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Dunn v. Schultz

August 11, 2010

JAMES J. DUNN, PLAINTIFF,
v.
GARY SCHULTZ, INVESTIGATOR, NEW YORK STATE POLICE, DEFENDANT.*FN1



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

REPORT-RECOMMENDATION AND ORDER*fn2

Plaintiff pro se James J. Dunn ("Dunn"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant Gary Schultz, a New York State Police Investigator ("Schultz"), violated Dunn's Eighth and Fourteenth Amendment rights.*fn3 Am. Compl. (Dkt. No. 129). Presently pending is Schultz's motion for summary judgment pursuant to Fed. R. Civ. P. 56. Dkt. No. 135. Dunn opposes the motion. Docket No. 136. For the following reasons, it is recommended that Schultz's motion be granted.

I. Background

The facts are related herein in the light most favorable to Dunn as the non-moving party. See subsection II(A) infra. The events in question occurred prior to Dunn's conviction and incarceration.

On May 17, 1995, Schultz was assigned to protective duty at the Carrier residence. Schultz Decl. (Dkt. No. 135-2) ¶¶1, 3-5; Carrier Dep. (Dkt No. 135-3 at 185-87) at 185. Schultz was informed by another inspector and his superior officer that an indictment was about to be secured against Dunn in an arson case, one or both of the Carriers had testified against Dunn before the grand jury, and Dunn had threatened that he would set the Carriers' house on fire. Schultz Decl. ¶¶ 6-7; see also Carrier Dep. at 185 (explaining that after testifying Mr. Carrier was concerned for his safety so a police presence remained with him at his residence after the court proceedings). Schultz was told that "Dunn was a former police officer, that he was dangerous, that he could be armed, and that he most likely would be carrying a hand grenade or other incendiary device." Schultz Decl. ¶ 8.

Schultz was the only officer assigned to the Carrier residence on May 17. Schultz Decl. ¶ 9. When he arrived at the residence, Schultz secured the doors and windows, but, his efforts were undermined by the Carriers' son who continued to enter and exit the house without locking the doors behind him. Schultz Decl. ¶¶ 10, 12. Schultz believed the doors were locked when someone walked into the living room, unannounced, and was identified by Mr. Carrier as Dunn. Schultz Decl. ¶ 11; Dunn Dep. (Dkt. No. 135-3 at 28-146)*fn4 at 27, 71-75; Carrier Dep. at 186.

Prior to the date in question, Dunn had been suffering from health problems related to his uncontrolled diabetes and knee. Dunn Dep. at 15. From January to May of 1995, Dunn was extremely weak, losing weight and considerable muscle mass and strength, and having difficulty ambulating. Id. at 16-18. The condition also resulted in pain in his back and leg, allowing him to be able to drive for only thirty minutes at a time before having to exit the car to change positions. Id. at 17, 29. Additionally, Dunn underwent arthroscopic surgery on his knee on April 25, 1995 to relieve pain resulting from a partially torn meniscus and calcium build-up in the joint. Id. at 19-23; see also Dkt. No. 135-3 at 152-53 (concluding that due to Dunn's "persistent problems and his failure to improve," arthroscopic surgery on his knee was required); Dkt. No. 135-3 at 157-58, 168-69 (notes from surgical procedure); Dkt No. 135-3 at 159-60, 163, 166, 174. Following the operation, Dunn stated that his knee was sore, he took pain medication, and he was required to use crutches. Dunn Dep. at 23. However, on the date of the incident, Dunn was no longer using crutches to walk short distances and, thus, was not using crutches when he entered the Carrier residence and was detained by Schultz. Dunn Dep. at 68, 79.

Schultz claims to have immediately identified himself as a police officer, before grabbing Dunn by his wrist and escorting him into the hallway. Schultz Decl. ¶ 15; see also Carrier Dep. at 186 (affirming that Schultz identified himself and then frisked Dunn). Dunn contends that Schultz repeatedly refused to identify himself and immediately grabbed Dunn by his arm and neck. Dunn Dep. at 75-78, 93; Dkt. No. 136 at 4, ¶¶ 20, 25. Once in the hallway, Schultz states that he placed Dunn against the wall despite Dunn's minimal resistence and secured his wrists with handcuffs. Schultz Decl. ¶ 16. Dunn contends that handcuffs were never applied and, instead, Schultz searched him with his left hand and continued to hold and twist his wrist with Schultz's right hand. Dunn Dep. at 79; Dkt. No. 136 at 5, ¶¶ 31-32. Once Dunn was up against the wall, Schultz used his foot to spread Dunn's legs apart, "to place [Dunn] off-balance and impede his ability to retaliate while [Schultz] patted him down and checked for weapons or any incendiary devices." Schultz Decl. ¶ 17. Schultz described the procedure as standard and one that he had employed hundreds of times throughout his career without incident. Schultz Decl. ¶ 18. As Dunn was put on the wall and his legs spread, he contends that he told Schultz to be careful because he just had stitches removed from a previous operation. Dunn Dep. at 77; Dkt. No. 136 at 4, ¶ 25. Schultz and Carrier claim to have never heard Dunn mention anything about having surgery or stitches. Schultz Decl. ¶ 20; Carrier Dep. at 186. When Schultz finished the search and did not find any weapons, he escorted Dunn out the front door. Schultz Decl. ¶ 19.

