United States District Court, E.D. New York
MEMORANDUM AND ORDER
ROSLYNN R. MAUSKOPF, UNITED STATES DISTRICT JUDGE.
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
defendantsnow 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.
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.
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.)
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
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.)
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
(Zamot Aff. ¶¶ 8-10.) Nowhere in Zamot's
affidavit does he say that he or his fellow officers ever
identified themselves as police officers.
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?
(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.)
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.
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.)
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 (id.) and was
discharged on January 25, 2012 (Freire Aff. ¶ 9).
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. ¶
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)
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).
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 ...