EDGARDO RAMOS, District Judge.
Plaintiff Raymond Lewis ("Plaintiff"), currently incarcerated and appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that his civil rights were violated while he was in Clarkstown Police Department custody. Docs. 2, 12.
Plaintiff brings suit against both the Clarkstown Police Department and Gorsky (together, "Defendants"), seeking damages in an amount of ten million dollars. Id.
For the reasons discussed below, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.
The following facts are undisputed except where otherwise noted.
Gorsky ordered Plaintiff to stop punching the walls, but Plaintiff failed to do so. See Gorsky Aff. at 4. Gorsky claims that he then warned Plaintiff that he would be pepper sprayed if his behavior continued. Id. At a certain point, Gorsky sprayed Plaintiff with oleoresin capsicum ("OC") gel. See id. at 5.
Gorsky took no additional measures to control Plaintiff's behavior beyond that point. See id. at 7. Instead, Plaintiff was left alone and eventually calmed down, using water from the basin in the holding cell to remove the OC gel. See id. The officers returned the long-sleeve shirt that they had taken from him subsequent to the arrest and that, as a result, did not have any OC gel on it. See id. He was then taken to his arraignment. See id.
Following Plaintiff's arraignment, he was taken to the Rockland County Correctional Facility. See id. An intake evaluation was performed upon his arrival (at 12:00 a.m. on December 23, 2010). See Decl. of Harold Y. MacCartney, Jr. in Supp. Ex. E.
Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is "material" if it might affect the outcome of the litigation under the governing law. Id.
The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the burden of proof at trial would fall on the movant, that party's "own submissions in support of the motion must entitle it to judgment as a matter of law." Albee Tomato, Inc. v. A.B. Shalom Produce Corp., 155 F.3d 612, 618 (2d Cir. 1998). Conversely, "[w]hen the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim." Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp., 477 U.S. at 322-23). If the moving party meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp., 477 U.S. at 322-23).
In deciding a motion for summary judgment, the Court must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)) (internal quotation marks omitted). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). The non-moving party must do more than show that there is "some metaphysical doubt as to the material facts." McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (internal quotation mark omitted). To defeat a motion for summary judgment, "the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor." Senno, 812 F. Supp. 2d at 467-68 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986)).
The Second Circuit has made clear that "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) (citing Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)). Pro se litigants' submissions are "held `to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Young v. N.Y.C. Dep't of Educ., No. 09 Civ. 6621, 2010 WL 2776835, at *5 (S.D.N.Y. July 13, 2010) (noting that the same principles apply to briefs and opposition papers filed by pro se litigants). Although "pro se status `does not exempt a party from compliance with relevant rules of procedural and substantive law,'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)), courts read the pleadings and opposition papers submitted by pro se litigants "liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "However, a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y. 1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Defendants assert, and Plaintiff concedes, that the Clarkstown Police Department is not properly named as a Defendant in this case. See Defs.' Mem. of Law in Supp. at 11-12; Pl.'s Reply Aff. in Opp'n at 1; see also Polite v. Town of Clarkstown, 60 F.Supp.2d 214, 216 (S.D.N.Y. 1999) ("Under law of the State of New York, `a department of a municipal entity is merely a subdivision of the municipality and has no separate legal existence.' Therefore, municipal departments in this State—such as the Clarkstown Police Department—are not amenable to suit, and no claims can lie directly against them." (citation omitted) (quoting Hoisington v. Cnty. of Sullivan, 55 F.Supp.2d 212, 214 (S.D.N.Y. 1999))). As such, all claims against the Clarkstown Police Department are dismissed with prejudice.
"While the Eighth Amendment's protection [against cruel and unusual punishment] does not apply `until after conviction and sentence,' the 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) (citations omitted) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)). The same legal standard applies regardless of the amendment under which the claim arises. Id. at 48. That standard "has two components—one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000).
The subjective component goes to the defendant's intent, asking "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). The factors to be examined include:
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) (quoting Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)).
The objective component focuses on whether the alleged use of force was "sufficiently serious or harmful enough." Walsh, 194 F.3d at 50. This determination is "contextual and responsive to `contemporary standards of decency.'" Hudson, 503 U.S. at 8 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). "An excessive force claim may be established even where plaintiff does not suffer a serious or significant injury, provided that it is shown that the amount of force used is more than de minimis or the use of the force is `repugnant to the conscience of mankind.'" Gashi v. Cnty. of Westchester, No. 02CV 6934GBD, 2007 WL 749684, at *5 (S.D.N.Y. Mar. 12, 2007) (quoting Walsh, 194 F.3d at 47-48). A defendant's "malicious use of force to cause harm" always violates contemporary standards of decency and therefore triggers a per se constitutional violation. See Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (citing Hudson, 503 U.S. at 9).
