Perkins v. Brown

• Citation: 285 F.Supp.2d 279
• Decision Date: 26 August 2003
• Docket Number: No. 99 CV 4506(NG).,99 CV 4506(NG).
• Parties: Ahmad PERKINS, Plaintiff, v. Ronald Lee BROWN, Alex Pena, Captain Robert Rigobello, Eugene Slevin, and Jamie Justiniano, Defendants.
• Court: U.S. District Court — Eastern District of New York

285 F.Supp.2d 279

Ahmad PERKINS, Plaintiff, v. Ronald Lee BROWN, Alex Pena, Captain Robert Rigobello, Eugene Slevin, and Jamie Justiniano, Defendants.

No. 99 CV 4506(NG).

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

August 26, 2003.

COPYRIGHT MATERIAL OMITTED

Ahmad Perkins, Brooklyn, NY, Pro se.

Lawrence O. Kamin, Mary Theresa O'Flynn and Frances Sands, New York City, for defendant.

OPINION AND ORDER

GERSHON, District Judge.

Plaintiff, Ahmad Perkins, who is appearing pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants, Ronald Brown Lee (incorrectly identified in the caption as Lee Brown), Alex Pena, Robert Rigobello, Eugene Slevin, and Jamie Justiniano, all of whom are officers with the New York City Department of Correction ("DOC"), used excessive force in conducting a search of him while he was inside a holding cell at the Brooklyn Criminal Courthouse. Additionally, plaintiff alleges that defendants failed to provide him with adequate medical treatment following the incident. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56(c).

Facts

The following facts are not disputed unless otherwise indicated. On April 21, 1998, plaintiff was transferred from the North Infirmary Command at Rikers Island prison to the Brooklyn Criminal Courthouse to attend a court proceeding unrelated to the crimes for which he was then incarcerated. Pending his court appearance, the DOC placed him in a "red ID" holding cell, which is reserved for prisoners who are considered security risks. Plaintiff, because of his status as a gang member and "predicate slasher" fell within this category. While in the holding cell, defendant Brown Lee, who was familiar with plaintiff, and the other defendants ordered plaintiff to submit to a strip search as he had on other occasions. Plaintiff refused to comply with defendant Brown Lee's directions and an argument ensued. As a result of this argument plaintiff claims two instances of excessive force. The first instance of excessive force is alleged to have occurred after defendants and plaintiff, in plaintiff's words, were "going back and forth for a little while" regarding plaintiff's refusal to be searched, and defendant Slevin picked plaintiff up and held him while defendants Brown Lee and Justiniano took his clothes off. Plaintiff claims that, while defendants were conducting the search, they tried to provoke him verbally and by pushing him. Plaintiff responded by continuing to verbally abuse defendants and "trying to push them off me."

Plaintiff's second claim of excessive force allegedly occurred following the search. After plaintiff was dressed, defendants transported him in handcuffs to another cell. Plaintiff claims that on the way to the second cell, the argument continued, and defendants began punching him. When he was placed in the second cell, a female captain told him that he was being charged with assault for trying to cut the officers and that they had his razor. Plaintiff claims that the razor was not his because he had only brought one razor which was still on him (in his body).

Following this incident the female captain took plaintiff to the courthouse infirmary where his injuries were documented in an "Injury to Inmate Report." The report states that plaintiff had suffered a "small superficial laceration in lower inner lip" and reports no other injury or "visible bruises." Plaintiff signed the report indicating that it accurately set forth the cause of plaintiff's injury and that he received medical attention. Plaintiff now claims that he did not receive medical attention and that he had received injuries to his lip, nose, eye, fingers, wrists, jaw, and chest. Plaintiff admits that he did not seek medical attention for his lip or jaw because "those type of bruises, I feel they will heal. It's nothing major." Plaintiff claims that he requested to go to the clinic at Rikers Island for chest and back pains numerous times, but was never taken. Plaintiff was transferred later to Downstate Correctional Facility, where he was seen by a doctor and given treatment unrelated to his alleged injuries.

