    18-3443-pr
    Adamson v. Miller


                             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 ASUMMARY ORDER@). A PARTY CITING TO 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 9th day of April two thousand twenty.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                JOSEPH F. BIANCO,
                      Circuit Judge,
                VICTOR A. BOLDEN, *
                      District Judge.
    _____________________________________

    Alty Adamson,

                              Plaintiff-Appellant,

                        v.                                                      18-3443 (L);
                                                                                19-1632 (Con)
    Detective David Miller, 69th Precinct; Lieutenant
    Daniel Divers; City of New York; New York City
    Police Department; Detective Thomas Franklin,
    Shield # 5207,

                              Defendants-Appellees,

    Detective Simmonds, Shield # 4637,
    AKA John Doe #1,

                      Defendant.
    _____________________________________

    *
      Victor A. Bolden, United States District Judge for the District of Connecticut, sitting by
    designation.
                                                    1
FOR PLAINTIFF-APPELLANT:                                               Alty Adamson, pro se,
                                                                       Stormville, NY.

FOR DEFENDANTS-APPELLEES:                                              Jeremy W. Shweder,
                                                                       Deborah E. Wassel, for
                                                                       James E. Johnson,
                                                                       Corporation Counsel of the
                                                                       City of New York,
                                                                       New York, NY.

        Appeal from a judgment of the United States District Court for the Eastern District of

New York (Garaufis, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the case is REMANDED.

        Plaintiff-appellant Alty Adamson, pro se and incarcerated, appeals from two district court

orders granting defendants’ motion for summary judgment and denying his motion for

reconsideration. Adamson filed a 42 U.S.C. § 1983 complaint against the City of New York, the

New York City Police Department (“NYPD”), and NYPD officers David Miller, Thomas

Franklin, and Daniel Divers. He alleged that (1) he was subjected to excessive force when he was

placed in a chokehold and punched during an identificatory lineup; and (2) he was denied

treatment for injuries incurred during the lineup, as a result of the officers’ deliberate

indifference to his medical needs. The district court granted summary judgment to defendants on

both claims, as well as on state law claims arising out of the same facts. Adamson appealed the

two orders. We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

   I.      Standards of Review

        We review a grant of summary judgment de novo. See Bellamy v. City of New York, 914

F.3d 727, 744 (2d Cir. 2019). “Summary judgment may be granted only ‘if the movant shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment

                                                  2
as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “We may affirm the grant of summary

judgment only when, in resolving all ambiguities and drawing all permissible factual inferences

in favor of the non-moving party[,] the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party.” Id. 1 “A fact is ‘material’ for these purposes when it might

affect the outcome of the suit under the governing law. An issue of fact is ‘genuine’ if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Jeffreys

v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).

          “Assessments of credibility and choices between conflicting versions of the events are

matters for the jury, not for the court on summary judgment.” Id. Corroboration, though helpful,

is not essential; “a § 1983 plaintiff’s testimony alone may be independently sufficient to raise a

genuine issue of material fact.” Bellamy, 914 F.3d at 746. However, where the nonmovant relies

solely on his own testimony, summary judgment may still be appropriate in the rare case where

that testimony is “contradictory and incomplete, and so replete with inconsistencies and

improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to

credit the allegations.” Id.

    II.          Adamson’s Section 1983 Claims

          A. Excessive Force

          The district court did not resolve whether Adamson’s excessive force claims fell under

the Eighth or Fourteenth Amendments. We find it unnecessary to decide which constitutional

provision applies here, as it will not affect the outcome of this appeal.

          In order to establish an Eighth Amendment violation, a plaintiff must satisfy both (1) an

objective requirement, showing that “conduct was objectively harmful enough or sufficiently


1
  Unless otherwise indicated, case quotations omit all internal quotation marks, citations,
footnotes, and alterations.

                                                   3
serious to reach constitutional dimensions,” Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir.

2015); and (2) a subjective requirement, showing that “the defendant had the necessary level of

culpability, shown by actions characterized by wantonness in light of the particular

circumstances surrounding the challenged conduct,” Harris v. Miller, 818 F.3d 49, 63 (2d Cir.

2016) (per curiam). Under the Fourteenth Amendment standard, “a pretrial detainee must show

only that the force purposely or knowingly used against him was objectively unreasonable.”

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015).

