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Porath v. Bird

United States District Court, Second Circuit

May 7, 2013

DAVID K. PORATH, Plaintiff,
v.
BIRD, Investigator, N.Y.S. Police, Defendant.[1]

DAVID K. PORATH, 11-A-2120, Plaintiff Pro Se, Sing Sing Correctional Facility Ossining, NY.

KEVIN P. HICKEY, ESQ., Assistant Attorney General, ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Attorney for Defendant.

REPORT-RECOMMENDATION AND ORDER[2]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se David K. Porath ("Porath"), an inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action against Bird, a New York State ("NYS") Police Investigator, alleging violations of the Civil Rights Act, 42 U.S.C. § 1983. Compl. (Dkt. No. 1). Porath contends that Bird deprived him of his constitutional rights under the Fourth Amendment. Id . Presently pending is Bird's motion for summary judgment pursuant to Fed.R.Civ.P. 56. Dkt. No. 46. Porath opposes this motion. Dkt. No. 56. For the reasons which follow, it is recommended that Bird's motion be denied.

I. Background

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

A. Burglary

According to Bird, on November 14, 2010, non-party Sergeant Phelps ("Phelps") advised Bird that he had stopped two burglary suspects in a vehicle on Midline Road in Perth, New York.[3] Bird Decl. (Dkt. No. 46-4) ¶ 4. Shortly thereafter, non-party Trooper David Vigliotti ("Vigliotti") informed Bird that one of the suspects, Porath, fled the scene during questioning. Id . ¶ 5. Vigliotti explained that the other suspect, Laurie Rusnica ("Rusnica"), admitted to burglarizing residential homes with Porath and was taken into custody. Id .; Dkt. No. 46-7. Vigliotti further informed Bird that a search detail was looking for Porath. Bird Decl. ¶ 6.

Porath claims he hid in the woods for four to five hours.[4] Porath Dep. (Dkt. No. 46-3) at 32:9-10.[5] When Porath called his friend, non-party Sandra Bechard, to pick him up, Phelps[6] answered Bechard's phone.[7] Id. at 32:17-22. Porath agreed to surrender to Phelps and Bechard for committing burglary in the second degree. Id. at 32:21-22, 37:13-19; Compl. ¶ 7. When Bird arrived at the scene, he heard the phone call from Porath to Phelps, which was broadcasted over a loudspeaker. Bird Decl. ¶ 13. Bird realized that Porath's claimed location was inconsistent with the surrounding environment. Id . Based on the inconsistencies, Bird believed Porath intentionally misdirected the search detail to approach the east side line of Midline Road when Porath was actually located on the west side. Id . Bird further believed that Porath lied in order to access Bechard's vehicle parked on the west side of Midline Road. Id .; see Dkt. No. 46-9.

B. Use of Force Incident

Porath claims he came out of the woods and was walking towards Phelps and Bechard when Bird ran up to him, pulled out a gun, and ordered him to get on the ground. Porath Dep. at 33:3-8; Compl. ¶ 8. Porath complied and laid on the ground facing down. Porath Dep. at 33:8-9; Compl. ¶¶ 8-9. Porath alleged that non-party Prusky jumped on his back and Bird proceeded to cuff his left wrist then grabbed his right arm and jerked it back and up. Porath Dep. at 33:13-16; Compl. ¶ 11. Porath yelled out in pain, "my arm, my arm, " to which Bird replied "I don't give a F[], " yanked Porath's arm back, twisted the arm counterclockwise, then brought it back. Porath Dep. at 33:17-21. Porath yelled, "[y]our [sic] hurting my shoulder." Compl. ¶ 12. Bird continued to twist Porath's right arm. Id . At this point, Porath "felt something rip and separate all at the same time." Id . Porath said, "[y]ou did something to my arm." Porath Dep. at 33:24-25. Bird ignored Porath's pleas. Id. at 33:24-34:1. Porath claims he did not resist arrest and his right arm was limp when he was being cuffed. Porath Resp. (Dkt. No. 56) at 5; Porath Dep. at 42:19-43:9.

After suspecting Porath was not at the claimed location, Bird separated from the search detail and spotted Porath crouching under a tree. Bird Decl. ¶ 14. Bird attested that he ordered Porath to come out and speak with him and Porath complied. Id . Porath asked Bird to not handcuff him, to which Bird attested he would not agree to because Porath already fled from the police for several hours. Id . Bird removed handcuffs from his pocket and stepped toward Porath. Id . Porath started to run pass Bird. Id . Bird caught up with Porath, tackled and straddled Porath, and attempted to handcuff Porath.[8] Id.

According to Bird, he placed the first handcuff on Porath with minimal effort and resistance. Bird Decl. ¶ 16. As for the second handcuff, Porath was not immediately or completely cooperative. Id . However, Bird would not categorize Porath's actions as "resisting arrest." Id . Bird later learned that the difficulty in cuffing Porath's right wrist was compounded by the fact that the cuff was bent, presumably from tackling Porath. Id . ¶ 17.

At approximately 1:25 p.m., Bird took Porath in custody, who later pled guilty to attempted burglary in the second degree. Porath Dep. at 12:5-12; see also Bird Decl. ¶ 10; Dkt. No. 46-8. Bird attested that other than cuffing Porath's wrists as he was trained, he did not rotate, pull, or yank Porath's arm. Bird Decl. ¶ 20. Bird explained that because Porath twice exhibited a propensity to flee when the opportunity arose and provided false information to the search detail in an effort to avoid capture, he felt it was necessary to gain custody and control over Porath. Id . ¶ 24.

C. Shoulder Injuries

Porath has a history of shoulder injuries prior to the use of force incident. In 2007, Porath injured the acromioclavicular ("AC")[9] joint in his right shoulder from playing softball. Porath Dep. at 51:3-17. As a result, Porath had to undergo surgery. Id. at 51:16-22.

From 2008 through 2010, Porath was incarcerated for committing another crime and had work restrictions during the course of his incarceration, including not being given work assignments. Porath Dep. at 54:3-16. After his discharge from prison, Porath did not see any healthcare professionals or undergo physical therapy for his shoulder as he "was given a clean bill of health" from Green Haven Correctional Facility's medical staff.[10] Id. at 55:1-8, 55:24-5. Porath testified that prior to his arrest, his right shoulder was "excellent." Id. at 52:23-53:1. During Porath's current incarceration for burglary, he is part of the prison's paint crew. Porath Dep. at 22:6-7. However, Porath's abilities are limited as he was told by doctors in prison that he could not use ladders and can only work with his left hand. Id. at 22:8-16.

After his arrest, Porath was taken to the Fonda barracks for three to four hours and complained to a state trooper about his shoulder pains. Porath Dep. at 47:8-15. When Porath was transferred to the Fulton County Jail ("Fulton"), Porath informed the officers there of his shoulder pains. Compl. ¶ 14. Non-party Dr. Glenn saw Porath at Fulton and scheduled a Magnetic Resonance Imaging ("MRI") for Porath, which took place in December 2010 at the Nathan Laturer Hospital. Id . ¶¶ 16-17; Porath Dep. at 98:18-22. The MRI showed a torn rotator cuff, a torn labrum, an impingement, a "SLAP lesion, "[11] and tearing of muscles. Compl. ¶ 18; Porath Dep. at 57:19-21; see also Dkt. No. 1 at 16. Porath was sent to see a specialist, non-party Dr. Ayres, who conducted surgery on Porath. Compl. ¶ 19.

Dr. Ayres's progress report dated February 9, 2011 states that Porath "tried to flee, was grabbed and with an extension, abduction, external rotation force to his right shoulder." Dkt. No. 1 at 14. Porath was in serious pain. Id . Dr. Ayres reported that Porath

has a history of trouble with his shoulder... had a "Mumford" procedure in 2008, had 18 weeks of physical therapy... still had a fair amount of pain.... Bringing his arm across his chest hurts....
[Porath] has a well-healed transverse scar across the remnant of his right AC joint, which is still tender.... Patient can elevate with pain, ... internally rotate to about L3, externally rotate about 20 degrees, all with good strength. He has good deep tendon reflexes.
...
[Porath] does have an MRI... which does show a change in a more posterior portion of his rotator cuff, ... with what was described as a partial tear, which may be more of a complete tear with actual possible impact changes in the greater tuberceity.
...
[Porath] does have changes in his rotator cuff with a fair amount of pain, specifically where his MRI is showing change.... He does have adequately decompressed AC joint.... makes sense to consider arthroscopy[12] or a possible open acromioplasty[13] and repair of rotator cuff as indicated.... [Porath] does appear to have pathology, and I do not think physical therapy will help.

