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Fera v. City of Albany

July 30, 2008

MICHELE FERA, PLAINTIFF,
v.
THE CITY OF ALBANY, ALBANY POLICE DEPARTMENT, MICHAEL COLBERT, ROBERT SANTASKI, ERIC SPRAGUE, KAMRJ SINGH, MERLIN LAROSE, JOHN DOE, AN EMPLOYEE OR EMPLOYEES OF THE ALBANY POLICE DEPARTMENT, AND JANE DOE, AN EMPLOYEE OR EMPLOYEES OF THE ALBANY POLICE DEPARTMENT, DEFENDANTS.



DECISION and ORDER*fn1

Plaintiff Michele Fera commenced the instant action asserting claims under 42 U.S.C. § 1983 and various state law causes of action arising out of her arrest and transportation by the City of Albany Police Department. Presently before the Court is Defendants' Motion for summary judgment, pursuant to Fed. R. Civ. P. 56, seeking dismissal of the Complaint in its entirety. See Motion for Summ. J. (Dkt. No. 37).

I. FACTS

On October 21, 2005, Plaintiff was at the Department of Social Services in the City of Albany. She was twenty-three years of age. While in the waiting room, Plaintiff, who suffers from idiopathic epilepsy, had a seizure.

Emergency Medical Services responded to the scene. Plaintiff permitted the paramedics to take her vitals, but refused any other treatment. At some point in time, Plaintiff was instructed to leave the building. Plaintiff refused to leave. The Albany Police Department was called. Defendants Albany Police Officers Michael Colbert and Robert Santaski were dispatched to the location. The officers attempted to persuade Plaintiff to leave on her own. Ultimately, Colbert advised Plaintiff that he would have to arrest her if she continued to refuse to leave. Plaintiff responded by placing her hands behind her back. Colbert placed handcuffs on Plaintiff and arrested her on charges of trespass. Plaintiff walked out of the building with the officers.

Once outside, Plaintiff was placed in the back of Santaski's patrol car to await the arrival of the transport van. Plaintiff testified that while she was in the back of the police car, she told one of the arresting officers that she was epileptic and feeling warm because she was about to have a seizure, and had a medical identification bracelet in her purse. The officer, according to Plaintiff, responded by opening the car door so she could get some air, but did not verbally respond. She claims that she told the officers more than once that she was about to have a seizure, including again when they were moving her from the police car into the police transport van. Also, Robert Austin, Jr., a security officer at the building, testified that he told the officers as they were exiting the building that Plaintiff had suffered a seizure on the premises earlier in the day. Defendants contend that Colbert and Santaski were not aware that Plaintiff was an epileptic; that she had received medical treatment at the Department of Social Services earlier in the day; that Plaintiff contended that she had a medical condition; or that she was about to have a seizure. Plaintiff was assisted into the van, where she sat on the bench. She remained handcuffed. Thereafter, believing she was going to have a seizure, Plaintiff positioned herself on the floor of the van. When Plaintiff arrived at the police station, she was lying on the floor of the van and was unresponsive. Plaintiff testified that when the officer opened the van door, she was in the postictal state she typically experiences, meaning that she could feel and hear but not move or speak. When Plaintiff opened her eyes, she was being brought into the police station by the elbows, and waking up on the floor of the police station.

Defendant Albany Police Officer Eric Sprague was in central booking when the transport van arrived with Plaintiff. Sprague tapped on Plaintiff's feet a few times while she was laying on the floor and told her to get up and stop faking.*fn2 Plaintiff did not respond. Upon determining that Plaintiff continued to be unresponsive, Sprague then removed Plaintiff from the van. Sprague contends that he removed Plaintiff by grabbing her shin area using both hands and gently pulling her towards the back of the van. Plaintiff contends that she was grabbed by her ankles and pulled out of the van in a manner that caused her face to repeatedly bounce off the floor of the van.

Defendant Albany Police Officer Kamraj Singh assisted Sprague in carrying Plaintiff from the van to the booking room. After Plaintiff's hips and waist cleared the back of the vehicle, Defendants let go of Plaintiff's ankles and her feet dropped to the ground. Defendants carried her into the booking room while supporting her upper body. Once in the booking room, Plaintiff was placed on a bench. Plaintiff's body leaned to the right and she ended up laying on the bench. Defendants then believed that Plaintiff was having a seizure while in the booking room. Plaintiff was placed on the floor and the handcuffs were removed. Emergency Medical Services was called and responded to the booking room.

