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Tiffany Mcmillan and Velia Morris v. City of New York

December 9, 2011

TIFFANY MCMILLAN AND VELIA MORRIS, PLAINTIFFS,
v.
CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER ALICJA SZABRANSKA, IN HER INDIVIDUAL AND OFFICIAL CAPACITY, POLICE OFFICER PAUL CHIERCO, IN HIS INDIVIDUAL AND PERSONAL CAPACITY, POLICE OFFICER ANTHONY LEPORE, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, AND POLICE OFFICER AJAY BHUVANESHWAY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

OPINION & ORDER

Plaintiffs Tiffany McMillan and Velia Morris filed their complaint on March 15, 2010 alleging that New York City Police Officers Alicja Szabranska, Paul Chierico, (sued herein as "Paul Chierco"), Anthony Lepore, and Ajay Bhuvaneshway (the "Officer Defendants") used excessive force against them while arresting McMillan on March 18, 2007. Plaintiffs assert claims under 42 U.S.C. §§ 1981, 1983, 1985, as well as state common law claims.*fn1 On June 6, 2011, the City of New York, the New York City Police Department, and the Officer Defendants (collectively, the "Defendants") moved for summary judgment on all of Plaintiffs' claims. For the reasons discussed below, the Court grants Defendants' motion for summary judgment.

BACKGROUND*fn2

On Sunday evening, March 18, 2007, Plaintiff Tiffany McMillan went to a restaurant with several friends and drank two Long Island iced teas*fn3 with dinner. (Defs' 56.1 at ¶¶ 3-4.) Between 8:30 and 9 p.m., McMillan returned to her apartment at 212-29 Hillside Avenue, Apartment 4EW, Queens Village, New York 11242 ("Apartment 4EW"), where she lived with her grandmother, Plaintiff Veila Morris, and McMillan's four-year-old daughter, H.M. (Id. at ¶¶ 1, 5.) McMillan's mother, Angela Uvino, resided in Apartment 3MW at the same address with her then eight-year-old daughter, N.U. (McMillan's sister).

When McMillan arrived home, Morris told her that H.M. was in Uvino's apartment. McMillan went downstairs to Apartment 3MW and told Uvino that H.M. had school the next morning and needed to go upstairs to bed. (Id. at ¶ 8.) Uvino refused to let McMillan take H.M. back to Apartment 4EW. After McMillan insisted, an argument followed, leading to an altercation between McMillan and Uvino. (Id. at ¶¶ 8-9.) McMillan testified that she "just kind of pushed" Uvino, tripped over a step inside the doorway, and then fell with Uvino onto a table. (Id. ¶ 9; McMillan Dep. at 148:13-14.) When N.U. attempted to intervene, McMillan "tried to push her out of the way so we wouldn't fall on her." (McMillan Dep. at 148:15-16.) McMillan then "grabbed H.M." and returned to Apartment 4EW. (Id. at 148:17-19.) As soon as McMillan left, Uvino called 911 and reported an assault. (Def's 56.1 ¶ 13, Ex. O.)

Officers Chierico and Lepore responded to a radio run reporting an assault in progress at Uvino's apartment. (Defs' 56.1 ¶ 14.) When they arrived at Apartment 3MW, Uvino told the officers that she was baby-sitting her granddaughter, and when her daughter returned they had an argument that developed into an altercation. (Lepore Dep. at 22:6-9.) Uvino showed Officers Chierico and Lepore injuries to her neck and claimed that McMillan caused them. (Lepore Dep. at 22:19-21.) The officers also observed that N.U. was injured. Both Uvino and N.U. stated that McMillan caused these injuries. (Id. at 22:23-25, 25:7-19 ("She said her sister hurt her.").)*fn4

Uvino advised Officers Chierico and Lepore that McMillan lived upstairs in Apartment 4EW. The officers left Uvino's apartment and proceeded to the fourth floor. (Lepore Dep. at 27:5-7, 12-18.)*fn5

