GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in this pro se prisoner civil rights action filed by Eugene A. Bowling, Jr. ("Plaintiff") against the four above-captioned employees of the Washington County Jail ("Defendants"), are the following: (1) Defendants' motion for summary judgment; (2) a Report-Recommendation recommending that Defendants' motion be denied; and (3) Defendants' Objections to the Report-Recommendation. (Dkt. Nos. 27, 39, 42.) For the reasons set forth below, the Report-Recommendation is accepted except for the limited portion that recommends the dismissal of Plaintiff's excessive force claim against Defendant VanArnum arising from the incident outside Plaintiff's cell, which is rejected.
Generally, the Report-Recommendation renders the following four findings of fact and conclusions of law: (1) that genuine disputes of material fact exists regarding whether Plaintiff exhausted his available administrative remedies before filing his excessive-force claim in this Court; (2) that, as a result of the aforementioned genuine disputes of material fact, a hearing be held with regard to Defendants' exhaustion defense; (3) that, even setting aside the aforementioned genuine dispute of material fact, a separate genuine dispute of material fact exists regarding whether Defendants acted reasonably in using force against Plaintiff both outside of his cell door and in the shower area; and (4) that, for the same reasons, a genuine dispute of material fact exists regarding whether the doctrine of qualified immunity protects Defendants from liability on Plaintiff's excessive-force claim as a matter of law. (Dkt. No. 39, at Part IV.)
Generally, in their Objections, Defendants assert the following four arguments: (1) the Report-Recommendation erred to the extent it recommended the denial of Defendants' request for judgment on Plaintiff's excessive-force claim against them arising from the cell incident because (a) the Report-Recommendation overlooked video evidence showing that Plaintiff ignored Defendant Jamieson's direct orders to vacate his cell and then (after being removed from his cell) attempted to strike Defendant Jamieson, (b) the reasonableness of Defendants' use of force (which did not involve a baton, pepper spray or Taser) is indisputable given Plaintiff's admissions and staff testimony, (c) any testimony to the contrary by Plaintiff (with regard to the cell incident) is so replete with inconsistencies that it can be found incredible by the Court pursuant to the Second Circuit's decision in Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005), and (d) at the very least, Plaintiff has admitted that Defendant VanArnum did not assault him outside of his cell (and he has not brought a failure-to-intervene claim against Defendant VanArnum); (2) in any event, Defendants are protected from liability with regard to that cell incident by the doctrine of qualified immunity as a matter of law; (3) the Report-Recommendation erred to the extent it recommended the denial of Defendants' request for judgment on Plaintiff's excessive-force claim against Defendant Tripp arising from the shower incident, because Plaintiff admitted under oath that Defendant Tripp did not strike or punch him while he was in the shower area (and because he has not brought a failure-to-intervene claim against Defendant Tripp); and (4) in any event, Defendant Tripp is protected from liability with regard to that shower incident by the doctrine of qualified immunity as a matter of law. (Dkt. No. 42.)
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.
After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
After carefully considering the matter, the Court finds no clear error in those portions of the Report-Recommendation to which Defendants have not specifically objected: the Report-Recommendation employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, those portions of the Report-Recommendation are accepted and adopted in their entirety for the reasons stated therein. With regard to the remaining portions of the Report-Recommendation, the Court performs the following de novo review.
With regard to the first argument asserted in Defendants' objections (see, supra, Part I of this Decision and Order), the Court largely rejects it. Clearly, the United States magistrate judge who authored the Report-Recommendation both viewed the video and acknowledged the indisputability of the fact that Plaintiff ignored Defendant Jamieson's direct orders to vacate his cell. (See Dkt. No. 39, at 2, 10, 11 & n.2 [referencing video]; Dkt. No. 39, at 2, 10 ["Defendant[] Jamieson. . . ordered him to leave. . . . Plaintiff admits that he refused three orders to leave his cell. . . . Plaintiff concedes that he was not compliant with directions to come out of his cell. . . ."].) The Court has carefully reviewed the video and other record evidence and finds that, although a jury viewing the incident would probably conclude that Defendants acted reasonably, the jury could not be deemed irrational for concluding that Defendants acted unreasonably.
For example, although the video does show that Plaintiff was resisting before he was brought to the ground (e.g., refusing to come out of his cell, turning away from the fence in front of his cell, holding onto the fence, attempting to grab onto Defendant Jamieson, etc.), it does not indisputably show that Plaintiff attempted to strike and/or punch Defendant Jamieson. (Dkt. No. 27, Attach. 3, at 7:30-7:55 [Video].) Moreover, it shows Defendant Jamieson waiting only four seconds after the door fully opened before grabbing Plaintiff's shirt and then also grabbing his face. (Id.) Furthermore, it does not show what sort of purported face pushing, rib punching, arm twisting and blood choking could have occurred in what the magistrate judge aptly calls a "scrum." (Compare id. at 7:55-8:56 with Dkt. No. 27, Attach. 5 and 32-36, 41, 54-55 [attaching pages "32," "34," 35," "36," "41," "56" and "57" of Plf.'s 50-h Hearing Transcript] and Dkt. No. 36, at 19 [Plf.'s Letter] and Dkt. No. 36, at 24 [Plf.'s Medical Record].) Finally, the Court does not find Plaintiff's testimony to be sufficiently self-contradictory to trigger the credibility determination authorized by Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005), except for Plaintiff's testimony regarding Defendant VanArnum.
