United States District Court, E.D. New York
May 12, 2004.
JESUS ALVARENGA, Plaintiff,
DANIEL VANDERWYDE, Shield # 6771, PAUL GIACALONE, Shield # 3054, JOHN KETTLE, Shield # 3722, and STEVEN HERVAN, Shield # 3969, Defendants.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
Pro se plaintiff Jesus Alvarenga ("Alvarenga") brought this
action pursuant to 28 U.S.C. § 1983, alleging that the defendants
subjected him to excessive use of force in violation on his
Eighth Amendment rights and seeking unspecified relief.
Defendants move for summary judgment on the grounds that the
force used on Alvarenga was de minimis and not repugnant to the
conscience of mankind, that defendants are entitled to qualified immunity, and that Alvarenga's claims are barred by the Eleventh
Amendment.*fn1 For the reasons set forth below, defendants'
motion is granted.
The following facts are taken from the parties submissions and
supporting documents. On April 18, 2002, Alvarenga was
transported by Court Officer Paul Giacalone ("Officer Giacalone")
from Rikers Island, where Alvarenga was in custody pursuant to a
second degree assault conviction, to Queens Family Court, where
he appeared before Judge Stephen Bogacz ("Judge Bogacz") in a
neglect proceeding concerning his two sons.*fn2 Judge Bogacz
found that Alvarenga had committed neglect and ordered him to
undergo a psychiatric evaluation. At the end of the proceeding,
Alvarenga attempted to speak directly to Judge Bogacz, who
instructed Alvarenga to talk to his attorney rather than address
the Court. Officer Giacalone then attempted to handcuff Alvarenga
in preparation for escorting him out of the courtroom and to an
upstairs room where he could confer with his attorney.
According to defendants' submissions, Alvarenga violently
resisted being handcuffed, and then began moving quickly towards
Judge Bogacz. Officer Giacalone, along with two other court
officers present in the courtroom, Daniel Vanderwyde and Steven Hervan, grabbed Alvarenga to prevent him from reaching the judge.
Another court officer, John Kettle,*fn3 was passing by the
courtroom when he observed the disturbance, and came in to assist
the other officers. The officers were able to wrestle Alvarenga
to the floor, but he continued to resist. Eventually the officers
succeeded in handcuffing Alvarenga and removing him from the
After order had been restored, Judge Bogacz made the following
statement on the record:
That when the uniform [sic] court officers assigned
to this Part attempted to escort the
respondent-father out of the courtroom, the
respondent-father who appeared to this Court to be
a rather powerfully built individual, approximately
five foot ten inches, to about six feet . . .
approximately two hundred pounds, thickly muscled
arms, shoulders and chest area. It required three to
four court officers to initially restrain the
respondent-father from attempting to come towards the
bench . . . I wish to commend the officers for the
restraint which they applied, given the fact that the
father was out of control and uncooperative with the
attempts to restrain him and to subdue him. The fact
that he was apparently not injured at all in being
restrained and subdued, is to the extreme credit of
the uniformed court officers who engaged in that
Hearing Transcript, at 9.
In addition to Judge Bogacz's comments in the immediate wake of
the altercation, attorney Floyd Alan Sheeger ("Attorney
Sheeger"), who was present in the courtroom at the time of the
incident but not involved in Alvarenga's neglect proceeding,
submitted a letter to the family court shortly after the
incident, as well as a subsequent affidavit in support of the present motion, in both of which he
commended the restraint shown by the officers while preventing
injury to those present in the courtroom.
After he was returned to Rikers Island, Alvarenga was examined
by Dr. Ramakrishnan Subbureddair ("Dr. Subbureddair"), pursuant
to standard procedure after a use of force incident. Dr.
Subbureddair concluded that the "minor injuries suffered by
plaintiff are consistent with a scuffle and minimum force being
used to subdue him." Dr. Subbureddair Affidavit, at 2.
In response to the defendants' summary judgment papers and
Local Rule 56.2 Notice, Alvarenga submitted affidavits from
himself, his sister, Maria Gonsalez, and his wife, Maria Chavez.
