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Freire v. Zamot

United States District Court, E.D. New York

March 30, 2018




         Howard Freire, plaintiff pro se, brings this action under 42 U.S.C. § 1983 alleging false arrest, malicious prosecution, excessive force, failure to intervene, deliberate indifference to medical needs, and Monell liability, arising out of an incident in which Freire was shot in the back while fleeing from undercover police officers, and ultimately arrested for perpetrating a carjacking. (See Second Am. Compl. (“SAC”) (Doc. No. 47).) All of the remaining defendants[2]now move for summary judgment. (Mot. for Summ. J. (Doc. No. 83).) For the reasons stated below, the defendants' motion is granted in part and denied in part. All of Friere's claims are dismissed with the exception of his claim for excessive force as against Detective John Zamot, and his deliberate indifference claim as against Sergeant Luigi D'Onofrio.


         The evidence in this record is quite sparse. The testimony consists of a brief affidavit from defendant Zamot, and limited deposition excerpts from plaintiff Freire. Both parties also submit a small number of documentary exhibits, primarily from the police department, the Civilian Complaint Review Board, and Elmhurst Hospital. The facts recited below are undisputed, except where noted.

         According to the affidavit of Detective Zamot, on the afternoon of January 19, 2012, Zamot, Detective Edgar Gomez, and Police Officer Anthony Jones were on patrol. (Zamot Aff., Ex. C to Gutmann Decl. in Supp. of Mot. for Summ. J. (Doc. No. 86-3) ¶ 2.) At approximately 1:12 PM, they received a radio run concerning an attempted carjacking at gunpoint in their vicinity that contained a description of the perpetrator. (Id. ¶¶ 3-4.) The officers drove to the location where Zamot observed Freire, who matched the physical description of the suspect. (Id. ¶¶ 5-6.) The three officers then exited their vehicle and approached Freire, who turned around and fled. (Id. ¶ 6.)

         To this point, Freire does not dispute the facts set out in Zamot's affidavit. In fact, Freire does not dispute that he attempted a carjacking during which he struck the elderly victim on the hands with a realistic-looking toy gun.[3]

         Freire admits that he ran as he was approached by what Freire describes as three men “who weren't dressed like policemen.” (Freire Dep., Ex. A to Gutmann Decl. in Supp. of Mot. for Summ. J. (Doc. No. 81-2) at 59.) Freire testified that the men approached him in a “threatening manner, ” and he believed they were friends of the elderly carjacking victim. (Id. at 58-59.) As Freire testified, “I had just beat up the guy and left and then these three guys just show up out of nowhere and begin chasing me, so I put the two together.” (Id. at 61.) Freire testified that he was afraid of the three men, and he “wasn't going to fight them. It was three against one.” (Id. at 59.)

         Freire confirms that he continued to run and the three men (the officers) continued to chase him. Zamot concludes his own narrative this way:

While in pursuit, I ordered Mr. Freire to stop, but he did not comply. I believed that there was a strong possibility that Mr. Freire, having already attempted one carjacking at gunpoint, would try once more to attempt a carjacking at gunpoint thus putting other individuals in danger of serious physical harm if he were allowed to escape. I shot plaintiff once.

(Zamot Aff. ¶¶ 8-10.) Nowhere in Zamot's affidavit does he say that he or his fellow officers ever identified themselves as police officers.

         In both his deposition and in his affidavit in support of this motion, Freire clearly disputes that the officers ever identified themselves or told him to stop:

Q: Did the three men ever yell at you to stop or did they say that they were police?
A: No.[4]

(Freire Dep. at 60.) Freire testified that as he was running, he “turned into a driveway to try to jump over a fence. As I turned into the driveway, I was shot in the back.” (Id. at 60.) Freire testified that he later learned that it was Zamot who shot him, but did not see who did it at the time. (Id. at 61.) He estimated that the officers were no more than eight feet away from him when he was shot. (Id.)

         Freire also testified that during the chase, the toy gun was in his waistband, and it fell out only when he hit the ground after being shot. (Id. at 63.) Freire testified that he never reached into his waistband, or showed the gun to the officers to scare them off. (Id. at 60.) The defendants do not challenge these facts.[5]

         After Freire was shot, Sergeant Sui Lam, Detective John Gutierrez, and an ambulance with EMTs Felix Moldovan and Wendy Tapia arrived. (Freire Aff. in Supp. of Opp. (Doc. No. 81-2) ¶¶ 6-7.) The ambulance arrived on the scene at 1:18 PM. (Ambulance Call Report, Ex. D to Gutmann Decl. in Supp. of Mot. for Summ. J. (Doc. No. 86-4) at 1.) Freire's transportation to the hospital was delayed under the instruction of Detective Gutierrez in order to conduct a show-up identification. (Freire Aff. ¶ 7.) The ambulance arrived at the hospital by 1:36 PM. (Elmhurst Hospital Medical Chart, Ex. E to Gutmann Decl. in Supp. of Mot. for Summ. J. (Doc. No. 86-5) at 3.)

         The hospital found that the bullet entered on the left side of Freire's lower back and cut through to his left lower anterior abdominal wall. (Pl.'s Opp. Exs. (Doc. No. 81-1) at 1.) Freire underwent major surgery[6] (id.) and was discharged on January 25, 2012 (Freire Aff. ¶ 9).

         After Freire's release from the hospital into police custody, Sergeant Luigi D'Onofrio denied Freire medication that had been dispensed at the hospital pharmacy. (Id. ¶¶ 10-11.) According to Freire's affidavit, D'Onofrio “held the medications in his hand while taunting [Freire] yet he did not allow anyone to give [Freire] said medications.” (Id. ¶ 11.) Freire was returned to Elmhurst Hospital on January 26 at approximately 1:30 AM for “severe abdominal pain at the site of the surgery and back pain at the site of the gun shot wound.” (Id. ¶¶ 10, 13.) Freire was administered one dose of his medication and returned to the precinct. (Id. ¶ 13.) Again, upon return to police custody, Freire claims he was denied his prescribed medications and had to be taken back to Elmhurst Hospital later that same day at 3:30 PM for “severe abdominal and back pain.” (Id. ¶ 14.) The day after that, on January 27, 2012, Freire was again admitted, this time at Jamaica Hospital, for “an abscess, Post intestinal surgery constipation, nausea, abdominal distention, ” and severe, constant pain in his lower back and abdominal area. (Id. ¶ 15.) He spent several days in the hospital “with IV and antibiotics because of the complications.” (Id. ¶ 16.)

         Freire was later convicted of Robbery in the First Degree, and other state crimes stemming from the conduct leading to his arrest. (Certificate of Disposition Indictment, Ex. F to Gutmann Decl. in Supp. of Mot. for Summ. J. (Doc. No. 86-6).) These convictions are now on appeal. (Pl.'s Opp. (Doc. No. 81) at 1.)


         Summary judgment is appropriate when the pleadings, depositions, interrogatories, admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute and that one party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material facts exists “if 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). In determining whether a genuine issue of material fact exists, the evidence of the non-movant “is to be believed, ” and the Court must draw all “justifiable” or reasonable inferences in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); Brosseau v. Haugen, 543 U.S. 194, 195 n.2 (2004).

         If the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, “the nonmoving party must come forward with specific facts showing there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks and emphasis omitted). The non-moving party “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). In other words, the non-movant must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson, 477 U.S. at 256. Thus, “[a] defendant moving for summary judgment must prevail if the plaintiff fails to come ...

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