Id. at 14-15.

On April 26, 2011, Porath was scheduled for surgery, but Porath was informed that due to extensive damage, surgery would not be possible. Compl. ¶ 20. In an operative report dated April 26, 2011, Dr. Ayres wrote

with a fairly extensive complex SLAP lesion, no further work was done, and it was decided that, because of the difficulty in repairing a SLAP lesion with splits, this would be a simply diagnostic procedure. The patient will be referred to Dr. Lassiter of the Sports Medicine and Shoulder Institute for consideration of further surgery....

Dkt. No. 1 at 16. On July 21, 2011, Porath saw non-party specialist, Dr. Holder, who stated that he could not "make [Porath's] arm normal again" but "will try to make it workable." Compl. ¶ 21. Porath claims he underwent a major surgery on October 20, 2011. Dkt. No. 59 at 4. Porath contends that Dr. Holder may conduct another surgery for his shoulder. Porath Dep. at 97:11-16. Neither Dr. Ayres nor Dr. Holder related Porath's current shoulder problems with his softball injury. Porath Dep. at 59:1-14, 61:3-21.

II. Discussion

Porath contends that Bird violated his Fourth Amendment right against the use of excessive force during an arrest when Bird yanked and twisted Porath's arm back to handcuff him and continued to do so after being informed by Porath of his shoulder pains, which resulted in injuries requiring surgery. Bird argues that: (1) his use of force was objectively reasonable; (2) Porath failed to show the nature of his injuries and a causal connection between such injuries and his actions; and (3) he is entitled to qualify immunity.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any material fact if supported by affidavits or other suitable evidence and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby , 477 U.S. 242, 248 (1986). All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli , 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine issue for trial. The non-moving party must do more than merely show that there is some doubt or speculation as to the true nature of the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs. , 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski , 848 F.2d 342, 344 (2d Cir. 1988).

When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude, "... that a pro se litigant's submissions must be construed "liberally, "... and that such submissions must be read to raise the strongest arguments that they "suggest, ".... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, ... or arguments that the submissions themselves do not "suggest, "... that we should not "excuse frivolous or vexatious filings by pro se litigants, "... and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law...."

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1 , 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)). However, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion; the requirement is that there be no genuine issue of material fact. Anderson , 477 U.S. at 247-48.

B. Fourth Amendment

1. Excessive Force

The Fourth Amendment prohibits a law enforcement officer from using excessive force during the course of effecting an arrest. Tracy v. Freshwater , 623 F.3d 90, 96 (2d Cir. 2010) (citing Graham v. Connor , 490 U.S. 386, 395 (1989)). However, in making an arrest, a law enforcement officer "necessarily carries... the right to use some degree of physical coercion or threat thereof to effect it." Graham , 490 U.S. at 396 (citing Terry v. Ohio , 392 U.S. 1, 22-27 (1968)). In determining whether an officer used excessive force in executing an arrest, the Court examines whether the force used is objectively unreasonable "in light of the facts and circumstances confronting [the officer], without regard to the officer['s] underlying intent or motivation." Jones v. Parmley , 465 F.3d 46, 61 (2d Cir. 2006) (quoting Graham , 490 U.S. at 397). This inquiry "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham , 490 U.S. at 396 (internal quotation marks and citations omitted).

To measure reasonableness, the Court "consider[s] the facts and circumstances of each particular case, including the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest." Jones , 465 F.3d at 61 (quoting Thomas v. Roach , 165 F.3d 137, 143 (2d Cir. 1999)). Reasonableness is judged "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id . (quoting Graham , 490 U.S. at 396) (internal quotation marks omitted).

As an initial matter, Porath's surrender, which is uncontested, provides the probable cause for the arrest which, in turn, acknowledged that Bird was authorized to use some degree of force to effect the arrest. Jennejahn v. Village of Avon , 575 F.Supp.2d 473, 478 (W.D.N.Y. 2008) (citation omitted) (noting that plaintiff's concession to probable cause for his arrest also recognizes defendant's ability to use some force in making the arrest).

Turning to the factors articulated in Jones v. Parmley , the crime committed and its severity are undisputed; thus, militating in favor of defendants. Bird had reason to believe that Porath was burglarizing residential dwellings with Rusnica and Porath later pled guilty to attempted burglary in the second degree. In New York, burglary in the second degree is a Class C violent felony offense. N.Y. PENAL LAW §§ 70.02(1)(b), 140.25(2) (McKinney 2012). Accordingly, Porath admitted to engaging in violent criminal behavior prior to his arrest. Further, it is also undisputed that Porath fled from the authorities, intentionally attempted to mislead them, and remained a fugitive for several hours. This further amplified the severity of the criminal conduct in which Porath was engaged. Tracy , 623 F.3d at 97 (considering the seriousness of plaintiff's criminal conduct, specifically the officer's reasonable and ultimately correct belief that plaintiff was a fugitive seeking to evade capture, as support for defendant's reasonable use of force).

However, material issues of fact exist with respect to whether Porath posed a dangerous threat to Bird, other officers, or the public at large. A review of record evidence shows that Porath was neither armed at the time of his arrest nor attempted to assault an officer. Bird does not assert the contrary. Cf. Garcia v. Grisanti , 998 F.Supp. 270, 273 (W.D.N.Y. 1998) (concluding that use of force would be reasonable when plaintiff actively resisted arrest by grabbing a shotgun and attempted to strike defendant with a steam iron). Further, the record indicates that the assistance of other officers was available and there were no environmental factors interfering with Bird's ability to execute the arrest. Cf. Tracy , 623 F.3d at 97 (reasoning that because defendant was alone, at night, in bad weather, while effecting an arrest, such factors contributed to a real and imminent risk to the defendant). According to Porath, Bird pointed a gun at him while ordering him to get on the ground, to which he complied.[14] If Porath attempted to evade capture for a second time by running from Bird, as Bird asserts, then Porath may have created circumstances posing a dangerous threat to Bird and others. Jones , 465 F.3d at 61. This competing evidence rests on the credibility of Porath on the one hand and Bird on the other. Such a credibility determination is reserved for a jury to decide. Robison v. Via , 821 F.2d 913, 924 (2d Cir. 1987) (citations omitted). Thus, Bird has failed to show an absence of disputed material fact with respect to this factor concerning Porath's dangerousness. Celotex Corp. , 477 U.S. at 323.

As for the final factor, record evidence also reveals disputed material facts. It is undisputed that Porath evaded arrest at least once for several hours. However, as discussed above, Porath and Bird provide contradictory allegations as to whether Porath attempted to run from Bird after being ordered to drop on the ground. Cf. Tracy , 623 F.3d at 94, 97 (noting that plaintiff fled from officers and thus reasoning that from the time plaintiff fled until defendant apprehended him, plaintiff's conduct posed a serious and imminent risk to defendant's safety). Further, Porath and Bird proffered disputed assertions as to whether Porath resisted being handcuffed. Porath maintains that his right arm was limp when Bird took it, pulled it back and up, and twisted it before and after cuffing his right wrist. Bird contends that while Porath did not resist arrest, Porath was not immediately or completely cooperative in having his right wrist handcuffed.[15] Furthermore, Bird maintains that he only cuffed Porath as he was trained and did not rotate, pull, or yank Porath's arm. These conflicting accounts of "the degree of force used, the necessity for force, [and] whether any force was excessive, " cannot be resolved through this motion for summary judgment. Betancourt v. Slavin , 676 F.Supp.2d 71, 78 (D. Conn. 2009); see also, Crowell v. Kirkpatrick , 400 F.Appx. 592, 594-95 (2d Cir. 2010) (finding defendant used reasonable force even though plaintiffs were arrested for minor crimes and did not threaten safety of others because plaintiffs actively resisted their arrest at the time defendants tased them).[16] Given the factual disputes with respect to whether Porath resisted arrest, as well as the factor concerning the dangerousness posed by Porath, it cannot be determined at this juncture whether Bird used objectively reasonable force at the time of Porath's arrest.