Officers Chierico and Lepore arrived at Apartment 4EW and knocked on the door. The parties offer different versions of the events that followed. Officer Lepore testified that a female asked who was at the door. He and Officer Chierico then identified themselves as police and asked to speak to "Tiffany." (Lepore Dep. at 30:5-20.) According to Officer Chierico, McMillan opened the door and gave no response when Officer Chierico asked her to identify herself. (Chierico Dep. at 25:4-24.) Officer Chierico testified that he was "positioned halfway in, halfway out[side Apartment 4EW] while [he] was communicating with Tiffany initially." (Id. at 29:2-4.) McMillan then gave her name and shut the door. (Id. at 26:5-8.) Morris then reopened the door and asked what the officers wanted with her granddaughter. (Chierico Dep. at 40:21-23; Lepore Dep. 45:10-21.) McMillan attempted to shut the door in an "aggressive" manner, but Officer Chierico used his foot to block the door from closing. (Lepore Dep. 50:13-18, 51:3-5.) According to Officer Lepore, McMillan then "charge[d] out the door. . . . Explode[d] . . . ." (Lepore Dep. 52:9-13; see also Chierico Dep. at 42:10-11 ("[P]retty much simultaneously, Tiffany McMillan rushed out of the apartment.").) McMillan attempted to push past the officers and run into the hallway toward the stairwell. (Lepore Dep. at 58:7-14.) Officer Chierico testified that "[w]hen she ran out, she struck me to my upper body with a closed or possibly partially closed fist while flailing her arms and making herself pass myself and Officer Lepore." (Chierico Dep. at 51:7-11.) The officers attempted to handcuff McMillan at that point but were unsuccessful. (Lepore Dep. at 60:4-24 ("She was flailing her arms and trying to flee.").)

During these events, Officers Bhuvaneshway and Alex Kruk arrived at Uvino's apartment in response to the radio run. After speaking with Uvino in Apartment 3MW, they went to the fourth floor. (Defs' 56.1 ¶ 32.) Officer Bhuvaneshway testified that he heard "a loud commotion" in front of Apartment 4EW and observed Officer Chierico with "his foot inside the door to prevent it from closing . . . ." (Bhuvaneshway Dep. at 21:4-6, 25:2-4.) After McMillan broke free from Officers Chierico and Lepore, she attempted to run down the hall and ran into Officer Bhuvaneshway, who grabbed her by her arm and placed her in one handcuff. (Bhuvaneshway Dep. at 38:12-23, 39:10-14.) McMillan's remaining arm was flailing, and Officers Chierico, Lepore, and Bhuvaneshway struggled to restrain her. (Id. at 43:13-44:7; Lepore Dep. at 65:4-11.) As they struggled to handcuff McMillan, the officers*fn6 lost their footing and fell to the floor with McMillan. (Bhuvaneshway Dep. at 44:9-17; Chierico Dep. at 57:2-4 ("[W]hile assisting, being that that [sic] she was very irate, aggressive, we ended up falling to the ground.") Officer Bhuvaneshway testified that he and McMillan both fell face first onto the floor. (Bhuvaneshway Dep. at 54:21-25.) Officers Bhuvaneshway, Chierico and Lepore each received injuries as a result of this fall. (Gertzer Decl. Exs. H, I, J.)*fn7 Once on the floor, McMillan bit Chierico on his right hand between his thumb and forefinger. (Id. Ex. I at NYC 169.)

At this time, Officers Szabranska and Salice responded to the scene because the four other officers had not answered their sergeant's radio calls. (Szabranska Dep. at 14:18-25.) Officer Szabranska arrived after McMillan was already on the floor, and recalled that one of the officers was "holding [McMillan's] legs, because she was kicking." (Id. at 17:22-24, 20:3-4 (stating that McMillan was "kicking, waving her hands, basically resisting arrest").) She testified that she "wasn't even close to [McMillan]" and was "pretty sure" that none of the officers hit McMillan with their fists. (Id. at 22:9-17.)

Officer Szabranska also observed Morris in the doorway of Apartment 4EW "yelling and screaming," which made McMillan "more aggressive [and] more combative." (Id. at 24:16-20, 25:8-14, 26:5-8.) Officer Szabranska testified that she asked Morris "numerous times to go inside [Apartment 4EW], because it seem[ed] like her being-her being there would make things worse, 'cause [sic] her yelling and crying, like I said, was making Miss McMil' [sic] like more upset." (Id. at 26:21-25.) Officer Szabranska denies Morris's allegations that she pushed her police baton into Morris's left shoulder and maintains that she did not have her police baton with her when she responded to the radio run that night. (Szabranska Dep. at 27:16-22, 29:18-21.)

