United States District Court, E.D. New York
For James G. Corley, Plaintiff: Alan D. Levine, LEAD ATTORNEY, Law Offices of Alan D. Levine, Kew Gardens, NY; Susanne Ramkishun, Law Office of Alan Levine, Kew Gardens, NY.
For P.O. Nabeel Shahid, Tax Registration #939457, City of New York, P.O. Cyril Abraham, Tax Registration No. 937932, P.O. Ronald Moss, Tax Registration No. 918036, P.O. James Campbell, Tax Registration No. 945547, Captain Roderick Dantini, Tax Registration No. 906066, Sergeant Shunping Mao, Tax Registration No. 940417, Defendants: Noreen M. Stackhouse, LEAD ATTORNEY, New York City Law Department, New York, NY; Brian Francolla, New York City Law Department, New York, NY.
Brian M. Cogan, United States District Judge.
This is an action under 42 U.S.C. § 1983 in which plaintiff claims that one of six defendant police officers used excessive force in arresting him and the five other defendant officers failed to intervene to prevent the use of excessive force. At the conclusion of plaintiff's case at trial, I granted defendants' motion for judgment as a matter of law. This opinion expands upon the basis for that ruling as stated on the record.
Plaintiff called two witnesses at trial. First, he called Dr. Ronald Light, an orthopedist offered as a non-treating expert. Then, he called himself. For ease of understanding, it is useful to summarize plaintiff's testimony first.
Plaintiff is a 54 year old retired fireman. On the night of June 1, 2012 at about 11:00 p.m., he pulled his minivan in front of the Dog & Duck bar in Sunnyside, Queens. Plaintiff had been at the bar earlier that evening to drop off some fish that he caught; he returned to pick up the cooler in which he had delivered the fish. There was no parking in front of the bar, and plaintiff did not attempt to find any on the street. Instead, he double parked in front of the bar, blocking in a car that was parked at the curb. Plaintiff did not attempt to find a legal parking space because he thought it unlikely that he would find one.
Once in the bar, plaintiff decided to order food and drink. He sat at the bar and consumed five or six beers. He testified on direct testimony that he became drunk, describing himself, on a scale of 1 to 10 of inebriation, as an " 8." His hospital record fro the following morning showed that he still had a 1.53 blood alcohol level, about twice the legal limit. Plaintiff acknowledged that this was not unusual for him and he drank in this manner about twice a week.
Plaintiff testified on direct examination that he could not see his minivan from where he was sitting in the bar, although he had testified at deposition that he could see the minivan from where he was sitting. In any event, he became aware that a police officer was alongside his minivan. Plaintiff assumed the officer was there to write him a ticket for double parking. He nevertheless waited for about 45 minutes to leave the bar, despite the fact that the officer remained by his minivan. Plaintiff intended to wait until the police officer wrote him a ticket and left before moving the minivan.
At that point, about 12:30 a.m. on June 2, 2012, plaintiff observed that a flatbed tow truck had pulled up in front of his minivan, a truck which he assumed the police had called. The tow truck inclined its bed so that it could load plaintiff's minivan onto it. Plaintiff then left the bar and approached the tow truck. As he did so, the police officer said to him, " is that your car?" Plaintiff said " yes" and kept walking.
Plaintiff laid himself down on his back on the inclined bed of the tow truck, which was about a foot from his minivan's bumper. He also locked his hands under his minivan's bumper so that the minivan could not be loaded onto the tow truck without crushing him. Plaintiff testified that only his legs were on the ground under the minivan; his torso was on the flatbed truck. After two or three minutes, one or two of the officers then struck his hands with their police radios to get him to release his grip on the bumper. Plaintiff testified that he did not sustain injuries from these blows and did not consider the force used to be excessive.
Plaintiff did not release the bumper and, about 30 seconds later, two police officers grabbed him under each arm and dragged him off the tow truck to their police car about 40 feet away. Once there, he was flipped over face down on the street. At that point, there were a total of four officers around him. One held his knee on plaintiff's head to restrain it on the ground, while another held plaintiff's feet down. There was another officer to plaintiff's right, who had control of plaintiff's arms, and one somewhere out to the left, who was just standing there. The officer on the right who had control of plaintiff's arms handcuffed plaintiff's arms behind his back. Up to this point, plaintiff testified that the actions of the police were not excessive and were indeed " professional."
Then, " within a matter of ten or fifteen seconds," one of the officers kicked him three times on the left side of his ribcage and then gave him two more kicks on the same side. That officer then rolled plaintiff onto his back and kicked him twice more on the right side of his ribcage. Plaintiff testified that this caused him considerable pain. Plaintiff started yelling " report police brutality!" repeatedly. The police officer who had kicked him told him to " shut up ... or I will taser you."
Plaintiff believed his ribs were broken as he had suffered broken ribs in the past and knew what it felt like. He testified that he was having trouble breathing. Nevertheless, he did not request an ambulance. The police called an ambulance which arrived ten or fifteen minutes later. Plaintiff testified that he told the EMT from the ambulance that " some police had assaulted him." However, the EMT's intake report ...