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United States District Court, S.D. New York

March 17, 2004.


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


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.


  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.)


 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 entered a restricted area, argued with and yelled at the officers who issued him a summons, and spoke words reasonably construed as a threat to one of them.

  Second, it is undisputed that under New York law, Willis's actions authorized the officers to expel him from the subway. By entering a restricted area, Willis violated N.Y. Comp. Codes R. & Regs., tit. 21, § 1050.9(a), for which he received a summons. Arguably, his conduct also violated-and, at a minimum, reasonably appeared to the officers to violate-N.Y. Comp. Codes R. & Regs, tit. 21, § 1050.7(i), which prohibits "conduct . . . which may cause or tend to cause annoyance, alarm or inconvenience to a reasonable person or create a breach of the peace." On Page 6 either or both of these grounds, New York law authorized Dalmine or one of the other officers to eject Willis from the transit facilities. Id. § 1050.11 ("Any person who is observed by a transit police officer to be violating any of these rules and who may receive or has received a notice of violation . . . is subject to ejection from the facilities."). Willis acknowledges, moreover, that he did not obey the officers' request that he leave the subway; instead, he continued to yell at them and demanded a refund of his fare.

  Third, Willis does not dispute the degree of force used by the officer. He does not claim that an officer struck him or used any violence against him. His testimony goes no further than that the officer "grabbed [his] shoulder and led [him] up the stairs." (Tr. 82.) He does not assert that the officer's hold was painful or excessively forceful. The only pain to which Willis testified occurred when he "pulled away from" the officer, which he did (in his own words) "[w]ith force." (Tr. 87.) Allowing full scope for a jury's role in evaluating the reasonableness of the force used, it is difficult to conceive how this officer could have used less force in carrying out his justifiable effort to expel Willis from the subway.

  True, Willis's offense cannot be characterized as severe,*fn5 and he does not appear to have posed a significant danger to the officers. See Graham, 490 U.S. at 396. By his own account, however, Willis entered a restricted area in violation of the City's transit regulations, remained argumentative and hosfile throughout the incident, and refused to comply with a transit officer's lawful order that he leave the subway. In the face of this conduct, Dalmine or another officer Page 7 grabbed Willis by the shoulder and sought to escort him out of the subway station. As a matter of law, such force cannot be deemed "excessive." See Graham, 490 U.S. at 396 ("Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation."); Hamilton v. Broomfield, No. 95 Civ. 3241, 1998 WL 17697, at * 2 (S.D.N.Y. Jan. 20, 1998) (plaintiff, who conceded that he resisted arrest and sustained "a bloody lip, a red mark and swelling on the leg, and pain from handcuffs that were too tight" from that arrest, failed to state a claim for excessive force); Sassower v. City of White Plains. No. 89 Civ. 1267, 1995 WL 222206, at *6 (S.D.N.Y. Apr. 13, 1995) (granting summary judgment to police officers on plaintiff's excessive force claims where plaintiff resisted arrest, and in the course of arresting her, the officers "grabbed her, pulled her hands behind her back and handcuffed her in an extremely painful manner, and then shoved and pushed her into a police car" despite plaintiff's "weak condition"). See also Robinson v. Via. 821 F.2d 913, 923 (2d Cir. 1987) (pushing and prying of plaintiff's fingers held insufficient as a matter of law to establish a claim of excessive force) (pre-Graham decision).

  Willis's claim that Dalmine unconstitutionally failed to provide him prompt medical attention (Compl. ¶ 10) fares no better. No reasonable jury could conclude that Dalmine knew of but exhibited deliberate indifference to Willis's medical needs. Willis neither requested medical attention nor told any of the officers that his shoulder hurt him. (Willis Tr. 80, 89.) For that matter, Willis himself neither called 911 nor stopped at a hospital clinic that he passed on his Page 8 way home. (Tr. 92, 98, 102.) At most, Dalmine's failure to recognize Willis's alleged need for medical attention might constitute negligence, but negligence does not establish a cognizable claim under the Fourteenth Amendment's Due Process Clause, which governs such claims when made by pretrial detainees against their custodians. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996); Hamilton. 1998 WL 17697, at *3 & n.2. Accordingly, Willis's claims pursuant to 42 U.S.C. § 1981, 1983, and 1985, for alleged violations of his constitutional rights must be dismissed.*fn6

  Finally, to the extent that Willis's complaint alleges a cause of action for assault or some other intentional tort under New York State law, the Court declines to exercise supplemental jurisdiction over such claims. See Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (noting that, as a general matter, where all federal claims have been dismissed before trial, pendent state claims should be dismissed without prejudice and left for resolution to the state courts; collecting cases).*fn7 Page 9


  For the reasons stated, defendants' motion for summary judgment is granted as to Willis's federal claims, and any pendent New York State law claims are dismissed for lack of jurisdiction. SO ORDERED.

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