Plaintiffs present a different version of events. McMillan testified that when she opened the door to Apartment 4EW, she saw "at least five" uniformed officers, one of whom she believed was a woman. (McMillan Dep. at 172:2-6, 19-24.)*fn8 McMillan testified that she offered to assist them but that the officers refused to tell her why they were there; "[t]hey wouldn't even tell me who they were looking for." (Id. at 175:6-15.) According to McMillan, she told the officers that she was "not decent to be standing and talking amongst men, not dressed," and that she needed to get a coat and shoes before going outside to speak with them. (Id. at 173:14-18.) She testified that during this exchange one of the officers "wedged his foot into the door because I had the door knob in my hand." (Id. at 173:9-11.)

McMillan contends that she then "got pulled out my house, [sic] my head got slammed against the door. And before I knew it, I was on the ground trying to cover my face." (Id. at 173:19-21.) She testified that she "just kept getting hit" and remembered "a man and a ring, a ring on his finger that kept hitting me in a face [sic]" over "20 or 30 times." (Id. 173:22-24, 186:5-9.) She speculates that she was "probably" kicked as well.*fn9 McMillan contends that the Officer Defendants intentionally pulled her out of Apartment 4EW in order to slam her head against the wall, but has "no idea" why they would have done so. (Id. at 182:11-22.)

Morris testified that when she opened her door, the officers "had Tiffany on the floor, beating her face" and that a female officer "had her legs up . . . on the back of [McMillan], hitting her with the stick . . . ." (Morris Dep. at 46:23-25.) Morris "scream[ed] for Jehovah God" because she "was excited" and feared that the Officer Defendants would "kill" McMillan. (Id. at 49:24-25, 60:4-5.)*fn10 She testified that Officer Szabranska ordered her to return to her apartment and injured her left arm by pushing her back into Apartment 4EW with a police stick.*fn11 (Id. at 46:2-14.) Morris described the stick as "medium size, it wasn't so thick, it wasn't so thin, it was just an ordinary stick." (Id. at 66:15-16.) According to Morris, Officer Szabranska "took the stick and she threw me here [indicating left shoulder] and she pushed me in the door, she said, 'You have nothing to do with this. You go inside.'" (Id. at 46:7-10.) Morris estimated that she was "about four feet" away from McMillan and the other Officer Defendants when Officer Szabranska pressed a police stick against Morris's left shoulder. (Id. at 65:18-20.) Morris testified that she developed a bruise "like the size of a 50 cents or bigger." (Id. at 11:10- 12.) She went to the doctor a few days after the incident and was told to apply heat and take aspirin. (Morris Dep. at 10:3-10.)

After McMillan was placed in handcuffs, the officers walked her to a police car. (Defs'

56.1 ¶ 59.) McMillan was taken by ambulance to Queens Hospital Center for her injuries. EMS records indicate that McMillan had "lac[eration] above left eyebrow"; that she complained of "pain & ringing to [left] ear" and pain to her nose; and that she had "edema to [left] top lip." (Defs' 56.1 ¶ 64, Ex. F at NYC 144.) Officer Szabranska testified that McMillan "was so drunk, and it was almost impossible even to hold her still in the ambulance. She was strapped in by EMS, and she was giving them such a hard time . . . . We didn't think we were going to make it to the hospital, because she was very combative. She was cursing." (Szabranska Dep. at 73:11-19.) EMS records also state that McMillan "became verbally abusive towards EMS and [police] en route to [the hospital]." (Defs' 56.1 ¶ 64, Ex. F at NYC 144.)

At the hospital, McMillan was taken to the emergency room. ER personnel noted that McMillan had "swelling [and] laceration to [left] eyebrow." (Id. at NYC 146.) Her medical chart indicates "no evidence of trauma" in her extremities, and a CT scan of McMillan's head revealed "soft tissue swelling no intracranial hemorrhage." (Id., Ex. F at NYC 149.) She was diagnosed with a head ...


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