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Blackwell v. Town of Greenburgh

United States District Court, S.D. New York

March 24, 2017



          Vincent L. Briccetti Judge.

         Plaintiff Alesia Blackwell brings this action against the Town of Greenburgh (the “Town”), the Town of Greenburgh Police Department (the “Police Department”), Police Officer Foster Shaw, Detective James Basulto, and Police Officer Brian Matthews, pursuant to 42 U.S.C. § 1983 asserting claims of abuse of process, assault, battery, excessive force, illegal seizure, negligence, negligent supervision, and negligent hiring.[1]

         Before the Court is a motion for summary judgment on behalf of Officer Shaw, Detective Basulto, and Officer Matthews (the “Officer Defendants”), along with the Town.[2] (Doc. #68).

         For the reasons set forth below, defendants' motion is GRANTED IN PART and DENIED IN PART.

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.


         I. Factual Background

         The parties have submitted briefs, statements of facts, and declarations with supporting exhibits, which reflect the following factual background.[3]

         On July 22, 2011, defendant Officer Foster Shaw sought to execute an outstanding arrest warrant on Jerry Williams while Williams was walking on a public sidewalk in Greenburgh, New York. When Officer Shaw notified Williams that he was under arrest, Williams fled. Officer Shaw pursued Williams and deployed his Taser, causing Williams to fall to the ground. Before Officer Shaw reached Williams or was able to handcuff him, Williams recovered and continued to flee. Officer Shaw pursued Williams, but lost sight of him as Williams was running toward a four-unit apartment building at 3 Oak Street.

         Instead of pursuing Williams further, Officer Shaw called and waited for backup. The backup included defendants Detective Basulto and Officer Matthews, and non-party Sergeant McVeigh, along with a number of other non-party police officers. The officers canvassed the area to look for Williams, and Detective Basulto and Sergeant McVeigh entered the apartment building at 3 Oak Street. Detective Basulto knocked on the doors of lower-level apartments in the building, but received no answer.

         Justin Person is plaintiff's son and a long-time friend of Williams. Person lived with plaintiff at 3 Oak Street, Apartment 1E, one of the lower-level apartments. Person arrived home when police were at the apartment building looking for Williams. Officer Shaw knew and had a cordial relationship with both Person and plaintiff, and was aware they both lived at 3 Oak Street, Apartment 1E. Officer Shaw also knew Williams and knew Williams and Person to be friends. A few weeks prior to July 22, 2011, Officer Shaw spoke with Person and asked him to relay to Williams the message that Williams should take care of his outstanding arrest warrants.

         When Person arrived home at his apartment, he rang the doorbell and plaintiff opened the door for him. The officers then approached the apartment and spoke with plaintiff. The officers informed plaintiff they believed Williams had fled into her apartment and might have been injured when he fell after having been Tasered. Plaintiff informed the officers they had the wrong address, as Williams lived at a different address, which she provided. The officers then left the building, but remained in the area looking for Williams.

         Officer Shaw returned to plaintiff's apartment and asked to speak with her. Officer Shaw took about three steps into the apartment, where he spoke with Person and plaintiff. During this conversation, multiple officers entered the apartment building, one of whom noticed a Taser wire in the building's entryway. The officers took the wire to be additional evidence Williams was in plaintiff's apartment and informed plaintiff of this. Officer Matthews, Detective Basulto, Sergeant McVeigh, and other officers then joined Officer Shaw in plaintiff's apartment.

         Plaintiff's apartment has three levels. The entrance is located on the main floor, where plaintiff's bedroom is located. Immediately upon entering the apartment, there is a small entryway and hallway, with two staircases. One staircase leads to the top floor, where there are two bedrooms and a bathroom. The other staircase leads to the bottom floor, where there is a kitchen and living room.

         When the officers entered plaintiff's apartment, Person and plaintiff were the only visible occupants, but Williams was in an upstairs bedroom. Officer Shaw moved throughout the apartment looking for Williams, while the rest of the officers remained in the entryway.

         After looking elsewhere, Officer Shaw began to ascend the staircase to the top floor of the apartment. At this point, Person was standing on the staircase, assumed an aggressive stance, and screamed at the officers, “get the fuck out, ” “you don't belong here, ” and “get a warrant.” (Defs.' SOF ¶ 79). Officer Matthews started to follow Officer Shaw up the staircase, but plaintiff “slammed her hand on the banister” and attempted to block Officer Matthews's progress by throwing her hip into him and shouting “you can't go upstairs.” (Defs.' SOF ¶ 80). Officer Matthews “pushed past” plaintiff and proceeded up the staircase and told Person he “needed to step out of the way.” (Defs.' SOF ¶¶ 80-81). Instead, Person punched Officer Matthews in the chest, causing the two to tumble down the steps into the entryway.

         Officer Matthews and two other police officers, Officer DiStefano and Officer Lara, attempted to handcuff Person, who resisted. At that point, plaintiff punched Officer Lara in the back of the head and jumped on Officer DiStefano's back. Officer Lara then tasered Person, allowing officers to handcuff Person.

         Officer Shaw located Williams in an upstairs bedroom and arrested him.

