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denying summary judgment where defendants did not establish that plaintiff's “testimony is, either on its face or in light of any other statements he has made, so self-contradictory or implausible as to rule out crediting it,” and there was no evidence that plaintiff “ever contradicted his current version of [events]”
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08 Civ. 4028 (LTS)(MHD)
04-11-2011
DONALD MACK BENNETT, Plaintiff, v. (INDIVIDUAL) OFFICERS VACCARO & OFFICERS GUGLIELMO & OFFICERS WOLFE OF THE "NEW ROCHELLE POLICE DEPARTMENT & ALSO A COMPLAINANT (INDIVIDUAL). MS. BINDA RUSALIA, MANAGER OF (C.V.S.) IN THE CITY OF NEW ROCHELLE, NY, Defendants.
REPORT & RECOMMENDATION
TO THE HONORABLE LAURA T. SWAIN, U.S.D.J.:
Plaintiff Donald Mack Bennett commenced this pro se lawsuit in mid-2008, complaining about his arrest by a group of New Rochelle police officers based on the complaint of a CVS store manager that he had shoplifted three CD players from the store. He named as defendants three patrol officers -- Michael Vaccaro, Craig Wolfe and Christopher Guglielmo -- and the store manager, Ms. Rosalia Binda. He asserted claims under 42 U.S.C. § 1983 for false arrest, excessive force and failure to provide prompt medical assistance. When he appeared before a judge in connection with the charges, however, he pled guilty to shoplifting, thus effectively admitting that his arrest, for stealing three CD players, was permissible. Thus he currently articulates his claims as being for the use of excessive force by one police officer -- defendant Guglielmo -- in allegedly tasering him, and the failure of the police to take him to a hospital for medical attention.
Plaintiff incorrectly refers to Ms. Binda as "Binda Rusalia," apparently due to a misreading of her sworn statement to the New Rochelle Police Department. (See Defs.' Mot. for Summ. J. Ex. L ("Binda Dep. Tr., Nov. 20, 2009") at 4, Feb. 18, 2010 (displaying Ms. Binda's name).
At the conclusion of discovery, defendants have moved for summary judgment, and plaintiff has moved for a default judgment. Before addressing those motion, we consider sua sponte whether the case may be dismissed if plaintiff, now proceeding in forma pauperis, does not pay the court filing fee. For the reasons that follow, we conclude that he is in violation of the three-strikes provision of the Prison Litigation Reform Act ("PLRA"), and that he must be stripped of his in forma pauperis status and the complaint dismissed absent payment of the filing fee. Alternatively, we recommend that the summary-judgment motion be granted in part and denied in part, and that plaintiff's default motion be denied.
A. Three Strikes
The three-strikes provision states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). Although defendants have not sought relief under this provision in this case, other courts have recently recognized that plaintiff Bennett comes within the three-strikes provision. Thus, most recently Judges Gorenstein and Sullivan have tallied seven decisions by the District Court and the United States Court of Appeals that have dismissed complaints of Bennett or, in one case, an appeal by him based on frivolousness or failure to state a claim. These decisions, in cases filed while Bennett was in custody, include the following: (1) Bennett v. Rusalia, et al., 10 Civ. 6151 (S.D.N.Y.) (dismissed August 17, 2010 for failure to state a claim); (2) Bennett v. Orlando, et al., 07 Civ. 11563 (S.D.N.Y.) (dismissed May 19, 2008 as frivolous); (3) Bennett v. Jones, et al., 07 Civ. 11550 (S.D.N.Y.) (dismissed December 26, 2007 as frivolous); (4) Bennett v. Corr. Med. Servs., et al., 06 Civ. 3783 (S.D.N.Y) (dismissed May 17, 2006 as frivolous); (5) Bennett v. New York State Parole Div., 04 Civ. 5085 (S.D.N.Y.) (dismissed June 28, 2004 for failure to state a claim); (6) Bennett v. Brandeis, 10 Civ. 306 (S.D.N.Y.) (dismissed April 19, 2010 for failure to state a claim and frivolousness); and (7) Bennett v. Brandeis, 10-2077-PR (2d Cir. 2010) (appeal dismissed as it "lacks an arguable basis in fact or law").
