Gunn v. Beschler

22-971-pr
Gunn v. Beschler
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 5th day of April, two thousand twenty-three.
Present:
ROSEMARY S. POOLER,
WILLIAM J. NARDINI,
SARAH A. L. MERRIAM,
Circuit Judges.
_____________________________________
DARRELL GUNN,
Plaintiff-Appellant,
v. 22-971
CHAD BESCHLER, Correction Officer,
JEFFERY CLAFLIN, Sergeant, TIMOTHY
PERRY, Correction Officer, B. SCHIEBER,
Correction Officer,
Defendants-Appellees,
WILLIAM J. ABRUNZO, Inmate Grievance
Program, Supervisor, ANTHONY J.
ANNUCCI, Acting Commissioner, R.J.
BALLARD, Lieutenant, BRUSH, Correction
Officer, D. BYNAUM, Sergeant, PAUL
CHAPPIUS, JR., Superintendent, A.
COLES, Correction Officer, COLLMER,
Sergeant, COLUMBO, Clinician Specialist,
MHU, DEPALO, Lieutenant, DONELY,
Offender Rehabilitation Coordinator,
ROBERT GESSNER, Inspector General,
LOONEY, Clinician, MHU, K. MUSSAW,
Lieutenant, J. POWERS, Sergeant, PAUL
PICCOLO, Deputy Superintendent Security,
F. SANTIAGO, Sergeant, J. TAYLOR,
Correction Officer, JOHN DOE, Sergeant -
Mental Health Unit, J. WENDERLICH,
Deputy Superintendent Security, K.
BUNNELL, Correction Officer, C. DIEGO,
Captain, G. KELLER, Captain, DAVIS,
Sergeant, AUDINWOOD, Correction
Officer, HEAL, Sergeant, SWEET, ORC,
JILL NORTHRUP, Nurse Practitioner,
DEPARTMENT OF CORRECTIONS AND
COMMUNITY SERVICES, HARKNESS,
Correction Officer,
Defendants.* 1
_____________________________________
For Plaintiff-Appellant: Darrell Gunn, pro se, Fallsburg,
NY.
For Defendants-Appellees: Barbara D. Underwood, Solicitor
General, Andrea Oser, Deputy
Solicitor General, Alexandria
Twinem, Assistant Solicitor
General, of counsel, for Letitia
James, Attorney General, State of
New York, Albany, NY.
* The Clerk of Court is directed to amend the caption as set forth above.
Appeal from a judgment of the United States District Court for the Western District of New
York (Charles J. Siragusa, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED IN PART, VACATED IN
PART, and REMANDED for further proceedings.
Plaintiff-Appellant Darrell Gunn, proceeding pro se, appeals from a judgment of the United
States District Court for the Western District of New York (Charles J. Siragusa, Judge) entered on
February 25, 2022, granting summary judgment to four prison employees on his claims under 42
U.S.C. § 1983. Gunn principally alleged that corrections officers assaulted him during pat frisks,
retaliated against him for reporting those assaults, and exposed him to cold conditions, in violation
of his First and Eighth Amendment rights. We assume the parties’ familiarity with the case.
We review a grant of summary judgment de novo. See Garcia v. Hartford Police Dep’t,
706 F.3d 120, 126 (2d Cir. 2013). “Summary judgment is proper only when, construing the
evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff,
642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “[W]e liberally construe
pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest
arguments they suggest.” McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)
(internal quotation marks omitted).
As a preliminary matter, Gunn has abandoned the majority of his claims on appeal, and we
affirm the district court on those grounds. Notwithstanding the principle of liberal construction,
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a pro se appellant abandons issues not raised in his or her appellate brief. See LoSacco v. City of
Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995) (explaining that the Court “need not manufacture
claims of error for an appellant proceeding pro se”). Here, Gunn has abandoned all claims
dismissed by the district court prior to its summary judgment order by failing to mention them on
appeal. He has also abandoned several of the claims resolved by summary judgment.
Specifically, he does not mention the district court’s findings that he failed to demonstrate the
required personal involvement of a defendant for his cold-conditions claim and that he failed to
administratively exhaust several other claims. We therefore affirm the district court’s judgment
on those claims.