       The central dispute on this claim is a factual one: whether Adamson was placed in a

chokehold and punched. A genuine issue as to that material fact would be sufficient to defeat

summary judgment under either constitutional standard. Cf. United States v. Livoti, 196 F.3d

322, 327 (2d Cir. 1999) (upholding excessive force verdict where NYPD officer put victim in

chokehold for one minute to render victim unconscious, and where the NYPD prohibited such

chokeholds). Adamson adduced no admissible evidence supporting his version of events apart

from his own deposition testimony and affidavit. 2 However, rather than assessing whether

Adamson’s own testimony would, if credited, support a jury verdict in his favor, the district court

only considered whether Adamson’s testimony was corroborated by the testimony of other

witnesses. After noting that none of the other witnesses testified to seeing Adamson in a


2
  The district court excluded as hearsay two affidavits drafted by Adamson’s relatives relaying
remarks allegedly made by his attorney, Joel Brettschneider. Adamson argues that the affidavits
should have been admitted under Federal Rule of Evidence 807, which provides a limited
exception to the hearsay rule where no other exception applies. A hearsay statement may be
admissible under Rule 807 if: “(i) it is particularly trustworthy; (ii) it bears on a material fact;
(iii) it is the most probative evidence addressing that fact; (iv) its admission is consistent with the
rules of evidence and advances the interests of justice; and (v) its proffer follows adequate notice
to the adverse party.” United States v. Morgan, 385 F.3d 196, 208 (2d Cir. 2004). The exception
is “used very rarely, and only in exceptional circumstances.” Parsons v. Honeywell, Inc., 929
F.2d 901, 907 (2d Cir. 1991). The district court did not err in rejecting the application of the
residual exception here, as Adamson has not shown that the affidavits are particularly
trustworthy or more probative than other evidence concerning the lineup.

                                                  4
chokehold, the court concluded that “the witness testimony in this case does not show a genuine

issue for trial because the testimony is not actually in conflict.” Adamson v. Miller, No. 10-cv-

2300 (NGG) (LB), 2018 WL 4964099, at *6 (E.D.N.Y. Oct. 15, 2018).

       This was error. By omitting Adamson’s own testimony from its analysis, the district court

failed to “view the evidence in the light most favorable” to Adamson and to “favor [him] with all

reasonable inferences.” McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995). Nor

could the district court have properly disregarded Adamson’s testimony on the ground that it was

simply incredible. “[I]t is undoubtedly the duty of district courts not to weigh the credibility of

the parties at the summary judgment stage.” Jeffreys, 426 F.3d at 554. And Adamson’s

testimony, although not corroborated by other evidence, was not “contradictory and incomplete,”

nor was it “so replete with inconsistencies and improbabilities that no reasonable juror” could

credit it. Bellamy, 914 F.3d at 746. To the contrary, Adamson has consistently asserted for the

past ten years that he was placed in a chokehold and punched during the lineup.

       Viewing the evidence in the light most favorable to Adamson, as we must at the summary

judgment stage, we conclude that a reasonable jury could credit his version of events. We further

conclude that a reasonable jury could find that placing Adamson in a chokehold and punching

him was an excessive use of force, whether judged against the Eighth or Fourteenth Amendment

standards. We therefore vacate the district court’s order insofar as it granted summary judgment

to defendants on this claim.

       B. Deliberate Indifference

       Adamson’s second claim is for deliberate indifference to his medical needs. The district

court again did not decide whether the Eighth or Fourteenth Amendment applied to this claim,

and again we find it unnecessary to resolve the question. To establish an Eighth Amendment

violation based on inadequate medical care, a prisoner must demonstrate both an objectively


                                                  5
serious medical deprivation and a sufficiently culpable mental state on the part of the charged

official. See Smith v. Carpenter, 316 F.3d 178, 183–84 (2d Cir. 2003). “The objective component

requires that the alleged deprivation must be sufficiently serious, in the sense that a condition of

urgency, one that may produce death, degeneration, or extreme pain exists.” Hill v. Curcione,

657 F.3d 116, 122 (2d Cir. 2011). The subjective component requires the prisoner to show

deliberate indifference, i.e., that the medical professional possessed “a state of mind that is the

equivalent of criminal recklessness.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).

Under the Fourteenth Amendment standard, a plaintiff challenging the conditions of pretrial

detention must provide evidence (1) that the alleged deprivation “pose[d] an unreasonable risk of

serious damage to his health,” and (2) “that the defendant-official acted intentionally to impose

the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the

condition posed.” Darnell v. Pineiro, 849 F.3d 17, 30, 35 (2d Cir. 2017).

