DeJesus v. Malloy

531 F.Supp.3d 650

Denny DEJESUS, Plaintiff,

v.Corrections Officer R. MALLOY and C.O. John Doe,¹ Defendants.

6:16-CV-06470 EAW

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

Signed March 31, 2021

Denny DeJesus, Elmira, NY, Pro Se.

Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. INTRODUCTION

Pending before the Court are competing motions for summary judgment related to an alleged sexual assault occurring on June 12, 2015, at the Five Points Correctional Facility ("Five Points C.F."). (Dkt. 100; Dkt. 114). For the reasons set forth below, the motion filed by defendant Corrections Officer R. Malloy ("Defendant") is denied (Dkt. 100), and the motion filed by pro se plaintiff Denny DeJesus ("Plaintiff") is granted in part and denied in part (Dkt. 114).

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff commenced this lawsuit on July 6, 2016. (Dkt. 1). Plaintiff filed an amended complaint on October 18, 2016. (Dkt. 8). On February 23, 2017, the Court issued an Order denying Plaintiff's request to proceed in forma pauperis ("IFP") without prejudice. (Dkt. 10). Plaintiff filed an updated IFP application (Dkt. 11), and on May 8, 2018, the Court issued an Order granting Plaintiff's IFP application and screened the amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a), whereby all claims were dismissed with leave to replead except Plaintiff's Eighth Amendment claim for sexual assault against Defendant.² (Dkt. 19). On May 31, 2018, Plaintiff filed a second amended complaint. (Dkt. 21). On December 11, 2018, the Court screened the second amended complaint and allowed Plaintiff's claims against Defendant pursuant to the Eighth and Fourth Amendments to proceed but dismissed the remaining claims. (Dkt. 35). On April 11, 2019, Defendant filed an answer to the second amended complaint (Dkt. 46), and the Court referred the matter to Magistrate Judge Payson for the supervision of discovery (Dkt. 47).

Plaintiff alleges in the second amended complaint that on June 12, 2015, while he was housed at Five Points C.F., Defendant sexually assaulted him during a pat frisk while he was on his way to the law library. (Dkt. 21 at 3). Plaintiff alleges that Defendant placed his hand inside Plaintiff's pants and boxer shorts and squeezed his penis and testicles, causing Plaintiff "excruciating pain." (Id. ). Defendant then allegedly said to Plaintiff "you like that freak." (Id. ). After the alleged sexual assault, Plaintiff states that he noticed that his penis and testicles had swollen and there was blood in his urine and a stinging sensation when he urinated. (Id. ). Plaintiff subsequently received medical treatment. (Id. at 5-9).

Defendant's Motion for Summary Judgment

On July 6, 2020, Defendant filed a motion for summary judgment. (Dkt. 100). Defendant seeks dismissal of "the cause of action for physical assault." (Id. at 1). In support of the motion, Defendant submitted a statement of undisputed facts addressing Plaintiff's medical situation after the alleged incident, wherein tests revealed microscopic amounts of blood in Plaintiff's urine on June 14, 2015, but there were no reports in the medical records of any bleeding, bruising or redness to Plaintiff's penis or testicles. (Dkt. 100-1 at ¶¶ 4-5). Trace amounts of blood were also found in Plaintiff's urine on June 15 (Dkt. 100-3 at ¶ 8), but by June 18, there was no presence of blood. (Id. at ¶¶ 7 & 9). In addition, a testicular sonogram was performed on June 30, and it found no abnormality, inflammation, or signs of trauma. (Id. at ¶ 10). Defendant states that based on the opinion of David Dinello, M.D., "[t]here is no biological mechanism explaining how blunt force trauma could cause a microscopic hematuria which resolved in a couple of days and showed no scarring or signs of abnormality on a sonogram of Plaintiff's testicles." (Id. at ¶ 11; see also Dkt. 100-3 at 4-6). David Dinello, M.D.,³ has submitted a declaration opining that the blood in Plaintiff's urine was not caused by trauma to the testicles or groin. (Id. at 6, ¶¶ 17-18). Dr. Dinello states that the amount of blood in Plaintiff's urine on or about June 14, 2015, would not have been visible to the naked eye. (Id. at 4, ¶ 7). Included as part of Defendant's summary judgment motion is a certified copy of Plaintiff's medical records (id. at 8-51), and three pages of Plaintiff's deposition transcript (id. at 52-55).

