Velez v. Lassiter

1

MICHAEL VELEZ, Plaintiff, v. C.O. LASSITER, Defendant.

No. 23-CV-4758 (CS)

United States District Court, S.D. New York

December 4, 2024

Kimberly Hunt Lee Sokoloff Stern LLP Poughkeepsie, New York Counsel for Defendant

OPINION & ORDER

CATHY SEIBEL, U.S.D.J.

Before the Court is the motion for summary judgment of Defendant Correction Officer (“C.O.”) Lassiter. (ECF No 43.) For the following reasons, the motion is GRANTED.

I. BACKGROUND

A. Facts

The following facts are taken from Defendant's Local Civil Rule (“L.R.”) 56.1 Statement and the supporting exhibits, and are undisputed unless otherwise noted.^[1] On April 10, 2023, Plaintiff Michael Velez was a pre-trial detainee at the Dutchess County Jail, when he got into a fight with Justin Deines, another inmate. (ECF No. 44 (“D's 56.1 Stmt.”) ¶¶ 1-3.) Plaintiff admits that as he was passing Deines in a hallway, he punched Deines in the face with a closed fist, and the two continued to throw punches at each other. (P's Depo. at 62:18-64:13; D's 56.1 Stmt. ¶ 6.) Plaintiff and Deines fought for about five seconds before two C.O.s arrived and instructed them to stop fighting, but they did not comply with the officers' instructions. (P's Depo. at 64:18-65:8; D's 56.1 Stmt. ¶ 8.) One of the responding C.O.s grabbed Deines, and as Deines was falling toward the floor, Plaintiff continued to throw punches at him. (P's Depo. at 65:18-66:10; D's 56.1 Stmt. ¶ 9.) Defendant tried to stop Plaintiff by grabbing his shoulder or jumpsuit. (P's Depo. at 66:17-67:16; D's 56.1 Stmt. ¶ 10.) According to Plaintiff, he stopped throwing punches once Deines was on the ground, and at “that split second” Defendant “picked [Plaintiff] up and slammed [him]” to the floor, (P's Depo. at 69:15-20), causing them both to fall, (D's 56.1 Stmt. ¶ 10). Plaintiff sustained a laceration to his head requiring five staples. (P's Depo. at 59:25-60:15.) At a disciplinary hearing, Plaintiff pled guilty to initiating the fight and received a ticket. (Id. at 87:21-89:24; D's 56.1 Stmt. ¶ 11.) There were no prior incidents between Plaintiff and Deines, and Plaintiff did not file a formal grievance about the incident. (D's 56.1 Stmt. ¶¶ 12-13.)

B. Procedural History

Plaintiff commenced this lawsuit pursuant to 42 U.S.C. § 1983 on June 5, 2023. Plaintiff alleges that Defendant violated his constitutional rights by using “unnecessary deadly force” when Defendant lifted him up and slammed him on the ground. (Compl. at 1.)^[2]

Defendant answered on August 29, 2023. (ECF No. 12.) On September 27, 2023, the Court held an initial conference and set a discovery schedule. (See Minute Entry dated Sept. 27, 2023.) On December 18, 2023, Defendant informed the Court that Plaintiff had not provided any discovery. (ECF No. 20.) The Court held a discovery conference on December 21, 2023, at which the Court extended all discovery deadlines, and instructed Plaintiff to provide his initial disclosures by January 4, 2024. (See Minute Entry dated Dec. 21, 2023.) On January 11, 2024, Defendant informed the Court that Plaintiff had not provided his initial disclosures, (ECF No. 22), and the Court ordered Plaintiff to show cause why he should not be sanctioned for failing to comply, (ECF No. 23). In a letter dated January 7, 2024 but docketed on January 16, 2024, Plaintiff asked the Court for time to obtain counsel, (ECF No. 24), and the Court instructed Plaintiff that he would have to proceed without a lawyer until he retains one and granted him one final extension to February 1, 2024 to make the Rule 26 disclosures, (ECF No. 25). On February 9, 2024, Defendant informed the Court that Plaintiff had provided authorization to obtain medical records but had not provided initial disclosures or responded to Defendant's demand for production of documents or interrogatories. (ECF No. 26.) With leave from the Court, Defendant filed a motion for sanctions on February 26, 2024, (see ECF Nos. 27, 29-33).

Defendant later withdrew the motion for sanctions upon receipt of Plaintiff's discovery responses. (ECF Nos. 37-38.)

On June 14, 2024, Defendant filed a pre-motion letter in anticipation of a motion for summary judgment. (ECF No. 40.) Plaintiff did not appear at the pre-motion conference, (see Minute Entry dated July 2, 2024), but the Court mailed Plaintiff a copy of the minute entry and the docket sheet including the briefing schedule for Defendant's motion. The instant motion followed. (See ECF No. 43.) Plaintiff has not opposed the motion.^[3]

II. LEGAL STANDARD

Summary judgment is appropriate when “the movant shows 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). “[T]he dispute about a material fact is ‘genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255; see Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005) (“When considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor.”). “In considering a motion for summary judgment, the Court cannot render credibility assessments, which are reserved for the jury.” Jordan v. Gifford, No. 19-CV-1628, 2022 WL 3106965, at *21 (D. Conn. Aug. 4, 2022).

The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if satisfied, the burden then shifts to the non-movant to “present evidence sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and he “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001).

“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials ....” Fed.R.Civ.P. 56(c)(1). Where a declaration is used to support or oppose the motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the . . . declarant is competent to testify on the matters stated.” Id. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). “If a party fails . . . to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).

In addition, pro se litigants must be afforded “special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly where motions for summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014). But “[a] pro se party's bald assertion, unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Walker v. Vaughan, 216 F.Supp.2d 290, 296-97 (S.D.N.Y. 2002).

“Where, as here, a motion for summary judgment is unopposed by a pro se plaintiff, courts may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial, and in doing so, may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement.” Murray v. Dabo, No. 22-CV-4026, 2024 WL 1421119, at *4 (S.D.N.Y. Feb. 2, 2024), report and recommendation adopted, 2024 WL 964599 (S.D.N.Y. Mar. 5, 2024). Thus, the Court “may grant an unopposed motion for summary judgment against a pro se plaintiff if: (1) the pro se plaintiff has received adequate notice that failure to file a proper opposition may result in dismissal of the case; and (2) 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.” Id. “If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment must be denied even if no opposing evidentiary matter is presented.” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). Here Defendant served Plaintiff with the required notice, pursuant to L.R. 56.2, (see ECF No. 45), so I turn to whether the facts show no genuine dispute that Defendant is entitled to judgment.

III. DISCUSSION

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail prison, or...