Accordingly, Bird's motion on this ground should be denied.

2. Injuries and Causation

Bird contends that Porath has failed to (1) establish the nature of his injury and (2) casually connect his injuries to Bird's actions.

Courts in this Circuit have dismissed excessive force claims brought under the Fourth Amendment where a plaintiff only suffers a de minimis injury. Lemmo v. McKoy, No. 08-CV-4264 (RJD) , 2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011) (citation omitted). De minimis injuries "include short-term pain, swelling, and bruising, ... brief numbness from tight handcuffing, ... claims of minor discomfort from tight handcuffing, ... and two superficial scratches with a cut inside the mouth." Id . (citations omitted). Nevertheless, even if the injuries suffered were neither permanent nor severe, a plaintiff may still recover under the Fourth Amendment if the force used was unreasonable and excessive. Robison , 821 F.2d at 924 (citations omitted).

In this case, despite Porath's inartful articulation of his shoulder injuries, [17] record evidence shows that after Porath's arrest, Porath experienced shoulder pains to such an extent that surgery was contemplated and conducted. Porath testified that prior to his 2010 arrest, he had recovered from his 2007 shoulder injury and no longer required physical therapy. However, after his arrest, Porath's abilities in working with the prison paint crew were limited. Further, Porath's MRI showed that Porath has a torn rotator cuff, a torn labrum, an impingement, a "SLAP four lesion, " and tearing of muscles. Moreover, Dr. Ayres noted that Porath experienced shoulder pains after his arrest and continued to experience such pain. Given the multiple muscle tears, pain, and decreased abilities, such record evidence demonstrates that Porath suffers from injuries beyond what courts have considered to be de minimis. Lemmo , 2011 WL 843974, at *5. In addition, assuming Porath's injuries are neither permanent nor severe, Porath may still recover damages if Bird is found to have used excessive force against Porath. Therefore, Bird has failed to show an absence of factual disputes with respect to the nature of Porath's injuries. Celotex Corp. , 477 U.S. at 323.

As for causation, Bird's contention that Porath failed to establish a causal connection between the alleged injuries and the use of force during the arrest also presents factual issues. As a preliminary matter, "in an excessive force case, a plaintiff may recover damages for the aggravation of a preexisting injury caused by the use of excessive force." Galunas v. Reynolds, No. 11-CV-14 (MAD/RFT), 2013 WL 316618, at *5 (N.D.N.Y. Jan. 28, 2013) (citations omitted). Porath testified that he underwent surgery from sustaining a softball injury and participated in physical therapy sessions; however, Porath did not require physical therapy in 2010 prior to his arrest. In fact, Porath testified that he had recovered and "was given a clean bill of health." Even though record evidence indicates that Porath has a preexisting shoulder injury, Porath contends that neither Dr. Ayres nor Dr. Holder informed him that his current injuries constitute aggravation of his prior injuries. Bird does not provide any support to contradict Porath's contentions that his shoulder injuries were proximately caused by the alleged constitutional violation. Moreover, even if Porath's injuries were an exacerbation of his previously identified shoulder ailments, Porath is not precluded from recovery. Regardless of whether the trauma resulted in a new injury, or the aggravation of an old one, it is irrelevant for present purposes because both are sufficient to establish a constitutional claim. Further, although Bird correctly points out that Porath contradicted himself with regard to "the method and manner in which he was injured, " such inconsistent statements concerning credibility are more appropriately reserved for a jury determination.[18] Robison , 821 F.2d at 924; Galunas, 2013 WL 316618, at *5. Therefore, Bird has failed to satisfy his burden in showing an absence of disputed material facts concerning Porath's shoulder injuries and their causation. Celotex Corp. , 477 U.S. at 323.

Accordingly, Bird's motion on this ground should be denied.

C. Qualified Immunity

Bird claims that even if Porath's constitutional claim is substantiated, he is nevertheless entitled to qualified immunity. Qualified immunity generally protects governmental officials from civil liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982); Aiken v. Nixon , 236 F.Supp.2d 211, 229-30 (N.D.N.Y. 2002) (McAvoy, J.), aff'd, 80 F.Appx. 146 (2d Cir. 2003). However, even if the constitutional privileges "are so clearly defined that a reasonable public official would know that his actions might violate those rights, qualified... immunity might still be available... if it was objectively reasonable for the public official to believe that his acts did not violate those rights." Kaminsky v. Rosenblum , 929 F.2d 922, 925 (2d Cir. 1991); Magnotti v. Kuntz , 918 F.2d 364, 367 (2d Cir. 1990) (internal citations omitted)).

A court must first determine whether, if plaintiff's allegations are accepted as true, there would be a constitutional violation. Saucier v. Katz , 533 U.S. 194, 201 (2001). Only if there is a constitutional violation does a court proceed to determine whether the constitutional rights were clearly established at the time of the alleged violation. Aiken , 236 F.Supp.2d at 230. It is well-settled that on November 14, 2010, the Fourth Amendment prohibited law enforcement officers from using excessive force during the course of executing an arrest. Graham , 490 U.S. at 394-96. Thus, because a reasonably jury could conceivably accept Porath's claim that Bird's use of force was objectively unreasonable, Bird is not entitled to qualified immunity in this case for the alleged Fourth Amendment violation.

Accordingly, Bird's motion on this ground should be denied.

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that Bird's motion for summary judgment (Dkt. No. 46) be DENIED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette , 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS , 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

David C. Sleigh, Sleigh & Williams, St. Johnsbury, VT, for Plaintiffs-Appellants.

Nancy G. Sheahan, McNeil, Leddy & Sheahan, P.C., Burlington, VT (Kevin J. Coyle, on the brief), for Defendants-Appellees.

PRESENT: DEBRA ANN LIVINGSTON, DENNY CHIN, Circuit Judges, DAVID G. LARIMER, District Judge.[*]

Opinion

SUMMARY ORDER

Plaintiffs-Appellants Jonathan Crowell and Samantha Kilmurray appeal from a September 14, 2009, order of the District Court of Vermont (Conroy, Mag. J. )[1] granting summary judgment to Defendants-Appellees, members of the Brattleboro Police Department (BPD), on the Plaintiffs' action brought under 42 U.S.C. § 1983. See Crowell v. Kirkpatrick, 667 F.Supp.2d 391 (2009). Plaintiffs, alleging that Defendants' use of force in effecting their arrest was excessive, challenge the District Court's conclusion both that the use of force was not unreasonable under the Fourth Amendment and that, even if it were unreasonable, Defendants were entitled to qualified immunity. We assume the parties' familiarity with the facts and procedural history of the case and the issues on appeal.

This Court "review [s] a grant of summary judgment de novo, construing the record in the light most favorable to the nonmoving party." Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir.2007). "[C]larms of excessive force are to be judged under the Fourth Amendment's objective reasonableness' standard." Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Assessing whether the use of force to make an arrest is "reasonable" under the Fourth Amendment "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). The reasonableness inquiry, an objective one, is "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. "[T]he fact finder must determine whether, in light of the totality of the circumstances faced by the arresting officer, the amount of force used was objectively reasonable at the time." Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.2004). The balancing must be done with sensitivity to the factual circumstances of each case, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. 1865.

Qualified immunity is evaluated on the basis of a two-part test. First, we must inquire whether "Waken in the light most favorable to the party asserting the injury... the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second, assuming we find that the facts alleged do establish a violation of a constitutional right, we must then "ask whether the right was clearly established." Id. The Saucier Court emphasized that this second inquiry must be undertaken "in light of the specific context of the case, not as abroad general proposition." Id. Further, "[o]nly Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant in deciding whether a right is clearly established." Moore v. Vega, 371 F.3d 110, 114 (2d Cir.2004). Moreover, "[e]ven if the right at issue was clearly established in certain respects, ... an officer is still entitled to qualified immunity if officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir.2007). With respect to the appropriate sequence for this inquiry, the Supreme Court has clarified that "while the sequence set forth fin Saucier] is often appropriate, it should no longer be regarded as mandatory." Pearson v. Callahan, 555 U.S. 223, ___, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

The District Court found both that Defendants' use of force in this case was reasonable and that, assuming arguendo it was not, Plaintiffs' rights in this situation were not clearly established. We find that the use of force in these particular circumstances was objectively reasonable and affirm.

