above-recited facts. Plaintiffs assertion that defendants held
the warrant because they did not earnestly believe the military
records to be complete or accurate is conjecture and, thus,
insufficient to satisfy his burden on summary judgment.
The fact that plaintiff can now point to some evidence
demonstrating that he was in Vietnam during a time when the
military records indicate that he was not does not require a
different result. These facts were not known to and could not
reasonably have been discovered by defendants at the time they
initiated the perjury complaint. See Pritzker Dep., at 22-23.
Finally, it was reasonable for defendants to believe that
plaintiffs testimony in the tort litigation was material to that
action. Plaintiff was called to testify about his investigation
of an accident scene. At the beginning of his testimony,
plaintiff was asked about his military career service to
establish his credibility as an investigator. Specifically,
plaintiff was attempting to establish that he had experience in
the Special Forces, Green Berets making maps. This testimony was
elicited to establish the legitimacy of certain drawings
plaintiff had made and pictures plaintiff had taken of the
accident site. Although plaintiffs testimony about his military
career did not go to the heart of his findings as an investigator,
it was material to his credibility as an investigator. "To be
material, the statement need not prove directly the fact in issue;
it is sufficient if it is `circumstantially material or tends to
support and give credit to the witness in respect to the main
fact.'" See People v. Davis, 53 N.Y.2d 164, 170, 440 N.Y.S.2d 864,
423 N.E.2d 341 (1981) (quoting Wood v. People, 59 N.Y. 117, 123).
"Thus a statement that reflects on the matter under consideration,
even if only as to the witness' credibility is material for
purposes of supporting a perjury charge." Id. (Internal citations
and quotations omitted). Accordingly, it was reasonable for
defendants to conclude that plaintiffs testimony about his
military career tended to support and give credit to his
forthcoming testimony about the results of his investigation and,
therefore, was material.
Simply stated, the facts as known to defendant, actual or
apparent, were strong enough to justify a reasonable person in
the belief that he or she had lawful grounds for prosecuting
plaintiff for perjury in the first degree.
Even if defendants acted without probable cause, for the
reasons discussed, they would be entitled to qualified immunity
because it was objectively reasonable for defendants to believe
that their acts did not violate plaintiffs rights. Kaminsky v.
Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991).
C. Excessive Use of Force
In the prior MDO, the Court noted that there were several cases
prior to March 1997, the time in question, holding that
handcuffing a non-threatening individual in the face of a known
medical condition violates clearly established constitutional
rights. Pritzker, 26 F. Supp.2d at 444 (and cases cited). However,
there remained a question whether "it was objectively reasonable
for Moon to believe that his conduct did not violate [plaintiffs
Fourth Amendment] rights." Id.
Defendants now move to dismiss plaintiffs excessive force claim
contending that plaintiff did not have a clearly established right
not to be handcuffed and it was objectively reasonable for Moon to
believe that he did not violate plaintiffs rights. In particular,
Moon claims that department policy required him to handcuff
plaintiff to the bench, he did not place the handcuffs tightly
around plaintiff's wrists, plaintiff never complained that the
handcuffs were too tight or caused him pain, plaintiff never
informed Moon of the nature or severity of the injuries, plaintiff
never requested medical attention for his wrists while in custody,
and plaintiffs medical records demonstrate that the handcuffs did
not cause him injury.
Plaintiff responds that there was a clearly established right
not to be handcuffed in the face of a clearly known injury,
plaintiff advised Moon of his preexisting injuries to his wrists,
plaintiff did not pose a threat because he voluntarily
surrendered in response to an arrest warrant for a nonviolent
crime, and that Moon, nonetheless, placed the handcuffs tightly
on plaintiffs wrist.
Freedom from the use of excessive force is a clearly
established right invoking the Fourth Amendment "objective
reasonableness" standard. Graham v. Connor, 490 U.S. 386,
109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Finnegan v.
Fountain, 915 F.2d 817, 823 (2d Cir. 1990). While the Second
Circuit has stated that it is not always reasonable to use
handcuffs in effectuating an arrest, "[n]either the Supreme
Court nor the Second Circuit has established that a person has
the right not to be handcuffed in the course of a particular
arrest, even if he does not resist or attempt to flee." Soares
v. State of Connecticut, 8 F.3d 917, 921 (2d Cir. 1993). Other
circuits have held that, under certain circumstances, it would
be inappropriate to use handcuffs in the face of a known injury.
See Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir.
1993); Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir. 1993);
see also Soares, 8 F.3d at 921. Regardless of whether there was
a clearly established right not to be handcuffed, under the facts
and circumstances of this case it was reasonable for Moon to
believe that he did not violate plaintiffs rights.
Although Moon was aware that plaintiff had a preexisting injury
to his wrists, plaintiff testified at deposition that he never
informed Moon of the severity of that injury, he never complained
to Moon that the handcuffs were hurting him, he did not exhibit
any signs of pain or trauma, and he never requested medical
treatment. Pritzker Dep., at 55-59; see Owens v. Colburn,
860 F. Supp. 966, 972 (N.D.N.Y. 1994), aff'd, 60 F.3d 812 (2d Cir.
1995). Thus, there was no reason for Moon to believe that he was
using excessive force in placing the handcuff on plaintiffs wrist.
Id. Furthermore, plaintiffs testimony reveals that the handcuffs
were not placed so tightly around his wrists as to prevent him
from being able to move his hands. See Pritzker Dep., at p. 55-57.
In fact, there was a gap between his wrists and the handcuffs.
Id., at p. 57. Accordingly, Moon is entitled to qualified immunity.
For the foregoing reasons, defendants' motion for summary
judgment is GRANTED and the Complaint is DISMISSED in its
IT IS SO ORDERED
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