Based on this history, at least two courts within this district have found that plaintiff is not entitled to proceed in forma pauperis absent "imminent danger" and have dismissed complaints by him in view of his failure to demonstrate that he is in "imminent danger of serious physical injury." See Bennett v. Brandies, 10 Civ. 6307 (Mem. & Order dated Jan. 19, 2011) (Sullivan, J.) (adopting 2010 WL 5376206 (S.D.N.Y. Dec. 29, 2010)); Bennett v. Conception, 10 Civ. 9095 (Order dated Dec. 6, 2010) (Preska, J.). In this case we conclude that the cited history triggers application of the section 1915(g) three-strikes provision.
As for whether plaintiff may satisfy the "imminent danger" requirement, we note that he must demonstrate "a nexus between the imminent danger a three strikes prisoner alleges . . . and the legal claims asserted in his complaint." Pettus v. Morgenthau, 554 F.3d 293, 297 (2d Cir. 2009). To establish such a nexus, the inmate must show that the "imminent danger of serious physical injury . . . is fairly traceable to unlawful conduct asserted in the complaint and (2) . . . a favorable judicial outcome would redress that injury." Id. at 299. Because defendants have not requested relief under section 1915(g), plaintiff has not yet had an opportunity to make the required showing. Nonetheless, we note that his claims involved a false arrest, excessive force during the arrest and a failure in the immediate aftermath of the arrest to give him medical attention, and his pleading does not mention any injury that he sustained or continues to sustain while in prison as a result of the events concerning which he pleads his claims.
Plaintiff first submitted a complaint to the Pro Se Clerk on March 31, 2008, more than six weeks after his arrest. This time lag alone reflects that Bennett was not suing to avoid imminent danger of physical harm.
Under the circumstances, we recommend that plaintiff be deemed to come within the three-strikes provision, that he be found not to satisfy the "imminent danger" provision unless he proffers satisfactory evidence of such danger by way of an objection to this report and recommendation to meet that requirement, and that if he fails to do so, his case be dismissed unless he pays the filing fee within thirty days after a finding of "no imminent danger." Based on these recommendations we also recommend that in the event that plaintiff's claims are barred by the three-strikes provision, defendants' summary-judgment motion be deemed moot.
B. Defendants' Summary-Judgment Motion
Defendants have moved for summary judgment. In the event that the District Court finds that plaintiff's claims are not barred by the three-strikes provision, we recommend that the Rule 56 motion be granted in part and denied in part.
1. Summary-Judgment Criteria
The court may enter summary judgment only if it concludes that there is no genuine dispute as to the material facts and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (formerly Rule 56(c)); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). "An issue of fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law [while] [a]n issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Shade v. Hous. Auth. of the City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). It is axiomatic that the responsibility of the court in deciding a summary-judgment motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986); see, e.g., Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009); Anderson, 477 U.S. at 255; Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir. 2000).
The party moving for summary judgment bears the initial burden of informing the court of the basis for his motion and identifying those portions of the pleadings, the discovery and disclosure materials on file, and any affidavits that demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see, e.g., Celotex, 477 U.S. at 323; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). If the non-moving party has the burden of proof on a specific issue, the movant may satisfy his initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party's claim. See, e.g., Celotex, 477 U.S. at 322-23, 325; PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). If the movant fails to meet his initial burden, however, the motion will fail even if the opponent does not submit any evidentiary materials to establish a genuine factual issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d Cir. 2003).
If the moving party carries his initial burden, the opposing party must then shoulder the burden of demonstrating a genuine issue of material fact. See, e.g., Beard v. Banks, 548 U.S. 521, 529 (2006); Celotex, 477 U.S. at 323-24; Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). In doing so, the opposing party cannot rest merely on allegations or denials of the factual assertions of the movant, Fed. R. Civ. P. 56(e); see, e.g., Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 59-60 (2d Cir. 2004), nor can he rely on his pleadings or on merely conclusory factual allegations. See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). He must also "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005). Rather, he must present specific evidence in support of his contention that there is a genuine dispute as to the material facts. See, e.g., Celotex, 477 U.S. at 324; Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir. 1994).
