United States District Court, S.D. New York
VINCENT C. JOHNSON, Plaintiff,
CITY OF NEW YORK, Defendant.
TO THE HONORABLE LEWIS A. KAPLAN, United States District Judge,
REPORT AND RECOMMENDATION
HENRY PITMAN, Magistrate Judge.
Vincent C. Johnson commenced this action pro se against the City of New York ("City") pursuant to 42 U.S.C. § 1983, alleging that the City was deliberately indifferent to an injury he sustained immediately prior to his arrest (Complaint, dated November 8, 2012 (Docket Item 2)). By notice of motion dated March 11, 2014 (Docket Item 35), the City moved for an Order pursuant to Federal Rule of Civil Procedure 56 granting it summary judgment and dismissing plaintiff's complaint in its entirety. For the reasons set forth below, I respectfully recommend that the City's motion be granted.
On September 21, 2012 at 1:00 A.M., plaintiff was riding his bike in Manhattan's Fort Tryon Park (Plaintiff's Deposition, annexed as Exhibit B to Memorandum of Law in Support of Plaintiff's Motion in Opposition to Summary Judgment, dated March 31, 2014 (Docket Item 40) ("Pl.'s Dep.") at 7). Plaintiff noticed a police car on the road behind him, and he dismounted from his bike, picked it up and attempted to walk down a flight of steps adjacent to the road (Pl.'s Dep. at 11). While walking down the steps, plaintiff fell, injuring his right foot (Pl.'s Dep. at 11-12). After falling down the first flight of about eight steps, plaintiff attempted to stand up, but he was unable to bear weight on his right foot and fell down a second flight of about eight steps (Pl.'s Dep. at 12).
Plaintiff was lying on his stomach when Officer Mosca descended the steps, searched plaintiff's pockets and backpack and found cocaine (Pl.'s Dep. at 12, 17; Plaintiff's Rule 56.1 Statement ("Pl.'s 56.1") ¶¶ 5, 6). Officer Mosca handcuffed plaintiff and asked him to stand up; plaintiff told Officer Mosca that he was unable to stand and asked him to call an ambulance (Pl.'s Dep. at 17). Officer Mosca said he could not call an ambulance from that location but instead needed plaintiff to accompany him back up to the road (Pl.'s Dep. at 17). Officer Mosca helped plaintiff hop on his uninjured foot up the two flights of steps to the road, "supporting [plaintiff] the entire way" (Pl.'s Dep. at 18, 20). Plaintiff told Officer Mosca that "[e]verytime I jump it's hurting my foot" (Pl.'s Dep. at 18). Officer Mosca then radioed for an ambulance (Pl.'s Dep. at 19). Officer Mosca told plaintiff that to reach the ambulance, plaintiff would have to hop up another flight of steps to the main roadway (Pl.'s Dep. at 20). He then helped plaintiff up the steps to the main roadway where two additional police cars and an ambulance were waiting (Pl.'s Dep. at 22). An officer in one of the patrol cars, Officer Leung, told plaintiff that he was being arrested for possession of a controlled substance and that he would be taken to the precinct and put in an ambulance after his paperwork was started (Pl.'s Dep. at 27). The Criminal Complaint indicates that Officer Leung arrested plaintiff at 1:50 A.M. (Declaration of Rosemary Y. Nam, dated March 11, 2014 (Docket Item 38) ("Nam Decl.") Ex. C). Plaintiff told Officer Leung that he was "in pain" and needed an ambulance (Pl.'s Dep. at 28). Notwithstanding plaintiff's complaints of pain, the officers drove plaintiff to the 34th Precinct, a trip of less than five minutes (Pl.'s Dep. at 40).
