The opinion of the court was delivered by: Amon, United States District Judge.
This action arises out of the arrest of plaintiff Martin Diggs on May 23, 2003. Plaintiff was subsequently convicted of criminal possession of a weapon in the second and third degrees and attempted murder of a police officer in the first degree. Plaintiff brought the present action against the arresting officers, the City of New York and New York City Police Department alleging excessive force was used in his arrest. Plaintiff brought claims for excessive force, assault and battery under 42 U.S.C. §1983 and for common law excessive force, assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress and negligence. Defendants moved for summary judgment and plaintiff opposed. For the following reasons, defendants' motion is granted and the case is dismissed in its entirety.
On May 22, 2003, New York City Police Officers Perez and Garrido received a radio broadcast describing a suspicious male located near Carlton and Vanderbuilt Streets in Brooklyn. Transcript of Trial of Martin Diggs ("Trial Tr.") at 329-30, 414. The officers responded to the call, noticed plaintiff, identified themselves as police and questioned plaintiff as to whether he had seen anyone looking into vehicles. Trial Tr. at 332-33. Plaintiff informed the officers that he had not and that he was heading to the store. The officers left plaintiff and continued to patrol the area.
Several minutes later, having circled back to the same area, the officers again noticed plaintiff, now following someone toward the door of a building. Trial Tr. at 420. When plaintiff noticed the police officers' vehicle had returned, he quickly change direction away from the building. Trial Tr. at 337-40, 421. The officers then drove up to plaintiff and asked to speak with him again, but he became argumentative and stated that he was heading home. Trial Tr. at 342. Officer Garrido then exited the patrol car from the passenger side, and Officer Perez exited from the driver's side several seconds later. Trial Tr. at 342, 423-24. As Officer Garrido approached plaintiff, he told Officer Garrido that he was not going back to jail and began reaching behind his back with his left hand. Officer Garrido grabbed plaintiff's left arm and a black weapon fell to the ground next to him. Trial Tr. at 344, 424-25. Officer Perez signaled to Officer Garrido that they were going to arrest plaintiff. Plaintiff then began to reach with his right arm towards his front waist area. Officer Perez grabbed Plaintiff and a struggle ensued in which Officer Perez pulled plaintiff to the ground. Trial Tr. at 348. When Officer Garrido saw the black gun that had fallen from plaintiff's back on the ground, he released plaintiff long enough to secure the weapon and place it in his waistband, and then attempted to apply handcuffs to plaintiff. Trial Tr. at 428. Just as Officer Garrido had gotten one cuff on plaintiff, two shots were heard and Officer Garrido stated that he had been hit. Trial Tr. at 428-29. As Officer Perez pulled Officer Garrido away from plaintiff, both officers observed plaintiff raising a silver object and Office Garrido returned fire with the weapon he had placed in his waistband.
Trial Tr. at 351, 431-33. Officer Garrido then realized he had been shot in the chest and ankle. Trial Tr. at 433. An ambulance was called shortly after the shots were fired and arrived soon after. Plaintiff was taken to a hospital and treated for gunshot wounds. Plaintiff was subsequently charged and convicted of the crimes stated above and sentenced to the maximum sentence allowed.
Plaintiff alleges that when the officers approached him for the second time, they immediately knocked him unconscious and he remained so until waking in the hospital. Consequently, plaintiff argues that defendants violated his constitutional rights by using excessive force is arresting him.
Defendants have moved for summary judgment on several grounds. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" for these purposes when it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of demonstrating that no material fact exists lies with the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
When considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor.
Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003). "The judge must ask . . . not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson, 477 U.S. at 252. "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Rule v. Brine Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. To defeat summary judgment, therefore, nonmoving parties "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and they "may not rely on conclusory allegations or unsubstantiated speculation." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted). At the summary judgment stage, ...