2. Assessment of the Motion
As noted, plaintiff initially asserted claims for false arrest, excessive force at the time of the arrest and failure to provide medical treatment. He appeared to assert all three claims against the three defendant officers. In the course of pretrial proceedings, however, plaintiff requested to withdraw his claims as against Officers Vaccaro and Wolfe, an application that we recommended be granted, see Bennett v. Vaccaro, 2009 WL 4043390 (S.D.N.Y. Nov. 10, 2009), and that the District Court has recently granted. (See Endorsed Order dated Apr. 5, 2011).
We are thus left with claims asserted against Officer Guglielmo. The factual record reflects that on the evening of February 14, 2008 Ms. Rosalia Binda, who worked at a CVS store in downtown New Rochelle, contacted the local police to report that Mr. Bennett had shoplifted three CD players from the store. Ms. Binda wished to have him arrested on this occasion because he had previously stolen inventory from that establishment. (Binda Dep. Tr. at 10, 15; Guglielmo Aff. ¶ 8 & Ex. K; see also Def's Mot. for Summ. J. Ex. C ("Bennett Dep. Tr."), 24, 27-28, 36-38).
Although plaintiff also sued Ms. Rosalia Binda, an employee at the CVS store, and although he served the summons and complaint on her on July 27, 2008 and she never responded, he has never sought a default against her. In any event, for reasons to be noted, since the only claim that could have been asserted against her grew out of her contacting the police to report that Bennett had stolen three CD players, his claims against her, however construed, would have to be dismissed. Finally, we note that he apparently commenced a separate lawsuit against her over the same incident and that complaint was dismissed for failure to state a claim. Bennett v. Rusalia, 10 Civ. 6151 (Order dated Aug. 17, 2010).
According to Mr. Bennett's deposition testimony, he had been inside the CVS that evening in search of medication. (Bennett Dep. Tr. at 41-42). In his testimony he appeared to admit that he had taken some items that day, but he was by no means clear on the subject. (Id. at 41-42, 74). He reported that some time after he left the store several patrol cars stopped near him, and a large number of officers approached and arrested him. (Id. at 63-64). He asserted that he recognized Officers Vaccaro, Wolfe and Guglielmo, with whom he had had previous encounters, and that on this occasion Officer Guglielmo had pulled out a taser gun and used it on him, twice striking him in his right calf, even though he was offering no resistance. (Id. at 64-67). According to Bennett, the taser caused him considerable pain and light-headedness before he lost consciousness. (Id. at 73, 76-77, 92).
At the time of Bennett's arrest, he complained to an unidentified African-American officer and asked him for medical attention. (Id. at 70-71). After Bennett's arrest, he was taken to police headquarters. At that stage, he says, he again requested medical attention, this time from an unidentified desk officer who was either a sergeant or a lieutenant. According to plaintiff, he was not given prompt medical attention. (Id. at 90-91).
In seeking summary judgment, defendants note that Bennett was charged with petit larceny (Guglielmo Aff. ¶ 14) and later pled guilty to shoplifting charges based on his theft of the three CD players. (Defs.' Rule 56 Statement ¶ 56 & Def's Mot. for Summ. J. Ex. M; Bennett Dep. Tr. at 85, 98-99). They also proffer affirmations from Officer Guglielmo and an Officer Adrian Navarette of the New Rochelle Police Department. The general purport of these affirmations is that Officer Guglielmo had not been issued a taser gun by the Department at the time of the incident and that he had not been present at plaintiff's arrest although he had been involved in the case, since he had gone to the CVS store in question and taken a written statement from Ms. Binda. (Guglielmo Aff. ¶¶ 5-6, 15, 17-18; see also Navarette Aff. ¶¶ 5-8).
Bennett's responsive papers, which are found in a series of submissions to the court, are less than a model of clarity. (See, e.g., Pl's Aff. in Opp'n to Mot., ¶ 6, Feb. 24, 2010 ("Wherefore Plaintiff is Denying all and every parts of some but mainly most of Summary Judgment and will not Continue to Congest the Courts Vailuble [sic] Time."); see also Pl's Aff. in Opp'n to Mot, Mar. 27, 2010; Pl's Aff. In Opp'n to Mot., Apr. 8, 2010; Pl's Aff. In Opp'n to Mot., June 18, 2010). Indeed, much of his writing is incoherent. At one point, however, he reiterates that Officer Guglielmo tasered him at the time of his arrest and in still another brief reference to the incident he says that this defendant used either a taser gun or mace. (Pl's Aff. in Opp'n, ¶ 1, Feb. 24, 2010; Pl's Aff. in Opp'n, ¶ 6, Mar. 27, 2010).
