The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiff William Shankle, appearing pro se, brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that defendants Detective Derek Andreone, Officer Daniel Callow and Sergeant Robert Caban (collectively, "defendants"), of the New York City Police Department, used excessive force during his arrest and subsequently deprived him of medical attention, in violation of his constitutional rights. Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). For the reasons set forth below, the court grants defendants' motion in part and denies it in part.
As an initial matter, defendants' statement of the facts submitted pursuant to Local Rule 56.1 is based largely on inadmissible evidence. For example, the description of the arrest of plaintiff set forth in the Rule 56.1 Statement is drawn primarily from interviews of defendants conducted by New York City's Civilian Review Board ("CCRB") between seven and eight months after the events underlying this suit. There is no indication that these out-of-court statements were given pursuant to any oath or under penalty of perjury. No sworn affidavit or affirmation from any of the defendant officers has been submitted. Therefore, defendants' version of the facts will be considered only insofar as it is based on admissible evidence, and is not disputed.*fn1 See Alfano v. NGHT, 623 F. Supp. 2d 355, 362 (E.D.N.Y. 2009).
On May 5, 2004, at 9:43 p.m., the New York City Police Department was contacted by a person claiming that he had been attacked, with gunshots fired, on Farragut Road in Brooklyn, New York, by a black male wearing all black and a "hoodie." (Castro Decl. Exh. G (911 Emergency Sprint Report, dated May 5, 2004).) Plaintiff, a black male, concedes that, on the day of the incident, he was in that neighborhood and wearing dark jeans, a black shirt, a black hooded sweat jacket and black sneakers. (Deposition of William Shankle, dated May 24, 2007, ("Shankle Dep.") at 59:5-8.)
According to the "Complaint Report" related to the arrest of plaintiff, defendants witnessed plaintiff running with a firearm, prior to his arrest, when plaintiff turned to one of the defendant officers and said, "I'll fucking shoot you." (Castro Decl. Exh. N., Police Complaint Report.) Plaintiff was subsequently arrested by defendants. (Id.)
Plaintiff disputes defendants' version of the events, claiming instead that he was not armed. (Affirmation of William Shankle, dated October 12, 2007 ("Shankle Aff."), at ¶ 18.) Rather, plaintiff states that, after leaving a grocery store, while in the Glenwood Housing projects, he was approached by defendants and informed that "he fit a description." (Id. at ¶¶ 6-7.) According to plaintiff, after being handcuffed, and while laying on the ground, he asked why he was being arrested. (Id. at ¶ 7.) Following this question, plaintiff claims (i) he was "kicked in my ribs"; (ii) an officer stood on his back; (iii) his head was held up by two officers, so a third could spray mace into his face; (iv) his face was "mushed into the ground"; and (v) he was hit in the head with a sharp object after being handcuffed. (Id. at ¶ 10; Shankle Dep. 117:7-9.) Because plaintiff claims to have been face down during the arrest, he was unable to identify which of the arresting officers committed each act. (Shankle Aff. ¶ 10.) According to plaintiff, the arrest lasted "a minute or two." (Shankle Dep. 126:4-9.)
According to plaintiff, he suffered injuries stemming from his arrest and was forced to "beg for medical attention for at least 45 min[utes] to an hour." (Shankle Aff. ¶ 10.) The Arrest Report of plaintiff states that he was arrested at approximately 9:57 p.m. (Castro Decl. Exh. J., Police Arrest Report.) An "Ambulance Call Report" states that an ambulance was called for the plaintiff at 10:17 p.m., that an ambulance arrived at 10:21 p.m. and that plaintiff was then treated by Emergency Medical Services ("EMS"). (Castro Exh. O., F.D.N.Y. Ambulance Call Report.) Plaintiff complained to EMS that he had "a cut." (Id.) During the course of the examination, EMS noted a "1/2 inch laceration" on the top of the plaintiff's scalp as well as abrasions on his left knuckles. (Id.)
Plaintiff was transported to Kings County Hospital Center by 11:15 p.m. (Castro Exh. P., Kings County Hospital, Emergency Nursing Record.) After further examination at the hospital, the treating physician noted that plaintiff had contusions on his left hand, right knee and chest. (Id.) The hospital physician also closed a two centimeter wound in plaintiff's scalp with five staples. (Id.) Plaintiff was given Motrin and discharged to the custody of the New York City Police Department. (Id.) Plaintiff has a scar on his scalp which he contends is a result of the staples received that evening. (Shankle Dep. 177:1-13.)
The arrest report reveals that the initial radio call concerning shots fired was incorrect and that plaintiff was alleged to have robbed and carjacked the victim at gunpoint, with no shots fired. (Castro Decl. Exh. J., Police Arrest Report.)
Plaintiff was convicted in New York Supreme Court, Kings County, following a jury trial, of Robbery in the Second Degree, and was sentenced to a ...