Ins. Co., 884 F.Supp.2d 3, 7 (E.D.N.Y. 2012) (“Cross-motions for summary judgment do not alter the basic standard, but simply require the court to determine whether either of the parties deserves judgment as a matter of law on facts that are not in dispute.”).
“Moreover, the district court considering a summary judgment motion must be mindful of the underlying standards and burden of proof.” Larkins v. Cayuga Cty., No. 9:13-CV-219 (NAM/ATB), 2014 WL 4760064, at *4 (N.D.N.Y. Sept. 24, 2014) (quotation marks and alternations omitted). Accordingly, with respect to Plaintiff's motion, “he bears a much greater initial burden; he must show that the evidence supporting his claims is so compelling that no reasonable jury could return a verdict for the defendant.” Id.
B. Deficiencies in Plaintiff's Motion
Local Rule 56.1(a) requires a party moving for summary judgment to file and serve a Statement of Material Facts. See L.R. 56.1(a) (“Any motion for summary judgment shall contain a separate Statement of Material Facts.” (emphasis added)). “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.” Id. “Each fact listed shall set forth a specific citation to the record where the fact is established.” Id. “Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.” Id. (emphasis in the original).
The Local Rules are not “empty formalities, ” and courts within this District have denied a pro se party's motion for summary judgment based on their failure to file a Statement of Material Facts. See, e.g., A'Gard v. Locke, No. 9:14-CV-0613 (GTS/DEP), 2016 WL 8735653, at *4 6 (N.D.N.Y. June 24, 2016) (denying summary judgment motion because the pro se plaintiff did not comply with the applicable local rules governing motion practice by including a Statement of Material Facts) (citing Riley v. Town of Bethlehem, 5 F.Supp.2d 92, 93 (N.D.N.Y. 1998) (dismissing summary judgment motion based on moving party's failure to file a properly supported Statement of Material Facts as required under the Local Rules)), report-recommendation adopted, 2016 WL 5137273 (N.D.N.Y. Sept. 21, 2016); Diaz v. Smith, No. 9:19-CV-1438 (LEK), ECF No. 73 (same); see also Cusamano v. Sobek, 604 F.Supp.2d 416, 426-27 & n.4 (N.D.N.Y. 2009) (Suddaby, J.) (“As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.”) (collecting cases).
Here, Plaintiff filed a single document entitled “Summary Judgment Motion FRCP Rule 56” that blends a notice of motion with a memorandum of law. (Dkt. No. 49.) Plaintiff did not include a separate Statement of Material Facts as required under Local Rule 56(1)(a). Because Plaintiff has not complied with the Local Rules governing motion practice by including the required Statement of Material Facts, the Court recommends denying Plaintiff's motion for summary judgment.
Additionally, even were the Court to overlook Plaintiff's failure to comply with the Local Rules, the undersigned agrees with Defendants that Plaintiff's motion demonstrates there are genuine disputes of material facts in this case. (See Dkt. No. 53-1 at 11-14.)
As stated above, the crux of Plaintiff's motion for summary judgment is that “there is not enough evidence to dispute [his] claim that Sergeant Compo used forced on [him] and there is not enough evidence to dispute [his] claim that Sergeant Compo used excessive force on [him].” (Dkt. No. 49 at 1.) Plaintiff seems to suggest that because a documented use of force occurred 7 on October 24, 2016, the evidence establishes that Defendants, and especially Compo, subjected him to excessive force. Id. at 2-4. Plaintiff is incorrect.
To establish an excessive force claim, the inmate must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, 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) (internal quotation marks omitted) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). The key inquiry into a claim of excessive force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
In his declaration, Compo avers that he responded to a “red dot” alarm to interview Plaintiff regarding the alleged disturbance he caused in in the E-2 dormitory. (Dkt. No. 53-7 at ¶ 5.) After Plaintiff was escorted to the foyer area of the dormitory, Compo instructed Plaintiff to “assume the pat-frisk position.” Id. at ¶ 6. However, Plaintiff “turned off of the wall” and punched Compo in the face. Id. Compo's account of the incident is corroborated by the Use of Force Report. (Dkt. No. 53-3 at 85-87.) Additionally, Dupra, Healey, McGrath, Smythe, and Yelle each declare that they responded to the “red dot” alarm and although they were present for the documented use of force on October 24, 2016, they did not assault Plaintiff or witness any other officer, including Compo, assault Plaintiff. (Dkt. Nos. 53-8 at ¶ 8, 53-9 at ¶ 8, 53-10 at ¶ 8, 53-11 at ¶ 8, 53-12 at ¶ 8.)