With this record before us, we address each of the plaintiff's claims sequentially.
a. False Arrest
Plaintiff's first claim is, in substance, for false arrest. To prevail on a false-arrest claim, the plaintiff must demonstrate that the arresting officers seized him without probable cause. See, e.g., Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004); Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Plaintiff does not even attempt to make such a case. As noted, the police received a complaint from Ms. Binda, who reported that she had observed Bennett, whom she knew from prior similar incidents, misappropriate three CD players and walk out of the store without paying for them. (Binda Dep. Tr. at 10-11; Guglielmo Aff. ¶ 8 & Ex. K). This report by an eye-witness was unquestionably sufficient for the police to arrest Bennett, see, e.g., Maliha v. Faluotico, 286 F. Appx. 742, 743-33 (2d Cir. 2008); Curley v. Village of Suffern, 268 F.3d 65, 69-70 (2d Cir. 2001); Singer v. Fulton County, 63 F.3d 110, 119 (2d Cir. 1995), and indeed Bennett later admitted his guilt in pleading to larceny charges in New Rochelle City Court. In short, it is evident beyond triable dispute that the police had probable cause to make the arrest. Since the existence of probable cause is a complete defense to a claim of false arrest, see, e.g., Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006); Saving v. City of New York, 331 F.3d 63, 76 (2d Cir. 2003); Weyant, 101 F.3d at 852, it is evident that this claim must fail.
b. Excessive Force
Plaintiff's excessive-force claim rests on the assertion that Officer Guglielmo used a taser gun on him when the police were arresting him. He contends, in substance, that the use of the taser was entirely unnecessary and constituted a wanton and unreasonable use of force in view of his lack of resistance to the arrest.
In seeking summary judgment, defendants do not argue that the use of a taser was constitutionally permissible under the circumstances. Rather, their sole argument is that Officer Guglielmo did not use a taser because (a) he did not have one and (2) he was not even present at the scene of the arrest, although he apparently later saw Bennett at the police headquarters following his arrest. In contrast, plaintiff insists that he was tasered by Guglielmo, an identification that appears to be based both on his alleged recognition of this officer from prior encounters and his seeing Guglielmo at the precinct after the arrest. According to plaintiff, all of the officers there were wearing name plates. (Bennett Dep. Tr. at 70, 81).
On its face the record thus presents a dispute as to a material fact -- whether Guglielmo was responsible for tasering plaintiff. Such a conflict would presumably be triable since its resolution turns on the respective credibility of Bennett and Guglielmo, and it is the role of the jury at trial, and not the court on summary judgment, to make credibility assessments. See, e.g., Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 725 (2d Cir. 2010); Scholastic, Inc. v. Harris, 259 F.3d 73, 87 (2d Cir. 2001).
In seeking to avoid this conclusion, defendants urge that the court "should pierce the veil of Bennett's excessive force allegation and grant summary judgment to Officer Guglielmo." (Defs.' Mem. of Law in Support of Summ. J., 7, Feb. 18 2010). In explanation, they assert that "[w]here plaintiff's version is supported solely upon his own contradictory and incomplete testimony and where 'no reasonable person would undertake the suspension of disbelief necessary to give credit to the allegations made in the complaint,'" the court should grant summary judgment for the defendant. (Id. at 7-8) (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005)). The controlling language from Jeffreys, quoted by defendants, is that "when the facts alleged are so contradictory that doubt is cast upon their plausibility, [the court may] pierce the veil of the complaint's factual allegations and dismiss the claim." (Defs.' Mem. of Law at 8)(quoting Jeffreys, 426 F.3d at 555 (quoting Shabazz v. Pico, 994 F. Supp. 460, 470 (S.D.N.Y. 1998)).
