Blount v. Rastani

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SAYVION D. BLOUNT, Plaintiff, v. MARK RASTANI, et al., Defendants.

No. 9:21-CV-147 (DNH/CFH)

United States District Court, N.D. New York

August 10, 2023

APPEARANCES:

Sayvion D. Blount

Rescue Mission - Kiesewetter

Plaintiff pro se

OF COUNSEL:

OLIVIA R. COX, ESQ.

Assistant Attorney General

Attorney General for the State of New York

The Capitol

Attorney for defendants

REPORT-RECOMMENDATION AND ORDER ^[1]

CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE

Plaintiff pro se Sayvion Blount (“plaintiff”), who was at all relevant times in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendants Correctional Officers Mark Rastani (“Rastani”) and Zachary Burke (“Burke”), and Registered Nurse Joseph^[2] Brown (“Brown”) violated his constitutional rights under the Eighth Amendment. See Dkt. No. 1. (“Compl.”). Presently pending before the Court is Brown's motion for partial summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56. See Dkt. No. 69. Plaintiff has not responded. For the following reasons, it is recommended that Brown's motion be granted.

I. Failure to Respond

Local Rule 56.1(a) states that “[a]ny motion for summary judgment shall contain a separate Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of each material fact about which the moving party contends there exists no genuine issue.” N.D.N.Y. L.R. 56.1(a). Local Rule 56.1(b) requires the non-moving party to file a response to the movant's Statement of Material Facts, “admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs.” N.D.N.Y. L.R. 56.1(b). “The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Id. (emphasis omitted). Under Local Rule 7.1,

[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.

N.D.N.Y. L.R. 7.1(a)(3).

In support of his motion, Brown filed a Statement of Material Facts. See generally Dkt. No. 69-1. Plaintiff has not responded to Brown's motion. As such, the Court may deem admitted any properly supported facts set forth in Brown's Statement of Material Facts. See N.D.N.Y. L.R. 56(b).^[3]

However, a non-movant's failure to respond to a motion does not “mean the motion is to be granted automatically. Such a motion may properly be granted only if the facts as to which there is no genuine dispute ‘show that the moving party is entitled to a judgment as a matter of law.'” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (quoting FED. R. CIV. P. 56(C)). The “[C]ourt is not required to consider what the parties fail to point out . . ., [but] it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file [] a statement” as required by the Local Rules. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and quotation marks omitted). In deference to plaintiff's pro se status, the Court will review the entire record when evaluating Brown's motion. See Perry v. Rupert, No. 9:10-CV-01033 (LEK/TWD), 2016 WL 11478229, at *4-5 (N.D.N.Y. Apr. 19, 2016), report and recommendation adopted sub nom. Perry v. Ogdensburg Corr. Facility, 2016 WL 3004658 (N.D.N.Y. May 24, 2016).^[4]

“In the event the district court chooses to conduct such an independent review of the record, any verified complaint filed by the plaintiff should be treated as an affidavit.” Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 210 (N.D.N.Y. 2008) (footnote omitted). Plaintiff's complaint is verified and will be considered as an affidavit to the extent it is based on his personal knowledge. See Compl. at 26.^[5] “[T]o be sufficient to create a factual issue for purposes of a summary judgment motion, an affidavit must, among other things, not be conclusory.” Id. (footnote omitted). Moreover,

[e]ven if a verified complaint is deemed nonconclusory, “it may be insufficient to create a factual issue where it is (1) largely unsubstantiated by any other direct evidence and (2) so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.”

Berkley v. Ware, No. 9:16-CV-1326 (LEK/CFH), 2018 WL 3736791, at *3 (N.D.N.Y July 6, 2018) (quoting Jackson, 549 F.Supp.2d at 210), report-recommendation and order adopted, 2018 WL 3730173 (N.D.N.Y. Aug. 6, 2018). Further,

[w]hile it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether “the jury could reasonably find for the plaintiff” and thus whether there are any “genuine” issues of material fact, without making some assessment of the plaintiff's account.

Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

II. Factual Background

On review of Brown's motion for partial summary judgment, the facts will be related herein in the light most favorable to plaintiff as the non-moving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record . . . to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”).

A. Plaintiff's Version of the Facts^[6]

Plaintiff alleges that he was transferred to Mid-State Correctional Facility (“Mid-State C.F.”) on August 31,2020. See Compl. at 15. When he walked up the stairwell to his new housing unit, he saw defendants Rastani and Burke. See Id. at 16. Rastani told plaintiff to drop his belongings, place his hands on the wall, and spread his legs and feet. See id. at 16. Rastani asked plaintiff, “did you just f***ing get here?” Id. Plaintiff replied that he had just arrived at Mid-State C.F. and hoped he was not already in trouble. See id. Rastani said, “this f***ing a**hole,” and “grabbed [plaintiff] forcefully by the hair on [his] head and pulled [his] head back and yelled in [his] ear[.]” Id. Rastani continued to yell at plaintiff while he punched plaintiff in the head and face “approximately 6 or 7 times[.]” Id. Rastani pulled plaintiff back by the hair and plaintiff fell to the ground. See id. at 17; Dkt. No. 69-3 at 41, lines 2-10. Rastani got on top of plaintiff and began to “repeatedly punch [him] in [his] head, face[,] and torso,” approximately fifteen times. Compl. at 17; Dkt. No. 69-3 at 43, lines 2-11. While punching plaintiff with his left hand, Rastani spit in plaintiff's face, and attempted to choke plaintiff with his right hand. See Compl. at 17.

Once plaintiff was on the ground, Burke “repeatedly kick[ed plaintiff] in [his] ribs and torso and legs[.]” Compl. at 17; Dkt. No. 69-3 at 46, lines 13-18. Burke also punched plaintiff in the head and face, spit in his face, and pepper sprayed him. See Compl. at 17. The pepper spray got into Rastani's eyes which “caused C.O. Rastani to stop hitting [plaintiff], but then enraged even more[,] C.O. Rastani continued to hit [plaintiff] in the face.” Id.; Dkt. No. 69-3 at 51, lines 4-15. Rastani handcuffed plaintiff and Rastani and Burke then “continued once again their assault on” plaintiff. Compl. at 18. The officers called for “Sgt. Short,” who responded with additional officers to the scene. See id.

The responding correctional officers picked plaintiff up and dragged him down the stairwell. See Compl. at 18. Plaintiff was placed in a transport van with three or four officers and taken to the medical building. See id.; Dkt. No. 69-3 at 57, line 7. While in the van, the officers punched plaintiff in the back of his head and sides of his face. See Compl. at 18.

After arriving at the medical building, plaintiff was placed in a chair for ten to fifteen minutes, then brought to a different room where he waited five to ten minutes, and was then taken “into another room where [he] stood there injured screaming in pain for medical attention because [he] was so injured from being beat up and [he] could barely move and [he] could barely talk . . . [a]nd [he] could barely see.” Dkt. No. 69-3 at 58, lines 7-25; 59, lines 1-7; see Compl. at 18. Plaintiff was “bleeding on [his] head, on [his] eyes. Back of [his] head.” Dkt. No. 69-3 at 61, lines 18-20. His tooth went through his bottom lip, his jaw was swollen, he had gashes and abrasions on his face, and his eyes were burning and irritated. See id. at 60, lines 21 -23; 61, lines 24-25; 62, lines 2-24. He suffered “torn ligaments or . . . cartilage damage” in his right shoulder. Id. at 63, lines 9-10. He also suffered several “cuts and bruises and like swelling, stuff like that.” Id., lines 20-23. Plaintiff's right arm was immobilized because of the shoulder injury, and he suffered right thumb and left wrist sprains. See id. at 64, lines 2-13; Compl. at 20. He had bruising on his torso and his “shin had like a dent in it. Like a dent form being kicked from [a] boot like.” Dkt. No. 69-3 at...