United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti Judge.
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.
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. (Doc. #68).
reasons set forth below, defendants' motion is GRANTED IN
PART and DENIED IN PART.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
parties have submitted briefs, statements of facts, and
declarations with supporting exhibits, which reflect the
following factual background.
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.
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
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
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.
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.
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.
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.
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.
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.
Shaw located Williams in an upstairs bedroom and arrested
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.
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
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
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.
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).
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.).
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).
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
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.
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.
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.
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.
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.
testified in her deposition she did not have any medical
condition or undergo any treatment regarding her left hip
prior to July 22, 2011.
March 2, 2016, Jeffrey Passick, M.D., provided to defense
counsel a report after reviewing plaintiff's ...