Plaintiff advised the EMS personnel that her chief complaint was face pain. She claims to have suffered bruising to her face, right elbow, and right hip as a result of the manner in which the officers removed her from the van. On October 22, 2005 (the day after the above incident), Plaintiff received treatment at the Albany Medical Center and was diagnosed with a mild concussion, facial contusions, and a fractured rib.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In applying this standard, courts must "'resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'" Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (quoting Cifra v. General Electric Co., 252 F.3d 205, 216 (2d Cir. 2001)). Once the moving party meets its initial burden by demonstrating that no material fact exists for trial, the non-movant "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) (citations omitted). Rather, the non-movant "must come forth with evidence sufficient to allow a reasonable jury to find in her favor." Brown, 257 F.3d at 251 (citation omitted). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

III. DISCUSSION

a. Excessive Force

Plaintiff asserts an excessive force claim against all of the officers, encompassing the period from her initial contact with the arresting officers, Defendants Colbert and Santaski, through her detainment in the police station subsequent to her removal from the police van. Plaintiff claims that, in light of her lack of resistance to arrest and the testimony of two deponents that the arresting officers had been told that she had epilepsy and was experiencing the physiological warning signs of an imminent seizure, Defendants used excessive force when they placed her, while handcuffed, alone in the police van. Plaintiff also claims Officers Sprague and Singh used excessive force when they removed her from the van, causing bruises and a fractured rib. Defendants responded that they did not use excessive force and that there is insufficient evidence demonstrating that Plaintiff's injuries were caused by Defendants' actions rather than by Plaintiff's frequent seizures.

Excessive force claims are analyzed under the Fourth Amendment's objective reasonableness test. Whether police conduct is reasonable under the Fourth Amendment "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests as stake." Graham v. Connor, 490 U.S. 386, 394, 396 (1989). "Under this test, Courts must look to the facts and circumstances of each case, including the severity of the crime, whether the suspect poses an immediate threat of safety to the officer or others, whether the suspect is actively resisting arrest, and whether the suspect is attempting to evade arrest by flight." Id. (internal quotations and citations omitted). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers . . . violates the Fourth Amendment." Id. at 397 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). However, the Second Circuit has established that "[a]lthough handcuffing will be the reasonable course in many, if not most arrest situations, we do not accept the principle that handcuffing is per se reasonable or that Graham v. Cooper requires such a conclusion." Soares v. Connecticut, 8 F.3d 917, 921 (2d Cir. 1993) (discussing Graham, 490 U.S. at 386-396).

The Court first turns to the evidence concerning the events up to and including the placement of Plaintiff in the police wagon. Defendants Michael Colbert and Robert Santaski were the arresting officers. It is undisputed that Plaintiff did not resist efforts to be arrested and walked out of the building with the officers. She was being arrested for trespass after refusing to leave the Social Security building, where she had appeared for a hearing, and there is no evidence that she threatened violence. Of course, without additional evidence, the continued use of handcuffs and the placement of Plaintiff in the police wagon in these circumstances could not be the basis for an excessive force claim. However, as discussed supra, Plaintiff testified that she told the arresting officers that she was epileptic, had a medical alert bracelet in her purse, and felt she imminently was going to suffer a seizure; and additionally, Security Officer Robert Austin testified that he informed the officers, as they were escorting Plaintiff out of the building in handcuffs, that she had suffered a seizure on the premises earlier in the afternoon.

While the Second Circuit has not spoken on the narrow issue of whether officers' knowledge of a suspect's medical condition may be sufficient to make a particular amount of force objectively unreasonable, Soares requires an examination of the specific situation to determine the reasonableness of even a slight application of force. Soares, 8 F.3d at 921. Officers' awareness of information about a suspect's vulnerability due to a medical condition obviously is a circumstance that is relevant to the reasonableness of a particular use of force. Therefore, crediting the testimony of Robert Austin and/or Plaintiff, a reasonable jury is not be precluded from finding that the officers' actions--placing Plaintiff, alone and handcuffed, in the police wagon without having made any effort to consult a medical authority--failed to be objectively reasonable.

