The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff commenced this action by filing a Complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his Fourth and Fourteenth Amendment rights under the United States Constitution, and also committed assault and battery under New York State law. (Docket No. 1.)*fn1 Presently before this Court is Defendants' Motion for Summary Judgment. (Docket No. 14.) For the reasons discussed below, Defendants' motion is granted in part, and denied in part.
On March 12, 2005, Linda Stefaniak called Plaintiff Earl Benson and asked him to go out with her that evening. (Defs' Statement, ¶ 17.)*fn2 Benson accepted Stefaniak's invitation, and at approximately 10:30 p.m., Stefaniak picked up Benson at his home. (Id.) The two of them went to "Billy Goat's," where Benson drank approximately five Labatts Blue beers, and five shots of Jack Daniel's whiskey. (Id.)
At approximately 2:00 a.m., Benson and Stefaniak left Billy Goat's with Mary Ditzel. (Defs' Statement, ¶ 18.) Stefaniak drove, and on the way home, police officers pulled Stefaniak over, and arrested her for Driving While under the Influence. (Id.) One of the police officers instructed Benson to make arrangements to park Stefaniak's car. (Benson Dep., Docket No. 16, Ex. H, 29:19-21.) Benson then called Nick Salvador. (Id., at 29:3-6.) Shortly thereafter, Salvador arrived, parked Stefaniak's vehicle, picked up Benson and Ditzel, and drove Ditzel home. (Defs.' Statement, ¶ 19.) After he dropped off Ditzel, Salvador drove Benson to the Batavia police station to inquire about Stefaniak. (Id.)
At the police station, Dispatcher Daniel Rieks greeted Benson and Salvador. (Defs' Statement, ¶ 20.) Benson asked Rieks how long it would be until Stefaniak was released, and Rieks replied, "approximately three hours." (Defs.' Statement, ¶ 36.)*fn3 Benson responded by stating, it was a bunch of "fucking bullshit" and "just give her her fuckin' tickets and let her on her way." (Defs. Statement, ¶ 37.) Sergeant Robert Yaeger then intervened, and asked Benson if he could be of assistance, to which Benson again asked how long it would be until Stefaniak was released. (Defs.' Statement, ¶ 40.) Yaeger stated "2-3 hours," and Benson replied "that's a bunch of bullshit." (Defs. Statement, ¶¶ 40-41.) Yaeger told Benson to stop swearing, and instructed him to leave and if he returned he woudl be arrested for trespassing. (Defs. Statement, ¶ 42.)*fn4 Salvador encouraged Benson to leave, and the two of them went to a nearby Tim Hortons restaurant. (Defs.' Statement, ¶¶ 22-23.)
Approximately a half hour later, Benson returned to the police station, and pushed the intercom button. (Defs.' Statement, ¶ 24.) The intercom button is used to get the Dispatcher's attention. (Defs.' Statement, ¶ 74.) Dispatcher Rieks asked how he could help Benson, and Benson asked Rieks if Stefaniak was ready. (Defs.' Statement, ¶¶ 24-25.) Rieks told Benson that it would be two to three hours, and Benson began yelling it was "a bunch of bullshit." (Defs. Statement, ¶ 44.) Benson then repeatedly pressed the buzzer, and at one point held the buzzer for 20 to 30 seconds. (Defs. Statement ¶ 45.) At this point, Yaeger, who was inside the police station and could hear the buzzer, decided that he was going to arrest Benson. (Yaeger Dep., Docket No. 16, Ex. K, 17:19-20.) Yaeger was accompanied by Officer Michael Kibler, and the two of them went downstairs towards Benson. (Defs. Statement, ¶¶ 77 & 103.)