Applying this approach to the current case, defendants assert that plaintiff's "allegations are simply so incredible and implausible" that the court should reject them. (Id. at 8). In substance they point to the declaration of Officer Guglielmo representing that he had not been trained in the use of, or issued, a taser gun and that he had not been present for the arrest of plaintiff. Additional, albeit very general, support is provided by Officer Navarette, who states that although the New Rochelle Police Department has acquired such weaponry, it does not issue such equipment to any officer unless that officer has been trained and certified in its use, and that the Department distributed tasers only to officers whose functions may justify its use, including officers in the Critical Incident Unit and to supervisors -- including sergeants and lieutenants -- in the Patrol Services Division. Navarette goes on to conclude that "[i]n February 2008 non-supervisory officers assigned to patrol were not issued Tasers." (Aff. of Navarette ¶ 8).
We conclude that although plaintiff's insistence that in fact Officer Guglielmo tasered him may be open to serious question on the current, and likely the trial, record, that is insufficient to justify deciding what is in fact a credibility issue on the basis of a summary-judgment motion. Moreover, in so concluding, we view the Second Circuit decision cited by defendants in support of their contrary view to be readily distinguishable.
We start with the undisputed understanding that summary judgment is not to be granted on the basis of credibility assessments. That function is for the trier of fact. E.g., Fincher, 604 F.3d at 725.
In seeking a court ruling that would, in substance, reject the otherwise competent and admissible testimony of Bennett as to what occurred at the time of his arrest -- that is, that Guglielmo was present and used a taser without justification -- defendants rely principally on the Second Circuit's decision in Jeffreys v. City of New York, 426 F.3d at 554-55, in which the Court affirmed the grant of summary judgment against a plaintiff who had alleged that, while unlawfully present in a school building, he had been set upon by a group of police officers, who severely beat him -- including with a flashlight used to strike him repeatedly on the head -- and then threw him out of a third-floor window. Id. at 551. According to Jeffreys, he was rendered unconscious but woke up lying on the ground outside the building and inferred that he had been thrown out of the window by the police. Id. In affirming summary judgment, the Court acknowledged that there were conflicts between the plaintiff's testimony about these allegations and the accounts of the officers, but it then focused on the question of whether the disputes were "genuine," that is, "whether 'the jury could reasonably find for the plaintiff.'" Id. at 553 (quoting Anderson, 477 U.S. at 252).
The Court recounted the differing testimonial versions of Jeffreys and the officers, one of whom reported that he had discovered Jeffreys hiding under a desk in the school, and that Jeffreys had fled by running to a window and jumping out, at which point the officer had called to his companions outside that he believed (albeit mistakenly) that Jeffreys was fleeing by way of a fire escape. The other officers reported that they had not entered the classroom in question while Jeffreys was there. The Court further recited, as a plainly crucial point, that it was undisputed that on three separate occasions within hours or days after the incident, Jeffreys had admitted (to medical personnel, to a sergeant and to prison screening personnel) that he had in fact jumped or run out of a window, and on one occasion he further admitted that he had injured himself and made no mention of being attacked by the police. Id. at 552. The panel also noted that, insofar as Jeffreys alleged that he had been beaten in the classroom, he was unable to identify or even describe any of the officers involved. Finally, the Court observed that Jeffreys was subsequently prosecuted and pled to numerous burglaries, and that throughout the criminal proceedings he never mentioned either being beaten by any police officers or being thrown out of the classroom window, and the contemporaneous medical records were inconsistent with his claim of being beaten about the head by the police. Id. at 552-53.
Given this prior history of admissions by Jeffreys, the Court upheld the grant of summary judgment based on the District Court's determination that "'Jeffreys'[s] own testimony [was] so replete with inconsistencies and improbabilities that a reasonable jury could not find that excessive force was used against him.'" Id. at 553 (quoting 275 F. Supp.2d 463, 475 (S.D.N.Y. 2003)). Indeed, the panel upheld the grant of Rule 56 relief specifically because the lower court had "found nothing in the record to support plaintiff's allegations other than plaintiff's own contradictory and incomplete testimony." Id. at 555. See also id. ("'when the facts alleged are so contradictory that doubt is cast upon their plausibility, [the court may] pierce the veil of the complaint's factual allegations . . . and dismiss the claim.'") (quoting Shabazz, 994 F. Supp. at 470). Only in such circumstances did the Court agree that the defendants had "me[]t the difficult burden of demonstrating that there is no evidence in the record upon which a reasonable factfinder could base a verdict in the plaintiff's favor." Id. at 554 (citing Fischl v. Armitaqe, 128 F.3d 50, 56 (2d Cir. 1997)). Indeed, the Second Circuit has since recognized precisely this distinction in declining to apply Jeffreys when the plaintiff's own testimony is not self-contradictory or facially wholly implausible. See Fincher, 604 F.3d at 725-26.
