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Robert Lemmo v. Police Officer Kelvin Mckoy

March 8, 2011


The opinion of the court was delivered by: Dearie, Chief Judge.


Pro se plaintiff Robert Lemmo brings this action pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated when certain officers subjected him to excessive force following his arrest for disorderly conduct on January 1, 2006. Liberally construed, the complaint raises two distinct section 1983 claims, one for false arrest and the other for excessive force. Before the Court is defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.


On New Year's Eve 2005, plaintiff and several of his friends went out to celebrate. Plaintiff admits that he had several drinks and was intoxicated. At some point after leaving the celebration, plaintiff was walking on the "L trestle" of the subway near Roosevelt Avenue and 99th Street in Queens when he was stopped by police. According to plaintiff's deposition, he was asked by the police to provide identification and not to smoke on the trestle and, when he refused, an officer slapped the cigarette out of his mouth and arrested him. Plaintiff was immediately handcuffed, and according to even his own account, there was no physical altercation at the time of arrest.

The police version differs somewhat. In his affidavit, arresting officer Bruce Tulloch states that at a checkpoint set up by members of the Queens North Task Force, at approximately 1:45 a.m., he observed plaintiff "using abusive language toward officers and other persons in the area" and that plaintiff "repeatedly disobeyed lawful orders to leave the checkpoint." Tulloch prepared the arrest paperwork and, in his report, stated that he observed plaintiff "cursing profusely at people causing them to leave to avoid [plaintiff]" and also observed plaintiff "obstruct pedestrian traffic." Plaintiff was charged with two counts of disorderly conduct.

Once at the precinct (the 110th), plaintiff was placed in a holding cell and eventually brought back out to be fingerprinted. Apparently he was not handcuffed at this point. Officer Tulloch, in his affidavit, states that he attempted to do the fingerprinting, but plaintiff "became irate and combative and refused to cooperate" and that "with the assistance of other officers," plaintiff was placed back in handcuffs and returned to a holding cell. Plaintiff's account of the same incident in his deposition differs in certain particulars but is not irreconcilable with Officer Tulloch's account. According to plaintiff, when he was brought out to be fingerprinted, he began to get upset because he had believed he would merely receive a ticket but instead realized he was "going through the system." Plaintiff admits that he resisted the effort to fingerprint him, that the "discussion became a little louder," that he asked to see a captain, and that the encounter "turned into a shouting match." He further claims that he was thrown on the floor and put in a headlock in order to be re-handcuffed.

Only now does the story reach the point where plaintiff claims he was the victim of excessive force: according to plaintiff's deposition, once he was re-handcuffed, he was escorted by two officers back to a cell (referred to throughout his deposition as "a second cell") and while en route, one of the officers twisted his thumbs. Plaintiff claims that the shouting match had just ended and that, being handcuffed, he was not resisting the effort to escort him to the second cell. But plaintiff also admits that, immediately upon being placed in the second cell, he shouted at the officers, essentially taunting them by telling them not to open the cell again because he was angry and ready to assault them. According to plaintiff, instead of ignoring him, the officers opened and entered the cell, went behind him, grabbed his thumbs and "both cranked at [them] at the same time." Plaintiff further claims that he asked for medical attention and was spit on.

A topic of inquiry at plaintiff's deposition was whether he could identify which particular officers allegedly twisted his thumbs. Plaintiff stated that it was the same officers who arrested him on the street, and that he was sure that Officer Tulloch was one of them. As to the other defendant named in this action, Officer Kevin McKoy, plaintiff admitted that he "could never pinpoint Mc[K]oy." He was sure that "there was another white guy assisting Tulloch" but "whether his name is Mc[K]oy or not [he] couldn't" say.

Pressed further, plaintiff insisted that he remembered Tulloch: "I could point him out because it is four years . . . Him I could remember." As for McKoy, plaintiff explained that his "name is involved because under my assumptions the one that was assisting Tulloch was Mc[K]oy." Plaintiff further testified that, "The one that was doing the prints and what do you call it, twisted the right thumb, because I know Tulloch grabbed the left.that I know for a fact is the one that Tulloch twisted. He opened the cell, came behind me, grabbed it, and they both cranked it at the same time."

On the question of identity, Officer Tulloch, as noted, stated in his affidavit that it was he who attempted to fingerprint plaintiff, but his affidavit does not address the ensuing events other than by averring that "[a]t no point on January 1, 2006 did [Tulloch] use excessive force against plaintiff" or "witness excessive force being used."

Officer Kevin McKoy, by contrast, avers that that he was not present at the 110th precinct on January 1, 2006 and did not come into contact with plaintiff on that date. According to his affidavit and supporting documentation, McKoy was working in the Expedited Affidavit Program at the Queens Court Section, located on Queens Boulevard, and was on the receiving end of the arrest paperwork prepared and faxed by Officer Tulloch.

Returning to the events on the night in question, plaintiff's and defendants' account of what occurred after the incident in the second cell are generally consistent. Emergency Medical Services were called to transport plaintiff to Elmhurst Hospital Center as an "emotionally disturbed person" or "EDP," to be assessed before arraignment. All the relevant Elmhurst paperwork is part of the record: on the admission form, the "reason for referral" section states that plaintiff was, according to the NYPD, "acting bizarre" and was to be evaluated as a possible "EDP." The initial evaluation report states, inter alia, that plaintiff "reported that he was beaten up by NYPD" but also that upon initial approach by medical personnel, plaintiff was "uncooperative," "incoherent," and "irritable, with an angry affect." This same report also states, "unable to determine safety of patient at this time."

Additional notes document that plaintiff complained of pain in the thumb of his left hand, and that it was tender. Not all of the medical records contain times, but it appears that plaintiff spent several hours at Elmhurst and was eventually "psychiatrically cleared to go to arraignment." It was recommended that he receive additional psychiatric care but not in an inpatient setting. Several additional pages in the packet of Elmhurst records contain "assessment" sections. One states that plaintiff "only complains of wrist and thumb pain;" another, noting that plaintiff was "presently calm, quiet and cooperative," reports "both thumbs swollen" and "[l]eft wrist swollen." A separate report also states that plaintiff was "now calm." "Minor scratches on both wrists" were also noted. In the "violence assessment" section of another report, plaintiff is reported as having "denie[d]" having a history of violence but also having "state[d] [that] he had fight with NYPD last night." When asked what makes him angry or upset, plaintiff replied "low life cops." Plaintiff also told medical evaluators that he had been drinking.

Following his discharge from Elmhurst, plaintiff was arraigned, after 11:00 p.m., and remanded into the custody of Department of Corrections. According to the record of DOC's medical screening, plaintiff's physical condition was "ok." According to defendants, plaintiff did not receive or request medical treatment while in DOC custody (at Riker's Island). In his deposition, ...

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