When Yaeger and Kibler reached the bottom of the stairs, Benson backed away from the door. (Defs.' Statement, ¶ 28.) Yaeger told Benson that he was under arrest and knocked a cup of coffee out of Benson's hands. (Defs.' Statement, ¶ 78.) Benson then took a step back, pulled his arms up, and clenched his fists near his chest. (Defs.' Statement, ¶ 79; Yeager Dep., 20:14-17; Pl.'s Mem. Opp. Summ J., p. 4.) According to Yaeger, Benson then stated, "be careful, I have a bad shoulder." (Defs.' Statement, ¶ 85.) Yaeger grabbed Benson's right arm, and Kibler grabbed his left arm. (Defs. Statement, ¶ 82.) Yaeger and Kibler were unable to get Benson's arms behind his back in order to handcuff him (Defs. Statement, ¶ 83) and as a result, they took Benson to the ground (Defs.' Statement, ¶ 106). While on the ground, Benson struggled with the officers, and the officers could not get his hand behind his back. (Defs.' Statement, ¶ 83.) Yaeger then told Kibler he could use his OC spray, and, according to Yaeger, Benson then put his left arm behind his back, and became compliant. (Defs.' Statement, ¶ 84.)
Benson was then taken to a holding cell. (Defs.' Statement, ¶ 109.) After about 15-20 minutes in the holding cell, Officer Kibler claims that Benson was screaming and yelling that he was in pain. (Id.) Specifically, Benson was complaining about a shoulder injury. (Id.) Although there is a factual discrepancy about which officer(s) checked on Benson in the holding cell, and which officer decided to call for an ambulance, an ambulance was summoned to the police station, and transported Benson to the hospital.*fn5
On March 13, 2005, the day after Benson was taken into custody, Michael E. Leit, M.D., performed emergency surgery on Benson for his shoulder injuries. (Leit Aff., Docket No. 20, Ex. B, ¶ 7.) Dr. Leit stated the following:
It is my opinion, with a reasonable degree of certainty in my field of medical practice, that the injuries sustained by Mr. Benson were caused by a backward rotation of his arm up and over his head. Further, it is my opinion based on the severe damage to the soft tissue and the severity of the shoulder dislocation, that the force applied to cause the injury was extreme. In addition, multiple posterior rib fractures are consistent with significant force applied to his back.
In all my years of practicing orthopaedic surgery, this is one of the worst shoulder injuries I have ever seen, including many I have observed and treated in major trauma centers and sustained by military personnel in combat.
I reviewed the x-rays from United Memorial Hospital in Batavia and Strong Memorial Hospital in Rochester. The humeral head was forced out [sic] the front of the shoulder joint and was sitting on the chest wall. The only way this severe dislocation could happen is by powerful rotation of the shoulder over the head, in a wide arc. I describe this as a windmill action.
In my opinion, stated with a reasonable degree of medical certainty, the officers description of the arrest sequence, omits details of how the Plaintiff's arm was rotated over his head. The injury sustained by Mr. Benson did not occur in the absence of backward rotation; it did not occur with an ordinary takedown and subsequent handcuffing. (Id., at ¶¶ 9-11, 16.)
Salvatore F. Valvo, a former New York State Police Officer, states that such conduct, as described by Dr. Leit -- i.e., rotating Benson's arm in a "windmill" fashion -- is "excessive and a deviation from accepted standards of police procedure." (Valvo Aff., Docket No. 20, Ex. C, ¶ 8.) Valvo also went on to state the following:
There is no prescribed police conduct when effecting an arrest that includes taking the arrestee's arm and rotating in a fashion described by Dr. Leit.
The description of the police conduct as given by the officers themselves is appropriate police conduct. However, according to Dr. Leit, that is apparently not what happened. (Id., at ¶¶ 8-9.)
In contrast to Dr. Leit and Mr. Valvo's testimony, Michael D. Maloney, M.D., a licensed physician, offered a different medical conclusion. (Maloney Aff., Docket No. 22.)
Specifically, Dr. Maloney stated that, "[i]t is my opinion to a reasonable degree of medical certainty that the injuries sustained by plaintiff are consistent with a forward movement of his right arm to the front and to his right side. The injury sustained by Mr. Benson did not necessarily have to be caused by a backward rotation of his arm up over his head." (Id., at ¶ 6.)
Although there is a stationary video camera that continuously records the area where the physical altercation between Benson, Yaeger, and Kibler occurred, the differences of medical opinion could not be resolved by reference to the security tapes because there was a technological problem with the camera system that evening. (Sehm Aff., Docket No. 16, Ex. N, 16:16-19.) The tape that was in the VCR at the time of the incident is blank, and there is no recording of the event in question. ...