With respect to Officer Singh and Officer Sprague, the inquiry focuses on the manner in which Plaintiff was removed from the van in light of the facts that she was unresponsive, lying on the floor of the van, and handcuffed. Other relevant circumstances include that she weighed only ninety-seven (97) pounds, had no criminal history, and had not resisted arrest. There is a triable issue of fact as to whether the manner in which Plaintiff was removed was, objectively speaking, reasonable. Plaintiff testified that there was space in the van for two people to access her, turn her over, and/or take other measures to avoid dragging her face down. Defendant Sprague testified that he removed Plaintiff in the manner that he did because: (1) there was insufficient room in the van for him to enter it, flip Plaintiff over, and then attempt to remove her; (2) there was no other way to remove her; and (3) there was concern that if she was not immediately removed, she might suffer positional asphyxia.*fn3 Thus, there may have been some sense of urgency requiring Sprague to remove Plaintiff from the van in the manner that he did due to the possibility she could asphyxiate in light of the manner in which she was handcuffed and lying in the van. Sprague further claims that he removed Plaintiff gently from the van.

On the other hand, if it is found that Sprague could have entered the van to remove Plaintiff in another fashion, the potential for asphyxia was not a legitimate concern, and/or Plaintiff's ribs were injured or her face bruised during the course of being removed from the van, then a fair-minded trier of fact could reasonably conclude that Plaintiff was removed in an unnecessarily rough manner and that she could have been extricated from the van in a fashion less likely to cause injury.

It is questionable whether Plaintiff will be able to demonstrate that her injuries were caused by the manner in which she was removed from the van. Defendants contend that they gently removed Plaintiff from the van.*fn4 Other than Plaintiff's testimony, the only evidence of causation in the record is the affidavit of Michael Dailey, M.D., who states that "[i]f Ms. Fera suffered no impact to her rib area other then when she was removed from the police van and if her rib area impacted the rear of the police van when she was being removed from . . . the floor of the van. . ., I believe that this impact to her ribs was a cause of the rib injury, including the clinically diagnosed rib fracture." Dailey Aff. ¶ 7 (Dkt. No. 40). Dailey similarly states that "[i]f Michele Fera did not sustain any other impact to her body shortly before October 22, 2005 that led to observable bruising and if she was dragged along the floor of a police van, it is my opinion that a cause of the bruising I observed on Ms. Fera was the impact of her being dragged along the floor of the police van." Id. at ¶ 6. Of course, these opinions are dependent upon evidence that: (1) Plaintiff's prior seizures did not cause the bruising and/or fracture (including the seizure she experienced that same day in the Department of Social Services and the seizure she experienced in the back of the van); (2) with respect to the bruising, Plaintiff was dragged along the floor of the van in a manner likely to cause bruising; and (3) with respect to the fracture, that her rib area impacted the rear of the police van. In support of this theory of causation, Plaintiff points to her testimony from the 50-h hearing where she stated that her "face was bouncing off the ground of the van." Def. Ex. S at 29. Plaintiff did not testify specifically that her ribs impacted the rear of the van.*fn5

Viewing the evidence in the light most favorable to the non-movant, it cannot be said that there is no evidence from which a fair-minded trier of fact could reasonably conclude that the rib fracture and/or bruising was caused by the manner in which Plaintiff was removed from the van. Based on Plaintiff's testimony that she did not have any prior injuries, the testimony of Robert Austin that he did not observe any bruises on Plaintiff when she was placed in the van, the fact that Defendants admit pulling Plaintiff out of the van by her feet,*fn6 and the fact that Plaintiff complained of pain in her face once in the booking room of the police station, a jury could find that Plaintiff was removed from the van in a manner that caused the injuries. Accordingly, the Court finds that there are triable issues of fact on the excessive force claim.*fn7

b. Qualified Immunity

Defendants claim they are entitled to qualified immunity on the excessive force claim. "Qualified immunity is an affirmative defense that shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Stephenson v. Doe, 332 F.3d 68, 76 (2d Cir. 2003). The Court finds that the same ...


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