Based on the evidence currently before the Court, the Court cannot conclude that Plaintiff's excessive force claim fails as a matter of law. To the contrary, the evidence in the record reveals significant disputes of material fact regarding the circumstances surrounding Gorsky's use of OC gel.
First, while there is no dispute about Plaintiff's behavior while in the holding cell, the parties present very different explanations as to what triggered that behavior. Gorsky maintains that the post-arrest inventory of Plaintiff's property yielded $100 and that, because Plaintiff claimed he had $180 at the time of his arrest, Plaintiff was reacting to a perceived monetary theft. Gorsky Aff. at 3. Plaintiff, however, contends that the money count was never an issue. See Pl.'s Reply Aff. in Opp'n at 2-3 ("The `fact' is that Sgt. Gorsky showed Plaintiff the money, told him how much was there and Plaintiff said fine, then reiterated his request to be taken to the hospital ...."). Instead, according to Plaintiff, he was upset because the officers were ignoring his requests to be taken to the hospital to be treated for an asthma attack. Id. at 2-3, 8; see also id. at 4 (asserting that Gorsky and his colleagues "laughed at Plaintiff's need for medical attention which caused Plaintiff's highly agitated state").
To buttress his version of events, and in an effort to challenge the credibility of Gorsky's story, Plaintiff has produced an account statement from the Rockland County Correctional Center.
In addition, the record reflects disagreement concerning the amount of OC gel that was used. Gorsky says that he initially deployed six or seven short bursts, followed by one or two more when he returned. Gorsky Aff. at 5-6. Plaintiff's testimony appears to challenge those counts, asserting the Gorsky sprayed him with enough OC gel to "soak" his shirt. See Pl.'s Reply Aff. in Opp'n at 7, 9.
The crux of Defendants' argument is that Gorsky's use of OC gel was justified by the fact that Plaintiff refused to comply with multiple orders to stop his disruptive behavior. See Defs.' Mem. of Law in Supp. at 13, 15, 18. However, the cases to which Defendants cite as supporting he use of pepper spray in such situations are readily distinguishable. In Adilovic v. County of Westchester, No. 08 CIV. 10971 PGG, 2011 WL 2893101 (S.D.N.Y. July 14, 2011), the plaintiff was outside his cell and suffering from delirium when he ignored a correction officer's order. Id. at *5. In Kopy v. Howard, No. 9:07-CV-417 DNH/RFT, 2010 WL 3808677 (N.D.N.Y. Aug. 11, 2010), the plaintiff was again outside of his cell when he ignored the officer's orders, and there was no dispute that the plaintiff was warned before the pepper spray was used. Id. at *3. Moreover, the plaintiff in that case had failed to respond to the defendant's motion. Id. at *1. Gashi v. County of Westchester, No. 02CV 6934GBD, 2007 WL 749684 (S.D.N.Y. Mar. 12, 2007), did not involve the use of pepper spray at all.
With respect to the objective prong, Plaintiff concedes that the harm inflicted by the OC gel was of limited duration. See Decl. of Harold Y. MacCartney, Jr. in Supp. Ex. B, at 114:8-114:14; Pl.'s Reply Aff. in Opp'n at 8 (expressing uncertainty over the precise duration of the OC gel's effects). But that alone does defeat Plaintiff's claim; if it did, police and corrections officers would essentially be able to utilize pepper spray and similar chemical agents with impunity. As noted above, the objective prong is context-driven, and even de minimis force can be deemed excessive if its use is "repugnant to the conscience of mankind." The same disputed facts that precluded summary judgment on the subjective prong therefore create a genuine issue for trial with respect to the objective prong. And, as discussed in more detail below, there is also a factual dispute as to whether Plaintiff was suffering from an asthma attack. If he was, then a reasonable trier of fact could find that the use of OC gel in that context was sufficiently repugnant to render it excessive.
