Liverpool v. Davis

• Decision Date: 26 February 2020
• Docket Number: 17 Civ. 3875 (KPF)
• Parties: Anton F. LIVERPOOL, Plaintiff, v. Captain DAVIS, Shield #1282; Officer Green, Shield #7507; Officer Laraque, Shield #3665; Captain Kiste, Shield #958; and Correction Officer Llarch, Shield #3352, Defendants.
• Court: U.S. District Court — Southern District of New York

442 F.Supp.3d 714

Anton F. LIVERPOOL, Plaintiff,

v.Captain DAVIS, Shield #1282; Officer Green, Shield #7507; Officer Laraque, Shield #3665; Captain Kiste, Shield #958; and Correction Officer Llarch, Shield #3352, Defendants.

17 Civ. 3875 (KPF)

United States District Court, S.D. New York.

Signed February 26, 2020

Anton F. Liverpool, Cranston, RI, pro se.

Carolyn Kay Depoian, Nicholas Daniel Manningham, New York City Law Department, New York, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Anton Liverpool, proceeding pro se , brings this action under 42 U.S.C. § 1983, against certain correction officers at the Otis Bantum Correctional Center at Rikers Island ("OBCC"), namely Charles Davis, Brandon Green, James Laraque, Gustavo Kiste, and William Llarch (collectively, "Defendants"), stemming from incidents that occurred while Plaintiff was confined at OBCC. Before the Court now is Defendants' motion for summary judgment, in which Defendants argue: (i) Plaintiff's claims against Defendants Kiste and Llarch are barred by the statute of limitations; and (ii) Plaintiff's claims against all Defendants fail as a matter of law. For the reasons that follow, the Court concludes that Plaintiff's claims against Defendants Kiste and Llarch are indeed untimely, and therefore grants the motion for summary judgment as to those defendants. The Court also grants Defendants' motion for summary judgment against Plaintiff's Eighth Amendment deliberate indifference to medical needs claim. But Plaintiff's Eighth Amendment failure to protect claim against the remaining defendants survives summary judgment and will not be dismissed on qualified immunity grounds. Accordingly, Defendants' motion is denied in part as to Defendants Davis, Green, and Laraque.

BACKGROUND¹

A. Factual Background

On July 9, 2014, Plaintiff was convicted of a crime under New York State law. (Def. 56.1 ¶ 2). On July 10, 2014, Plaintiff was being detained inside the Main Intake area of OBCC, waiting to be transferred from OBCC to a building for sentenced inmates. (Id. at ¶ 3). During this time, Plaintiff was held in Pen #6 of the Main Intake area, along with approximately eight other inmates. (Id. at ¶ 5). Three other inmates were being held in Pen #1, which was across the hall from Pen #6. (Id. at ¶¶ 6-7). Both cells had bars facing the hallway. (Id. ). Defendants Davis, Green, Laraque, and Larch were among the correction officers working in the Main Intake area of OBCC at that time. (Id. at ¶¶ 4, 11).

At some point during the evening of July 10, 2014, one of Plaintiff's fellow inmates in Pen #6, Inmate Brown, began to mix together his feces, saliva, and urine with toilet water, with the intention of throwing it at the three inmates in Pen #1. (Def. 56.1 ¶ 8). One of the correction officers in the Main Intake area saw Brown "relieving himself," and asked him something along the lines of "Why you doing that? Doesn't the toilet work?," but did not otherwise seek to stop him (Id. at ¶ 9).² Plaintiff implored Brown not to throw the mixture of human waste that he was concocting. (Id. at ¶ 10). Plaintiff then told Defendants Davis, Green, Laraque, and Llarch that Brown was going to throw the mixture and asked that he be let out of Pen #6. (Id. at ¶ 11). The parties agree that Plaintiff did not tell the correction officers specifically that Brown was going to throw the mixture at him, but Plaintiff did tell the officers that he did not want to be in Pen #6 when Brown began throwing his mixture. (Id. at ¶¶ 12-13; Pl. 56.1 ¶ 12). One correction officer spoke to Brown through the bars of Pen #6 and tried to prevent Brown from throwing the mixture. (Def. 56.1 ¶ 14). Brown threatened to throw the mixture at that correction officer if she did not move away. (Id. ). The correction officer departed without taking further action, and no other correction officers took preventative action.

Roughly 20 to 30 minutes after Plaintiff alerted the correction officers to the situation (Manningham Decl., Ex. C at 19:3-16), Brown began throwing the mixture at the three inmates in Pen #1. (Def. 56.1 ¶ 15). The parties agree that, as Brown threw the mixture at the pen across the hallway, it was "spraying all over the place" and hit Plaintiff as it rebounded off of Pen #6's bars. (Id. at ¶ 16). Plaintiff adds that some of the mixture hit Plaintiff as it was thrown, and not merely after it came in contact with the pen's bars. (Pl. 56.1 ¶ 16). In retaliation, the inmates in Pen #1 began throwing their own mixtures of human waste at the inmates in Pen #6. (Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17). Plaintiff estimates that other inmates were throwing mixtures of human waste intermittently over the course of approximately one hour. (Manningham Decl., Ex. C at 20:3-19; but cf. Pl. 56.1 ¶ 19 (claiming that only one inmate in Pen #1 was throwing "urine/[bodily] waste" back to Pen #6). Defendants do not contest this.

