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WILLIS v. CITY OF NEW YORK

March 17, 2004.

RONALD WILLIS, Plaintiff, -v.- THE CITY OF NEW YORK AND POLICE OFFICER JOHN DALMINE, BADGE NUMBER 911973, Defendants


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

OPINION AND ORDER

Ronald Willis brought this action against the City of New York and police officer John Dalmine, alleging that Dalmine used excessive force against him and failed to provide him urgent medical attention during an incident on March 7, 2001. Defendants move for summary judgment. For the reasons that follow, their motion will be granted.

  BACKGROUND

  On March 7, 2001, Willis felt ill because he had not taken his medications. (Willis Tr. 64.) Because he did not have the money to purchase them, he called his friend John, who "was going to give [him] 30 bucks, to fill [his] prescription[s] for . . . Dilantin and . . . Motrin." (Id. 52.) Willis arranged to meet John in front of Harlem Hospital, at 135th Street and Lenox Avenue in Manhattan. (Id.) In the late afternoon or early evening, he boarded a subway to travel to that Page 2 address, and at 149th Street, deboarded to change trains. (D. Rule 56.1 Stmt. ¶¶ 1-2.) While transferring, Willis felt nauseous. He ran toward a restricted area on the subway platform and vomited. (Willis Tr. 60.) Afterwards, he turned around and ran into a police officer, defendant Dalmine. (Id. 61-62.)

  Willis yelled at Dalmine, who tried to calm Willis down. (Id. 63.) Dalmine told Willis that Willis would be issued a summons.*fn1 (D. Rule 56.1 Stmt. ¶¶ 8.) While Dalmine wrote up the summons, another police officer appeared, and Willis argued with that officer. (Id. ¶ 11; Willis Tr. 75-76.) Shortly thereafter, another police officer "came out of nowhere" and suggested to his colleagues that they arrest Willis. (Id. 76.) Because Willis felt nauseous and harassed, he continued to argue with the officers. (D. Rule 56.1 Stmt. ¶ 14; Willis Tr. 80-81.) Willis testified that he also observed two other officers, whom he described, respectively, as female and black, in the vicinity. (Id. 77.) At one point, Willis told one of the officers that "if [Willis] was his size, [he] would knock him out," that if he were bigger, he could "do some damage to [the officer] if [he] had the opportunity," and that "[t]hat's why you [police officers] get shot. You all be bothering people you have no business with." (Id. 74.) After Dalmine issued Willis the summons, the black officer "whispered to [Willis] that he was going to throw [Willis] out of the train station." (Id. 82.) Willis insisted that the officer give him subway fare, and the officer refused, which made Willis "more vocal." (Id.) Willis acknowledged that he continued "yelling" at the officers essentially throughout the incident. (Id. 63, 74, 89.) Page 3

  The officer then grabbed Willis's shoulder and began to lead him up the stairs out of the subway station. (Id. 82.) When Willis pulled away from the officer forcefully, he "felt a sharp numbness" in his left shoulder. (Id. 87-88; Montoya Reply Decl., Ex. A.) The officer seized him again, led him out of the station, and then released him. (Willis Tr. 88-89.) Willis felt pain in his shoulder and knee and wanted to seek medical attention, but instead, he began to walk home, stopping at a store to buy a soda and non-prescription painkillers. (Id. 89-92.) After leaving the store, Willis fell on the soda bottle, injuring his left thumb and shoulders. (Id. 33-36.) Willis arrived home at 10:45 p.m., and the next day, he visited an emergency room, where doctors diagnosed him with a seizure disorder and an impingement of his left shoulder. (D. Rule 56.1 Stmt. ¶¶ 34, 37.)

  DISCUSSION

 I. Standard for Summary Judgment

  Summary judgment must be granted where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it "might affect the outcome of the suit under the governing law"; an issue of fact is genuine where "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). On a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and the Court must resolve all ambiguities and draw all reasonable inferences in its favor. Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).

  To defeat summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Page 4 v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated assertions" will not suffice. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Matsushita, 475 U.S. at 587.

 II. Willis's Claims

  In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court held that "all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard," id. at 395 (emphasis in original), which requires "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade flight." Id. at 396; see also Calamia v. City of New York, 879 F.2d 1025, 1033-35 (2d Cir. 1989.)

  Willis alleged in his complaint that Dalmine "physically attacked [him] without any provocation."*fn2 (Compl. ¶ 8.) But he testified only that a police officer grabbed his shoulder and led him forcefully out of a subway station after he insisted that the officer give him subway fare,*fn3 and after Willis had yelled at, argued with, verbally assaulted, and indeed threatened, the officers. Page 5 Willis testified that he felt the injury to his shoulder, not after being physically attacked, but rather when he forcefully pulled away from the officer who had grabbed that shoulder.*fn4 Willis did not testify that anyone physically assaulted him, other than "grabb[ing]" his shoulder.

  Ordinarily, the reasonableness of an officer's use of force is a question of fact for the jury. Allison v. Farrell No. 97 Civ. 2247, 2002 WL 883380, at *5 (S.D.N.Y. Jan. 22, 2002). Under the unusual circumstances of this case, however, no reasonable jury could conclude that seizing Willis's shoulder to escort him out of the subway station constituted an "objectively unreasonable" use of force. See Graham, 490 U.S. at 397. First, Willis's actions are undisputed. The defendants' motion, and the Court's statement of facts above, is based entirely on Willis's own testimony, in which he acknowledges that he ...


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