In this case, Plaintiffs were arrested for relatively minor crimes of trespass and resisting arrest and were not threatening the safety of any other person with their behavior. However, they were actively resisting their arrest at the time they were tased by the officers in this case, having chained themselves to a several hundred pound barrel drum and having refused to free themselves, even though they admitted they were able to release themselves from the barrel at any time throughout the encounter. Plaintiff Kilmurray admits that prior to the officers' use of their tasers, she had asked an acquaintance at the scene to call other members of their group to return to the property. Moreover, both Plaintiffs admitted that the officers at the scene considered and attempted several alternate means of removing them from the property before resorting to use of their tasers, that the officers expressly warned them that they would be tased and that it would be painful, and that the officers gave them another opportunity to release themselves from the barrel after this warning. Finally, both Plaintiffs were given opportunities again to release themselves from the barrel prior to the subsequent uses of the tasers.

While we do not suggest that the use of a taser to effect an arrest is always, or even often, objectively reasonable, under the circumstances here, even construing the facts in the light most favorable to Plaintiffs, we conclude that it was. Because they had chained themselves to the drum, Plaintiffs could not have been arrested and removed from the scene by more conventional means, and the apparently imminent arrival of some number of their compatriots added a degree of urgency to the need to remove Plaintiffs quickly, before the presence of other protestors made that more difficult to accomplish. The officers attempted to use other means to effectuate the arrest, none of which proved feasible, and used the taser only as a last resort, after warning Plaintiffs and giving them a last opportunity to unchain themselves from the barrel and leave the premises peacefully. Finally, Defendants set the taser on "drive stun" mode, which typically causes temporary, if significant, pain and no permanent injury. See Brooks v. City of Seattle, 599 F.3d 1018, 1027 (9th Cir.2010) ("The use of the Taser in drive-stun mode is painful, certainly, but also temporary and localized, without incapacitating muscle contractions or significant lasting injury."), rehearing en banc granted, 623 F.3d 911 (9th Cir.2010). Given the totality of those circumstances, it is difficult to see how a rational factfinder could conclude that the officers' actions were anything other than reasonable.

In any event, since the facts alleged, even taken in the light most favorable to the Plaintiffs, do not amount to a constitutional violation, the officers are entitled to qualified immunity. It certainly was not clearly established that the use of force here violated Plaintiffs' constitutional rights under the case law of the Supreme Court or this Circuit. In support of their contention that the officers' actions violated their clearly established constitutional rights, Plaintiffs cite to the Second Circuit's decision in Amnesty America, a case involving allegations of the use of excessive force by police officers against abortion clinic protestors who were allegedly "purely passive" in resisting arrest. 361 F.3d at 123. The Court did find the allegations of excessive force in that case sufficient to defeat a motion for summary judgment. See id. at 124. However, the plaintiffs there had alleged that the police used "far more force than was necessary, and inflicted severe pain on the demonstrators" in effecting their arrest, id. at 118, including claims that they had thrown a protestor face-down on the ground, "ramm[ed] [a protestor's] head into a wall at high speed, " and committed several other acts of violence, id. at 123. The allegations of violence in that case were both decidedly more serious than the use of a taser here and significantly less clearly directed at *596 the goal of effecting the arrest of the protestors. Another recent Second Circuit case involving claims of the use of excessive force against protestors, Jones v. Parmley, 465 F.3d 46 (2d Cir.2006), similarly involved allegations of force that was both significantly greater in degree and less tethered to the goal of effecting an arrest. See id. at 52-53. We have found no Second Circuit case clearly establishing that conduct of the type and gravity alleged in this case would violate the Plaintiffs' constitutional rights under the Fourth Amendment.

For these reasons, we hold that the use of force in this case was objectively reasonable, and that, as a result, Defendants did not violate Plaintiffs' Fourth Amendment rights. Moreover, we hold that Defendants are in any event entitled to qualified immunity here. We have considered Plaintiffs' other arguments on appeal and find that they are without merit or moot. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

Parallel Citations

2010 WL 4595545 (C.A.2 (N.Y.))

Robert Lemmo, Flushing, NY, pro se.

Shlomit Aroubas, New York, NY, for Defendants.

Opinion

MEMORANDUM & ORDER

DEARIE, Chief Judge.

*1 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.

FACTUAL BACKGROUND[1]

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 plaintiffs 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. Plaintiffs 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.

*2 Only now does the story reach the point where plaintiff claims he was the victim of excessive force: according to plaintiffs 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 plaintiffs 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, plaintiffs 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."

*3 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, plaintiffs 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, however, plaintiff claims that he asked for treatment but was told there was nothing that could be done.

On January 6, 2006, plaintiff pled guilty to disorderly conduct and was sentenced to time served.

Plaintiff admits that he did not seek additional treatment and was not diagnosed with thumb damage. But he states nevertheless that the swelling in his thumb lasted for a week and a half after his arrest, that the pain in his thumbs lasted several weeks, and that during that time he could not button or zipper clothes, or hold a coffee cup or brush his teeth. He further claims that his thumb joints have never been the same; at the time of his deposition he was working in lumber, and stated that if he went to grab for something his thumb still did not flex in the right way.

DISCUSSION

The parties' familiarity with the well-established summary judgment standards is assumed. See generally Fed.R.Civ.P. 56(c) (2); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009) (record to be construed in the light most favorable to the nonmoving party, all reasonable inferences must be drawn in his favor, and all ambiguities resolved his way).

A. False Arrest

Plaintiffs § 1983 false arrest claim must be dismissed as a matter of law because he pled guilty to the charges stemming from the arrest he challenges and the conviction has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, or called into question by issuance of writ of habeas corpus; unless conviction so invalidated, claim for damages not cognizable); Cameron v. Fogarty, 806 F.2d 380, 386-89 (2d Cir.1986) (false arrest plaintiff "can under no circumstances recover if he was convicted of the offense for which he was arrested"), cert. denied, 481 U.S. 1016 , 107 S.Ct. 1894, 95 L.Ed.2d 501 (1987); Simmons v. Kelly, 2009 WL 857410, *5 (S.D.N.Y. Mar.31, 2009) ("a guilty plea that is not overturned on appeal provides conclusive evidence of probable cause and, accordingly, bars a section 1983 claim for false arrest or imprisonment stemming from the conviction at issue"). Accordingly, defendants are entitled to summary judgment in their favor on plaintiffs false arrest claim.

B. Excessive Force

*4 There are three standards for excessive force depending on when the alleged violation occurred. If excessive force was allegedly used before arraignment, the Fourth Amendment standards govern. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ("[w]here, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment"); Sloan v. Kraus, 06 CV 5372, 2010 WL 3489397, *10 (S.D.N.Y. Sept. 3, 2010). If the alleged violation occurs after arraignment but before conviction, then the Fourteenth Amendment applies. Nimkoff v. Dollhausen, 08 CV 2856, 2010 WL 4678711 (E.D.N.Y.2010). Allegations of excessive force occurring after conviction are subject to an Eighth Amendment analysis. Ingraham v. Wright, 430 U.S. 651, 671, n. 40, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). The Second Circuit has held that the Fourteenth and Eighth Amendment tests are essentially the same and apply to claims brought by pre-trial detainees and sentenced convicts. United States v. Walsh, 194 F.3d 37, 48 (2d Cir.1999).

Defendants argue that plaintiffs excessive force claim is governed by the Fourteenth Amendment because the alleged misconduct occurred at the police precinct, but it is undisputed that plaintiff had not yet been arraigned, so his claim is governed by the Fourth Amendment. Sloan, 2010 WL 3489397 at *10 ("Here, because plaintiff alleges excessive force by a police officer prior to his arraignment, a Fourth Amendment excessive force analysis applies, " citing Graham); Santiago v. City of New York, 2000 WL 1532950, *4 (S.D.N.Y. Oct. 17, 2000) (section 1983 plaintiff "was under arrest and in custody... but had not been arraigned or convicted of any crime... [as] neither a pre-trial detainee nor a prisoner, but an arrestee in custody, " plaintiff "is protected from excessive force by the Fourth Amendment's prohibition on unreasonable seizures of the person, " citing Graham).