This focus in Jeffreys on whether the plaintiff's own testimony -- if otherwise unsupported -- betrays facial inconsistencies or implausibilities finds analytical support in a line of Second Circuit decisions that have held that a plaintiff may not use an affidavit to create issues of fact, and thereby avoid summary judgment, if his affidavit testimony would contradict admissions that he had previously made at his deposition. See, e.g., Estate of Hamilton v. City of New York, 627 F.3d 50, 54 (2d Cir. 2010); Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987). The point is that a plaintiff may not manipulatively alter the record in a such a manner that his Rule 56 testimony is on its face or in the context of all of his statements, either contradictory or so implausible as to preclude credence by a reasonable trier of fact. That is precisely why Jeffreys's case was dismissed.
In contrast, defendants here do not establish that Bennett's testimony is, either on its face or in light of any other statements he has made, so self-contradictory or implausible as to rule out crediting it. There is no indication in the current record that Bennett has ever contradicted his current version of his arrest. As for inherent implausibility, the notion that a suspect who is arrested by a group of police officers may be subjected to the use of a taser by an identifiable officer is not in itself so implausible as to require summary judgment. See Fincher, 604 F.3d at 725-26.
Defendants make much of the fact that at one point in Bennett's motion papers he refers to having been maced at the time of his arrest. (Def.'s Reply Mem. of Law in Further Support of Summ. J., 2, Mar. 24, 2010; for plaintiff's allegations of Office Guglielmo's use of mace, see Pl's Aff. in Opp'n ¶ 1, Feb. 24, 2010). This assertion by plaintiff, not previously made, would obviously be ineffective to avoid an otherwise meritorious summary-judgment motion, but it is not inconsistent with plaintiff's consistently made allegation and testimony that Officer Guglielmo tasered him.
In substance, defendants rely exclusively on an invitation to the court to weigh the credibility of Bennett's consistent and not facially implausible account against that of Officer Guglielmo, supported marginally by that of Officer Navarette. The thrust of their testimony -- principally that of Officer Guglielmo -- is, in substance, that (1) Guglielmo was not armed with a taser and (2) that he was not present at plaintiff's arrest. Defendants' proffer indicates that Guglielmo was not issued a taser by the New Rochelle Police Department though other police personnel were given such weaponry. That does not, however, preclude the possibility that he had access to such a weapon through one of his fellow officers, whether routinely or solely for the occasion of Bennett's arrest. While that prospect may be unlikely, we cannot say that it is so implausible as to defy common sense. Defendants also proffer Guglielmo's testimony that he was not present at the arrest. This devolves into a dispute between plaintiff and defendant Guglielmo over that historical fact, but Guglielmo's denial (not supported, we note, by the testimony of any other officer at the scene) does not dictate that plaintiff's testimony on this point is so implausible as to justify summary judgment.
Navarette does not refer to Guglielmo or directly support either of these testimonial assertions by the defendant and only reports that the Department did not distribute tasers to regular patrol officers.
We note that defendants themselves document the fact that Bennett has had many run-ins with the New Rochelle police. (See, e.g., Defs.' Rule 56.1 Statement at ¶¶ 13-14 & Exs. E-F). It is not entirely implausible that police officers forced to deal repeatedly with an obstreperous member of the public might be inclined finally to treat him somewhat more harshly than they would other, more cooperative citizens.
We also note that in defendants' memorandum of law they argue that Guglielmo could not have been present at the arrest because at the time he was at the CVS store taking a written statement from Ms. Binda. (Defs.' Mem. of Law at 6). That assertion, however, is not demonstrated beyond triable dispute by the affidavit of Officer Guglielmo or by any other evidence in the record. The affidavit states that Guglielmo went to the CVS at some point after Ms. Binda had notified the Police Department of the incident with Bennett, and Guglielmo asserts that he first saw plaintiff that evening at the station house. The record does not reflect, however, the precise time when Guglielmo was at the CVS or when the arrest took place. Hence defendants fail to meet their initial burden to establish that Guglielmo could not have been present at the arrest.
