Garcia v. McCarthy

N.D. New York

Garcia v. McCarthy

DecidedFebruary 6, 2024

Docket9:21-cv-00814

StatusUnknown

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Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ CARLOS GARCIA, Plaintiff, 9:21-CV-0814 v. (GTS/ML) ANDERSON, Corr. Ofcr., Auburn Corr. Fac.; CARSON, Corr. Ofcr., Auburn Corr. Fac.; FREDERICK, Corr. Ofcr., Auburn Corr. Fac; and JOHN DOE #2, Corr. Ofcr., Auburn Corr. Fac.; Defendants. __________________________________________ APPEARANCES: OF COUNSEL: CARLOS GARCIA, 89-T-1556 Plaintiff, Pro Se Upstate Correctional Facility P.O. Box 2001 Malone, New York 12953 CAPEZZA HILL LLP THOMAS A. CAPEZZA , ESQ. Counsel for Defendants ABBY McCORMICK-FOLEY, ESQ. 30 South Pearl Street, Suite P-110 Albany, New York 12207 GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in this pro se prisoner civil rights action filed by Carlos Garcia (“Plaintiff”) against Defendants Anderson, Carson, John Doe #2, and Frederick, employees of the New York State Department of Corrections and Community Supervision (DOCCS) (collectively, “Defendants”) pursuant to 42 U.S.C. § 1983, are the following: (1) United States Magistrate Judge Miroslav Lovric’s Report-Recommendation recommending that Plaintiff’s request pursuant to Fed. R. Civ. P. 56(d) be denied, and that Defendants’ motion for summary judgment be granted in part and denied in part; (2) Defendants’ Objection to the Report-Recommendation; and (3) Plaintiff’s response to Defendants’ Objection. (Dkt. Nos. 110, 111, 113.) For the reasons set forth below, Magistrate Judge Lovric’s Report-Recommendation

is accepted and adopted in its entirety. As an initial matter, the Court finds that Defendants’ Objection does not assert a new argument but merely repeats an argument asserted in their underlying motion. (Compare Dkt. No. 111, at 4-9 attaching pages “1” through “6” of Defs.’ Objection, asserting argument regarding Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), and Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460 (S.D.N.Y. 1998)] with Dkt. No. 87, Attach. 7, at 8, 12 [attaching pages “5” and “9” of Defs.’ Memo. of Law, introducing, then asserting an argument under, Jeffreys and

Aziz].) Furthermore, the Court observes that, "[w]here . . . an objecting party . . . simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Caldwell v. Crosset, 09-CV-0576, 2010 WL 2346330, at * 1 (N.D.N.Y. June 9, 2010) (quoting Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008)) (internal quotation marks omitted). Here, the Court finds that Magistrate Judge Lorvic’s thorough Report-Recommendation contains no clear error: while acknowledging the argument in question, Magistrate Judge Lovric correctly rejected it without deeming it worthy of explicit analysis. (Compare Dkt. No. 110, at

14 [Report-Recommendation, summarizing Defs.’ argument that Plaintiffs’ self-contradictory and uncorroborated testimony that he breathed fumes from the dry chemical powder must be disregarded under Jeffreys and Aziz] with Dkt. No. 110, at 19-20 [Report-Recommendation, 2 citing the admissible record evidence, including a medical record, from which a rational juror could find that Plaintiff breathed fumes from the dry chemical powder].) In any event, even if the Court were to subject this portion of the Report- Recommendation to a de novo review, it would accept and adopt that portion of the Report-

Recommendation. In their Objection, as in their underlying motion, Defendants essentially ask the Court to disregard as incredible the portion of Plaintiff’s testimony in which he claims to have inhaled (at least to his detriment) the dry chemical from a fire extinguisher, which they claim fell straight to the floor (escaping inhalation). (Dkt. No. 111, at 4 [attaching page “1” of Defs.’ Objection, requesting that the Court disregard Plaintiff’s testimony in support of his claim related to Defendants’ use of the dry chemical fire extinguisher]; Dkt. No. 87, Attach. 7, at 12 [attaching page “9” of Defs.’ Memo. of Law, arguing, “No evidence in the record corroborates

Plaintiff’s speculative assertion that he was suffering from ongoing effects from exposure to the contents of the fire extinguisher”]; Dkt. No. 102, at 9 [attaching page “6” of Defs.’ Reply Memo. of Law, arguing, “The discharge of the dry chemical extinguisher was not force at all, as it was sprayed through a vent onto the floor of plaintiff’s cell, not onto him”].) Generally, of course, a district court may not make credibility determinations on a motion for summary judgment. However, that general rule contains a narrow exception: where the plaintiff relies so much on his own testimony (because it is so uncorroborated by other record evidence), and that testimony is so internally contradictory and/or incomplete, that it would be

impossible for the court to determine whether or not there exists a genuine dispute of material fact without making a credibility determination. See Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (setting forth applicable standard for when to disregard testimony on 3 motion for summary judgment). In such a circumstance, the district court must make a credibility determination, because finding the absence of a genuine dispute of material fact would require the court to reject the conflicting portion of the plaintiff’s testimony as not credible; and finding the existence of a genuine dispute of material fact based on a portion of the plaintiff’s testimony

would similarly require the court to reject the conflicting portion of the plaintiff’s testimony as not credible. Here, however, Defendants have not made the necessary showing to invoke the narrow Jeffreys exception that they request. In their Objection, Defendants point to internal inconsistencies in Plaintiff’s testimony regarding such issues as (1) whether Plaintiff reported his injuries to corrections officers, (2) whether he was forced to remain in his cell following the incident, (3) whether he was able to identify the officers involved in the incident, (4) whether

other incarcerated individuals were able to handle the white powder without ill effects, and (5) the nature of the fire he started in his cell after the incident to draw attention to himself. (Dkt. No. 111, at 5-9.) Yet, even if these internal inconsistencies were accompanied by a lack of corroborating record evidence, the Court does not understand those particular inconsistencies to permit the Court (under Jeffreys) to disregard Plaintiff’s consistent testimony on the different subject of whether, on July 25, 2018, a dry chemical from a fire extinguisher was indeed “discharged” or “sprayed” into Plaintiff’s cell, and whether he inhaled that dry chemical. Indeed, the fact that a dry chemical was discharged, like the fact that Plaintiff both reported and testified

that he inhaled it, remains undisputed. (See, e.g., Dkt. No. 110, at Part I.B., Undisputed Fact Numbers 5, 6, 9, 10, 11, 20, 23.) Moreover, at least some admissible record evidence exists corroborating Plaintiff’s testimony that he inhaled the dry chemical. (Dkt. No. 101, Attach. 2, at 4 4 [Plaintiff’s medical record indicating his eyes were “red & irritated” on August 7, 2018].) If the Eighth Amendment claim in question were one of deliberate indifference to a serious medical need, the Court might reach a different conclusion. But it is not. Rather, it is a claim premised on the unnecessary and wanton infliction of pain. (Dkt. No. 110, at 18.)

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