The Fourth Amendment standard is said to be one of "objective unreasonableness, " Graham, 490 U.S. at 396; Nimely v. City of New York, 414 F.3d 381, 390 (2d Cir.2005). Because the application of such a generalized standard to the facts of particular cases can be challenging, it is useful to draw liberally upon then Chief Justice Rehnquist's description of the test in Graham:

Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake... Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it....Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

*5 Id., 490 U.S. at 396 (internal quotations and citations omitted).

Graham further teaches that "[t]he reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. The Court labels this a "standard of reasonableness at the moment, " id., and explains that just as "[t]he Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises, " the "same standard" applies "[w]ith respect to a claim of excessive force." Id. (internal citations omitted). Quoting earlier precedent, Graham reiterates that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment, " and that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id., 490 U.S. at 396-97 (internal quotation marks omitted).

Finally, in addition to requiring that account be taken of the realities of police work, Graham underscores that the test is objective, not subjective: "the question is whether the officers' actions are objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. Stated bluntly, "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id.

The Second Circuit applies the Graham test when assessing whether force is excessive under the Fourth Amendment for section 1983 purposes. See Nimely v. City of New York, 414 F.3d 381, 390 (2d Cir.2005). Borrowing from the "objective" component of the Eighth Amendment test for excessiveness and the Supreme Court's observation that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment, " the Second Circuit and district courts in the Circuit recognize the concept of "de minimis" injury and, when the injury resulting from alleged excessive force falls into that category, the excessive force claim is dismissed. See e.g., Smith v. City of New York, 2010 WL 3397683, *10 (2010) ("Courts in this Circuit have consistently held that an injury is de minimis when it is temporary and/or minor in severity") (collecting cases). Injuries held to be de minimis for purposes of defeating excessive force claims include short-term pain, swelling, and bruising, Richardson v. New York City Health and Hospitals Corp., 05 Civ. 6278, 2009 WL 804096, at *10 (S.D.N.Y. Mar. 25, 2009), brief numbness from tight handcuffing, Hamlett v. Town of Greenburgh, 2007 WL 119291 (S.D.N.Y. Jan. 17, 2007), claims of minor discomfort from tight handcuffing, Vogeler v. Colbath, 04 CV 6071, 2005 WL 2482549 (S.D.N.Y. Oct. 6, 2005), and two superficial scratches with a cut inside the mouth. Warren v. Westchester County Jail, 106 F.Supp.2d 559 (S.D.N.Y.2000) (an Eighth Amendment case).

*6 On the other hand, courts have allowed plaintiffs to recover, even though the injury caused was not permanent or severe, where the force used was excessive. See, e.g., Robison v. Via, 821 F.2d 913, 924 (2d Cir.1987). In Robison, the Circuit held that the plaintiffs testimony that an officer " pushed' her against the inside of the door of her car, yanked' her out, threw [her] up against the fender, ' and twisted [her] arm behind [her] back, ' and that "she suffered bruises lasting a couple weeks, ' was "sufficient to prevent the summary dismissal of a § 1983 claim for excessive force." 821 F.2d at 923-24. The Court further explained that, "[w]hile Robison did not seek medical treatment for her injuries, and this fact may ultimately weigh against her in the minds of the jury in assessing whether the force used was excessive, this failure is not fatal to her claim" because "[i]f the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe." Id. at 924. Although Robison pre-dates Graham, the Second Circuit continues to cite the decision as an instructive example. See Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004) ("we have permitted a plaintiffs claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, yanked' her, and threw her up against a car, causing only bruising, " citing both Graham and Robison ). Indeed, in Maxwell, the district court had granted summary judgment for the defendants because "plaintiffs claim that she allegedly scraped her head when being shoved into the car is not sufficient for any reasonable jury to find excessive force claim in this case-minor scrapes, bumps or bruises potentially could occur, often unintended, during any arrest, and an arresting officer cannot be held unremittingly liable for every such incident." Maxwell, 380 F.3d at 109 (quoting lower court decision). The Second Circuit reversed, finding the claimed conduct and injury sufficiently juryworthy. Id. at 109-10.

Following Robison and Maxwell is the decision of Judge Bianco in Davenport v. County of Suffolk, 99 CV 3088, 2007 WL 608125 (E.D.N.Y. Feb. 23, 2007). While "recogniz[ing] that there may be certain circumstances where the alleged unconstitutional act and injury are so de minimis that it cannot rise to a constitutional violation as a matter of law, " Judge Bianco nevertheless allowed the plaintiff to amend her complaint to add a claim for excessive force alleging that an officer banged his head against the top of the police car during the arrest. Davenport, 2007 WL 608125, *9-10. Judge Bianco explained that, "[a]lthough the focus of Davenport's proposed amendment pertains [only] to the alleged banging of his head on the police car during the arrest and he proffers no medical evidence of injury in connection with his motion to amend, the Court cannot find that such a claim is necessarily futile." Id. at * 10. Integral to the reasoning in Davenport (and the reasoning of the numerous cases it collects) is the apparent gratuitousness of the police conduct at issue; as Judge Bianco explains, "In the instant case, Davenport may be able to demonstrate that the officer intentionally hit his head on the car during the arrest, causing an injury to his head, and he could argue that this alleged gratuitous use of force by an officer constituted an objectively unreasonable use of force." Id. In short, although the Graham test does not consider the subjective intent of the officer(s) per se, Davenport and the line of authorities on which it relies recognize that intentional, gratuitous uses of force that are not required to subdue an individual likely fail the Graham objective unreasonableness test. See, e.g., Pierre-Antoine v. City of New York, No. 04-CV-6987 (GEL), 2006 WL 1292076, at *4 (S.D.N.Y. May 9, 2006) (use of force against an already subdued individual would constitute an objectively unreasonable use of force under the Fourth Amendment); Graham v. Springer, No. 03-CV-6190 (CJS), 2005 WL 775901, at *6 (W.D.N.Y. Apr. 5, 2005) (summary judgment denied because plaintiff was kicked while on the ground in handcuffs).

*7 Judge Bianco thus concluded that, "[a]lthough Davenport has not alleged or proffered injuries as significant as those in Maxwell and referred to his injury as a bump on the head in oral argument, the Court cannot conclude as a matter of law that any claim of this type... would necessarily be futile such that the Court should deny leave to amend. A jury may consider the lack of serious injury as evidence that the implemented force was not excessive, and may weigh it against Davenport's testimony, but that does not mean that there are no circumstances under which Davenport can prevail." Davenport, 2007 WL 608125, *11

Based on the reasoning and result in Robison, Maxwell, and Davenport, I likewise deny summary judgment on plaintiff s excessive force claim. To be sure, his injuries are not severe. But they are not, on this record, imagined. Nor are they materially less severe than those that have been held sufficient to survive summary judgment in Maxwell and Robison. What particularly gives me pause in this case is the fact that, if plaintiff's testimony were credited, the cranking of his thumbs by police officers was entirely gratuitous: granted, plaintiff had been uncooperative when Officer Tulloch attempted to fingerprint him, and by his own admission, hostilities had escalated. But plaintiff does not target as excessive the force that was used to subdue him at that point. What he complains of is what occurred when he was already re-handcuffed and re-secured in a holding cell. Granted, too, plaintiff appears to have taunted the officers by shouting that they should not let him out again because he was angry and might harm them, but the officers could have, and should have, simply ignored him. Despite plaintiffs verbal taunts, there is no indication that he posed a serious threat, handcuffed and inside his cell, to the officers outside. The cited authorities make it clear that it should be for a jury, rather than this Court, to decide whether it was objectively unreasonable under the circumstances (including the relative non-severity of the charges plaintiff faced) for the police officers to re-open the cell and "crank" plaintiffs thumbs while they were handcuffed behind his back. See Graham, 490 U.S. at 396 (factor to be considered include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight"). Additionally, the record contains only a general denial by the officers with respect to this episode rather than an actual conflicting account. The jury can and should decide what actually occurred and what, if any, compensation is due plaintiff. See Murray v. Williams, No. 05-CV-9438 (NRB), 2007 WL 430419, at *7 (S.D.N.Y. Feb. 7, 2007) (laceration to lower lip, a bloody nose, pain and suffering, and mental anguish held not to be de minimis); Amato v. City of Saratoga Springs, 170 F.3d 311, 317 (2d Cir.1999) ("While the main purpose of a § 1983 damages award is to compensate individuals for injuries caused by the deprivation of constitutional rights, a litigant is entitled to an award of nominal damages upon proof of a violation of a substantive constitutional right even in the absence of actual compensable injury"). Indeed, to this Court, it seems entirely appropriate that a jury, citizens of this city, should decide whether an officer or officers, sworn to protect and serve the community, failed to deliver on their professional vow.