Conversely, Plaintiff testified that, while his hands were against the wall, “as soon as Sergeant Compo came out of the door -- came through the door, he punched me. And that's --that's how this - this all started.” (Dkt. No. 53-3 at 23.) Plaintiff further testified that Bedore, 8 Dupra, Healey, McGrath, Smythe, and Yelle proceeded to assault him by beating, punching, and kicking him. Id. Plaintiff was forced to the ground; they tried to break his leg and used a racial slur. Id.
Here, the competing evidence rests on the credibility of Plaintiff on one hand and Defendants on the other. In these circumstances, the governing law that the evidence must be viewed in the light most favorable to the nonmoving party requires the Court to credit Defendants' version of the events for purposes of Plaintiff's motion for summary judgment. Coleman v. Racette, No. 9:18-CV-0390 (MAD/CFH), 2021 WL 4312392, at *8 (N.D.N.Y. May 27, 2021), report-recommendation adopted, 2021 WL 3508342 (N.D.N.Y. Aug. 10, 2021); In re Dana Corp., 574 F.3d 128, 152 (2d Cir. 2009) (holding that a court faced with a motion for summary judgment must draw all reasonable inferences in favor of the nonmoving party and may not make credibility determinations or weigh the evidence, functions which are reserved to a jury and not a judge) (citing cases). As such, Defendants have raised a material issue of fact as to “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7.
In sum, even if the Court were to overlook Plaintiff's failure to submit a Statement of Material Facts as required by Local Rule 56(1)(a), such conflicting allegations represent a genuine dispute of a material fact in this case that also precludes granting summary judgment to Plaintiff. Accordingly, the Court recommends that Plaintiff's motion for summary judgment be denied. 9
The Court agrees with Defendants that any concerns or allegations regarding the falsification of documents or party testimony are issues for trial as it would require the “type of credibility assessment that had been explicitly reserved for the finder of fact, be it the trial judge or a jury.” (Dkt. No. 53-1 at 13 (quoting Wilson v. Deluca, No. 9:11-CV-00030 (MAD), 2014 WL 991862, at *9 (N.D.N.Y. Mar. 12, 2014)).)
C. Deficiencies in Plaintiff's Opposition
While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In opposing Defendants' cross-motion for partial summary judgment motion, Plaintiff failed to respond to the Statement of Material Facts filed by Defendants in the manner required under Local Rule 56.1(b). (Dkt. No. 54.) “This requirement is not a mere formality; rather ‘this and other local rules governing summary judgment are essential tools intended to relieve the district court of the onerous task of hunting through voluminous records without guidance from the parties.'” Cao-Bossa v. New York State Dep't of Lab., No. 1:18-CV-0509 (GTS/TWD), 2021 WL 3674745, at *1 (N.D.N.Y. Aug. 19, 2021).
Local Rule 56.1(b) requires the opposing party to file a Response to the movant's Statement of Material Facts. Under the rule, the Response “shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises.” L.R. 56.1(b).
Where, as in this case, a party has failed to respond to the movant's Statement of Material Facts in the manner required under Local Rule 56.1(b), the facts in the movant's statement to which the plaintiff has not properly responded will be accepted as true (1) to the extent that they are supported by evidence in the record, and (2) provided that the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). 10
Defendants provided Plaintiff with the requisite notice of the consequences of his failure to respond to the motion. (Dkt. No. 53 at 3.)
Accordingly, the facts set forth in Defendants' Statement of Material Facts (Dkt. No. 53-2) that are supported by record evidence and are uncontroverted by nonconclusory allegations in Plaintiff's verified complaint and opposition submission will be accepted as true. See McAllister v. Call, No. 9:10-CV-610 (FJS/CFH), 2014 WL 5475293, at *3 (N.D.N.Y. Oct. 29, 2014) (finding allegations in plaintiff's verified complaint sufficient to controvert facts in statement of material facts on motion for summary judgment); Douglas v. Perrara, No. 9:11-CV-1353 (GTS/RFT), 2013 WL 5437617, at *3 (N.D.N.Y. Sept. 27, 2013) (“Because Plaintiff has failed to raise any question of material fact, the Court will accept the facts as set forth in Defendants' Statement of Facts . . . supplemented by Plaintiff's verified complaint . . . as true.”). As to any facts not contained in Defendants' Statement of Material Facts, the Court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
D. Personal Involvement
Titus, Sr. and Bedore cross-move for summary judgment arguing they were not personally involved in the alleged constitutional violations. (Dkt. No. 53-1 at 5-11.)
