Opinion
00 Civ. 4708 (DLC).
November 20, 2006
ORDER
Plaintiff Derek Sloane ("Sloane") brings the above-captioned action pursuant to 42 U.S.C. § 1983 to recover damages for injuries he allegedly suffered when defendants used excessive force against him while taking him into custody on March 29, 2000. Defendants filed a motion to dismiss the complaint, which was granted in part. Sloane v. Getz, No. 00 Civ. 4708 (DLC), 2001 WL 504879 (S.D.N.Y. May 10, 2001). Defendants subsequently moved for summary judgment, and plaintiff, who was then proceeding pro se, did not file any opposition.
Sloane's original complaint, as well as his two amended complaints, included additional claims and named additional defendants that have since been dismissed.
On September 25, 2002, an Opinion and Order (the "Opinion") was issued granting defendants' summary judgment motion. Sloane v. Getz, No. 00 Civ. 4708 (DLC), 2002 WL 31132968 (S.D.N.Y. Sept. 25, 2002), vacated, 150 F.App'x. 86 (2d Cir. 2005). The Opinion held that, because plaintiff failed to submit any evidence to support his claim that he was physically assaulted, defendants' version of events would be deemed admitted. Id. at *1, *6. On October 6, 2005, the Second Circuit vacated and remanded the judgment. Sloane v. Getz, 150 F.App'x. 86 (2d Cir. 2005). The court noted that defendants had submitted the transcript of Sloane's deposition, during which he testified that he had been grabbed from behind by defendants and thrown to the ground. The circuit held that
[t]he district court was not permitted to discount these statements by Sloane, which were before the court in a deposition submitted with the defendants' motion, and which created a material issue of disputed fact.Id. at 88 (emphasis supplied).
Following additional discovery, defendants renew their motion for summary judgment. They argue, citing the Second Circuit, that when a party's factual allegations are so implausible that "no reasonable person would undertake the suspension of disbelief necessary" to credit them, summary judgment may be granted.Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) (citation omitted). Defendants have not shown, however, that Sloane's contentions rise to this level. In any event, the Second Circuit has already ruled squarely on this issue, holding that Sloane's allegations "create a material issue of disputed fact" that precludes summary judgment.Sloane, 150 F.App'x. at 89. Defendants' motion is therefore denied.
SO ORDERED.