C. Qualified Immunity and the Proper Defendant(s)

1. Officer McKoy

*8 Plaintiffs papers offer nothing to refute Officer McKoy's averment that he was not present at the 110th precinct on the night of plaintiffs arrest and that he did not come into contact with plaintiff at that time. Accordingly, defendant McKoy is entitled to summary judgment on all claims against him. Barratt v. Joie, 2002 WL 335014, *6 (S.D.N.Y. Mar. 4, 2002) ("Because § 1983 imposes liability only upon those who actually cause a deprivation of rights, personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983") (internal quotation and citation omitted).

2. Officer Tulloch

Defendant Tulloch asserts qualified immunity as a defense to plaintiffs claims. The doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815 (2009) (internal citation omitted). The "driving force' behind creation of the [ ] doctrine was a desire to ensure that insubstantial claims against government officials will be resolved prior to discovery." Id. (internal citations omitted).

In Fourth Amendment excessive force cases, however, the qualified immunity and excessive force analyses "converge on one question: [w]hether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed would be lawful." Cowan v. Breen, 352 F.3d 756, 764 n. 7 (2d Cir.2003). See also Scott v. Henrich, 39 F.3d 912, 914 (9th Cir.1994) ("In Fourth Amendment unreasonable force cases... the qualified immunity inquiry is the same as the inquiry made on the merits").

Having determined that plaintiffs excessive force claim presents triable issues of fact, I necessarily and likewise conclude that defendant Tulloch is not entitled to summary judgment on his defense of qualified immunity.

CONCLUSION

The motion for summary judgment is granted to the extent of (i) dismissing plaintiffs false arrest claim; (ii) dismissing all claims against Officer McKoy; and (iii) dismissing all claims against the NYPD. The motion for summary judgment is in all other respects denied. The case shall proceed to trial solely on the excessive force branch of plaintiffs § 1983 claim. The parties shall appear for a status conference on April 8 at 11:45 a.m. in Courtroom 10A.

SO ORDERED.

Matthew Galunas, Dannemora, NY, pro se.

Shantz & Belkin, Derek L. Hayden, Esq., of Counsel, Latham, NY, for Defendant Reynolds.

Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Erik M. Kurtz, Esq., of Counsel, Kingston, NY, for Defendant Robertson.

Opinion

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

*1 On January 6, 2011, Plaintiff commenced this civil rights action alleging that Defendants violated his constitutional rights. See Dkt. No. 1. Currently before the Court are Defendants' motions for summary judgment. See Dkt. Nos. 26, 28.

II. BACKGROUND

In his complaint, Plaintiff alleges that, "[o]n February 26, 2008, [upon] exiting my home at 25 Park Drive, Woodstock, N.Y. 12491, various personnel from a multi-agency Task Force, composed of Ulster and Kingston County police officers, absent a warrant, effectuated my arrest based upon allegations of Criminal Sale of Controlled Substance(s)." See Dkt. No. 1 at 4.[1] Plaintiff claims that, upon exiting his home, he complied with the officers commands to drop to the ground and to place his arms behind his back. Plaintiff alleges that, despite his compliance, Defendant Robertson, without an arrest warrant, placed him in handcuffs, "ramm[ed] his knee in [his] rib cage while [Defendant] Re[y]nolds smashed [him] with his tazer gun." See Dkt. No. 35-4 at ¶ 4. After this alleged altercation, Plaintiff claims that, because of the pain he was suffering, he was unable to stand up. See id. at ¶ 5. When Plaintiff failed to stand, he claims that he was "dragged" across his yard and then "yanked... up while handcuffed behind [his] back" by Defendant Reynolds, who then continued to assault him. See id. Plaintiff alleges that several officers observed this alleged assault and only eventually intervened for fear of who may be watching. See Dkt. No. 35 at 113.

As a result of this alleged assault, Plaintiff asserts that he now suffers from "diffused discs L4-L5 L5-S1." See id. Moreover, although Plaintiff admits that he suffered from "minor bulging discs" prior to February 26, 2008, he claims that Defendants' use of excessive force caused his previous condition to worsen, leaving him with permanent disabilities. See id. Plaintiff further alleges that, after the incident, he "was unable to walk without being helped" and that the attack left the entire right side of his face bruised, including a laceration. See id. at ¶ 7. Plaintiff claims that, despite his compliance, he was "hit in the side of the head two times with the Tazor Gun' and one time with Det. Reynolds Service Revolver.'"See id. Although Defendants do not dispute that some force was used while arresting Plaintiff, they contend that it was a reasonable amount of force in light of the fact that Plaintiff was not complying with their commands and because Plaintiff had evaded arrest the day before by fleeing from them. Defendants further contend that once Plaintiff was subdued and placed in handcuffs, they did not strike him or employ any additional force.

Shortly after his arrest, Plaintiff was evaluated by medical personnel at the Ulster County Jail. See Dkt. No. 28-5 at Exhibit "G." Plaintiff complained of lower back pain but the medical notes indicate that, upon exiting the vehicle, he was able to put equal weight on both legs, was ambulatory, and was not limping. See id. at 10. Moreover, the medical notes indicate that there were no bruises, swelling or redness present on Plaintiffs back, but that he had a "contusion" to the area above his right eye. See id. Moreover, the notes indicate that Plaintiff was alert and that he denied losing consciousness at any point. See id. Although Plaintiff claims that he had a "gaping wound" above his right eye, the notes indicate that it was merely a "superficial scratch" with only slight swelling and bruising. See id.

*2 On February 28, 2008, Plaintiff was sent to Benedictine Hospital, where it was observed that he was ambulatory but still complaining of back pain. See Dkt. No. 28-5 at Exhibit "H." Plaintiff informed the medical staff that he "has a history of nonspecific low back pain" and that he did not lose consciousness during or after the event. See id. at 16. Upon review of a CAT scan, it was determined that Plaintiff "had disk herniation L4-L5 and L5-S1" and the "clinical impression" was that his lower back pain was "secondary to disk disease." See id. at 17; see also id. at 18-19 (providing the specific findings of the radiology consultation).

On January 6, 2011, Plaintiff commenced this civil rights action alleging that Defendants violated his Eighth Amendment rights. See Dkt. No. 1 at 6. Currently before the Court are Defendants' motions for summary judgment. See Dkt. Nos. 26, 28.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Moreover, it is wellsettled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir.2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").

In reviewing a pro se case, the court "must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007) (quoting Haines v. Kerner, 303 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) (other citations omitted). "Indeed, the Second Circuit has stated that [i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.'" Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)). This does not mean, however, that a pro se litigant is excused from following the procedural requirements of summary judgment. See id. (citing Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484, *2 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's bald assertion, ' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)).

B. Relief under 42 U.S.C. § 1983

*3 Section 1983 imposes liability for "conduct which subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F.Supp. 876, 881 (S.D.N.Y.1991) (citing Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481, reh. denied, 445 U.S. 920 , 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, she must establish a causal connection between the acts or omissions of each defendant and any injury or damages she suffered as a result of those acts or omissions. See id. (citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)) (other citation omitted).

C. Personal involvement

Section 1983 imposes liability for "conduct which subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370-71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the plaintiff of rights and privileges secured by the Constitution, but the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained. See Brown v. Coughlin, 758 F.Supp. 876, 881 (S.D.N.Y.1991) (citing Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481, reh. denied, 445 U.S. 920 , 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980)). As such, for a plaintiff to recover in a section 1983 action, he must establish a causal connection between the acts or omissions of each defendant and any injury or damages he suffered as a result of those acts or omissions. See id. (citing Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)) (other citation omitted).