The sole portion of Defendants' first argument that persuades the Court is the portion regarding Defendant VanArnum. In his verified Complaint (which has the force and effect of an affidavit and is part of the record on a motion for summary judgment), Plaintiff swears that "`Sargeant' [sic] Vanarnald. . . started assulting [sic] me punching me in the ribs steching [sic] my arms behind my back and puting [sic] a hard object behind my ear until somthing [sic] poped [sic] and blood started comming [sic] from my mouth." (Dkt. No. 1, at 4.) However, in his deposition, Plaintiff admitted that, although other inmates informed him that Defendant VanArnum was among the officers who had assaulted him, he did not agree: "I don't actually think he assaulted me. He was just telling me to shut the F up otherwise he was going to slam my head against the gate. . . . I just think he should be responsible because he was there too." (Dkt. No. 27, Attach. 5, at 46-47, 51 [attaching pages "48," "49," and "53" of Plf.'s 50-h Hearing Transcript].) As a result, in order decide whether to permit this claim to reach a jury, the Court must decide which of these two pieces of contradictory testimony to believe. After carefully considering the matter, the Court chooses the latter piece of evidence because (1) it was rendered after the former piece of evidence, (2) it is more specific than the former piece of evidence, and (3) it explains, and rejects, the source of the first piece of evidence.
With regard to any argument that Plaintiff's claim against Defendant VanArnum (arising from the cell incident) is actually one of a failure to intervene, Defendants are correct that Plaintiff has expressly asserted an excessive-force claim, not a failure-to-intervene claim, against VanArnum. (Dkt. No. 1, at 5 [Plf.'s Complaint, asserting First Claim of "Use of Excessive Force"].) Although a court is to liberally construe a pro se plaintiff's complaint as asserting the strongest claims that they suggest, here, the factual allegations of Plaintiff's Complaint plausibly suggest, at most, an excessive-force claim. (Id. at 4 [alleging "that's when `Sargeant' [sic] Vanarnald. . . started assulting [sic] me punching me in the ribs steching [sic] my arms behind my back and puting [sic] a hard object behind my ear until somthing [sic] poped [sic] and blood started comming [sic] from my mouth"].) Moreover, the deadline for motions to amend Plaintiff's Complaint expired on November 19, 2018. (Dkt. No. 15, at 4.) One might argue that the Court should sua sponte set aside both that deadline and the need for a motion to amend, and permit Plaintiff to file an Amended Complaint adding a failure-to-intervene claim against Defendant VanArnum. However, doing so would transform the Court from an umpire into a pinch hitter. Moreover, the Court would also need to reopen discovery (which closed on January 21, 2019) to permit Defendant VanArnum a fair chance to defend himself against this new claim. (Id.) This case is almost two years old. Plaintiff has had more than a fair chance to hold Defendant VanArnum accountable for whatever occurred in the "scrum" outside of his cell on November 9, 2017.
For all of these reasons, the Court dismisses Plaintiff's excessive-force claim against Defendant VanArnum to the extent it arises from the cell incident.
With regard to Defendants' second argument, the Court rejects it. Although the Court may revisit this issue at the end of trial (based on responses from the jury to the Court's special interrogatories), the Court finds at this point, based on the current evidence, that a genuine dispute of material fact exists regarding whether Defendants (other than VanArnum) used unreasonable force against Plaintiff outside his cell (e.g., punching his ribs and pushing his face until he was choking on blood, at a time he was no longer resisting), in violation of law that was clearly established at the time.
With regard to Defendants' third argument, the Court also rejects it. Defendants are incorrect that, in his deposition, Plaintiff admitted under oath that Defendant Tripp did not strike or punch him while he was in the shower area. Rather, in his deposition, Plaintiff testified that Defendant VanArnum "[g]rabbed the back of [his] head" and "slammed" or "smashed" his "face" against a wall, causing him to "f[a]ll to the floor." (Dkt. No. 27, Attach. 5, at 56 [attaching page "58" of Plf.'s 50-h Hearing Transcript].)
Finally, with regard to Defendants' fourth argument, the Court also rejects it. Although the Court may revisit this issue at the end of trial (based on responses from the jury to the Court's special interrogatories), the Court finds at this point, based on the current evidence, that a genuine dispute of material fact exists regarding whether Defendant VanArnum used unreasonable force against Plaintiff in the shower area (e.g., kicking him in the ribs), in violation of law that was clearly established at the time.