As these events unfolded, the correction officers in the Main Intake Area made verbal attempts to stop the inmates from throwing their respective excretory mixtures. (Def. 56.1 ¶ 18). Plaintiff claims that the officers' words were delivered in a mocking tone, and that they did not sincerely try to stop the misbehavior. (Pl. 56.1 ¶ 18).³ Inmate Brown and the inmates in Pen #1 did not comply. (Def. 56.1 ¶ 19). At some point, Defendant Davis radioed for assistance. (Id. ; Pl. 56.1 ¶ 19). Around midnight, a response team, supervised by Defendant Kiste, arrived in response to this call for assistance. (Def. 56.1 ¶¶ 20, 22).

Upon entering the Main Intake area, Defendant Kiste observed feces and water on the floor and walls. (Def. 56.1 ¶ 23). The response team then ordered all the inmates in Pens #1 and #6 to turn their backs to the hallway and face the walls of their pens. (Id. at ¶ 24). The three inmates in Pen #1 initially refused to comply with the orders to turn around, causing Kiste to disperse three one-second bursts of "OC spray" — a chemical irritant akin to pepper spray — to the facial area of each of those inmates. (Id. at ¶¶ 26, 27). The record indicates that the third one-second burst was administered after the third inmate had complied by facing the wall, and was arguably unwarranted. (Pl. 56.1 ¶ 25; Dkt. #85, Def. 101).⁴ The parties dispute whether the OC spray was at any point directed into Pen #6, where Plaintiff was being held. (Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27). A video recording of the incident, which the Court has reviewed, suggests that the OC spray was not directed at Pen #6. (Manningham Decl., Ex. E).⁵ But an Incident Report Form generated after the incident suggests that OC spray was directed at Brown, who was held in Pen #6. (Dkt. #85, Def. 99). This Incident Report Form suggests the possibility that the video may not have captured the full incident.

The response team ordered the inmates in Pen #6, including Plaintiff, to lay on the ground. (Def. 56.1 ¶ 28). Plaintiff, who was shirtless, put a white cloth on the floor and laid on top of it, in compliance with the correction officers' order. (Id. at ¶ 30). The inmates were then handcuffed and escorted out of the Main Intake area, beginning with the inmates held in Pen #1. (Id. at ¶¶ 31, 32). At some point roughly three hours later, Plaintiff was given a medical shower. (Id. at ¶ 35; Pl. 56.1 ¶ 35). At around 3:32 a.m., Plaintiff was seen by a physician's assistant in the clinic. (Def. 56.1 ¶ 36). The physician's assistant noted that Plaintiff had been exposed to OC spray, but had no visible injuries or signs of chemical irritation or burn. (Id. at ¶ 38). Plaintiff reported feeling throat irritation for about 24 hours after the incident and felt facial burning for three or four days. (Id. at ¶ 39).

B. Procedural Background

Plaintiff filed his Complaint in this action on May 22, 2017. (Dkt. #1).⁶ Plaintiff named as Defendants Davis, Laraque, Green, and a John Doe defendant. (Id. ). On June 15, 2017, the Court issued an Order of Service, including a provision directing the New York City Law Department to provide Plaintiff with the identity of the John Doe defendant named in the Complaint on or before August 15, 2017, in accordance with Valentin v. Dinkins , 121 F.3d 72 (2d Cir. 1997). (Dkt. #7). The Court further ordered Plaintiff to amend his Complaint to include the name of the John Doe defendant within 30 days of receiving the name. (Id. ). Defendants Davis, Laraque, and Green answered the complaint on September 5, 2017. (Dkt. #12).

On November 9, 2017, the New York City Law Department filed a letter identifying Gustavo Kiste as the John Doe defendant in Plaintiff's Complaint. (Dkt. #18). Plaintiff filed a First Amended Complaint on February 6, 2018, substituting Defendant Kiste in place of John Doe. (Dkt. #27, 29). Plaintiff filed a Second Amended Complaint on February 13, 2018, adding Defendant Llarch as a defendant for the first time. (Dkt. #31). Plaintiff filed a Third Amended Complaint on March 19, 2018. (Dkt. #39). Defendants answered the Third Amended Complaint on August 29, 2018. (Dkt. #47). On August 21, 2018, the Court granted Defendants leave to file their motion for summary judgment, and set a briefing schedule. (Dkt. #46).

On March 7, 2019, Defendants filed their motion for summary judgment and supporting papers, including a Local Rule 56.1 Statement of Undisputed Facts. (Dkt. #56, 57, 58, 59). On May 22, 2019, Defendants filed a letter, noting that Plaintiff had failed to oppose their motion for summary judgment and requesting that the motion be granted. (Dkt. #65). On May 30, 2019, the Court received a letter from Plaintiff, requesting additional time to oppose Defendants' motion for summary judgment. (Dkt. #66). The Court granted Plaintiff this extension on May 31, 2019. (Dkt. #67). Plaintiff filed his brief in opposition to Defendants' motion for summary judgment on June 18, 2019. (Dkt. #69). Defendants filed their reply brief in further support of their motion for summary judgment on ...