The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER INTRODUCTION
Presently before the Court are motions for summary judgment (Dkt. Nos. 45, 49) in this pro se action under 42 U.S.C. § 1983. Plaintiff claims that defendant Scott Gavigan ("Gavigan") and/or Eugene Duda ("Duda") used excessive force in arresting him, causing him to sustain a broken ankle. Gavigan is a police officer with defendant City of Albany Police Department ("City"), and Duda is an Investigator with the Albany County Sheriff's Department. As explained below, the Court denies the motions.
In his complaint, plaintiff claims that, on October 6, 2008, he was entering a grocery store near his residence in Albany, New York, when he was "approached from behind, [and] grabbed by his shirt preventing him from entering." He turned to see who had grabbed him and "noticed two police officers in uniform," defendants Gavigan and Duda. One of the two placed plaintiff's left hand in a handcuff, then plaintiff was "swept off his feet landing on his stomach, left hand behind his back, still in a handcuff." Plaintiff states that "his right hand was underneath his stomach, unable to move because of the pressure placed onto his back by one of the police officer's knee or foot." One of the officers then "stomped" on his right ankle, breaking it. The officers then pulled plaintiff to his feet, but he was unable to stand on his right leg. According to plaintiff, as he was being conveyed to a hospital in an ambulance, "Officer John Doe, a police officer at the Albany city police dept. sat next to plaintiff [in the ambulance], read plaintiff his rights and then placed plaintiff under arrest." The following day, plaintiff underwent surgery to repair the ankle. The complaint seeks compensatory damages and a "declaratory judgment" determining that defendants subjected him to excessive force. The Court construes the complaint and plaintiff's other submissions to assert a Fourth Amendment claim that defendants used unreasonable force and/or failed to intervene in another officer's use of unreasonable force in effecting his arrest.
On their summary judgment motions, defendants do not dispute that plaintiff's ankle was broken during the arrest. Nor do they dispute that Gavigan and Duda participated in the apprehension and arrest of plaintiff. The City and Gavigan argue, however, that plaintiff cannot identify Gavigan as the person who broke his ankle. Similarly, defendant Duda contends that plaintiff has no competent evidence that it was Duda who broke his ankle. Defendants rely in part on plaintiff's testimony at his New York General Municipal Law 50-h hearing on January 22, 2009, as follows:
Q. Now, first off, Mr. Henry, I believe you stated it was Scott Gavigan and Detective Duda --
Q. -- that originally stopped you?
Q. In your notice of claim you stated it was Detective Gene McNally.
Q. How did you come to -- why were you stating Gene McNally?
A. Because at the time I thought that Eugene Duda and Mr. Gavigan were the arresting officers, but when I got to the hospital, I didn't know until Detective Gene McNally interviewed me and interrogated me pertaining to the robbery that took place. And I didn't know up until I got indicted, when I got the actual paperwork back, who was who and who wasn't. So, that's when I took the initiative to find out, and I realized that I was wrong by placing Gene McNally as the officer in front of the store who approached me.
A. So, did Mr. McNally approach you originally?
Q. Are you still making a claim against McNally?
Q. So your only claim right now is against --... Are you alleging you were approached first by Detective Gavigan or Detective Duda?
A. I don't know what's the difference between the two, so I don't know.
Q. How did you learn that it was these two individuals that first approached you?
A. When I got indicted. They have a sheet they give you of your indictment, and it says in the indictment that I was resisting arrest and that the pocketknife I had on my belt, my intent was to use it against Investigator Duda and Detective Scott Gavigan. It says that I was fighting with those officers and the officer who was in the ambulance with me. I don't know his name so that's when I put one and one together.... *** At the 50-h hearing, in recounting the events of October 6, 2008, plaintiff testified:
A. ... So, when I got out of the Jeep on the corner, I was walking into the store .... The Jeep makes a left, and when I'm grabbed by the officer, I could see the Jeep being pulled over by a police car....
A. And so I'm like, well -- they said, "Put your hands behind your back." All right? That's where...
Q. Okay. All right, so basically ... you just got out of the Jeep --
A. Just got out of the Jeep.
Q. -- and you're walking to the store and you're stopped by Gavigan and Duda --
Q. And what did they ask you to do right away?
A. Put my hands behind ...