"[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (internal quotation and citations omitted). "[W]hen monetary damages are sought under § 1983, the [] doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.'" Id. (quotation omitted). There is a sufficient showing of personal involvement of a defendant if (1) the defendant directly participated in the alleged constitutional deprivation; (2) the defendant is a supervisory official who failed to correct the wrong after learning about it through a report or appeal; (3) the defendant is a supervisory official who created a policy or custom under which the constitutional deprivation occurred, or allowed such a policy or custom to continue; or (4) the defendant is a supervisory official that was grossly negligent in managing subordinates who caused the constitutional deprivation. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted).

D. Excessive force[2]

*4 Claims that a law enforcement officer used excessive force in the course of making an arrest are "analyzed under the Fourth Amendment's objective reasonableness' standard[.]" Graham v. Connor, 490 U.S. 386, 388 (1989); Scott v. Harris, 550 U.S. 372, 381 (holding that "a claim of excessive force in the course of making [a]... "seizure" of [the] person... [is] properly analyzed under the Fourth Amendment's "objective reasonableness" standard'" (quotation omitted)); Terranova v. New York, 676 F.3d 305, 308 (2d Cir.2012) (quotations and other citation omitted). "Determining whether the force used to effect a particular seizure is reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396 (quotations and other citation omitted); see also Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.2010). "[T]he right to make an arrest... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396. Proper application of the Fourth Amendment's "objective reasonableness" standard "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396; see also Terranova, 676 F.3d at 308; Tracy, 623 F.3d at 96.

"The reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396; see also Jones v. Parmley, 465 F.3d 46, 61 (2d Cir.2006) (citation omitted). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, ... violates the Fourth Amendment." Graham, 490 U.S. at 396 (quotations and other citation omitted); see also Tracy, 623 F.3d at 96. However, allegations that an "officer twisted [the plaintiff s] arm, yanked' her, and threw her up against a car, causing only bruising" have been held to be sufficient to survive summary judgment. Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004) (citing Robison v. Via, 821 F.2d 913, 924-25 (2d Cir.1987)). "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make splitsecond judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97; see also Tracy, 623 F.3d at 96; Jones, 465 F.3d at 61 (citation omitted). "As in other Fourth Amendment contexts, ... the reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397; see also Jones, 465 F.3d at 61. "Given the fact-specific nature of the [objective reasonableness] inquiry, granting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable fact-finder could conclude that the officers' conduct was objectively unreasonable." Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.2004) (citation omitted).

*5 In the present matter, although questions of fact preclude the Court from granting Defendant Reynolds' motion for summary judgment on this ground, the undisputed evidence shows that Defendant Robertson was not present during the alleged attack and, therefore, that he was not personally involved. Specifically, Defendant Robertson contends that while several members of the task force traveled to Plaintiffs home, he proceeded to the Town of Hurley Justice Court to obtain a warrant for Plaintiffs arrest. See Dkt. No. 26-5 at ¶ 7. After Defendant Robertson obtained the arrest warrant, he radioed to the officers at the scene to advise them that the arrest warrant had been issued. See id. at ¶¶ 8-9. Due to heavy snowfall on February 26, 2008, it took Defendant Robertson approximately ten (10) minutes to travel to Plaintiffs residence. See id. at ¶ 10. By the time Defendant Robertson arrived at the scene, Plaintiff had already been placed in handcuffs and was being escorted across the front lawn by Defendant Reynolds. See id. at ¶ 11. According to Defendant Robertson's affidavit, the only contact he had with Plaintiff was to hold "on to one of [his] arms to keep him standing upright and position him next to the vehicle as officers at the scene awaited a patrol vehicle to pick [him] up and transport him for processing." See id. at ¶ 11.

Defendant Robertson's account of the events at issue is corroborated by Defendant Reynolds and Eric Paulding, a detective for the City of Kingston Police Department, who is not a party to this action. See Dkt. No. 28-6 at ¶ 11; Dkt. No. 26-6 at ¶¶ 5-6. Specifically, Detective Paulding states that he was on the scene during the arrest and provided "cover" to Defendant Reynolds during the arrest process. See Dkt. No. 26-6 at ¶ 4. Detective Paulding further states that Defendant Robertson was not at the scene while Plaintiff was being arrested. See id. at ¶ 5. Defendant Reynolds also confirms that Defendant Robertson was not present during the arrest because he was en route from having obtained the arrest warrant. See Dkt. No. 28-6 at ¶ 11.

Although Plaintiff contends that Defendant Robertson was there and participated in the alleged use of force, the uncontroverted evidence establishes that he was not. Although Defendant Robertson does admit that he assisted in escorting Plaintiff across the yard by holding his arm, no reasonable trier of fact could find that such contact amounted to an unreasonable use of force. Finally, a review of Plaintiff s affidavit in opposition to Defendant Robertson's motion for summary judgment makes clear that the only specific factual allegations concerning excessive force involve Defendant Reynolds, not Defendant Robertson. See Dkt. No. 35-7.[3]

Based on the foregoing, the Court grants Defendant Robertson's motion for summary judgment.

As to Defendant Reynolds, however, issues of fact exist which preclude the Court from granting his motion. Although Defendant Reynolds is correct that Plaintiff had a preexisting back condition, in an excessive force case, a plaintiff may recover damages for the aggravation of a preexisting injury caused by the use of excessive force. See Ramos v. Samaniego, No. 07-CV320, 2008 WL 3539252, *6 n. 8 (W.D.Tex. July 24, 2008) (citing Dunn v. Denk, 79 F.3d 401, 403 (5th Cir.1996)). Although Defendant Reynolds is correct that Plaintiff has contradicted himself on several occasions regarding the severity of his injuries, Plaintiffs inconsistent statements are more appropriately addressed by a jury since they concern Plaintiffs credibility.

*6 Defendant Reynolds argues that the Court should grant his motion because "no reasonable person would undertake the suspension of disbelief necessary to give credit to the plaintiffs allegations[.]" See Dkt. No. 28-7 at 6 (citing Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir.2005)). Specifically, Defendant Reynolds argues that the Court should apply the exception set forth in Jeffreys, which allows the Court to make a credibility determination that would normally be made by the jury because of contradictions that Plaintiff has made and the lack of corroborating evidence. See id. at 6-7.

Although Plaintiff has contradicted himself on several occasions regarding the severity of the attack and his injuries, Plaintiffs versions of the events underlying this action are far less contradictory than those at issue in Jeffreys and in the cases cited by Defendant Reynolds. In Jeffreys, the plaintiff alleged in his complaint that police officers beat him and threw him out a window. See Jeffreys, 426 F.3d at 551. Before filing the complaint, he confessed on at least three occasions that he had jumped out of the window rather than having been thrown. See id. at 552. Further, the plaintiff first alleged that police officers threw him out of the window approximately nine months after the incident. See id. The plaintiff could not identify any of the individuals whom he alleged participated in the attack or describe their ethnicities, physical features, facial hair, weight, or clothing on the night in question. See id.

Affirming the district court's decision granting the defendants' motion for summary judgment, the Second Circuit held that "[w]hile it is undoubtedly the duty of district courts not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff and thus whether there are any genuine' issues of material fact, without making some assessment of the plaintiffs account." Id. at 554 (internal quotation marks and citation omitted).

In the present matter, the Court is not persuaded that the exception set forth in Jeffreys should be applied as to Defendant Reynolds. Unlike the situation in Jeffreys, Plaintiff has consistently maintained that Defendant Reynolds used excessive force while effecting his arrest. Moreover, Defendant Reynolds admits that force was used while placing Plaintiff in handcuffs because he was uncooperative; Defendant Reynolds simply maintains that the force used was not excessive and was reasonable in light of the circumstances. Further, it is uncontested that Plaintiff suffered a laceration during the arrest; the severity of which is dependent entirely on whose testimony you credit. Moreover, Plaintiff contends that even after he was placed in handcuffs, he was subjected to further assault, including being "yanked" up while his hands were handcuffed behind his back, which caused him to feel as though his "arms were going to be ripped out of the sockets[.]" Also, while Detective Paulding does contend that Plaintiff was noncompliant during the arrest, he does not state his opinion as to whether the force Defendant Reynolds' used was reasonable and necessary. See Dkt. No. 26-6.