All that remains, then, are Gunn’s claims associated with the events of March 29, 2013,
and his retaliation claims against Corrections Officers Perry and Schieber. Gunn alleged that on
March 29, 2013, a corrections officer sexually assaulted him during a pat frisk in the presence of
another corrections officer and a corrections sergeant—neither of whom intervened to prevent or
stop the alleged assault—and that the second corrections officer then kicked him. We first affirm
the district court’s dismissal of Gunn’s sexual assault and failure-to-intervene claims premised on
the pat frisk. As the district court properly found, Gunn’s claims were barred by the principle of
collateral estoppel (also called issue preclusion) because the New York Court of Claims had
already found that the pat frisk was not an assault. We apply a state’s collateral estoppel rules to
a prior judgment rendered in that state. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 81 (1984). “Under New York law, collateral estoppel prevents a party from relitigating
an issue decided against that party in a prior adjudication.” Fuchsberg & Fuchsberg v. Galizia,
300 F.3d 105, 109 (2d Cir. 2002) (internal quotation marks omitted). Collateral estoppel may be
4
invoked to prevent a party from litigating an issue in a subsequent action when: “(1) the issues in
both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and
decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the
issue previously litigated was necessary to support a valid and final judgment on the merits.”
Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17 (2015) (internal quotation marks omitted).
Gunn argues that he did not receive a full and fair opportunity to litigate the character of
the pat frisk in the Court of Claims. Courts consider the “realities” of prior litigation to determine
whether a full and fair hearing was held. Chartier v. Marlin Mgmt., LLC, 202 F.3d 89, 94 (2d
Cir. 2000) (internal quotation marks omitted). Relevant factors include: “1) the nature of the
forum and the importance of the claim in the prior litigation; 2) the incentive to litigate and the
actual extent of litigation in the prior forum; and 3) the foreseeability of future litigation (because
of its impact on the incentive to litigate in the first proceeding).” Id. (internal quotation marks
omitted). None of these factors suggests that Gunn lacked a full and fair opportunity to litigate in
the prior action. Although Gunn alleges that certain evidence was not available, he does not
explain what that evidence was, or on what grounds it was withheld or not admitted. He also
argues that the videoconference was disconnected at some point during trial, but he does not state
how long this disruption lasted, or otherwise explain why it interfered with his ability to fully
litigate the question of whether he was sexually assaulted on March 29, 2013. That issue—
whether he was sexually assaulted during a pat frisk on March 29, 2013—was central to his Court
of Claims action, which included a battery claim against the state premised on that interaction. 2
2
Gunn also appears to argue that the district court erroneously made a credibility determination against him
in its collateral estoppel ruling. That is a misreading of the decision. The district court properly found that it was
5
The Court of Claims found that there was insufficient evidence to suggest that the assault occurred,
and future courts, including the district court here, are bound by that determination.
However, we vacate the district court’s judgment with respect to Gunn’s excessive force
claim premised on the kick incident alleged to have occurred on March 29, 2013. To prevail on
an Eighth Amendment excessive force claim, a plaintiff must prove “two elements, one subjective
and one objective.” Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (internal quotation marks
omitted). That is, the plaintiff must show that the defendant acted with a “sufficiently culpable
state of mind,” and that “the conduct was objectively harmful enough . . . to reach constitutional
dimensions.” Id. at 63–64 (internal quotation marks omitted). The subjective element turns on
“whether the force was used in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003). As for the
objective element, “de minimis uses of physical force” are insufficient to support a constitutional
claim, “provided that the use of force is not of a sort repugnant to the conscience of mankind.”
Hudson v. McMillian, 503 U.S. 1, 10 (1992) (internal quotation marks omitted). Applying this
test, where there was sufficient evidence for a rational factfinder to conclude that officers “used
force maliciously and sadistically,” we have reversed grants of summary judgment to the
defendants “even where the plaintiff’s evidence of injury was slight and the proof of excessive
force was weak.” Wright v. Goord, 554 F.3d 255, 269 (2d Cir. 2009).
Construing the record in Gunn’s favor, there is sufficient evidence for a jury to find that
Corrections Officer Beschler intentionally kicked Gunn hard in the shin with a booted foot, while
bound by the Court of Claims’ finding—which was based on a credibility determination by the Court of Claims—and
it did not decline to credit Gunn’s testimony on any other issue.
