Hurst v. Mollnow, et al, No. 9:2016cv01062 - Document 95 (N.D.N.Y 2019)
Court Description: MEMORANDUMDECISION and ORDER: ORDERED that 1. The trial in this case scheduled for September 9, 2019 is adjourned pending the resolution of this order; 2. Plaintiff Keith Hurst may furnish arguments and evidence as to why this Court should no t grant summary judgment for defendants on the basis of an absence of a genuine dispute of material fact and/or qualified immunity no later than 12:00 p.m. on Friday, September 13, 2019; and 3. Defendants may also furnish arguments in support of summ ary judgment on the basis of an absence of a genuine dispute as to material fact and/or qualified immunity no later than 12:00 p.m. on Friday, September 13, 2019. Signed by Judge David N. Hurd on 9/4/19. {order served via regular mail on plaintiff}(nas)
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Hurst v. Mollnow, et al Doc. 95 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------KEITH I. HURST, Plaintiff, -v- 9:16-CV-1062 (DNH/TWD) A. MOLLNOW Correctional Officer, Washington Correctional Facility; and EISENSCMIDT, Sergeant, Washington Correctional Facility, Defendants. ----------------------------------APPEARANCES: OF COUNSEL: ABDELLA LAW OFFICES Attorneys for plaintiff 8 West Fulton Street P.O. Box 673 Gloversville, NY 12078 CHRISTOPHER MATTHEW STANYON, I, ESQ. HON. LETITIA JAMES Attorney General for the State of New York Attorneys for defendants The Capitol Albany, NY 12224 MARK G. MITCHELL, ESQ. Ass't Attorney General RICHARD C. WHITE, ESQ. Ass't Attorney General DAVID N. HURD United States District Judge MEMORANDUM–DECISION and ORDER Plaintiff Keith Hurst brings the present complaint under 42 U.S.C. § 1983, alleging that defendants A. Mollnow and Sergeant Eisenschmidt subjected him to excessive force in violation of his Eighth Amendment rights against cruel and unusual punishment. The action is scheduled for trial beginning Monday, September 9, 2019, at 9:00 a.m. before this Court in Dockets.Justia.com Utica, New York. The parties' submissions in advance of trial have been reviewed for the purpose of identifying material facts which are not in dispute. Under Federal Rule of Civil Procedure ("Rule") 56(f), this Court may "consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute," so long as it first gives the parties "reasonable time to respond." Rule 56(f)(3). A dispute concerning a material fact is not genuine unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Roberts v. Univ. of Rochester, 573 F. App'x 29, 31 (2d Cir. 2014) (summary order) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To prove an Eighth Amendment violation for excessive force, a plaintiff must prove that there was an objective harm done which does not comport with "contemporary standards of decency." See Hudson v. McMillian, 503 U.S. 1, 7-8 (1992). The extent of injury may provide some indication of the amount of force applied by corrections officers and, thus, whether that force was excessive. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). "The Eighth Amendment's prohibition of 'cruel and unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 37-38. Additionally, under the doctrine of qualified immunity, state officials "operating under color of state law are . . . entitled to summary judgment when they can establish that either (1) a constitutional right was not violated or (2) the right was not clearly established at the time of the violation." Raspardo v. Carlone, 770 F.3d 97, 113 (2d Cir. 2014) (internal citations, quotation marks, and footnote omitted). Upon review of the parties' submissions in advance of trial, this Court can identify no genuine dispute as to whether Hurst suffered a harm beyond a de minimis use of force, if 2 any. Plaintiff alleges that on July 1, 2016, Mollnow and Eisenschmidt viciously beat him, including kicking his face and slamming his head into a wall. 1 Plaintiff's own exhibits demonstrate that on July 2, 2016, the day after the alleged incident, he had no lesions or rashes anywhere on his body, and his only complaints were of pain in his right elbow and left arm. Dkt. 86, p. 37. On July 6, 2016, five days after the alleged beating, the sum total of Hurst's injuries were a half inch scab on his left forearm, a quarter inch scab on his right elbow, and a minute scratch on his right shoulder, which required no care. Dkt. 86, pp. 8, 35, 41. Photographs taken that day confirm these facts. Dkt. 86, p. 8. Beyond that, his only complaints were pain in his chest/rib area, which the treatment notes describe as "all better," and a rash on his neck. Dkt. 86, pp. 35, 41. Nowhere does plaintiff allege that these minor injuries were caused by defendants. It strains credulity that Hurst's injuries from being kicked in his face, punched in his head, face, and chest, and having his head struck repeatedly against a wall would have healed to that extent in only a day, or even five. As a result, the evidence plaintiff himself presents suggests that if any force were used against him, it was de minimis and not of a kind repugnant to the conscience of mankind. Given that Hurst's own exhibits seem to flatly contradict his anticipated testimony that defendants savagely beat him, this Court finds that on the facts presented, no reasonable factfinder could conclude that plaintiff suffered anything worse than a de minimis use of force, and not force of a sort repugnant to the conscience of mankind. 2 By extension, his Eighth Amendment claims cannot survive summary judgment. See, e.g., Taylor v. Schmidt, 2018 WL 2021537, at *5-6 (N.D.N.Y. Mar. 26, 2018) (granting motion to dismiss where plaintiff's 1 Plaintiff's only witness is himself. Plaintiff pleaded guilty at a disciplinary hearing to creating a disturbance and swearing at Mollnow on the day in question, which would justify any de minimis force used by the defendants. 2 3 complaint is "flatly contradicted by his own exhibits"); Jones v. Fischer. 2013 WL 5441353, at *6 n.6 (N.D.N.Y. Sept. 27, 2013) (noting on summary judgment that "there is no question of fact" where plaintiff's exhibits contradict his statements). Accordingly, unless Hurst can marshal some further evidence that he suffered an actual injury at the hands of Mollnow and Eisenschmidt, 3 the Court must grant summary judgment for defendants on the grounds that his Eight Amendment rights were not violated, and/or that defendants were protected by qualified immunity because plaintiff cannot identify a constitutional right that defendants did violate. Therefore, it is ORDERED that 1. The trial in this case scheduled for September 9, 2019 is adjourned pending the resolution of this order; 2. Plaintiff Keith Hurst may furnish arguments and evidence as to why this Court should not grant summary judgment for defendants on the basis of an absence of a genuine dispute of material fact and/or qualified immunity no later than 12:00 p.m. on Friday, September 13, 2019; and 3. Defendants may also furnish arguments in support of summary judgment on the basis of an absence of a genuine dispute as to material fact and/or qualified immunity no later than 12:00 p.m. on Friday, September 13, 2019. IT IS SO ORDERED. Dated: September 4, 2019 Utica, New York. 3 With no concrete evidence, plaintiff's mere statements in his letters and affidavit are not sufficient. 4
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