Plaintiff also claims that he occasionally has chest pains in the middle of his chest and under his armpit. After being transferred to Bordentown, a facility in New Jersey, plaintiff received Motrin for his pain. Plaintiff claims that the doctors at Northern State, where he was next transferred, informed him that the chest pain may relate to his digestive system or from "working out," and in any event, that pain ceased occurring after plaintiff began taking Pepto-Bismol. Plaintiff also alleges that, as a result of the incident on April 21, 1998, he is losing his hair and "I think about a lot of things," which he characterizes as a "stress disorder."

Standard for Summary Judgment

A motion for summary judgment is properly granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir. 1995). The burden is on the moving party to demonstrate that there are no material facts genuinely in dispute. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). In deciding a motion for summary judgment, the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Howley v. Town of Stratford, 217 F.3d 141, 150-151 (2d Cir. 2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. A motion for summary judgment cannot therefore be defeated by "mere speculation or conjecture." Giordano v. City of New York, 274 F.3d 740, 749-50 (2d Cir. 2001).

Where a pro se litigant is involved, "the court has an obligation to read [the pro se party's] supporting papers liberally, and ... interpret them to raise the strongest arguments they suggest." Thomas v. Keane, 2001 WL 410095, at *8 (S.D.N.Y. 2001) (citation omitted); see Soto v. Walker, 44 F.3d 169, 173 (2d Cir.1995) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). "[B]ald assertions," however, cannot overcome a motion for summary judgment, even if the opposing party is pro se. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991); Vondette v. McDonald, 2001 WL 1551152, at *8 (S.D.N.Y.2001). Plaintiff must provide the court with "some basis to believe that his version of relevant events is not fanciful." Yearwood v. Lo-Piccolo, 1998 WL 474073, at *7 (S.D.N.Y.1998)(quoting Christian DiorNew York, Inc. v. Koret, Inc., 792 F.2d 34, 38 (2d Cir.1986)).

Excessive Force

To state a Section 1983 claim, a plaintiff must allege that defendant, while acting "under color of state law," deprived plaintiff of his constitutional or statutory rights. Am. Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999); see 42 U.S.C. § 1983. To be liable under Section 1983, a defendant must have been personally involved in the alleged violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994); Morris v. Eversley, 205 F.Supp.2d 234, 241 (S.D.N.Y.2002). "In addressing an excessive force claim brought under [42 U.S.C.] § 1983, [the] analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Here, plaintiff was in the Brooklyn Criminal Courthouse for an appearance on a pending criminal matter. Accordingly, plaintiff will be treated as a pre-trial detainee, not as an inmate, even though he was serving a sentence of imprisonment at the time of the incidents.

While the Eighth Amendment's protection from cruel and unusual punishment does not apply "until after conviction and sentence," Graham, 490 U.S. at 392 n. 6, 109 S.Ct. 1865, the right of a pretrial detainee to be free from excessive force amounting to punishment is protected by the Due Process Clause. United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999). And, the analysis provided by the Supreme Court in Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), that requires a sentenced prisoner to satisfy both an objective and a subjective prong to establish an Eighth Amendment violation also applies to excessive force claims brought by a pretrial detainee. Walsh, 194 F.3d at 48 (citing Hudson, 503 U.S. at 7-8, 112 S.Ct. 995 (1992)).

Plaintiff must show that the alleged use of force is "objectively sufficiently serious or harmful enough" to be actionable. Walsh, 194 F.3d at 50 (citing Hudson, 503 U.S. at 8, 112 S.Ct. 995). 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, 94 S.Ct. 462, 38 L.Ed.2d 324, (1973); See Walsh 194 F.3d at 48. However, a claim of excessive force may be established even if the victim does not suffer serious or significant injury, if plaintiff can demonstrate that the amount of force used is more than de minimis, or, otherwise involves force "repugnant to the conscience of mankind." Walsh, 194 F.3d at 47 (citing Hudson, 503 U.S. at 9-10, 112 S.Ct. 995).

The subjective requirement is satisfied if the defendant acted wantonly with a "sufficiently culpable state of mind." Walsh, 194 F.3d at 49-50 (citing Hudson, 503 U.S. at 8, 112 S.Ct. 995); see also Sims v. Artuz, 230 F.3d 14 (2d Cir.2000). Where a state official is accused of using excessive physical force against a pretrial detainee, the inquiry turns on "whether force was applied in a good faith effort...