       Adamson testified that, after the lineup, he told Detective Miller that he was having

trouble breathing, that his throat hurt, and that either his mouth or his throat was bleeding. Miller

allegedly replied that there did not appear to be anything wrong with Adamson. A reasonable

jury, if it credited Adamson’s account, could conclude that Miller’s response exhibited deliberate

indifference to Adamson’s plight. Moreover, a reasonable jury could conclude that Adamson’s

symptoms—difficulty breathing and potential internal bleeding—were sufficiently serious to

demand an urgent response.

       The district court’s reasons for concluding otherwise are not persuasive. First, the court

noted that Adamson’s attorney, Brettschneider, testified that he did not see any injuries after the

lineup. Adamson, 2018 WL 4964099, at *7. But this reflects an implicit credibility determination

in favor of Brettschneider and against Adamson—a credibility determination that the district

court could not make at this stage. Additionally, as the court recognized, this testimony “does not


                                                  6
refute Plaintiff’s allegation that he was injured at all, just that he had visible injuries.” Id. Viewed

in the light most favorable to Adamson, then, Brettschneider’s testimony does not support a grant

of summary judgment to defendants.

        Second, the court observed that, upon his return to the Nassau County Correctional

Facility, Adamson was given ibuprofen. Id. From this, the court concluded that Adamson’s

injuries were not serious. But this conclusion—that because Adamson was not given serious

medical attention, his injuries must not have been serious enough to warrant serious medical

attention—is circular. The crux of Adamson’s claim is that he was not given appropriate

treatment; that claim cannot be defeated simply by pointing to the allegedly inadequate treatment

he received.

        Finally, the court found that “Plaintiff’s decision not to seek medical attention” for

several months after the lineup “undermines his argument that he was seriously injured.” Id. at

*8. But that conclusion overlooked other evidence in the record. In particular, Adamson testified

that after his initial appointment (when he was given ibuprofen), he put in three additional

requests for medical attention while at the Nassau County Correctional Facility, but he was

ignored each time. It is true that Adamson was not ultimately seen by a doctor until July—more

than two months after the lineup—and that on that occasion he did not mention the alleged

chokehold. But taking Adamson’s testimony as true and drawing all permissible inferences in his

favor (as we must), that delay could merely reflect ongoing indifference by the authorities to his

injuries, as opposed to Adamson’s own lack of concern about the injuries. And to the extent the

district court believed it necessary for Adamson to produce additional corroborating evidence

beyond his own testimony, id., it was in error. See Bellamy, 914 F.3d at 746.

        Construing the evidence in the light most favorable to Adamson, we conclude that a

reasonable jury could return a verdict in his favor on his claim of deliberate indifference. We


                                                   7
therefore vacate the district court’s grant of summary judgment on this claim.

    III.      State Claims

           The district court liberally construed Adamson’s complaint and briefing to raise state law

negligence claims against the City of New York based on the same allegations as those

underlying his § 1983 claims. Adamson v. City of New York, No. 10-cv-2300 (NGG) (LB), 2019

WL 181299, at *1–2 (E.D.N.Y. Jan. 10, 2019). The court granted summary judgment as to those

claims, however, finding that they were essentially premised on the same theories of liability as

Adamson’s failed constitutional claims. Id. at *3. Because we are vacating the grant of summary

judgment as to Adamson’s § 1983 claims, we vacate the summary judgment on the related

negligence claims as well.

    IV.       Reconsideration

           Because we are vacating the district court’s grant of summary judgment, the district

court’s denial of reconsideration as to that order is moot.

           Accordingly, we VACATE the judgment of the district court and REMAND for further

proceedings. 3


                                                FOR THE COURT:
                                                Catherine O=Hagan Wolfe, Clerk of Court




3
  Upon remand, the district court should determine whether Adamson’s § 1983 claims arise
under the Eighth or Fourteenth Amendment. See United States v. Walsh, 194 F.3d 37, 47 (2d Cir.
1999) (“[T]he Eighth Amendment’s protection does not apply until after conviction and
sentence[;] the right of pretrial detainees to be free from excessive force amounting to
punishment is protected by the Due Process Clause of the Fourteenth Amendment.”).

                                                   8
