Jordan v Masterson et al

Filing 58

ORDER granting 43 Motion for Partial Summary Judgment. Signed by Judge Holly B. Fitzsimmons on 12/13/2011. (Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

VICTOR L. JORDAN, SR.,
Plaintiff,
v.

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:
:
:
:
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:

JAMES MASTERSON, et al.,
Defendants.

Case No. 3:10-cv-1293 (HBF)

RULING ON MOTION FOR PARTIAL SUMMARY JUDGMENT [Doc. #43]
The plaintiff, currently confined at the MacDougall-Walker
Correctional Center in Suffield, Connecticut, commenced this
civil rights action pro se against local and federal law
enforcement officials.

The plaintiff claims that the defendants

violated his constitutional rights to receive medical attention
and to be free from use of excessive force. Defendants Lieutenant
Patrick Deely, Sergeant Michael Ponzillo, Detective David
McKnight, Detective Orlando Rivera, Officer Brian Distefano and
Officer Timothy Brown,1 all members of the Waterbury,
Connecticut, Police Department (“the Waterbury defendants”), move
for entry of summary judgment on plaintiff’s claim for denial of
medical care and, as to defendants McKnight, Distefano and Brown,
on the claim for use of excessive force.

For the reasons that

follow, the motion for partial summary judgment is granted.

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The remaining defendants are James Masterson, Gerald Pinto
and Robert Martin, members of the United States Marshals Service
Violent Crimes Fugitive Task Force (“the federal defendants”).

I.

Standard of Review
In a motion for summary judgment, the burden is on the

moving party to establish that there are no genuine issues of
material fact in dispute and that it is therefore entitled to
judgment as a matter of law.

See Rule 56(c), Fed. R. Civ. P.;

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

The

moving party may satisfy this burden “by showing – that is
pointing out to the district court – that there is an absence of
evidence to support the nonmoving party’s case.”

PepsiCo, Inc.

v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam)
(internal quotation marks and citations omitted).

Once the

moving party meets this burden, the nonmoving party must “set
forth specific facts showing that there is a genuine issue for
trial,” Anderson, 477 U.S. at 255, and present such evidence as
would allow a jury to find in his favor in order to defeat the
motion for summary judgment.
F.3d 34, 38 (2d Cir. 2000).

Graham v. Long Island R.R., 230
Merely verifying the allegations of

the complaint in an affidavit is insufficient to oppose a motion
for summary judgment.

Zigmund v. Foster, 106 F. Supp. 2d 352,

356 (D. Conn. 2000) (citing cases).
When reviewing the record, the court resolves all
ambiguities and draws all permissible factual inferences in favor
of the party against whom summary judgment is sought.

Patterson

v. County of Oneida, NY, 375 F.3d 206, 218 (2d Cir. 2004).

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If

there is any evidence in the record on a material issue from
which a reasonable inference could be drawn in favor of the
nonmoving party, summary judgment is inappropriate.

Security

Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d
77, 83 (2d Cir. 2004).

However, “‘[t]he mere of existence of a

scintilla of evidence in support of the [plaintiff’s] position
will be insufficient; there must be evidence on which the jury
could reasonably find for the [plaintiff].’”

Dawson v. County of

Westchester, 373 F.3d 265, 272 (2d Cir. 2004) (quoting Anderson,
477 U.S. at 252)).
II.

Facts
On April 16, 2008, Lieutenant Patrick Deely, Sergeant

Michael Ponzillo, Detective Orlando Rivera, Detective David
McKnight, Officer Brian Distefano and Officer Timothy Brown were
members of the Waterbury, Connecticut, Police Department and
Deputy United States Marshal James Masterson, Sergeant Gerald
Pinto and Detective Robert Martin (“the federal defendants”) were
members of the United States Marshals Service Violent Crimes
Fugitive Task Force (“the Task Force”).
The plaintiff was wanted by several Connecticut police
departments on outstanding felony warrants.

The Task Force was

charged with responsibility to apprehend the plaintiff.

In April

2008, Waterbury police officers and Task Force members learned
that the plaintiff was staying at a residence in Waterbury.

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In the early morning hours of April 16, 2008, the Waterbury
and federal defendants went to that residence.

Upon arrival,

defendants McKnight, Distefano and Brown secured a perimeter
around the residence.

