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Simcoe v. Gray

United States District Court, Second Circuit

June 13, 2013



MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se plaintiff Thomas Simcoe ("Simcoe" or "Plaintiff") instituted this action pursuant to 42 U.S.C. ยง 1983 against Defendants, all employees of the North Tonawanda Police Department ("NTPD"), alleging that they used excessive force in executing his arrest and thereby violated his constitutional rights. Defendants have moved for summary judgment, and Plaintiff has opposed this motion. For the reasons set forth below, the Court finds that all Defendants are entitled to qualified immunity with regard to Plaintiff's excessive force claims. Accordingly, Defendants' summary judgment motion is granted, and Plaintiff's complaint is dismissed.

II. Factual Background and Procedural History

On September 29, 2007, a call was placed to 911 at about 4:24 a.m. by Plaintiff's minor son ("T.M.S.") regarding a domestic violence incident at his home at 41 Courtside Drive in North Tonawanda. Lieutenant Timothy Gray ("Lt. Gray") and Officer Jeffrey Smith ("Officer Smith") responded the call. They approached the back door of the apartment, and knocked and announced their presence. No one answered the door.

Officer Keith Glass ("Officer Glass") arrived soon thereafter, and he and Officer Smith attempted to gain entry to the apartment via the front door. The police dispatcher alerted the officers that there was an individual with a prior mental health history at the residence. (Plaintiff had recently attempted suicide.).

Plaintiff's minor son, T.M.S., appeared in an upstairs window and told the officers that his father had hit his mother, and that he had locked himself in his room. T.M.S. stated that he could not come to the front door to let them in, because he was afraid his father would hurt him if he did so. T.M.S. told the officers that Plaintiff was on the other side of the door, and that his mother, Tracy Simcoe ("Mrs. Simcoe") was lying on the floor and moaning.

The officers proceeded to draw their weapons and kick in the door. Inside, they saw blood spattered everywhere. Mrs. Simcoe was lying on the floor motionless and unresponsive. TMS and another child were still upstairs. Plaintiff admitted at his deposition that he and his wife had been in a brutal fight that evening, and that he had "lost control", going from "homicidal" to "suicidal". Plaintiff testified at his criminal trial that he never regained control of himself that night.

According to Plaintiff, Mrs. Simcoe had stabbed him with a knife between his eyes and in his left shoulder. The weapon in question had a blade approximately six inches long. During their argument, Plaintiff slammed his wife's head against the floor so hard that her skull separated. In grabbing the knife by the blade, Plaintiff severed a tendon in his left hand. However, the two continued struggling, and Plaintiff began biting Mrs. Simcoe. When Mrs. Simcoe tried to get the knife away from him, Plaintiff testified at his deposition that he "lost control, pulled that rope out, put it around her neck and choked the shit out of her" until she lost consciousness. See Deposition of Thomas Simcoe "Simcoe Dep." at 93-94, Exhibit F to Defendants' Local Rule 56 Statement of Undisputed Material Facts ("Defs' Ex."). It was at that moment when Simcoe heard the police officers begin hammering on the door.

Upon hearing the police trying to enter the house, Plaintiff turned off the lights, picked up the knife, and moved toward the kitchen. Hiding himself in a little gap between a cabinet and the doorway that led from the kitchen to the back laundry room, Plaintiff stood with his back perpendicular to the kitchen wall. Plaintiff's intention was to commit "suicide by cop". Simcoe Dep. at 95-96. Plaintiff was covered in blood and still bleeding from several knife wounds he sustained in the fight with his wife.

When the officers entered the apartment, all the lights were off, with the only illumination coming from the street-lamps outside. Officer Smith walked by Plaintiff, who followed him into the laundry room adjacent to the kitchen. Plaintiff took a couple steps inside the room and shouted, "Shoot me, mother fucker!" E.g., Simcoe Dep. at 50, 58, 79-81, 122.

Officer Smith turned around to face Plaintiff, who was holding the knife with the blade pointed towards him (Officer Smith). Plaintiff ignored Officer Smith's repeated orders to drop the knife and get down on the ground. According to Officer Smith, Plaintiff charged forward with the knife in his hand, yelling in a bellicose, threatening manner. Although Plaintiff denies rushing at Officer Smith, he admits that he followed him into the next room while still holding the knife in his hand.

Upon seeing Plaintiff coming towards him with a knife, Officer Smith attempted to gain control of Plaintiff and bring him to the ground. First, however, Officer Smith threw his weapon out of Plaintiff's reach. He was concerned that the gun could go off accidentally and injury the apartment's other occupants, or that Plaintiff would gain control of the gun.

When Lt. Gray heard Officer Glass yelling "knife, " he began to kick in the back door. As he entered the apartment, he immediately saw Officer Smith and Plaintiff struggling. By the light of his Taser gun, Lt. Gray could see that Plaintiff was holding a knife above Officer Smith's head. According to Lt. Gray, Plaintiff stabbed at Officer Smith's chest area at least three times.[1]

Plaintiff again ignored the officers' commands to stop resisting arrest and to get down on the floor. Officer Glass attempted to use his Taser to subdue Plaintiff, but he could not get a clear shot since Plaintiff and Officer Smith remained locked in a struggle. After being Tased, Plaintiff finally dropped the knife and fell, face-first, to the floor. Because he had been stunned, he was unable to break his fall with his hands. Plaintiff fell towards Lt. Gray, who saw the front side of Plaintiff's body, including his face, hit the floor. Plaintiff partially landed on Officer Smith, who sustained injuries to his knee and ankle, and received a bump on the head. Officer Glass kicked Plaintiff's knife away, into the other room.

Once on the ground, Plaintiff continued to struggle with Officers Smith and Glass. Because Plaintiff refused to comply with the officers' commands, they began "yanking and pulling" on his arms and yelling for him to give them his hands. In order to hold Plaintiff down so the other officers could free his arms and handcuff him, Lt. Gray kneeled on Plaintiff's shoulders. Plaintiff has admitted that it was "a possibility" that he began biting or chewing on Lt. Gray's boot during the struggle. Simcoe Dep. at 129-30.[2]

By the time Plaintiff was handcuffed, the fire department had arrived. Lt. Gray notified them that a second ambulance was needed because Plaintiff had injuries to his upper body and was profusely bleeding from his face. Immediately after handcuffing Plaintiff, Officer Glass turned the lights on, and the officers saw that they all were covered in blood. Officer Smith also appeared to have "chunks" of skin or muscle hanging off of him. Simcoe Dep. at 78.

Believing that Officer Smith had been stabbed, Officer Glass and Lt. Gray first attempted to ensure that he did not "bleed out". The officers placed Officer Smith in a chair in the kitchen where Lt. Gray checked Officer Smith's shirt. Noticing that it had been sliced by Plaintiff's knife-blade, Lt. Gray removed the shirt to see if the knife had gone through Officer Smith's vest. One of the ...

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