The opinion of the court was delivered by: John F. Keenan, United States District Judge
Plaintiff Jason Garcia ("Garcia" or "Plaintiff") brings this action, pro se, under 42 U.S.C. § 1983 alleging that members of the New Rochelle Police Department ("NRPD") used excessive force in carrying out his June 9, 2005 arrest. Defendant Detective Christopher Greco ("Greco" or "Defendant") moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on grounds of judicial estoppel, qualified immunity, and that Garcia cannot establish that Greco used a constitutionally unreasonable degree of force in participating in Garcia's arrest. For the following reasons, Defendant's motion is granted.*fn1
A. The Underlying Incident
The following facts are undisputed unless otherwise noted. Members of the NRPD conducted surveillance of Garfield Street in Yonkers, New York on the evening of June 9, 2005 in connection with a potentially armed suspect - Garcia - who had fled from police a day earlier. At or about 8:30 p.m., after Greco and Detective John Pastore positively identified Garcia as the suspect, members of the NRPD confronted Garcia near a gas station on Yonkers Avenue off Walnut Street. (Def. Ex. A).
According to Greco's police report, he verbally identified himself to Garcia, at which point Garcia immediately fled toward Walnut Street. (Id.). He was intercepted by Detective Michael T. McKennis and a physical altercation ensued between the two as Garcia allegedly punched and kicked the officers to prevent his arrest. (Id.). Garcia was handcuffed, taken into custody, and transported to NRPD headquarters. (Id.). Detective Pastore sustained a torn ligament in his left thumb that prevented him from returning to duty for three weeks. (Def. Ex. M). Another arresting officer, Detective Fagan, sustained a hematoma of his left ring finger and abrasions to both knees during Garcia's arrest. (Def. Ex. N). Detective McKennis sustained unspecified injuries but did not seek medical attention. (Def. Ex. A).
According to Garcia, after leaving his mother's home, Greco emerged from a white car with a gun and began to chase him. (Def. Ex. K at 53:17--21; 58:21--25). After Garcia turned and ran, another "plain clothes guy" approached and kicked him in the shin. (Id. at 60:8--19). Garcia claims that he fell, got up, and then several officers grabbed and tackled him to the ground and repeatedly struck him. (Id. at 60:13--25). Specifically, Garcia claims that "without identifying themselves, the officers (all 5) knocked [him] down, hitting [him] with their fists, and hit [him] with their radios." (Def. Ex. I, ¶ II(D)). Garcia further alleges that after he was handcuffed and placed in a police squad car one of the officers slapped him. (Def. Ex. K at 61:25--62:24).
Garcia claims he was lying face-down on the ground during the alleged use of excessive force and therefore could not see which officer was hitting him. (Id. at 89:14--21; Def. Ex. I, ¶ II(D)). Nonetheless, Garcia maintains that Greco hit him:
Q: All Right. My question is: How do you know? If your face was down, how can you be sure it was Greco that was hitting you as opposed to one of the other officers?
A: Because he was the second one up . . ., [he] tackled me first. When the first guy kicked me, in the shin, Greco was the second guy following right behind following in pursuit. So yes, I'm sure that Christopher Greco did put his hands on me. . . . I know he hit me. You think he's just going to sit there and let me do whatever, saying that I assaulted his officer? . . . . He was right there, I know he hit me. I'm sure he did.
Q: Is that because he was the second officer on the scene; is that the basis?
(Id. at 88:20--89:13). Garcia asserts that, during the arrest, he did not try to defend himself, claiming he did not punch any of the officers, strike any of the officers with his hands, kick at any of the officers with his feet, or otherwise "resist the arrest." (Id. at 73:3--25; 85:19--21).
According to Greco's police report, after being brought to NRPD headquarters, Garcia complained that he was suffering an asthma attack and required medical attention. (Def. Ex. A). According to his medical records, after the arrest, Garcia complained of shortness of breath and pain in his left shin, right elbow, and face. (Def. Ex. L). The notes of the diagnosing physician list the "Presenting Problem" as "[s]hortness of breath" and the "Patient Complaint" as "difficulty breathing." (Id.). Garcia was diagnosed with Dyspnea (shortness of breath) and exacerbation of asthma. His medical records reflect that at the time of his hospital visit he was a smoker. (Id.). Garcia was also diagnosed with a facial abrasion, though x-ray exams showed no evidence of "fracture, dislocation or other significant osseous or soft tissue abnormality." (Id.). Garcia was discharged to police custody after his breathing stabilized. (Id.).
B. Criminal Charges and Plea Allocution
Garcia previously had served roughly fifteen months in state custody stemming from an August 10, 2003 incident in which he shot a man with a .387 automatic handgun in a bar in Pelham, New York. (Def. Ex. K at 18:21--21:21). In connection with that incident, Garcia pleaded guilty to criminal possession of a weapon in the third degree and second degree assault. (Def. Ex. K at 14:24--15:19; 21:22--22:8).
Following his June 9, 2005 arrest, Garcia was charged with criminal possession of stolen property, criminal possession of a weapon, assault with intent to prevent a police officer from performing a lawful duty, and resisting arrest. (Def. Ex. C).
On October 5, 2005, Garcia pleaded guilty in Westchester County Supreme Court to reduced charges of attempted criminal possession of a weapon in the third degree, in violation of New York Penal Law § 265.01, and attempted assault in the second degree with intent to cause physical injury to a police officer, in violation of New York Penal Law § 129.05. In the plea allocution, Garcia stated that he understood his ...