Distilling Alvarenga's lengthy and rambling affidavit to its
essence, he alleges that the court officers launched an
unprovoked assault on him, and that all statements to the
contrary are fabrications. It does not appear from her affidavit
that Maria Gonsalez was present at the altercation, but she does
state that she subsequently saw bruises on her brother's face and
body. Maria Chavez states that she saw the court officers punch
Alvarenga and that she too subsequently saw him "all bruised."
Summary judgment is appropriate when there is no genuine issue
of material fact to be tried and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once
the moving party has carried its burden to demonstrate the
absence of a genuine issue of material fact, see Celotex Corp.,
477 U.S. at 323, the opposing party "must come forward with
`specific facts showing that there is a genuine issue for trial.'" Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587
(1986) (quoting Fed.R.Civ.P. 56(e)) (other citations omitted).
The submissions of a pro se plaintiff must be read liberally
and interpreted "to raise the strongest arguments that they
suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Nevertheless, even pro se parties may not rely on conclusory
allegations, see, e.g., Bennett v. Goord, 343 F.3d 133, 137 (2d
Cir. 2003) (requiring "non-conclusory allegations" from pro se
plaintiff facing summary judgment motion). "Where no rational
jury could find in favor of the nonmoving party because the
evidence to support its case is so slight, there is no genuine
issue of material fact and a grant of summary judgment is
proper." Gallo v. Prudential Residential Services, LTD.,
22 F.3d 1219, 1224 (2d Cir. 1994).
Although Alvarenga was in a courtroom rather than a prison when
this altercation occurred, and the altercation involved court
officers rather than correction officers, these minor
distinctions do not serve to remove this case from the general
ambit of litigation in which a prisoner is alleging excessive
force against his guards. In determining whether the officers
applied excessive force, the "core judicial inquiry" is "whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm."
Hudson v. McMillan, 503 U.S. 1, 7 (1992). A prisoner seeking to
establish a constitutional violation under the Eighth Amendment
must satisfy both an objective and subjective component. See
id., at 9-10. The objective component requires that the alleged
violation be "sufficiently serious" by objective standards.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The subjective component requires that the prisoner show
that the prison officials had a "wanton" state of mind when they
engaged in the alleged conduct. Hudson, 503 U.S. at 9-10. "The
Eighth Amendment's prohibition of `cruel and unusual' punishments
necessarily excludes from constitutional recognition de minimis
uses of physical force, provided that the use of force is not of
a sort `repugnant to the conscience of mankind.'" Id. at 9
(quoting Whitley v. Albers, 475 U.S. 312 (1986)).
While the parties dispute the underlying facts of the
altercation, Alvarenga can not establish that the force used
against him was anything other than de minimis, and therefore
defendants are entitled to summary judgment. See Warren v.
Westchester County Jail, 106 F. Supp.2d 559 (S.D.N.Y. 2000)
(despite disputed facts concerning underlying altercation,
summary judgment awarded to defendant correction officers because
extremely slight degree of injury was insufficient to sustain a
claim of excessive force). The affidavit of Dr. Subbureddair
explicitly states that the minor injuries Alvarenga sustained
were consistent with "minimum force," Dr. Subbureddair Affidavit,
at 2. The affidavits from Alvarenga's sister and wife stating
that they saw bruising on his body do not contradict Dr.
Subbureddair's assessment. The record is also singularly devoid
of any indication that the force used was of a sort repugnant to
Moreover, even if the level of force here rose above de
minimis, Alvarenga can not establish that "the officials acted
with a sufficiently culpable state of mind." Hudson, 503 U.S.
at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Mindful of Alvarenga's pro se status, the Court interprets his
affidavit as alleging that the officers engaged in an unprovoked attack, and that this demonstrates their wanton and
culpable state of mind. However, Alvarenga's unsupported and
conclusory claim of an unprovoked attack in open court is
implausible as a matter of law. Aside from its inherent
implausibility, this unsupported allegation is further
contradicted by the contemporaneous remarks made on the record by
Judge Bogacz, and by the letter and subsequent affidavit of
Because the Court concludes that no rational jury could find
that the defendants subjected Alvarenga to excessive force in
violation of his Eighth Amendment rights, the Court need not
consider defendants' other grounds for summary judgment.
Defendants' motion for summary judgment is granted and the
complaint is dismissed in its entirety.