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a Section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “[D]irect participation as a basis of liability in this context requires intentional participation in the conduct constituting a violation of the victim's rights by one who 11 knew of the facts rendering it illegal.” Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (internal quotation marks omitted).
Recently, the Second Circuit concluded that “there is no special rule for supervisory liability” and held that a “plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, had violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020). To avoid summary judgment, a plaintiff must establish that the defendant violated the constitution by his or her “own conduct, not by reason of [the defendant's] supervision of others who committed the violation” and cannot “rely on a separate test of liability specific to supervisors.” Id. The “factors” necessary to plead and establish a Section 1983 violation “‘will vary with the constitutional provision at issue' because the elements of different constitutional violations vary.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
As set forth above, to establish a prima facie Eighth Amendment excessive force claim, a plaintiff must prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and (2) objectively, that the defendant's actions violated “contemporary standards of decency.” Blyden, 186 F.3d at 262-63. Further, in order to establish an Eighth Amendment failure to protect claim, a plaintiff must show that he was incarcerated under conditions posing a substantial risk of serious harm, and prison officials acted with deliberate indifference to that risk and the inmate's safety. Farmer v. Brennan, 511 U.S. 825, 836 (1994). Deliberate indifference exists when “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. With respect to a Fourteenth Amendment equal protection claim, “[c]ourts in this circuit and elsewhere have held 12 that officers' use of racial epithets may be regarded as direct evidence of racial animus and, when combined with physical abuse or other unlawful actions, may establish an equal protection violation.” Ali v. Connick, 136 F.Supp.3d 270, 280 (E.D.N.Y. 2015).
A personal involvement inquiry on summary judgment “examines only whether there is record evidence to support a factfinder's conclusion that the individual under consideration was involved in the alleged conduct.” Brandon v. Schroyer, No. 9:13-CV-0939 (TJM/DEP), 2016 WL 1638242, at *14 (N.D.N.Y. Feb. 26, 2016) (quotation omitted), report-recommendation adopted, 2016 WL 1639904 (N.D.N.Y. Apr. 25, 2016), rev'd on other grounds sub nom. Brandon v. Kinter, 938 F.3d 21 (2d Cir. 2019). A plaintiff's verified complaint and deposition testimony constitutes such evidence and “[a]ny discrepancies or inconsistencies in [the] plaintiff's testimony are for a jury to assess.” Latouche v. Tompkins, No. 9:09-CV-308 (NAM/RFT), 2011 WL 1103045, at *5 (N.D.N.Y. Mar. 23, 2011).
“Personal involvement is generally a question of fact and summary judgment may be granted only where the defendant establishes that no issues of material fact exist such that the defendant is entitled to summary judgment as a matter of law.” Guarneri v. Hazzard, No. 9:06-CV-985 (NAM/DRH), 2010 WL 1064330, at *23 (N.D.N.Y. Mar. 22, 2010) (quoting Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986) (citing Fed.R.Civ.P. 56(c) and cases)).
1.Titus, Sr.
The undisputed record evidence demonstrates Titus, Sr. was not present at Franklin on October 24, 2016. (Dkt. No. 53-2 at ¶ 7.) At his deposition, Plaintiff testified that Titus, Sr. “wasn't the guy that I was thinking he was” and that “another guy identified [Titus, Sr.]” as one of the officers involved in the use of force. (Dkt. No. 53-3 at 29-30.) Moreover, in his response 13 to Defendants' motion, Plaintiff “request[s] that Officer Titus be removed from this matter[.]” (Dkt. No. 54 at 1.)
Accordingly, the Court recommends granting Defendants' cross-motion for summary judgment as to Titus, Sr. on this ground.
2.Bedore
The Court reaches a different result, however, as to Bedore. To be sure, Defendants have marshalled evidence indicating Bedore was not personally involved in the alleged constitutional violations. (Dkt. No. 53-2 at ¶¶ 8, 12.) For one, Bedore flatly denies being present during the documented use of force and further declares that he never used excessive force on Plaintiff on the date at issue or at any other time. (Dkt. No. 53-4 at ¶¶ 5, 10.) Bedore declares that when he arrived in the E-2 dormitory on October 24, 2016, the use of force had ceased, and Plaintiff had been placed in mechanical restraints and was being transported to the infirmary. Id. at ¶ 6. For his part, Bedore states he only documented the use of force in the logbook. Id. at ¶ 7.
