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Pesola v. City of New York

United States District Court, S.D. New York

August 31, 2017



          P. Kevin Castel United States District Judge.

         On March 17, 2012, Dallas Pesola was arrested in Zuccotti Park by officers of the New York City Police Department (“NYPD”) during a gathering marking the six-month anniversary of the Occupy Wall Street protests. Plaintiff brought claims pursuant to 42 U.S.C. § 1983 against Deputy Inspector Edward Winski and Lieutenant Frank Viviano, who are employed by the NYPD, seven unnamed individual NYPD Officers (Does #1-7), and the City of New York (the “City”). By order dated March 30, 2015, the Court granted in part defendants' motion to dismiss. The claims remaining are an excessive force claim against Deputy Inspector Winski and a failure to intervene claim against Lieutenant Viviano. Winski and Viviano now move for summary judgment on these claims. (Dkt. 52.) For reasons to be explained, defendants' motion is granted.


         The following facts are undisputed unless noted. On March 17, 2012, the six-month anniversary of the Occupy Wall Street protests, plaintiff was present at Zuccotti Park in Manhattan. (Pl.'s 56.1 Counterstatement, December 2, 2016, Dkt. 58 (“Pl.'s 56.1 CS”) ¶ 1.) Plaintiff drove to Zuccotti Park, arriving around noon. (Pl.'s 56.1 CS ¶ 3.) He parked his truck on the northern edge of Zuccotti Park, on Liberty Street. (Pl.'s 56.1 CS ¶ 8.) Shortly after arriving plaintiff participated in a march, lasting approximately 25-30 minutes, after which he returned to Zuccotti Park. (Pl.'s 56.1 CS ¶¶ 5-6.) When plaintiff returned, Inspector Winski ordered plaintiff to move his truck because of its close proximity to a fire hydrant. (Pl.'s 56.1 CS ¶ 9.) Plaintiff moved his truck approximately a block away and returned to the park. (Pl.'s 56.1 CS ¶¶ 11-12.) Upon arriving at the northern edge of Zuccotti Park plaintiff walked through a crowd that had gathered and approached the police line. (Pl.'s 56.1 CS ¶¶ 12-14.) Within several seconds of plaintiff's arrival at the front of the police line Inspector Winski approached plaintiff, pointed his finger at plaintiff, and said something, although plaintiff could not hear what was said. (Pl.'s 56.1 CS ¶ 15.) Plaintiff became frightened, turned, and walked quickly away from Inspector Winski. (Pl.'s 56.1 CS ¶ 16.) Plaintiff in no way communicated to Inspector Winski his intentions before he turned and walked away. (Pl.'s 56.1 CS ¶ 18.)

         It is at this point in the interaction that plaintiff's and defendants' versions of events diverge. Defendants assert that as plaintiff moved away from Inspector Winski, Inspector Winski tried to hold onto plaintiff and was pulled through the crowd. (Pl.'s 56.1 CS ¶ 21.) According to defendants, as plaintiff continued to move away from Inspector Winski and into the crowd, Inspector Winski “threw his arm around plaintiff's shoulder towards his neck and pulled him down to the ground.” (Pl.'s 56.1 CS ¶ 22.)

         It is undisputed that Inspector Winski's contact with plaintiff's neck lasted less than five seconds. (Pl.'s 56.1 CS ¶ 24.) During Inspector Winski's contact with plaintiff, plaintiff threw his arm up to relieve pressure on his neck, then pushed the Inspector's arm away and held it back, but otherwise submitted to Inspector Winski and did not resist. (Pl.'s 56.1 CS ¶¶ 25-26.)

         Plaintiff was “twisted and pulled to the ground” where he landed on his knees and the pads of his hands. (Pl.'s 56.1 CS ¶¶ 27-28.) Once plaintiff was on the ground Inspector Winski pushed plaintiff's head towards the ground. (Pl.'s 56.1 CS ¶ 29.) The parties dispute whether plaintiff “struggled to hold onto a water bottle and tucked his arms underneath when officers attempted to get his arms behind his back, ” (Pl.'s 56.1 CS ¶ 31), though they agree that once plaintiff's arms were pulled behind his back he was placed in handcuffs, (Pl.'s 56.1 CS ¶ 32.) During the course of the arrest, plaintiff's left arm was raised high above his shoulder blade, causing pain. (Pl.'s 56.1 CS ¶ 33.) Plaintiff did not inform any officer that he was in pain and walked to the police wagon under his own power. (Pl.'s 56.1 CS ¶¶ 34-35.) Plaintiff asserts that Lieutenant Viviano was “inches away” from Inspector Winski during his interaction with plaintiff. (Pl.'s Mem. in Opp., December 2, 2016, Dkt. 56 at 4.)

         Plaintiff had no further interaction with Inspector Winski. (Pl.'s 56.1 CS ¶ 36.) Less than twenty seconds elapsed from when Inspector Winski approached plaintiff until he was taken to the ground. (Pl.'s 56.1 CS ¶ 37.) From the moment plaintiff first ran away from Inspector Winski until the moment he stood back up to go to a police vehicle was less than a minute. (Pl.'s 56.1 CS ¶ 39.)

         Plaintiff never sought medical treatment as a result of this incident, and after one and a half weeks felt no residual pain or discomfort. (Pl.'s 56.1 CS ¶¶ 41-42.)


         On a motion for summary judgment, the Court views all evidence of record in the light most favorable to plaintiff as the non-moving party, and draws all reasonable inferences in plaintiff's favor. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

         Summary judgment “shall” be granted “if 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.” Rule 56(a), Fed.R.Civ.P. A fact is material if it “might affect the outcome of the suit under the governing law, ” meaning that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he is entitled to relief as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). In raising a triable issue of fact, the non-movant carries only “a limited burden of production, ” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the material facts, ' and come forward with ‘specific facts showing that there is a genuine issue for trial.'” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). In reviewing a motion for summary judgment, the court may scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c)(3), Fed.R.Civ.P. In the absence of any disputed material fact, summary judgment is appropriate. Rule 56(a), Fed.R.Civ.P.


         Plaintiff claims that Inspector Winski used excessive force on him in effectuating his arrest. Specifically, plaintiff alleges that Inspector Winski's contact with his neck constituted a “chokehold.” (Pl.'s Mem. in Opp., December 2, 2016, Dkt. 56 at 7.) Plaintiff argues that this contact constitutes excessive force when used against someone who is being arrested for ...

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