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John v. City of New York

United States District Court, E.D. New York

March 13, 2017

JOEL JOHN, Plaintiff,
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, P.O. JOHN MCMANUS, Shield No. 15975, SGT. CLIFFORD LOUIS, Shield No. 07293, P.O. ANTOINE GILKES, Shield No. 09869, and P.O. NICHOLAS GUELE, Shield No. 24876 Defendants.


          LaSHANN DeARCY HALL, United States District Judge

         Plaintiff Joel John brings this action against Defendants the City of New York (the “City”), the New York City Police Department (the “NYPD”), Sergeant Clifford Louis, and police officers John McManus, Antoine Gilkes, and Nicholas Guele (the “Officer Defendants”) (together “Defendants”), alleging violations of his rights secured by state and federal laws in connection with events that occurred on August 30, 2013, and September 8, 2013. Defendants move pursuant to Federal Rule of Civil Procedure 56 to dismiss the complaint in its entirety.


         On the night of August 30, 2013, Plaintiff hosted an outdoor event at his home at 1935 Bedford Avenue, in Brooklyn, New York. (Pl.’s 56.1 Statement ¶¶ 4, 6, 9, ECF No. 42.) There are two homes located on the lot at 1935 Bedford Avenue, both of which are occupied by Plaintiff and his family. (Id. ¶ 5; Braun Decl. Ex. C, at 23:21-24:14, ECF No. 40-3.) At approximately 11:43 p.m., a 311 complaint was received concerning loud music at Plaintiffs home. (Pl.’s 56.1 Statement ¶ 1.) In response to the complaint, officers were dispatched to Plaintiffs address and informed him of the noise complaint. (Id. ¶¶ 15-16.) Shortly after the officers arrived, a verbal altercation ensued between Plaintiff and the officers. (Id. ¶¶ 17-18.) Plaintiff alleges - and Defendants dispute - that he was physically assaulted by officers and sustained injuries to his arm, leg, and face. (Id. ¶¶ 25-26; see also Defs.’ Reply Br. 7-8, ECF No. 44.) Specifically, Plaintiff testified that an officer twisted his hand and shoved his face onto the hood of a car while another officer punched him in the face. (Braun Decl. Ex. C, at 94:6-20, ECF No. 40-4.) Plaintiff was subsequently arrested. (Pl.’s 56.1 Statement 21.) At some point prior to his arrest, officers instructed Plaintiff to place his hands behind his back. (Id. ¶ 19.) Plaintiff initially did not comply with this request (id. ¶ 20), but was ultimately arrested in the driveway of his property. (Id. ¶ 21.) Plaintiff testified that he told the officers after he was arrested that he wanted medical treatment for his injuries but did not receive any such treatment. (Id. ¶ 26; see also Braun Decl. Ex. C, 126:19-127:6.)

         By criminal court complaint dated August 31, 2013, Plaintiff was charged with resisting arrest, unlawful possession of marijuana, and prohibited noise. (Pl .’s 56.1 Statement ¶ 29; Braun Decl. Ex. G, ECF No. 40-8.) On December 9, 2014, Plaintiff accepted an adjournment in contemplation of dismissal for those charges. (Pl.’s 56.1 Statement ¶ 30; Braun Decl. Ex. H, ECF No. 40-9.)


         A motion for summary judgment should be granted where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material fact” is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets that burden, the non-movant may defeat summary judgment only by producing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Anderson, 477 U.S. at 248 (noting that party opposing a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002) (non-moving party must “go beyond the pleadings” to show that there is a genuine issue for trial). To do so, non-movants must present concrete evidence and rely on more than conclusory or speculative claims. See Castro v. County of Nassau, 739 F.Supp.2d 153, 165 (E.D.N.Y. 2010) (“[T]he nonmoving party may not rest upon mere conclusory allegations or denials but must set forth ‘concrete particulars’ showing that a trial is needed.”) (citing R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)). That is, although the court is to view the facts presented in the light most favorable to the non-movant, drawing all reasonable inferences in his favor, Anderson, 477 U.S. at 255, the non-movant must still do more than merely assert conclusions that are unsupported by arguments or facts. See Castro, 739 F.Supp.2d at 165 (citing Bellsouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996)).