As pointed out by Defendants, these facts are consistent with the memorandum Bedore authored on November 9, 2016, as part of the investigation into Plaintiff's grievance concerning the October 24, 2016 use of force, as well as the declarations of Compo, Dupra, Yelle, Healey, McGrath, and Smythe and the Use of Force Report, all of which state that Bedore was not present at or involved in the use of force. (Dkt. No. 51-1 at 9; Dkt. Nos. 53-4 at ¶ 9, 54-7 at ¶¶ 4, 9; 54-8 at ¶¶ 4, 7; 54-9 at ¶¶ 4, 7; 54-10 at ¶¶ 4, 7; 54-11 at ¶¶ 4, 7; 54-12 at ¶¶ 4, 7; 54-3 at 85-87.)
Conversely, according to Plaintiff's verified amended complaint and deposition testimony, Bedore was not only present during the October 24, 2016, assault, but Bedore was 14 one of the officers that subjected Plaintiff to the excessive force. (Dkt. No. 1 at 4, Dkt. No. 53-3 at 29, 44-47.) To that end, Plaintiff testified:
Q: Now you mention Sergeant -- Sergeant Bedore, where was he during this?
A: He was -- he was on the left side of me, close to the door, he was closest to the door.
Q: And what are your basis for your claims against him, what was he doing during this incident?
A: He was hitting me. He was punching me, kicking me.(Dkt. No. 53-3 at 29.) Defendants have acknowledged as much in their memorandum of law:
With respect to defendant Bedore, contrary to plaintiff's testimony at his deposition, see Eversley Decl. ¶ 3, Exhibit “A” at p. 26, defendant Bedore did not witness nor did he participate in the use of force. See Bedore Decl. ¶ 5.(Dkt. No. 53-1 at 9.) Nevertheless, Defendants contend summary judgment is warranted because Bedore proffers “persuasive documentary evidence to corroborate [his] sworn affidavit that” he did not participate or witness the alleged constitutional violation. (Dkt. No. 53-1 at 9-10.)
But as this Court has held, “the weighing of such competing evidence, no matter how weak plaintiff's claim may appear, presents a question of credibility that must be left to the trier of fact.” Cirio v. Lamora, No. 08-CV-431 (GLS/DEP), 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010), report-recommendation adopted, 2010 WL 1063864 (N.D.N.Y. Mar. 22, 2010). “And while it is true that the only piece of evidence [Plaintiff] offers on this score is his own self-serving testimony, that ‘can establish a genuine dispute of fact so long as [it] does not contradict the witness's prior testimony.'” Waters v. Prack, No. 9:13-CV-1437 (LEK/DEP), 2017 WL 1187871, at *1 (N.D.N.Y. Mar. 30, 2017) (quoting Dye v. Kopiec, No. 16-CV-2952, 2016 WL 7351810, at *3 (S.D.N.Y. Dec. 16, 2016) (collecting cases)). 15
In sum, while Plaintiff and Defendants provide different accounts of the events that transpired on October 24, 2016, there are genuine material issues of fact concerning Bedore's personal involvement in the alleged constitutional violations.
The Court has carefully considered the cases relied upon by Defendants in their memorandum of law wherein this Court has granted summary judgment for lack of personal involvement where the defendant proffers “persuasive documentary evidence to corroborate [his or her] sworn affidavit that” he or she did not participate in the alleged constitutional violation and finds them factually and procedurally distinguishable. (Dkt. No. 53-1 at 9-10.)
Accordingly, the Court recommends denying Defendants' cross-motion for summary judgment as to Bedore on this ground.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Plaintiff's motion for summary judgment (Dkt. No. 49) be DENIED; and it is further
RECOMMENDED that Defendants' cross-motion for partial summary judgment (Dkt. No. 53) be GRANTED insofar as it seeks dismissal of Plaintiff's claims against Titus, Sr., and DENIED insofar as it seeks dismissal of Plaintiff's claims against Bedore, and it is further
RECOMMENDED that Titus, Sr. be DISMISSED from this action with prejudice; and it further
ORDERED that the Clerk amend the docket to reflect the correct spelling of Dupra; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 16
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED. 17