*7 Finally, Plaintiff was seen by medical personnel immediately upon arrival at the prison and was taken to Benedictine Hospital two days after his arrest. Although the medical records do make clear that Plaintiff has suffered from chronic back issues since at least 2004, it is unclear whether the L4-L5 and L5-S1 disk herniations he was diagnosed with immediately following his arrest are the result of force used during the arrest, if the condition was exacerbated by any force that was used, or if the condition was entirely preexisting and not impacted in any way by the force that was employed. See Dkt. No. 28-5 at Exhibit "H." Whether Defendant Reynolds used reasonable force in subduing Plaintiff and the extent of Plaintiffs injuries, if any, all require credibility determinations that must be resolved by the jury. See Dallio v. Santamore, No. 9:06-C1154, 2010 WL 125774, *9 (N.D.N.Y. Jan. 7, 2010) (holding that because the court should not weigh the evidence or make credibility determinations, summary judgment would be denied where the plaintiff alleged that he was repeatedly kicked and punched after he was subdued and restrained by the defendants, notwithstanding the relatively minor injuries that the plaintiff suffered and the substantial contrary evidence proffered by the defendants); Cicio v. Lamora, No. 9:08-CV-431, 2010 WL 1063875, *7-8 (N.D.N.Y. Feb. 24, 2010) (denying summary judgment on the plaintiff s claim that the defendant hit him several times after he was subdued and helpless, despite "seemingly overwhelming" contradictory evidence, including the fact that the plaintiff suffered only a minor bruise).

Based on the foregoing, the Court finds that questions of fact exist which preclude the Court from granting Defendant Reynolds' motion for summary judgment.

E. Qualified immunity

"The doctrine of qualified immunity shields public officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir.2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

For a constitutional right to be "clearly established" for purposes of determining whether an officer is entitled to qualified immunity, the "contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent."

Mollica v. Volker, 229 F.3d 366, 370-71 (2d Cir.2000) (quoting Anderson v. Creiehton, 483 U.S. 635, 640 (1987)) (emphasis in original). "Where the right at issue in the circumstances confronting [the] officers... was clearly established but was violated, the officers will nonetheless be entitled to qualified immunity if... it was objectively reasonable for them to believe their acts did not violate those rights.'" Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.2007) (quotation and other citation omitted).

*8 "Although a mere mistake in the performance of an official duty may not deprive the officer of qualified immunity, the doctrine does not shield performance that either (a) was in violation of clearly established law, or (b) was plainly incompetent." Manganiello v. City of New York, 612, F.3d 149, 165 (2d Cir.2010) (citations omitted). "With respect to both the legal question and the matter of competence, the officials' actions must be evaluated for objective reasonableness.... That is, [e]ven if the right at issue was clearly established in certain respects... an officer is still entitled to qualified immunity if "officers of reasonable competence could disagree" on the legality of the action at issue in its particular factual context.'" Id. (quotations omitted).

The determination of whether an official's conduct was objectively reasonable is a mixed question of law and fact. See Zellner, 494 F.3d at 367 (citing Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir.2004)) (other citations omitted). "The ultimate question of whether it was objectively reasonable for the officer to believe that his conduct did not violate a clearly established right, i.e., whether officers of reasonable competence could disagree as to the lawfulness of such conduct, is to be decided by the court. However, c[a] contention that... it was objectively reasonable for the official to believe that his acts did not violate those rights has "its principle focus on the particular facts of the case."'" Id. (quotation and other citations omitted).

If there is no dispute as to any material fact, the issue of whether the official's conduct was objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's decision as to "what the facts were that the officer faced or perceived, " the court must then "make the ultimate legal determination of whether qualified immunity attaches on those facts." Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.2003) (quotation omitted); see also Lennon v. Miller, 66 F.3d 416, 421 (2d Cir.1995) (quotation omitted).

In the present matter, Defendant Reynolds contends that, on February 25, 2008, Plaintiff evaded arrest by fleeing from police, "driving in the wrong lane at 100 mph, forcing at least one motorist off the road and narrowly missing several police vehicles." See Dkt. No. 28-2 at ¶ 1. When Defendant Reynolds attempted to arrest Plaintiff on the following day, he claims that Plaintiff "ignored at least five shouted orders to put his hands up and to get down on the ground." See id. at ¶ 4. At this point, Defendant Reynolds contends that he pushed Plaintiff to the ground from behind. See id. at ¶ 5. Defendant Reynolds claims that Plaintiff only sustained a "small scrape near his right eye during his arrest[, ]" and that there was no bruising, swelling or redness on Plaintiffs back. See id. at ¶¶ 6, 17. Further, Defendant Reynolds claims that he "never put [his] knee into [Plaintiffs] back or jumped onto his back during his arrest or while he was in custody." See Dkt. No. 28-6 at ¶ 12. Finally, Defendant Reynolds asserts that did not strike Plaintiff with either a Tazer gun or revolver during the incident in question. See id. at ¶ 14.

*9 Plaintiff, on the other hand, has repeatedly asserted that he obeyed all commands while Defendant Reynolds was attempting to place him under arrest. See Dkt. No. 35-3 at ¶ 9. Despite his compliance, Plaintiff claims that Defendant Reynolds "brutally attacked" him until fellow officers ordered him to stop. See id. Further, Plaintiff claims that Defendant Reynolds then dragged him across the yard, told him that "he oughta put a bullet in [his]... head and do everybody a favor, " and then struck him in the head with a weapon. See id. Plaintiff claims that he was never charged with resisting arrest as proof that he complied with Defendant Reynolds' orders. See id. at ¶ 12. Although Plaintiffs version of events may have slightly varied throughout the course of this litigation, unlike the situation in Jeffreys, he has consistently alleged that he was subjected to these incidents without provocation, including leading up to and during his criminal trial.

In light of the drastically different account of what occurred on February 26, 2008, the Court finds that questions of fact exist which preclude granting Defendant Reynolds' motion at this time. For the Court to find that Defendant Reynolds is entitled to qualified immunity, it would have to engage in improper credibility determinations, which it is unwilling to do. Taking Plaintiffs version of events as true, only a de minimis amount of force would have been required to effect his arrest, yet Defendant Reynolds is alleged to have applied considerably more force in both effecting the arrest and after Plaintiff was placed in handcuffs. These questions of fact are material to the reasonableness of the force used and the question of qualified immunity and, therefore, must be decided by a jury. See Breen v. Garrison, 169 F.3d 152, 153 (2d Cir.1999) (reversing grant of qualified immunity on excessive force claim where facts were disputed as to allegations that the defendant officer jumped on the plaintiffs back, yanked his head and neck, pushed his face into a table, intentionally tightened his handcuffs, and hit him); Calamia v. City of New York, 879 F.2d 1025, 1035 (2d Cir.1989) (holding that qualified immunity on excessive force claim was a question for the jury, where the defendant officer shoved the plaintiff to floor, the handcuffs were unduly tight, and the plaintiff was left in an uncomfortable position for several hours); Robison v. Via, 821 F.2d 913, 923-24 (2d Cir.1987) (holding that summary judgment was inappropriate where the parties disputed material facts regarding the plaintiffs allegations that she was pushed against a car, yanked out, thrown against the fender, and had her arm twisted behind her back).[4]

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant Reynolds' motion for summary judgment is DENIED; and the Court further

*10 ORDERS that Defendant Robertson's motion for summary judgment is GRANTED; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.

ORDER

The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Christian F. Hummel, duly filed May 7, 2013. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.

No objections having been filed[1], and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby

ORDERED that the Report-Recommendation of Magistrate Judge Christian F. Hummel filed May 7, 2013 is ACCEPTED in its entirety for the reasons state therein; and it is further

ORDERED that Bird's motion for summary judgment (Dkt. No. 46) be DENIED; and it is further

ORDERED, that the Clerk of the Court is to mail copies of the Order to the parties in accordance with the court's local rules.

IT IS SO ORDERED.


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