In sum, we recommend that this portion of defendants' summary-judgment motion be denied.
c. Denial of Medical Treatment
Plaintiff asserts that at the time of his arrest and after being taken to the police station house, he asked for medical treatment for his taser-related injury, and the police failed to take him for prompt treatment. In his deposition testimony, he reported that he had made this request to an unidentified African-American police officer during his arrest, and that at the station house he had made a similar request to the desk officer, who was either a sergeant or a lieutenant.
The only remaining police defendant is Officer Guglielmo, and the testimony of the plaintiff makes it apparent that he was neither the officer on the scene nor the desk officer to whom plaintiff addressed a request for medical help. (Bennett Dep. Tr. at 90-91). While it is conceivable that an arrestee may be self-evidently so badly in need of medical help that the failure of an officer to provide it could be a basis for a failure-to-treat claim even absent an explicit request, the record reflects no such evidence. Moreover, defendants' motion targeted the specific question of Officer Guglielmo's responsibility for any denial of care (Defs.' Mem. of Law at 10), and plaintiff has failed to proffer any evidence to suggest that Guglielmo was aware of a dire need for such treatment and ignored it.
To establish a claim for denial of medical care, the plaintiff must demonstrate that the defendant exhibited "'deliberate indifference to [his] serious medical needs.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This two-part test embodies both an objective and a subjective component. The physical condition of the plaintiff must be sufficiently serious, and the failure to render proper care must result from "a sufficiently culpable state of mind." Id. at 66 (citing, inter alia, Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Accord Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). An official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Defendants' motion appears to rest solely on the absence of proof of deliberate indifference, that is, the subjective component of the test. This follows from their assertion that plaintiff never asked Officer Guglielmo for help. Plaintiff neither seeks to contradict that assertion, which was based on his own testimony, nor to show that he was in such extreme and obvious need of medical attention that Guglielmo should have been aware of it, was in a position to obtain such help and declined to do so.
In sum, plaintiff's claim for denial of medical care should be dismissed on summary judgment for lack of proof of one of the two essential elements of the claim.
C. Plaintiff's Default Motion
Plaintiff has recently moved for entry of a default against defendants, apparently -- although not clearly -- premised on the notion that they failed to answer the complaint in a timely fashion in 2008. (See Pl's Mot. for Default, 1, Jan. 10, 2011 ("Defendant(s) has Defaulted in this Action and Time has elasped" [sic]). Plaintiff fails to demonstrate that the defendants' answer, which was served on June 18, 2008 and filed the next day, was untimely. Moreover, for reasons amply reflected in this report and recommendation, we conclude that the defendants have a more than colorable defense. Under these circumstances, plaintiff's default motion must be denied.
Indeed, the docket sheet (items 6-9) reflect that service was made on all of the defendants between May 28, 2008 -- the date on which the statements of service were mailed by the United States Marshal -- and June 27, 2008, the date on which defendants mailed their acknowledgments of service to the Marshals.
CONCLUSION
We recommend that the plaintiff be stripped of his in forma pauperis designation and that the complaint be dismissed if plaintiff does not pay the required filing fee within thirty days thereafter. Alternatively, in the event that the complaint is not otherwise dismissed, we recommend that summary judgment be granted to defendant Christopher Guglielmo dismissing the plaintiff's claims for failure to provide medical treatment and false arrest, but that summary judgment be denied with respect to the claim for excessive force. We further recommend that the complaint be dismissed as against defendant Rosalia Binda. Finally, we recommend that plaintiff's default motion be denied.
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to the Report and Recommendation portion of this submission. See also Fed. R. Civ. P. 6(a), 6(d). Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Laura Taylor Swain, Room 755, and to the chambers of the undersigned, Room 1670, U.S. Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Thomas v. Arn, 474 U.S. 140, 150-55 (1985), reh'g denied, 474 U.S. 1111 (1986). Dated: New York, New York
April 11, 2011
/s/_________
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Report and Recommendation have been mailed today to: Mr. Donald Mack Bennett
Westchester County Jail
P.O. Box 10
Valhalla, New York 10595 Lalit K. Loomba, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
3 Gannett Drive
White Plains, New York 10604