Wilson v. Calderon

• Decision Date: 06 July 2017
• Docket Number: 14 Civ. 6209 (GBD) (GWG)
• Parties: THEODORE O. WILSON III, Plaintiff, v. C.O. FERNANDO CALDERON et al., Defendants.
• Court: U.S. District Court — Southern District of New York

THEODORE O. WILSON III, Plaintiff, v. C.O. FERNANDO CALDERON et al., Defendants.

14 Civ. 6209 (GBD) (GWG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 6, 2017

AMENDED REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Theodore O. Wilson III brought this action pro se under 42 U.S.C. § 1983 against defendants Corrections Officers ("C.O.") Fernando Calderon, Rosa Elliot, Christopher Kinloch, Dale Moore, and John Doe and Captains N. France and Bramwell to recover damages for alleged deprivations of his constitutional rights at Rikers Island while he was a pretrial detainee. Defendants have moved for summary judgment.¹ For the reasons stated below, thismotion should be granted in part and denied in part.

I. BACKGROUND

A. Treatment of Plaintiff's Submissions

While defendants ask that we deem facts in their Rule 56.1 statement admitted because Wilson did not follow the procedures set forth in Rule 56.1 and in Local Civil Rule 56.1, see Defs. Reply at 2-3, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules," Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). In light of Wilson's pro se status, we will not penalize him for his failing to submit a proper counterstatement under Local Civil Rule 56.1. See, e.g., Mateo v. Bristow, 2014 WL 4631569, at *1 (S.D.N.Y. Sept. 17, 2014) ("Given that [plaintiff] is proceeding pro se and made an effort to respond to the motion for summary judgment by submitting an affidavit, this Court exercises its discretion to excuse [plaintiff's] failure to the extent that [plaintiff] has provided admissible evidence controverting the facts in defendants' Rule 56.1 statement."); Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) ("[W]here a pro se plaintiff fails to submit a proper [opposing statement] . . . , the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions."). Thus, unless otherwise noted, the following facts reflect statements made by Wilson in his sworn filings and deposition testimony, as well as evidence submitted by defendants where not contradicted byWilson's evidence.² While defendants have pointed to a few instances where Wilson's deposition testimony and later sworn statements are contradictory, none of these contradictions are material to our resolution of this case. Nevertheless, where Wilson's sworn statements contradict his deposition testimony, we accept as truthful the statements in his deposition. See Hayes v. N.Y.C. Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) ("[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.").

B. Facts

1. The February 27 Incident

On February 27, 2012, Wilson was a pretrial detainee incarcerated at the George Motchan Detention Center ("GMDC") at Rikers Island, New York. Deposition of Theodore O. Wilson, III, dated Apr. 28, 2016 (attached as Ex. C to Ryan Decl.) ("Wilson Dep."), at 48. That evening, Wilson and others from his housing block were escorted by C.O. Elliot from their cells to GMDC's medication dispensary booth. Id. at 52. The hallway between Wilson's housing block and the medication booth contains a metal detector called a "magnetometer," whichcorrections officers sometimes require detainees to walk through on their way to or from another area of the detention center. See id. at 60-61. Should the magnetometer make a sound, the corrections officers "pull [the detainee] over and search [him]," making him take off his belt and his shoes, "just [to] find out what's the source of making the detector ring." Id. at 62. Wilson and the other detainees walked around the magnetometer on the way to the medication booth, but had to walk through it on the way back to their housing block. Id. at 61-62.

While second in line to walk through the magnetometer, Wilson started laughing at something his friend "Miami" said while in front of Wilson. Compl. Add. at 1.³ Captain France stopped Wilson and asked him "what are you laughing about?!" Id. (capitalization omitted); see also Wilson Dep. at 65. Wilson said that he was laughing at an inside joke, to which Captain France responded "you think I'm funny, you think I'm a joke[?]" Wilson Dep. at 70. Captain France demanded Wilson stand against the wall and "place [his] arms all the way back all the way back up the wall." Compl. Add. at 1 (capitalization and internal quotation marks omitted). C.O.s Calderon, Kinloch, and Moore were also present. Defs. 56.1 ¶ 9 (citing Use of Force Report, dated Mar. 13, 2012 (attached as Ex. D to Ryan Decl.) ("Use of Force Report")). C.O. Calderon patted Wilson down, threw Wilson's shoes down the hallway, and removed Wilson's medications from his pocket and threw them in the trash. Compl. Add. at 1-2; Wilson Dep. at 65-66; Wilson Decl. I at E3. The C.O.s ordered Wilson to go through the magnetometer and then place his hands back on the wall. Wilson Dep. at 66, 74. Wilson passed through themagnetometer, which did not beep, and placed his hands on the wall as instructed. Id. at 66; see also id. at Corrections to Deposition ("I said — it never beeped.").