As the two exited the premises, Schultz felt that Dunn was again presenting minor resistance by pulling away, stopping along the sidewalk, refusing to walk, and attempting to return to the residence to speak with William Carrier. Schultz Decl. ¶ 21. According to Schultz, about ten steps from the front door, Dunn then went limp in "an attempt to interfere with and further impede [Dunn's] removal from the residence." Id. ¶ 22. Dunn contends that he was neither fighting nor resisting but could barely stand. Dunn Dep. at 80-81. Schultz supported Dunn's body weight and, when they reached the foot of the steps in front of the Carrier residence, Schultz sat Dunn down on the landing. Schultz Decl. ¶¶ 23-24. Dunn contends that he was thrown on the steps and ground, landing hard on his lower back and ceasing all movement. Dunn Dep. at 82. At this point, approximately three minutes time had passed between when Dunn entered the living room until the time he was seated on the landing. Schultz Decl. ¶ 38; Dunn Dep. at 83.

After being seated, Dunn stated that he had previously undergone surgery, but Schultz found the statements to be "overly dramatic." Schultz Decl. ¶ 26. Schultz then called his superior to inform him that Dunn had appeared at the Carrier residence, "the situation was secure, and requested orders on how to proceed." Id. ¶ 28. Carrier informed Schultz, while on the phone, that he had not advised Dunn to stay away from his home, and Schultz was "advised [by his supervisor] that once [he] had removed [Dunn] from the residence, [he] had no further basis to detain him, because an indictment... had not yet been handed down, and... Mr. Carrier [ha]d not earlier t[old him] not to come to the house....," so Dunn was not technically trespassing. Id. ¶ 30. Schultz was told to release Dunn and escort him off the property. Id. ¶ 30.

According to Schultz, Dunn then rose to his feet without assistance, had the handcuffs removed, and walked to his car on his own accord without any signs of incapacity. Schultz Decl. ¶¶ 31-33. Dunn alleges that Schultz escorted him to his vehicle by grabbing onto his arm and neck again, threw him onto the hood of the car, and advised him not to return. Dunn Dep. at 83-87, 93-94; Dkt. No. 136 at 5, ¶ 33. Schultz advised Dunn that if he returned to the residence, he would be arrested. Schultz Decl. ¶ 35; Dunn Dep. at 85, 93-94; Carrier Dep. at 186. Dunn estimates that from the time he sat on the step until he reached his vehicle, another three minutes had passed. Dunn Dep. at 85. There are no allegations that Schultz ever hit or struck Dunn during the incident. Id. at 87-88; see also Carrier Dep. at 186 ("Inv. Schultz never pushed or hit... Dunn or hurt him in any way. He only frisked him while in the living room.").

The following day, Dunn sought medical attention for his knee and back. Dunn Dep. at 94-95. Dunn continued to receive medical treatment from his physicians throughout his incarceration, and within five months of his knee surgery, was told that "everything look[ed] good...." Id. at 95. Dunn also testified that, although his knee was "worse for a while", it is now fine. Id. at 98; but see Dkt. No. 136 at 7, ¶ 38 (claiming that "after the assault... [Dunn] had to use crutches to walk for ten years."). Additionally, Dunn's physician indicated that time would heal his knee, there was no further injury indicated, and there was no need for additional surgery. Dunn Dep. at 98-100.

Dunn claimed that his main injuries from the incident were to his back and shoulder, specifically stating that he developed "a mark right across [his] back spine area and lower back," from the stairs. Dunn Dep. at 95-96. The medical evaluation noted sensitive spots, radiological tests were taken, but Dunn was ultimately released. Dunn Dep. at 96; see also Dkt. No. 135-3 at 177 (findings of lumbar spine MRI scan in response to leg and back pain finding some narrowing of the disc space and "minimal spinal stenosis"). Dunn testified that he never had any previous back trouble, but that now he experiences considerable, pain intermittently and requires crutches to walk. Dunn Dep. at 100-03, 108. Dunn has received pain medication to alleviate his symptoms. Id. at 103-04. Dunn also agreed that the majority of his leg pain and weakness was caused and exacerbated by his uncontrolled diabetes. Id. at 104-06.

On June 30, 1995, it was noted that Dunn's back pain was intermittent, his right knee had improved from the arthroscopic surgery, and he could rise from a sitting position with difficulty yet ambulate with little support once he was standing. Dkt. No. 135-3 at 179-80. The examining physician found that Dunn's physical weakness was due to his uncontrolled diabetes and that "[h]e may recover strength over time with regained control of his diabetes." Id. at 180. A physical therapy consult was recommended, and completed on August 10, 1995. Id. at 180-81. The physical therapist noted Dunn's lower extremity weakness, but also commented on how Dunn could transfer himself in and out of a chair, onto the treatment table, and from the bed. Id. at 181. The therapist concluded that Dunn required strengthening exercises and noted that "there may be ...


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