After the perimeter had been established,

defendants Deely, Ponzillo and Rivera, along with the federal
defendants, entered the residence.

The plaintiff states that

excessive force was used against him only in a bedroom of the
residence.

Defendants McKnight, Distefano and Brown never

entered the residence.
In April 2008, all of the Waterbury defendants had been
trained and certified as Medical Response Technicians.

When the

plaintiff arrived at the police department, defendant McKnight
used a wet towel to wipe blood stains from the plaintiff’s face.
Defendant Rivera states that he applied gauze to a laceration on
the plaintiff’s head, but the plaintiff denies receiving this
treatment.

The following morning, the plaintiff was treated at

St. Mary’s Hospital in Waterbury for superficial injuries.

Since

then, the plaintiff continues to participate in strenuous
physical workouts including lifting weights and floor exercises.
III. Discussion
The Waterbury defendants argue that there is no evidence
that defendants McKnight, Distefano and Brown used excessive
force against the plaintiff or were present when excessive force
allegedly was used.

In addition, they argue that they were not

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deliberately indifferent to the plaintiff’s serious medical needs
and, even if the court finds that they were, they are entitled to
qualified immunity on this claim.
A.

Excessive Force

The plaintiff brings this action against the Waterbury
defendants pursuant to 42 U.S.C. § 1983.

To recover money

damages2 under section 1983, the plaintiff must show that each
defendant was personally involved in the constitutional
violation.

See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.

1995).
The use of excessive force in effecting an arrest violates
the Fourth Amendment’s prohibition against unreasonable seizures.
See Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (citing
Graham v. Connor, 490 U.S. 386, 395 (1989)).

In addition, an

officer who did not physically participate in the arrest may be
liable for failure to intervene to prevent the use of excessive
force by other officers.

See McLaurin v. Falcone, No. 04-4849-

CV, 2007 WL 247728, at *1 (2d Cir. Jan. 25, 2007) (citing O’Neill
v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)).

Thus, to survive

summary judgment, the plaintiff must present evidence suggesting

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The plaintiff did not specify any relief in his complaint.
In the Initial Review Order filed on September 9, 2010, the
court, Hall, U.S.D.J., construed the complaint as seeking damages
from the defendants in their individual capacities. See Doc. #4,
at 1. Since then, the plaintiff has not amended his complaint to
include a request for any other relief.
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that defendants McKnight, Distefano and Brown either used
excessive force against him or were present and failed to
intervene to prevent the use of excessive force.
In his deposition, the plaintiff stated that excessive force
was used against him only in the bedroom of the residence.
Doc. #43, Defs.’ Mem. Ex. A at 45-62.

See

Defendants McKnight,

Distefano and Brown state in response to the plaintiff’s
interrogatories that they did not enter the residence.

Their

statements are supported by the interrogatory responses of all of
the other defendants.

In his Local Rule 56(a)2 Statement, the

plaintiff refuses to admit that defendants McKnight, Distefano
and Brown did not enter the residence, but concedes that he has
no knowledge of any facts indicating that defendants McKnight,
Distefano and Brown were present when excessive force allegedly
was used.

See Doc. #57, ¶ 12.

Accordingly, the Waterbury

defendants’ motion for partial summary judgment is granted as to
the excessive force claims against defendants McKnight, Distefano
and Brown.
B.

Denial of Medical Treatment

The Waterbury defendants argue that they did not
unconstitutionally deny the plaintiff medical care because the
plaintiff did not suffer a serious medical need.
“The Due Process Clause ... require[s] the responsible
government or governmental agency to provide medical care to

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persons ... who have been injured while being apprehended by the
police.”

City of Revere v. Massachusetts General Hosp., 463 U.S.

239, 244 (1983).

When considering the contours of such claims,

the Supreme Court has directed courts to look to the standards
applicable under the Eighth Amendment.

See County of Sacramento

v. Lewis, 523 U.S. 833, 849-50 (1998).
To establish a claim for denial of medical care, the
plaintiff must demonstrate that the defendant was
“‘deliberate[ly] 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).
Courts considering similar claims have held that bruises and

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lacerations are not always serious medical needs.