Defendant seems to bifurcate Plaintiff's Eighth Amendment claim, characterizing it as a claim for "physical and sexual assault" and contends that he is seeking summary judgment on the "physical assault" aspect of the claim only. (Dkt. 100-4 at 2). Defendant contends that it is impossible for the incident as described by Plaintiff to have occurred and not have resulted in more significant physical injuries, and that Plaintiff should not be permitted to testify that the alleged incident caused blood in the urine without expert testimony.⁴ (Id. at 3-4). If summary judgment is not granted, Defendant alternatively requests that Plaintiff be barred "from entering evidence or testifying about blood in his urine as it is an impossibility for his microscopic hematuria to have been caused by a blunt force trauma, from Defendant or anyone else." (Id. at 5).

Plaintiff has opposed Defendant's motion. (Dkt. 102). In opposition to the motion, Plaintiff has submitted a response to Defendant's statement of undisputed facts wherein he contends that by the time he was seen by medical personnel after the incident, his penis’ swelling had reduced but his testicles were still swollen. (Dkt. 102-1 at 2). Plaintiff also contends that if the blood in his urine was only microscopic as claimed by the defense, then he would not have been able to observe the urine and report it, as he did after the incident. (Id. at 10).⁵ Plaintiff contends that the ambulatory health record progress note from June 18, 2015, supports his contention about swelling in his groin area (id. at 2; see id. at 62-63), as does the record from June 15, 2015 (id. at 2, 58-61).⁶ Plaintiff further contests the conclusiveness of the sonogram of his testicles, as no such study was performed on his penis. (Id. at 4-5). Plaintiff also submits a declaration wherein he outlines the medical treatment that he received after the incident, and his observations of blood in his urine, a stinging sensation when urinating, and swollen testicles and penis. (Id. at 76-83). In addition, Plaintiff submits portions of his deposition testimony (id. at 31-55), and the sick-call slip dated June 12, 2015 (id. at 56-57; see id. at 78, ¶ 4). Plaintiff states in his affidavit that he first received medical attention for the incident on June 14, 2015, after making a request for the same on the date of the incident. (Id. at 78-79, ¶¶ 4-6). This is consistent with the medical records which indicate Plaintiff was first seen on June 14, 2015, at 1:30 a.m. (Dkt. 100-3 at 19).

Defendant filed reply papers in further support of his motion for summary judgment, consisting of a further declaration from Dr. Dinello with attached medical records. (Dkt. 103). In that reply declaration, Dr. Dinello states that the ambulatory health record progress note from June 18, 2015, only supports a conclusion that Plaintiff told medical personnel that a medical provider who examined him on June 15, 2015, found swelling—not that there was objective evidence of the swelling. (Id. at ¶ 8). Dr. Dinello states that "[t]he note is clear" in this regard and that it supports a conclusion that on June 18, 2015, Plaintiff "lied to medical staff and falsely claimed that on June 15 he had been assessed with redness and swelling."⁷ (Id. at ¶¶ 8 & 10). Dr. Dinello further opines that the medical evidence does not support a conclusion that Plaintiff suffered blunt force trauma to his penis that caused blood in his urine. (Id. at ¶¶ 12-17).

Plaintiff's Motion for Summary Judgment

On December 30, 2020, Plaintiff filed a motion for summary judgment. (Dkt. 114). The motion seeks summary judgment in favor of Plaintiff on his Eighth Amendment claim involving the alleged sexual assault on June 12, 2015. (Dkt. 114 at 8). In support of that motion, Plaintiff submitted a statement of undisputed facts (id. at 3-6), a memorandum of law (id. at 7-16), Plaintiff's declaration made under penalty of perjury (Dkt. 114-1 at 10-12), and exhibits consisting of documents related to the grievance filed by Plaintiff (id. at 1-8), a videotape of the incident (id. at 13)⁸ , the sick-call note from June 12, 2015, whereby Plaintiff requested medical attention (id. at 14-15), portions of Plaintiff's deposition transcript (Dkt. 114-2 at 1-7), and various other documents related to the incident.⁹

Defendant's opposition to Plaintiff's motion for summary judgment consists of a three-page memorandum of law. (Dkt. 117). Although Defendant's opposition appears to incorporate the evidence submitted in support of his motion for summary judgment, Defendant did not directly submit any evidentiary proof in opposition to Plaintiff's motion, nor did he respond to Plaintiff's statement of undisputed facts.

Plaintiff filed a reply memorandum in further support of his motion for summary judgment wherein, among other things, he argues that Defendant failed to provide an affidavit or evidentiary proof in opposition to the motion for summary judgment, thus justifying granting Plaintiff's motion. (Dkt. 118).

III. DISCUSSION AND ANALYSIS

A. Summary Judgment Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving pa...