When they arrived at the Precinct, the officers asked plaintiff whether it would be easier for him to use the ramp or the stairs to enter the building; plaintiff chose the stairs, and the officers helped him hop up to the entrance (Pl.'s Dep. at 40). Plaintiff noticed that his foot was visibly swollen by the time he arrived at the Precinct (Pl.'s Dep. at 28). He removed the laces from his sneaker on his injured foot and told one of the officers that he was "in pain" and that he thought his foot was broken (Pl.'s Dep. at 29). After plaintiff was put in a holding cell, he told Officer Leung's partner, Officer Davi, that he needed an ambulance and showed him his swollen foot; Officer Davi responded "whoa, " told plaintiff to "rest" and "sit back down" and went to get Officer Leung (Pl.'s Dep. at 44). Officer Leung also said "whoa" on seeing plaintiff's foot and told plaintiff they would call an ambulance for him after they started his paperwork (Pl.'s Dep. at 44).
After about two or three hours at the Precinct, Officer Leung and his partner drove plaintiff to Bellevue Hospital (Pl.'s Dep. at 51). Bellevue's medical records indicate plaintiff arrived no later than 5:36 A.M., or at most four and one-half hours after the officers found plaintiff in the park (Nam Decl. Ex. D at 2). Initially the officers parked at a distance from the entrance, but they moved closer to the entrance when plaintiff requested that they do so (Pl.'s Dep. at 52). Plaintiff was provided with a wheelchair at the hospital's entrance (Pl.'s Dep. at 52-53). At 5:36 A.M., plaintiff was seen by a triage nurse (Nam Decl. Ex. D at 2). At the hospital, an attendant gave plaintiff ice packs for his ankle and helped him onto a bed where he waited to be seen by a doctor (Pl.'s Dep. at 53-54). After two hours of waiting, plaintiff screamed that he needed pain medication (Pl.'s Dep. at 55). A physician subsequently reviewed an X-ray of the ankle and reported "no ankle swelling, possible small effusion. Linear lucency at the medial aspect of the tibial plafond is likely a vascular channel. No acute fracture or dislocation. No significant degenerative changes, " and prescribed ibuprofen and crutches (Pl.'s Dep. at 60; Pl.'s Mem. Ex. C).
When plaintiff left the hospital, Officers Symon and Nieves (who had replaced Officers Leung and Davi), refused to permit plaintiff to use the crutches, saying it was "against policy" (Pl.'s Dep. at 68). Instead, the officers obtained a hospital bed and rolled plaintiff out of the hospital on the bed (Pl.'s Dep. at 69), helped him into the waiting police car and drove him to Central Booking (Pl.'s Dep. at 70). The officers did not permit plaintiff to use his crutches on arriving at Central Booking; instead, they parked close to the entrance, and one officer helped plaintiff hop the thirty feet to the entrance while the other officer carried plaintiff's crutches (Pl.'s Dep. at 70). Once inside, plaintiff was uncuffed and permitted to use his crutches (Pl.'s Dep. at 70). Central Booking did not admit plaintiff, due to an issue with his paperwork, and he was returned to the Precinct, where he was again refused permission to use his crutches (Pl.'s Dep. at 78-79). Later that day he was arraigned and released (Pl.'s Dep. at 80-81).
On September 25, 2012, plaintiff saw a doctor at New York Presbyterian Hospital, who plaintiff claims diagnosed his ankle injury as a hairline fracture and provided him with stronger pain medication (Pl.'s Dep. at 93; see Pl.'s Mem. Ex. C).
A. Legal Standard
1. Summary Judgment
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party... is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To grant the motion, the court must determine that there is no genuine issue of material fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue derives from the "evidence [being] such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), or by a factual argument based on "conjecture or surmise, " Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The Supreme Court teaches that "all that is required [from a nonmoving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). It is a settled rule that "[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).
McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006); accord Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011); Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005); Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
"Material facts are those which might affect the outcome of the suit under the governing law, ' and a dispute is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007). "'[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir. 2007) (second alteration in original), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In such a situation, there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23, citing Fed.R.Civ.P. 56.
2. Deliberate Indifference
Under the Eighth and the Fourteenth Amendments, the Government is obligated to provide medical care to inmates and pretrial detainees, respectively. A police officer's "'[d]eliberate indifference to [the] serious medical needs of [an arrestee] constitutes the "unnecessary and wanton infliction of pain" proscribed by the [Constitution].'" Washington v. City of New York, 10 Civ. 389 (LTS)(JLC), 2011 WL ...