Sherman v. Platosh et al

Filing 41

ORDER. For the reasons set forth herein, Defendants' Motion 38 for Summary Judgment is GRANTED. The case is DISMISSED. The Clerk is directed to close the case. Signed by Judge Michael P. Shea on 3/13/17. (Tegeler, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARK S. SHERMAN,
Plaintiff,

No. 3:15-cv-352 (MPS)

v.
JAMES A. PLATOSH and
BRYAN F. SEMBERSKY,
Defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Mark Sherman brings this case against Vernon Police Department officers James
Platosh and Bryan Sembersky under 42 U.S.C. § 1983 for use of excessive force in violation of
the Fourth Amendment. (ECF No. 24.) Mr. Sherman claims that the defendants arrested him and
verbally compelled him to enter a too-small police cruiser while he was in handcuffs, causing him
pain and injuries. On January 12, 2016, I dismissed the claims against the defendants in their
official capacities. (ECF No. 33.) The defendants have now moved for summary judgment on the
remaining individual capacity claims. (ECF No. 38.) As no reasonable juror could conclude that
defendants used excessive force in light of the undisputed facts, I GRANT the defendants’ motion
and DISMISS the case.
I.

Facts
The following facts are taken from the parties’ Local Rule 56(a) Statements and the

documents cited therein. See Defendants’ Local Rule 56(a)(1) Statement, ECF No. 38-2 (“Def.’s
LRS”); Plaintiff’s Local Rule 56(a)(2) Statement, ECF No. 39-1 (“Pl.’s LRS”). Facts are
undisputed unless otherwise stated.

1

On September 29, 2012, after finishing a ten-hour work day, Mr. Sherman went to the
Azteca restaurant in Manchester and drank three margaritas without eating. (Def.’s LRS ¶ 3; Pl.’s
LRS ¶ 3; ECF No. 38-3 at 3-4.) He then began to drive home. (Id.)
Officer Platosh pulled Mr. Sherman over and approached the driver’s side window. (Def.’s
LRS ¶¶ 6-7; Pl.’s LRS ¶¶ 6-7.) He observed that Mr. Sherman had bloodshot eyes, slurred speech,
and alcohol on his breath. (Id. ¶ 7.) Mr. Sherman stated that he had been drinking that evening,
and he was not able to recite the alphabet, count backwards, or pass a field sobriety test. (Id. ¶¶ 89, 11-12.) During this time, Officer Sembersky arrived on the scene. (Id. ¶ 10.) Officer Platosh
told Mr. Sherman that he was under arrest, and handcuffed his arms behind his back, checking the
handcuffs for proper fit. (Id. ¶ 13.) At that point, Mr. Sherman did not complain about the handcuffs
or mention any pain. (Id. ¶ 14.)
The defendants then told Mr. Sherman to get into the backseat of Officer Platosh’s smallsized police cruiser. (Def.’s LRS ¶ 15; Pl.’s LRS ¶¶ 15, B.4.) According to the defendants, Officer
Sembersky instructed Mr. Sherman on how properly to enter the cruiser, and Mr. Sherman ignored
those instructions. (Def.’s LRS ¶¶ 16-17.) Mr. Sherman does not recall receiving any such
instructions. (Pl.’s LRS ¶¶ 16-17; ECF No. 38-3 at 32.) Mr. Sherman, who is over six feet tall and
weighs 260 pounds, claims that the back seat of the non-standard police cruiser was obviously too
small for him, with plastic seats and a large hump in the center. (Pl.’s LRS ¶¶ 3-4.) He attempted
to place his left foot in the backseat but had trouble, and told the defendants he would not fit.
(Def.’s LRS ¶ 18; Pl.’s LRS ¶ 18.) Officer Sembersky responded, “Get in, you’ll fit,” in a manner
that Mr. Sherman describes as “[v]ery strict[].” (Id. ¶ 18; ECF No. 38-3 at 15.) Mr. Sherman then
attempted to place his foot in a second time, again had trouble, and told the defendants that he
would not fit. (Id.) Officer Sembersky repeated, “Get in, you’ll fit.” (Id.) According to Mr.

2

Sherman, “[a]t that time I was feeling quite intimidated and thought I’ll just comply to comply.”
(ECF No. 38-3 at 15.) Mr. Sherman entered the backseat of the vehicle without any assistance or
use of any force, and the defendants closed the door behind him. (Def.’s LRS ¶ 19; Pl.’s LRS ¶
19.)
According to Mr. Sherman, after he entered the vehicle, he was on his back with the
handcuffs pressed against the hard hump in the middle of the back seat, and “the pain was off the
charts, it was worse than broken ribs or the dislocated shoulder and the pain just got worse.” (Pl.’s
LRS ¶ B.6; ECF No. 38-3 at 17.) He began to scream in pain. (Def.’s LRS ¶ 20; Pl.’s LRS ¶ 20.)
Defendants claim, and Mr. Sherman disputes, that Officer Sembersky tried to explain how to
change position to avoid sitting on his wrists. (Id. ¶ 21.)
However, the parties agree that the defendants assisted Mr. Sherman out of the vehicle
within 15 to 30 seconds of his entering it. (Id. ¶¶ 22, 24.) The defendants had Mr. Sherman sit
cross-legged outside the vehicle, removed the handcuffs, and replaced them with two pairs of
handcuffs. (Id. ¶¶ 22-25.) Mr. Sherman did not find “anything inappropriate” about the way the
defendants assisted him out of the small cruiser. (Id. ¶ 23; ECF No. 38-3 at 23.) The defendants
then moved Mr. Sherman into the backseat of Officer Sembersky’s standard-sized police cruiser
and transported him to the station, where he was issued a misdemeanor summons for operating
under the influence and failing to give a proper signal. (Def.’s LRS ¶¶ 26-27; Pl.’s LRS ¶¶ 26-27.)
The Vernon Police Department later conducted an internal affairs investigation into the incident.
(Id. ¶ 30.)
Mr. Sherman claims that as a result of the incident, he has suffered serious and permanent
physical injuries to his wrist. (Pl.’s LRS ¶ B.9.)