         At some point during the struggle, according to plaintiff, Officer Matthews struck plaintiff across the neck, causing her to suffer severe pain momentarily. Plaintiff testified Officer Matthews tried to arrest her, but when she resisted, “he lifted me off my feet and slammed me on the floor.” (Defs.' SOF ¶ 135). Officer Matthews then tried to force plaintiff's left arm behind her back to handcuff her, but due to cervical-fusion surgery, which plaintiff underwent on April 6, 2011, her arm could not bend in that manner. An officer then handcuffed plaintiff with her arms in front of her body. Shortly thereafter, Detective Basulto and Officer Shaw took plaintiff to her bedroom and sat her down on her bed. She complained of neck pain and asked to use a bone stimulator, which the officers allowed. Plaintiff also complained of hip pain and arm spasms, and requested Detective Basulto remove the handcuffs, which he did. An ambulance subsequently transported plaintiff to the emergency room at White Plains Hospital.

         The White Plains Hospital's record from the emergency visit indicates plaintiff complained of pain in her hip, left side of her neck, left clavicle area, and left arm. The hospital record reflects that plaintiff's “Chief Complaint” was “multiple areas of pain after being thrown to ground.” (Defs.' SOF ¶ 160). It further reflects that plaintiff underwent x-rays on her left wrist, left elbow, pelvis, cervical spine, and left hip. The hospital record indicates plaintiff suffered from “multiple contusion[s] and soft tissue strain injuries, ” including “contusions to left elbow, wrist, and hip; strain to cervical spine.” (Defs.' SOF ¶¶ 167-68).

         On July 27, 2011, plaintiff had a follow-up appointment with Dr. Oh at WESTMED Medical Group. Plaintiff's medical chart from this appointment indicates her chief complaints were left elbow and left hip injuries. The “history of present illness” section states:

Patient presents today complaining of left elbow and left hip pain following a fall on 7/22/11[, when] patient states that she was thrown to the floor at her home by a Greenburgh police officer. . . . She had immediate pain in her left arm and left hip. She was seen in the White Plains Hospital Emergency Department the same day as the injuries. . . . [T]he following day . . . she called the [emergency department] complaining of continuing left arm pain. She was given a prescription for [P]ercocet 7.5/325mg. Currently, she is having continuing pain in both the left elbow and left hip. She has increased pain with any movement of the left arm. He[r] left hip pain is lateral and is constant.
. . . .
Physical exam of the left elbow reveals diffuse tenderness and very limited range of motion secondary to pain and guarding.
Physical exam of the left hip reveals tenderness in the area of the greater trochanter. The patient is able to actively flex with pain.

(Defs.' Ex. AA). Dr. Oh placed plaintiff's left arm in a long-arm splint and sling and ordered an MRI of her hip to rule out a fracture.

         On August 1, 2011, plaintiff was seen by Cy Blanco, M.D., at WESTMED Medical Group, who noted that plaintiff was recovering from her prior cervical-fusion surgery until the July 22, 2011, incident. Dr. Blanco noted that plaintiff suffered “aggravated neck pain following [the] incident.” (Defs.' SOF ¶ 180).

         On August 4, 2011, plaintiff was seen by Morrie Kaplan, M.D., at WESTMED Medical Group. The notes from that appointment show plaintiff complained of “[h]aving trouble sleeping at night due to incident. Very emotionally distressed.” (Defs.' Ex. CC). Dr. Kaplan's notes state: “pt upset crying will ref her to psy for further therapy as is already on some meds.” (Id.).

         On August 5, 2011, plaintiff underwent a left hip MRI, which revealed a “[h]istory of left hip trauma, ” but “[n]o evidence of fracture or bony contusion.” (Defs.' Ex. DD).

         On August 11, 2011, plaintiff had another follow-up appointment with Dr. Oh. The record from that appointment states plaintiff “still has pain in her [left] hip with movements of her hip and with ambulation. Her [left] elbow is feeling better with only minimal residual pain.” (Defs.' Ex. EE). It also notes diagnoses of hip and elbow contusions.

         On December 3, 2011, Dr. Oh examined plaintiff, and his notes state plaintiff “returns after having had a repeat subacromial cortisone injection in her [left] shoulder a month ago. She still has pain in her [left] shoulder with movements and use of her shoulder.” (Defs.' Ex. SS). The record does not reflect the reason plaintiff received cortisone injections or whether the injections were related to the July 22, 2011, incident.

         On December 14, 2011, Dr. Oh performed an arthroscopic repair on plaintiff's left shoulder. The documentation relating to this surgery indicates plaintiff's pre- and post-operative diagnosis is left shoulder impingement.

         Medical records from before the July 22, 2011, incident indicate plaintiff had a history of left hip pain dating back to at least 2004. On June 18, 2004, plaintiff saw Dr. Oh complaining of chronic left hip pain. Dr. Oh diagnosed plaintiff with trochanteric bursitis in her left hip, which he treated with a cortisone injection.

         On July 11, 2007, Dr. Kaplan examined plaintiff. Dr. Kaplan's notes indicate plaintiff complained of “left hip pain constantly for the past few months. She fell 2 years ago off the stoop at her home and never did anything about it now she is in constant pain.” (Defs.' SOF ¶ 207). The hospital record indicates Dr. Kaplan diagnosed plaintiff with chronic left hip pain.

         On July 17, 2011, Dr. Oh saw plaintiff again. Dr. Oh's record indicates plaintiff had been having issues with her left knee, but she was “ambulating with a cane and is taking oxycontin. She has been going to [physical therapy] for her neck.” (Defs.' Ex. HH). It also reflects that plaintiff still had a diagnosis of chronic left hip pain.

         Plaintiff testified in her deposition she did not have any medical condition or undergo any treatment regarding her left hip prior to July 22, 2011.

         On March 2, 2016, Jeffrey Passick, M.D., provided to defense counsel a report after reviewing plaintiff's ...

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