Ultimately, Defendants' arguments ask the Court to make a credibility determination in their favor and against Plaintiff. This is precisely the type of fact-finding that the Court is precluded from undertaking at the summary judgment phase. Whether Plaintiff will be able to successfully prove his case beyond a preponderance of the evidence is a question for another day. For purposes of the instant motion, however, the state of the record is such that Plaintiff can take his case to trial.
As with excessive force claims, claims brought by state pretrial detainees alleging deliberate indifference to serious medical needs arise under the Fourteenth Amendment, but the standard is the same as if they were brought under the Eighth Amendment. See Caiozzo v. Koreman, 581 F.3d 63, 69-72 (2d Cir. 2009). Once again, the analysis contains both objective and subjective prongs. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994).
To satisfy the objective prong, the alleged deprivation must be "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). To be "sufficiently serious," there must be "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66 (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)).
To satisfy the subjective prong, the plaintiff must demonstrate that "the charged official ... act[ed] with a sufficiently culpable state of mind." Id. The requisite state of mind is the equivalent of criminal recklessness, wherein "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.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). There are two possible bases for Plaintiff's deliberate indifference claim: (1) the effects of the OC gel itself and (2) Plaintiff's claim that he was suffering from an asthma attack.
The asthma allegation is a different story. While merely "[b]eing an asthmatic (a person susceptible to asthma attacks) is not a condition, in Eighth Amendment parlance, that is severe or `sufficiently serious,'" courts distinguish the mere "existence of the condition . . . from the situation in which an inmate is suffering an actual attack." Patterson v. Lilley, No. 02 CIV.6056 NRB, 2003 WL 21507345, at *4 (S.D.N.Y. June 30, 2003). Here, Plaintiff's claim is based on the latter: he specifically maintains that he told Gorsky that he needed to go to the hospital because he was suffering an attack. See Pl.'s Reply Aff. in Opp'n at 4 ("Contrary to Sgt. Gorsky's assertion that Plaintiff refused to tell him why he needed to go to the hospital, Plaintiff in fact told Sgt. Gorsky that he was asthmatic and was having an attack." (emphasis added)). Thus, to the extent that there are genuine issues of material fact as to whether Plaintiff actually was experiencing an asthma attack while in pretrial detention, those issues preclude summary judgment on the objective prong.
Factual disputes on this point are prevalent in the record. Gorsky, of course, disputes Plaintiff's assertion that he told him about the alleged attack. See Gorsky Aff. at 4 (indicating that Plaintiff "would not describe his symptoms or his ailment"). Moreover, relying on his past experience as a certified emergency medical technician ("EMT"), Gorsky states that, "based upon [his] observations, [Plaintiff] was not suffering from an asthma attack at the time the OC gel was deployed and the exposure to OC gel did not precipitate any asthma attack." Gorsky Aff. at 2, 5-6. That Gorsky had medical training, however, does not entitle the Court to make credibility determinations in his favor. While Plaintiff's affidavit does not provide details regarding his alleged symptoms, the Court, mindful of Plaintiff's pro se status, will not draw negative inferences against him on that basis alone. In other words, while Plaintiff can be cross-examined regarding the symptoms he was experiencing, the Court cannot make a determination on this record that Plaintiff was not having an asthma attack or find that the alleged asthma attack was insufficiently serious as a matter of law. See Bost v. Bockelmann, No. 9:04-CV-0246 GLSDEP, 2007 WL 527320, at *9 (N.D.N.Y. Feb. 20, 2007) (adopting the magistrate's recommendation that, "[a]lthough [pro se] plaintiff does not describe the extent of his asthma or its attendant symptoms, when plaintiff is given the benefit of every inference such a condition could potentially be viewed as a serious medical condition"). Defendants point to the security video and to the prison medical records in an effort to corroborate Gorsky's account. See Defs.' Mem. of Law in Supp. at 23; Defs.' Reply Mem. of Law in Supp. at 4, 9-10. Defendants assert that the "video shows no evidence that the plaintiff was wheezing, coughing or gasping for air." Defs.' Reply Mem. of Law in Supp. at 4. First, given the absence of audio and the fact that the footage was shot from the ceiling outside the cell, the Court is unable to make a conclusive factual determination on this point. More importantly, however, the Court is not in a position to conclude that the absence of any such symptoms would definitely establish that Plaintiff was not experiencing an attack. That type of medical assessment is not one the Court is competent to make as a matter of law.