3

II.

Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The “party seeking summary judgment bears the burden of establishing that no genuine
issue of material fact exists.” Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d
Cir. 1995). An issue of fact is “material” if it “might affect the outcome of the suit under the
governing law.” Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000) (citation
and quotation marks omitted). “A dispute regarding a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll.
of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (citation and quotation marks omitted). On
summary judgment, a court must “construe the facts in the light most favorable to the nonmoving
party and must resolve all ambiguities and draw all reasonable inferences against the movant.”
Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013) (citation and quotation marks
omitted). However, “conclusory statements, conjecture, or speculation by the party resisting the
motion will not defeat summary judgment.” Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996).
III.

Discussion
Mr. Sherman argues that the defendants used unreasonable force in violation of the Fourth

Amendment when they ordered him to enter the backseat of a police cruiser that was obviously
too small for him, while he was in handcuffs. (ECF No. 39.) No reasonable juror could so conclude
on this record.
“The Fourth Amendment protects against the use of excessive force by police officers in
carrying out an arrest.” Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999). “When determining
whether police officers have employed excessive force in the arrest context… courts should

4

examine whether the use of force is objectively unreasonable in light of the facts and circumstances
confronting them, without regard to the officers’ underlying intent or motivation.’” Jones v.
Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (citation, quotation marks, and alteration omitted). Courts
must make “allowance for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount
of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 397 (1989).
“Given the fact-specific nature of the inquiry, granting summary judgment against a plaintiff on
an excessive force claim is not appropriate unless no reasonable factfinder could conclude that the
officers' conduct was objectively unreasonable.” Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 123 (2d Cir. 2004).
It is unclear whether a claim of unreasonable force can succeed in the Second Circuit
without physical contact. See Marceline v. Delgado, 2011 WL 2531081, at *8 (D. Conn. June 23,
2011) (“[C]ourts within the Second Circuit have been reluctant to find an excessive force claim
where there is no physical contact present. However, other circuits have recognized excessiveforce claims in the absence of physical contact, particularly in cases where, as here, there were
allegations that officers unreasonably drew their firearms.” (internal citation omitted)); Easton v.
City of New York, 2009 WL 1767725, at *4 n. 5 (E.D.N.Y. June 23, 2009) (while “other circuits
have occasionally recognized excessive force claims even where no physical contact occurred,
such as where officers pointed guns at an arrestee....[,] [t]he Second Circuit has never before
recognized such a claim.”).
But even assuming physical contact were not required as a general matter, no reasonable
factfinder could find defendants’ conduct in this case to be “objectively unreasonable.” Construed
in the light most favorable to Mr. Sherman, the defendants arrested him with clear signs of drunk

5

driving, and ordered him to enter a police cruiser that was too small for him over his objections.1
Mr. Sherman acknowledges that he entered the cruiser without any physical contact from the
defendants, and that he was in the car for only 15 to 30 seconds. (Pl.’s LRS ¶¶ 19, 24.) He also
acknowledges that the defendants responded to his screams of pain within 15 to 30 seconds, by
assisting him out of the vehicle and removing the handcuffs. (Id. ¶¶ 22-25.) A “plaintiff's claim
[can] survive summary judgment on allegations that, during the course of an arrest, a police officer
twisted her arm, ‘yanked’ her, and threw her up against a car.” Maxwell v. City of N.Y., 380 F.3d
106, 108 (2d Cir. 2004) (citation omitted). But “the force used by a defendant must be more than
de minimis in order for a plaintiff's claim to be actionable.” Bell v. Chemung Cty., 2006 WL
839413, at *3 (W.D.N.Y. Mar. 27, 2006) (granting summary judgment where officer pushed and
pulled the plaintiff into the back seat of the car). “Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop necessarily carries with it the right
to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396.
In short, “it is clear that the force used by the officers—here no force—was objectively
reasonable under the circumstances.” Pelt v. City of N.Y., 2013 WL 4647500, at *14 (E.D.N.Y.
Aug. 28, 2013) (citation and quotation marks omitted).

1

Mr. Sherman does not argue that the decision to handcuff him was itself unreasonable. And
there is no evidence that it was, particularly in light of the undisputed fact that the defendants
checked for a proper fit and removed the handcuffs as soon as Mr. Sherman complained of pain
or discomfort. See Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459, 468
(S.D.N.Y. 2008) (“In evaluating the reasonableness of handcuffing, a Court is to consider
evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the plaintiff s
pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists.” (citation,
quotation marks, and alterations omitted)).

6

Because Mr. Sherman’s excessive force claim fails as a matter of law, I need not consider
the defendants’ qualified immunity defense. I note, however, that even if the conduct here rose to
the level of unreasonable force, “the very uncertainty surrounding this question [of whether force
can exist without physical contact] entitles the defendant to qualified immunity.” Snoussi v.
Bivona, 2008 WL 3992157, at *6 (E.D.N.Y. Aug. 22, 2008).
IV.

Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment (ECF No. 38) is

GRANTED. The case is DISMISSED. The Clerk is directed to close the case.

IT IS SO ORDERED.
/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
March 13, 2017

7