Because Wilson's arms began to tire, he decided to slide his hands down the wall instead of keeping them all the way up. Compl. Add. at 1; Wilson Dep. at 67; Pl. Letter II at E18. Captain France told Wilson "I give you the green-light!" and "take your hands off of that wall again, I dare you . . . ." Compl. Add. at 1 (capitalization and internal quotation marks omitted); see also Wilson Decl. I at E4; Wilson Decl. II at F5. An altercation then occurred between Wilson and C.O. Calderon. See Compl. Add. at 1; Defs. 56.1 ¶ 12. Wilson says that C.O. Calderon punched him in the back of the head first, and then the other officers joined in, "swinging wildly" so that "[m]ost of their punches were missing and they were hitting each other because there were so many of them, they were close range." Wilson Dep. at 75; see also id. at 80-82; Compl. Add. at 1-2. Wilson says he did not punch any of the officers during the altercation. Wilson Dep. at 82.

All of the officers reported later that Wilson started the incident by throwing a punch towards C.O. Calderon, at which point C.O. Calderon used force to restrain Wilson, with the assistance of C.O.s Kinloch, Moore, and Elliot. Use of Force Report at D4-D8, D10-D24.⁴Wilson denies that he did anything to provoke the incident. See Wilson Dep. at 74-75 ("Calderon threw the first punch. I did not resist."); Wilson Decl. I at E4 ("[T]his incident had commenced from [Captain France] telling me and reiterating "I GIVE YOU THE GREEN LIGHT" . . . and she (France) nodded to Calderon who then threw the 1st/initial punch . . . ."); Pl Letter II at E18 ("[N]o reasons for defendants to overreact with violence, as they had used objectively unreasonable force against myself, unprovoked and not resisting . . . .") (capitalization and internal quotation marks omitted).

As he was being hit by the officers, Wilson dropped to his knees, clasping his hands behind his head with his elbows tucked in to protect his head and face, and lay face down on his stomach with his legs straight out. Compl. Add. at 2; Wilson Dep. at 86; Wilson Decl. I at E4; Wilson Decl. II at F6. He was then handcuffed. Compl. Add. at 2; Wilson Dep. at 91-92. Once he was handcuffed, the officers started kicking Wilson while he was on the ground, which included a kick to Wilson's right eye. Compl. Add. at 2; Wilson Dep. at 81, 87, 91. C.O. Calderon punched him two more times, once to the right kidney side, and once to the back of the head. Wilson Dep. at 80. Wilson could not recall how many times C.O.s Kinloch, Elliot, or Moore kicked and punched him, as Kinloch and Moore were part of the "wolf pack of officers," and "at the time there were so many surrounding [Wilson that he] couldn't see who was hitting [him] from where." Wilson Dep. at 82; Wilson Decl. I at E3. Wilson did not recall if Captain Bramwell was present or personally involved. Id. at 81-82. A few minutes after Wilson was handcuffed, a "probe team" of officers arrived to escort Wilson to intake, "with no shoes on." Wilson Dep. at 92-93; Compl. Add. at 2. Captain France told the probe team "he swung on me!" Wilson Decl. I at E3, E5.

Wilson was seen at GMDC's medical clinic by Dr. Joon Park. Injury to Inmate Report,dated Feb. 27, 2012 (attached as Ex. F to Ryan Decl.) ("Injury to Inmate Report"); see also Compl. Add. at 2. Dr. Park observed a "superficial cut on lower orbit" of Wilson's eye, a "superficial skin injury" to both knees, and that Wilson reported pain in his ribs. Injury to Inmate Report. Wilson received follow-up treatment on March 7, 2012, where he complained of left rib pain and was prescribed ibuprofen. Medical Records, dated Mar. 7, 2012 (attached as Ex. E to Ryan Decl.) ("Medical Records"), at D586-87. X-rays showed that Wilson's ribs were not fractured. Id. at D588, D645. Wilson stated that he had persistent pain in his "lower left side, which is located where [he was] kicked in the ribs at," which made it painful to lay on his left side for at least three months. Wilson Dep. at 105; Compl. Add. at 2, 4.

2. Disciplinary Hearing

Wilson was cited by prison officials for the February 27 incident for assaulting and fighting, disrespect for staff, and refusal to obey a direct order. Report and Notice of Infraction, dated Feb. 27, 2012 (attached as Ex. G to Ryan Decl.) ("Infraction Ticket"); Wilson Dep. at 107. A "Report and Notice of Infraction" — the document that apparently started the disciplinary process — indicates that Wilson "refused to sign" on March 1, 2012, at 2:00 p.m. See Infraction Ticket....