The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
By motion filed December 17, 2009, Defendants P.O. Joseph A. Kraus, Westchester County Department of Public Safety, incorrectly referred to in caption as Westchester County Police Department, and the County of Westchester, moved for summary judgment dismissing the Amended Complaint filed by Plaintiff Derek Sloane on or about October 29, 2008.*fn1
Summary Judgment Standard
Summary Judgment is granted if the moving party demonstrates there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To defeat a motion for summary judgment, it is insufficient for a party to raise some metaphysical doubt as to the material facts, to make conclusory allegations or unsubstantiated assertions or to raise only a scintilla of evidence in opposition.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).
The Amended Complaint alleges that while Plaintiff was asleep at a shelter operated by the Volunteers of America in Mount Vernon, New York on May 6, 2006, Police Officer Joseph A. Kraus ("P.O. Kraus") and two other policemen, named in the Amended Complaint as "Sgt. Lodge" and "P.O. Guiseppe,"*fn2 stormed sleeping area at 1:30-2:00 AM, struck Plaintiff violently about the legs with their flashlights and, after he said "What's going on?" and jumped up, grabbed him by the arms, removed him from the room, took him to the bathroom without his shoes, pushed his face against the wall, and placed a gun in his back while an officer demanded the keys to the vehicle he had driven to the shelter, a pick up truck. (Amended Complaint ("Compl.") at 3-5.)*fn3 At that point, Plaintiff told the officers the keys were in his pants and the officers found the keys to the truck in Defendant's pants pocket hanging in the sleeping area. (Id. at 5.)
The Amended Complaint states Plaintiff was then placed in handcuffs and leg irons and placed in a police vehicle barefoot and taken to Westchester County Police Headquarters where he was placed in a steel cage until his removal for a court appearance in Mount Pleasant Court later that day. (Id. at 7-9.) Until he was transported to Westchester County Jail after arraignment, the restraints were never removed and he was provided with neither food nor the use of a bathroom. (Id.; see also Deposition of Plaintiff ("Pl. Dep.") at 34.)*fn4 Plaintiff further alleges that on May 7, 2006, after he was taken to Court and arraigned for criminal possession of stolen property, P.O. Kraus punched him in the face for no apparent reason. (Compl. at 9.)
The Amended Complaint asserts that in addition to his other injuries, Plaintiff suffered numbness of the hands and feet as a result of the prolonged application of the handcuffs and leg irons. (Id. at 8; see also Pl. Dep. at 46-48.)
The Amended Complaint asserts violations of Plaintiff's constitutional rights and violations of his federal statutory rights under 42 U.S.C. § 1983 as well as state law claims of assault, battery and intentional infliction of emotional distress. (Compl. at 10-13.)
Defendants' Motion for Summary Judgment
Defendants' Motion for Summary Judgment seeks dismissal of Plaintiff's claims of excessive force under 42 U.S.C. § 1983 and the Constitution on the grounds that the injuries of which Plaintiff complains occurred while Plaintiff was being arrested for criminal possession of stolen property (the pick-up truck) which was owned by a party who never gave him permission or authority to use the vehicle. (Pl. Dep. at 37.) Plaintiff has admitted in sworn testimony that when he was asked to get up from his bed in the shelter, he did not comply for 2 to 3 minutes, which caused the officers to use the force they applied, and Plaintiff admitted he does not know which officer hit him with the flashlight. (Id. at 19-20.) Defendants also assert that Plaintiff has admitted that: (i) the first question asked was for the "keys for the truck;" (ii) he did not comply with this request immediately; and (iii) he repeatedly refused to exit the patrol car when P.O. Kraus requested him to do so which caused P.O. Kraus necessarily to use force. (Defendants' Memorandum in Support of Summary Judgment ("Def. Mem.") at 6; see also Pl. Dep. at 24-25, 39-41.)
The defense memorandum asserts that Plaintiff's admissions show that his actions during the arrest demonstrate a "pattern of resistance and non-compliance," justifying the amount of force used by the arresting officers. (Defendants' Reply Memorandum in Further Support of Summary Judgment ("Def. Reply Mem.") at 3.)
Defendants' memorandum further points out that at his deposition, Plaintiff admitted that only one officer struck him with his flashlight and that he did not see who and does not know who did so. (Def. Mem. at 6; Pl. Dep. at 19.) It also points out that Plaintiff admitted that he did not see which officer placed a gun in his back and never actually saw a gun placed against his body but that he knew from experience what a gun felt like. (Def. Mem. at 6; Pl. Dep. at 23-24.) Plaintiff also testified that Sgt. Lodge never ...