The medical records are equally unavailing. Although the initial medical intake form characterized Plaintiff as a "routine admission," he was given two puffs from an inhaler shortly thereafter and his medical evaluation three hours later reported shortness of breath. Determining what inferences, if any, to draw regarding Plaintiff's condition in the holding cell on the basis of these records is thus an evidentiary matter necessitating a finding of fact. That is particularly so where, as here, the records on their face seem to support alternative inferences. In other words, the medical records in this case do not, as a matter of law, preclude an inference that Plaintiff experienced an asthma attack earlier in the evening.
The Court similarly finds that material questions of fact exist with regard to Gorsky's culpability. As discussed, Plaintiff maintains that he told Gorsky he was experiencing an asthma attack. He further claims that the OC gel exacerbated that attack. Pl.'s Reply Aff. in Opp'n at 3-4. Gorsky disputes these contentions. Thus, as with Plaintiff's excessive force claim, the outcome of the subjective prong turns on whose version of events is to be believed. If, armed with the knowledge that Plaintiff was suffering an asthma attack, Gorsky really did respond by laughing at him, inciting him to act out, and then spraying him with OC gel, a reasonable finder of fact may conclude that Gorsky's culpability rose to the level of recklessness needed to establish deliberate indifference. This is particularly so in light of Gorsky's medical training, as he presumably would have been able to draw the requisite inferences regarding the risks such conduct would pose to Plaintiff's safety. Since resolution of these disputed issues requires fact-finding, dismissal at the summary judgment phase would be improper.
Plaintiff has not proven his case by any means. At this stage, however, all he needed to do was come forward with competent evidence demonstrating the existence of a material question of fact for trial. That burden having been satisfied with respect to Plaintiff's allegation that Gorsky was deliberately indifferent to his claim that he was suffering from an asthma attack, summary judgment must be denied.
Gorsky argues that, even if Plaintiff's rights were violated, he is nevertheless entitled to qualified immunity. See Defs.' Mem. of Law in Supp. at 23-25. Defendants bear the burden of proof on this affirmative defense. See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).
"The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As the Second Circuit has described the doctrine:
The Supreme Court recently explained that, "[t]o be clearly established, a right must be sufficiently clear `that every reasonable official would [have understood] that what he is doing violates that right.'" Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093 (2012) (second alteration in original) (quoting Anderson, 483 U.S. at 640). Although a case directly on point is not required, "existing precedent must have placed the statutory or constitutional question beyond debate." Fabrikant v. French, 691 F.3d 193, 213 (2d Cir. 2012) (internal quotation mark omitted) (quoting Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.Ct. 2074, 2083 (2011)). Moreover, "[e]ven if the right at issue was clearly established in certain respects ..., an officer is still entitled to qualified immunity if `officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) ("[Q]ualified immunity operates `to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.'" (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001))). "Qualified immunity thus affords government officials `breathing room' to make reasonable—even if sometimes mistaken—decisions and `protects all but the plainly incompetent or those who knowingly violate the law' from liability for damages." DiStiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (citations omitted) (quoting Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1244, 1249 (2012)). Therefore, "[w]hether qualified immunity applies in a particular case `generally turns on the objective legal reasonableness' of the challenged action, `assessed in light of the legal rules that were clearly established at the time it was taken.'" Id. (quoting Messerschmidt, 132 S. Ct. at 1245). When considering qualified immunity in the context of a Rule 56 motion, the Second Circuit has long held as follows:
In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996); see also Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (summary judgment on a qualified immunity defense is appropriate "if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendants' conduct under the circumstances").
Given the factual disputes highlighted in the previous sections of this Opinion, summary judgment on the question of qualified immunity is inappropriate in this case. The rights of pretrial detainees to be free from excessive force and deliberate indifference to their serious medical needs are well established. The qualified immunity determination thus turns on the objective reasonableness of Gorsky's conduct.
Defendants argue that "it was objectively reasonable for Sgt. Gorsky in the undisputed factual circumstances faced by him to have concluded that the force he used was warranted and appropriate and that no serious medical need was ignored." Defs.' Mem. of Law in Supp. at 24-25. However, as discussed, the material facts in this case are hotly disputed. Without a clear picture of the events that transpired on the evening of December 22, 2010, the Court is unable to conclude that Gorsky's actions were objectively reasonable as a matter of law. See Evering v. Rielly, No. 98 CIV. 6718, 2001 WL 1150318, at *11 (S.D.N.Y. Sept. 28, 2001) (denying summary judgment on the basis that determining "[w]hether the conduct of the officers was reasonable in light of Eighth Amendment jurisprudence depends upon whose story the jury credits").