See, e.g.,

Dawes v. Coughlin, 159 F.3d 1346, 1998 WL 513944, at *1 (2d Cir.
1998) (1.5" laceration on elbow not sufficiently serious to
support Eighth Amendment claim); Dallio v. Hebert, 678 F. Supp.
2d 35, 60 (N.D.N.Y. 2009) (holding that black eyes, bruising, red
spots, kick marks, and lacerations did not constitute a serious
medical need); Rodriguez v. Mercado, No. 00 CIV. 8588 JSRFM, 2002
WL 1997885, at *3, 8 (S.D.N.Y. Aug. 28, 2002) (finding that
bruises to plaintiff’s head, back and wrists, accompanied by back
pain and migraines but no loss of consciousness, did not
constitute a medical condition that was sufficiently serious for
purposes of Eighth Amendment); Jesionowski v. Beck, 937 F. Supp.
95, 102-03 (D. Mass. 1996) (forehead laceration causing profuse
bleeding and requiring sutures was not a serious medical need);
but see, e.g., Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998) (“[I]f prison official deliberately ignore the fact that a
prisoner has a five-inch gash on his cheek that is becoming
infected, the failure to provide appropriate treatment might well
violate the Eighth Amendment.”); Nelson v. Scoggy, 2009 WL
5216955, at *3 (N.D.N.Y. Dec. 30, 2009) (gaping and oozing wound
that required repeated dressing changes and would not heal
constitutes serious medical need).
The Waterbury defendants, all certified Medical Response
Technicians, argue that they did not identify any serious medical

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need that required immediate medical attention.

The plaintiff

was treated in the Emergency Room at St. Mary’s Hospital on the
morning of April 17, 2008, the day after his arrest.

The

treatment report shows that CT scans of the head, face and
cervical spine were negative, as were x-rays of the chest,
abdomen and pelvis.
cervical spine.

The plaintiff displayed no tenderness of the

He was diagnosed with contusions on his right

jaw, the lumbar area of his spine and scalp and two scalp
lacerations.

The lacerations were clean and superficial.

The

first was treated with three staples, the second with two
staples.

During the assessment, the plaintiff reported no pain,

a level of 0/10.

See Doc. #43, Ex. L, at 4 & 10.

Although the

plaintiff argues in opposition to the Waterbury defendants’
motion that he underwent cranial surgery, the medical records
indicate that the staples were applied in the emergency room
under local anesthesia and that the plaintiff was released with
care instructions for minor head injuries.
The plaintiff was treated for two small superficial scalp
lacerations and instructed to return if his condition worsened.
Although the plaintiff was incarcerated thereafter, he provides
no evidence that his condition in fact worsened, that the
lacerations became infected or that he sought treatment from
prison medical staff.
The plaintiff argues that the various tests he was given at

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the hospital show that he had a serious medical need and that, as
trained medical technicians, the defendants should have known
that he needed immediate medical attention.

The plaintiff

provides no authority for these assumptions.
tests do not establish a serious medical need.

Negative medical
Rather, negative

test results demonstrate the absence of a serious medical need.
See, e.g., Barclay v. Shearin, 86 Fed. Appx. 495, 496 (3d Cir.
2004) (holding that summary judgment was appropriate because
inmate failed to establish serious medical need where test
results were negative); Jones v. USA, No. 09-CV-0033, 2009 WL
5083401, at *7 (W.D. La. Dec. 23, 2009) (“Nor has he alleged a
serious medical need, as the test results were negative for
kidney problems.”), appeal dismissed by Jones v. U.S. ex rel.
Dep’t of Justice, 412 Fed. Appx. 690 (5th Cir. 2011).
The court concludes that the plaintiff has not shown that he
had a serious medical need.

Thus, he fails to satisfy the

objective component of the test for deliberate indifference to
serious medical needs.

The Waterbury defendants’ motion for

partial summary judgment is granted as to the claim regarding
medical treatment.
IV.

Conclusion
The Waterbury defendants’ Motion for Partial Summary

Judgment [Doc. #43] is GRANTED.

The case will proceed on the

excessive force claim against the federal defendants and

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Waterbury defendants Deely, Ponzillo and Rivera.

The Clerk is

directed to terminate defendants McKnight, Distefano and Brown as
parties in this case.
This is not a recommended ruling.

The parties consented to

proceed before a United States Magistrate Judge [Doc. #32] on
June 6, 2011, with appeal to the Court of Appeals.
SO ORDERED this 13th day of December 2011, at Bridgeport,
Connecticut.
/s/
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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