The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
This is a civil rights action brought by a former federal pretrial
detainee alleging that excessive force was used against him by Bureau of
Prison authorities at the New York Metropolitan Correction Center
("MCC-NY"). All parties have consented to my exercising plenary
jurisdiction pursuant to 28 U.S.C. § 636(c). Defendants move to dismiss
the Second Amended Complaint*fn1 and for summary judgment on a variety of grounds.
For the reasons set forth below, defendants' motion is granted.
Most of the events in issue have been recorded on a videotape made by
Bureau of Prisons personnel, a copy of which has been submitted by
defendants in connection with the present motion. Plaintiff makes no
claim that the videotape is inaccurate or has been edited, and my
statement of the facts is based principally on what is depicted on the
On June 14, 2002, two inmates were engaged in a fight on Unit 9 North,
and several members of the MCC staff, including Special Investigative
Agent Glenn A. Carrino, responded. The videotape shows an unidentified
member of the MCC staff attempted to hold plaintiff against the wall, but
plaintiff kept taking his hands off the wall, and gesturing toward
another inmate stating "He didn't have nothin' to do with it, nothin'."
An unidentified individual then yelled "Nothin' there, gotta couple more,
gotta couple more, that ain't it." Then plaintiff stated "Rats don't run
nothin'! Fuckin' coward. And don't come to Brooklyn and threaten that shit you motherfuckers know where [inaudible]." Although an
unidentified guard repeatedly attempted to hold plaintiff's hands against
the wall, plaintiff-kept taking his hands off the wall, repeatedly
gesturing towards another inmate and stating "Rats don't run nothin'."
Two guards in addition to an individual in a gray shirt and tie (who I
assume is Special Investigative Agent Carrino) then converged on
plaintiff, pinned him against the wall and pulled his arms behind his
back in an apparent effort to handcuff plaintiff. After plaintiff's arms
were behind his back, at least two more guards converged on plaintiff,
and plaintiff either fell or was pushed to the floor. It is impossible to
tell from the videotape whether plaintiff was resisting being handcuffed;
his hands are obscured by prison guards. Plaintiff did not say anything
and there were no visible attempts to gesture immediately before he wound
up on the floor.
After he was on the floor, plaintiff struggled with four or five
guards. It appears that petitioner was initially on his stomach, was then
on his back and was. then rolled back onto his stomach. At one point, his
arm can be seen flailing, and, although it is not entirely clear, it
appears that he was resisting. While plaintiff and the guards were on the
floor, an unidentified voice repeatedly stated "Calm down, man;" it is
impossible to tell from the videotape whether a guard or another inmate
was making this statement. While he is on the floor, petitioner yells "My asthma pump, my asthma pump. I can't breath.
Hey, give me my asthma pump."
Approximately forty seconds after he hit the floor, plaintiffs' hands
were cuffed behind his back and his ankles were chained. Plaintiff was
then lifted by three guards (one at each shoulder and one at the ankles)
and carried from the area and up a flight of stairs in a face down
position with his head first. At one point while he is being carried,
plaintiff turned towards the camera and said, "Could you all get my
asthma pump?" He did not appear to be in respiratory distress when he
made this statement; he was not gasping nor was he wheezing or short of
Petitioner and the three guards carrying him approached a large dark
door. As they reach the door, a loud thud is heard, and the guards'
movement stopped. Plaintiff claims that the guards carrying him
intentionally rammed his head into the door. The videotape shows the
incident from the rear and it is impossible to tell from the videotape
what caused the thud, whether plaintiff's head made contact with the door
or whether the thud even came from the door. Nevertheless, the images on
the videotape are not inconsistent with and do not disprove plaintiff's
contention that his head was deliberately rammed in to the door.
Approximately four seconds after the thud, the door opened and plaintiff
was carried through the doorway. The elapsed time from the commencement of the video tape through the
point at which plaintiff is carried through the door is approximately 97
There appears to be no dispute that plaintiff suffered a wound to his
head in the course of his altercation with the guards and that the wound
required four stitches.
Based on the foregoing, plaintiff alleges a claim against the
individual defendants for excessive force and a claim against the United
States for assault and battery under the Federal Tort Claims Act
("FTCA"); all other claims that are asserted or suggested in plaintiff's
initial complaint have been withdrawn (Plaintiff's Memorandum of Law in
Opposition to Defendants1 Motion for Summary Judgment, dated April 3,
2003, at 2). Plaintiff claims that he was unnecessarily knocked down,
that excessive force was used against him while he was on the floor and
that the guards carrying him after he was handcuffed deliberately rammed
his head into a door. Defendants move to dismiss for lack of subject
matter jurisdiction or, in the alternative, for summary judgment.