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Gunn was complying with an order to return to his cell in an uncrowded hall, resulting in pain for
hours. Beschler denies that the kick took place, or that it was intentional; he does not claim that
there was a legitimate reason for him to have intentionally kicked Gunn. As the district court
acknowledged, then, a reasonable jury could conclude that the kick occurred and that it was
“unprovoked and unnecessary.” Gunn v. Bescler, No. 16-cv-6206, 2022 WL 563189, at *4
(W.D.N.Y. Feb. 24, 2022). A genuine dispute of fact thus exists as to whether Beschler kicked
Gunn for the sole purpose of humiliating or causing pain to him, and whether this use of force was
of a sort repugnant to the conscience of mankind. See Hudson, 503 U.S. at 9 (“When prison
officials maliciously and sadistically use force to cause harm, contemporary standards of decency
always are violated. . . . whether or not significant injury is evident.” (internal citation omitted));
Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (explaining that the Eighth Amendment prohibits
punishments that involve “inflictions of pain . . . that are totally without penological justification”
(internal quotation marks omitted)); see also Griffin v. Crippen, 193 F.3d 89, 90–92 (2d Cir. 1999)
(reversing sua sponte dismissal of Eighth Amendment excessive force claim, which “effectively
grant[ed] summary judgment to” defendants where guards allegedly assaulted plaintiff, resulting
in a bruised shin and swelling over his knee).
We also vacate the district court’s judgment as to Gunn’s First Amendment retaliation
claims. To prevail on a First Amendment retaliation claim, a plaintiff must demonstrate that (1)
he engaged in protected speech, (2) the defendant took an adverse action against him, and (3) there
was a causal connection between the protected speech and adverse action. See Davis v. Goord,
320 F.3d 346, 352 (2d Cir. 2003). Evidence of causation is sufficient to avoid summary judgment
where the adverse action occurred within a few months of the protected speech, the officer who
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was the subject of the speech participated in the adverse action, and there was reason to infer that
the officer knew of the speech. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). The
district court concluded that the evidence of causation between Gunn’s protected conduct and the
alleged adverse actions was insufficient for a jury to find causation. We disagree. 3
First, Gunn has submitted evidence sufficient for a jury to infer causation between his
grievance against Officer Perry for the March 29, 2013, pat frisk (the protected conduct) and the
June 11, 2013, pat frisk (the alleged adverse action). Although conclusory assertions are
insufficient to create an issue of fact regarding causation, see Goenaga v. Mar. of Dimes Birth
Defects Found., 51 F.3d 14, 18 (2d Cir. 1995), a jury could infer the requisite causation here by
finding that Officer Perry knew Gunn had filed a grievance against him and that June 11, 2013,
was the first opportunity Perry had to retaliate against Gunn. See Gunn, No. 16-cv-6206, Dkt.
No. 68-7 at 84, 89–90; 91. Accordingly, a reasonable jury could find a causal connection between
Gunn’s grievance relating to the March 29, 2013, pat frisk and the June 11, 2013, pat frisk, and we
vacate the district court’s judgment as to this claim.
The record is likewise sufficient for a jury to find causation as to Gunn’s retaliation claim
against Officer Schieber regarding his alleged retaliatory visits to Gunn’s cell in January and
February of 2014. The district court found evidence of causation insufficient because the record
did not support a finding that Officer Schieber knew of Gunn’s grievances. Gunn, 2022 WL
563189 at *7–8. But the record contains evidence that Gunn was known by officers generally as
an inmate who filed grievances, Gunn, 16-cv-6206, Dkt. 68-7 at 200–01, and that Gunn asked
3
Like the district court, we have assumed without deciding that Gunn has met the first and second elements
of this test as to his retaliation claims.
8
Officer Schieber for his name (and reported him to other officers) following another pat frisk
incident that Gunn raised, id. at 207–09, 213. 4 Accordingly, a reasonable jury could find a causal
connection between Gunn’s grievances and the alleged adverse conduct of Officer Schieber, and
we vacate the district court’s judgment as to this retaliation claim.
We have considered all of Gunn’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM IN PART and VACATE IN PART the judgment of the district court,
and we REMAND for further proceedings on Gunn’s excessive force claim against Corrections
Officer Beschler and his retaliation claims against Corrections Officers Perry and Schieber
consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4
Gunn does not dispute the district court’s conclusion that he failed to administratively exhaust his claim
arising out of this alleged pat frisk, which Gunn claims occurred in July 2013.
9