         Plaintiff brings claims for excessive force, assault and battery, and failure to intervene, pursuant to 42 U.S.C. § 1983, for injuries he is alleged to have suffered as a result of the events that occurred on August 30, 2013.[2] (See Am. Compl., ECF No. 11.)

         Defendants move for summary judgment on Plaintiff’s excessive force, assault and battery, and failure to intervene claims, and also seek a determination that, as a matter of law, the Officer Defendants are entitled to qualified immunity from any liability that may arise from the events that occurred on both August 30, and September 8, 2013.[3]

         I. Excessive Force and Assault and Battery Claims

         A. Excessive Force Claim

         It is long settled that the Fourth Amendment protects people from the use of excessive force during an arrest. See Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (noting that use of force that is unreasonable is “therefore excessive”); see also Lemmo v. McKoy, No. 08-cv-4264, 2011 WL 843974, at *4 (E.D.N.Y. Mar. 8, 2011) (explaining that excessive force claim for conduct alleged to have occurred during an arrest is governed by Fourth Amendment standard). In assessing a claim brought for excessive force, the question is whether the force was objectively reasonable under the circumstances. Lemmo, 2011 WL 843974, at *4 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Thus, “the inquiry is necessarily case and fact specific and requires balancing the nature and quality of the intrusion on the plaintiff’s Fourth Amendment interests against the countervailing governmental interests at stake.” Freshwater, 623 F.3d at 96 (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir. 2004)); see also Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (citing Graham, 490 U.S. at 396). Among other things, courts consider the severity of the crime, whether the suspect posed an immediate threat to those around him, and whether the suspect was actively resisting arrest. See Brown, 798 F.3d at 100 (listing factors and quoting Graham, 490 U.S. at 396); Pooler v. Hempstead Police Dep’t, 897 F.Supp.2d 12, 25 (E.D.N.Y. 2012) (citing same factors as part of court’s “inquiry into the totality of the circumstances”).

         Defendants argue that their motion should be granted in their favor because Plaintiff failed to put forth evidence of significant injuries and did not seek medical treatment. (Defs.’ Mot. 14, ECF No. 38.) The Court finds this position unpersuasive. Courts in this Circuit routinely deny motions for summary judgment on excessive force claims where plaintiffs have alleged even lesser amounts of force and similarly did not allege to have suffered severe injuries. See Robison v. Via, 821 F.2d 913, 923-24 (2d Cir. 1987) (affirming denial of summary judgment where plaintiff alleged officers “yanked” her from her car, pushed her, and twisted her arm, and she did not seek medical treatment for her injuries, because “[i]f the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe”); Lemmo, 2011 WL 843974, at *7 (denying defendants’ motion for summary judgment on claim that “cranking” of plaintiff’s thumbs could have been excessive because it may have been “entirely gratuitous”); Li v. Aponte, No. 05-cv-6237, 2008 WL 4308127, at *6 (S.D.N.Y. Sept. 16, 2008) (denying summary judgment on assault and battery claim under “parallel” Fourth Amendment standard where plaintiff had evidence of bruising and finding that “[e]ven setting aside the evidence of [plaintiff’s] injuries, repeatedly pushing and pressing an arrestee against a column is within the bounds of actionable conduct”); Pierre-Antoine v. City of New York, No. 04-cv-6987, 2006 WL 1292076, at *5 (S.D.N.Y. May 9, 2006) (denying defendant’s motion for summary judgment where medical evidence did not reveal severe injury because the fact finder was entitled to weigh strength of medical evidence against plaintiff’s testimony to determine whether force was excessive); see also Davenport v. County of Suffolk, No. 99-cv-3088, 2007 WL 608125, at *10-11 (E.D.N.Y. Feb. 23, ...

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