For the reasons set forth above, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. The Clarkstown Police Department is hereby dismissed from the case with prejudice. The excessive force and deliberate indifference claims alleged against Sgt. Brian Gorsky in his individual capacity survive, though the deliberate indifference claim is limited to Plaintiffs alleged asthma attack.
The Clerk of the Court is respectfully directed (1) to terminate the Clarkstown Police Department as a defendant in this case, and (2) to terminate the pending motion (Doc. 39).
The remaining parties shall appear for a pretrial conference on
It is SO ORDERED.
Defendants have complied with their obligations insofar as they submitted a Local Rule 56.1 Statement and provided Plaintiff with notice, pursuant to Local Rule 56.2, of the potential consequences of not responding to the motion. Docs. 40, 43. However, Defendants' Local Rule 56.1 Statement is deficient in that it fails to support each material fact statement with a citation to admissible evidence in the record. Doc. 43. (The only exceptions are paragraphs 2, 4, 5 and 12, which serve to identify certain of Defendants' exhibits.) The Court therefore disregards the parties' Local Rule 56.1 Statements and instead relies on its independent review of the record. See, e.g., Carbone v. Cnty. of Suffolk, No. CV-10-3631 SJF AKT, 2013 WL 1386251, at *5 (E.D.N.Y. Apr. 2, 2013) (discussing district courts' "discretion to conduct an assiduous review of the record" (quoting Monahan v. N.Y.C. Dept. of Corr., 214 F.3d 275, 292 (2d Cir. 2000))).
Gorsky Aff. at 5.
The Court notes for the record that Plaintiff's affidavit is undated, bringing it out of technical compliance with 28 U.S.C. § 1746, which sets out the requirements for unsworn declarations. Given Plaintiff's pro se, incarcerated status, the Court will overlook the procedural technicality in this instance. See BMS Entm't/Heat Music LLC v. Bridges, No. 04 CIV. 2584 (PKC), 2005 WL 2482493, at *2 n.1 (S.D.N.Y. Oct. 7, 2005) (accepting an undated affidavit under 28 U.S.C. § 1746); Lakeview Outlets, Inc. v. Uram, No. 95-CV-0136, 1996 WL 571520, at *2 (N.D.N.Y. Oct. 2, 1996) (accepting an undated affidavit even though it also failed to include an express "penalty of perjury clause").
Defendants posit that Harris stands for the proposition that, "[w]here the parties tell conflicting versions of an incident and one version is supported by a videotape, the court must credit that version of events." Defs.' Mem. of Law in Supp. at 19. That interpretation misses the mark: it was not just that the video "supported" on side, but also that it "blatantly contradicted" the other, that compelled the Court's decision in Harris. Since most of the key factual disputes in this case concern what the parties said, and since the video lacks audio, the video neither confirms nor belies either side's story. Cf. Carolina v. Pafumi, No. 3:12-CV-163 VLB, 2013 WL 1673108, at *1 n.2, *3 (D. Conn. Apr. 17, 2013) (noting that a videotape confirmed a version of events that was otherwise deemed admitted because plaintiff had not responded to the motion); Alston v. Butkiewicus, No. 3:09-CV-207 CSH, 2012 WL 6093887, at *14 (D. Conn. Dec. 7, 2012) ("The repeated orders from correctional staff and the requests from medical and mental health staff are documented on the video evidence."); Flemming v. Kemp, No. 09-CV-1185 TJM/DRH, 2012 WL 4094196, at *11 (N.D.N.Y. Aug. 30, 2012) (describing various orders and statements that were captured by a video that "fully supported" defendants' story). Similarly, certain details, such as the number of bursts of OC gel that were deployed, are not captured clearly enough to definitively corroborate either party's rendition of the facts.
While the Court can rely on the video to the extent that its contents speak for themselves, it not permitted, at the summary judgment stage, to draw any of the recommended inferences in Defendants' favor. For instance, Defendants point out (1) that the video shows Gorsky speaking to Plaintiff prior to deploying the OC gel and (2) that Gorsky says that this was the point at which he warned Plaintiff that he would be sprayed unless he calmed down. See Defs.' Mem. of Law in Supp. at 14. While Gorsky's account is certainly consistent with the video evidence, the implication seems to be that the video therefore confirms Gorsky's account. The Court is precluded from making that inferential leap.
