Cruz v. Reiner et al
MEMORANDUM DECISION AND ORDER granting defendants' motion for summary judgment. See attached decision. Ordered by Judge Brian M. Cogan on 10/16/2013 (c/m by Chambers). (Cogan, Brian)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against JONATHAN REINER et al.,
DECISION AND ORDER
11 Civ. 2131 (BMC)
COGAN, District Judge.
In this action under 42 U.S.C. § 1983, plaintiff contends that he was held in pretrial
detention without food, water or use of a bathroom for five days. The question raised by
defendants’ motion for summary judgment is whether plaintiff can raise an issue of fact based
solely on his uncorroborated version of the events where (a) he contradicted a material portion of
his allegations in his deposition; and (b) contemporaneously prepared business records of the
police department, including some prepared by officers uninvolved in this case, directly refute
his version of the facts. I hold that no reasonable jury could find for plaintiff under these
circumstances, and therefore grant defendants’ motion for summary judgment.
I have previously set forth the facts as alleged by plaintiff in a decision partially granting
defendants’ prior motion for summary judgment, Cruz v. Reiner, No. 11 Civ. 2131 (E.D.N.Y.
Aug. 5, 2013), familiarity with which is assumed. To summarize, that decision held that plaintiff
had failed to raise a factual issue as to the deprivation of his constitutional rights from the time of
his arrest on February 22nd until at least February 23, 2010 at 8:16 p.m. The essential point of
plaintiff’s story is that he was arrested on February 22, 2010 and held in the District Attorney’s
office without food, water or the use of a bathroom until either February 27 or February 28. But
in his deposition, plaintiff testified that during this period, when he was in custody at the District
Attorney’s office, he was repeatedly given water, access to a bathroom, and under his own
version of the facts, he had never asked for food.
I granted permission to defendants to renew their motion for summary judgment if they
could demonstrate as a matter of law that after February 23, 2010, plaintiff was no longer in
custody in the District Attorney’s office, as he claimed, but instead had been transferred to
Central Booking and thus was no longer under the control of defendants in this action.
Defendants have accordingly renewed their motion. The documents submitted and the
affidavits explaining them conclusively refute plaintiff’s allegations that he was held at the
District Attorney’s Office after February 23, 2010. Central Booking maintains an intake log,
confirming that he had arrived there for his arraignment between 7:43 p.m. and 7:58 p.m. The
log entry was written and signed at Central Booking by a Detective Dauge, who has nothing to
do with this case; he was merely in charge of escorting prisoners through Central Booking on the
day in question. His personal memo book and affidavit confirm the Central Booking log. In
addition, plaintiff received medical screening at Central Booking prior to his arraignment at 8:04
p.m. We know this from his medical screening form, which was time-stamped. The Central
Booking lodging process was completed at 8:16 p.m.
Perhaps most importantly, Central Booking maintains “court pen log book” which show
he remained there until 3:20 p.m. on February 25. Because that entry classifies him as a
“holdover,” we know he was there on February 24 as well. These logs do reflect that he was
taken back to the DA’s office on February 25 at 10:44 a.m. by defendant Det. Cooke, but it also
shows that he was back at Central Booking by 3:25 p.m. because that is when he was arraigned.
Again, while Det. Cooke’s personal memo book is consistent with these movements, the court’s
pen log book is not maintained by him or any other officer with any connection to this case.
After his arraignment, we can rely on plaintiff’s own version of what happened next. He
admitted in his deposition that once he was arraigned, he was transported to Rikers Island.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10
(1986). The moving party has the burden of demonstrating that there is no genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). “When
a motion for summary judgment is made and supported . . . an adverse party may not rest upon
the mere allegations or denials of the . . . pleading, but the adverse party’s response, by affidavits
or as otherwise provided in [Federal Rule of Civil Procedure 56(e)], must set forth specific facts
showing that there is a genuine issue for trial.” St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir.
2000) (quoting Fed. R. Civ. P. 56(e)). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment[.]” Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) (alteration
and emphasis in original) (citation omitted). However, it is well settled that on a motion for
summary judgment, the court must construe the evidence in the light most favorable to the nonmoving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir. 1999).
Where the plaintiff is pro se, the court must view the submissions by a more lenient
standard than that accorded to “formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520-21, 92 S.Ct. 594, 596 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)
(a court is to read a pro se party’s “supporting papers liberally, and . . . interpret them to raise the
strongest arguments that they suggest”). The Second Circuit has thus stated that “[i]mplicit in
the right to self-representation is an obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent forfeiture of important rights because of
their lack of legal training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Any ambiguities
and inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party. LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995).
Nevertheless, “[t]he mere 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.” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. This is consistent with the express
language of Rule 56 that a factual issue must be “genuine,” not feigned or spectral, to warrant
denial of a summary judgment motion. The requirement of detecting a genuine issue of fact
finds substance in the principle that despite some evidence in opposition to a summary judgment
motion, if “no reasonable jury could have believed” the opponent’s version of the events,
summary judgment is appropriate. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 1776
Scott illustrates that just because a party opposing summary judgment submits a sworn
statement giving his version of the events, a factual issue will not be deemed to exist if other
evidence shows that the statement cannot be credited. In Scott, the plaintiff brought an action
under 28 U.S.C. § 1983 after a police officer rammed the plaintiff’s vehicle at high speed from
the rear, causing the plaintiff to crash and rendering him quadriplegic. Both the district and
circuit courts denied the police officer’s motion for summary judgment on qualified immunity
grounds. These courts relied on plaintiff’s pretrial testimony that although he was speeding and
refusing to obey the police officer’s direction to pull over, “there was little, if any, actual threat
to pedestrians or other motorists, as the roads were mostly empty and [the plaintiff] remained in
control of his vehicle,” and that he had slowed for turns and intersections, and used his indicators
for turns. Id. at 378, 127 S.Ct. at 1775 (internal citation omitted). The lower courts found
corroboration for the plaintiff’s testimony because the police department, in response to the
defendant officer’s radio alerts, had closed off the roadway so that the public could not enter.
They reasoned that before a police officer could use what amounted to deadly force in such
circumstances, there had to be some threat to the public, and that if a jury accepted the plaintiff’s
view that he was in control of his car and signaling properly on a road where the public was not
present, then the police officer could be liable for the results of ramming him.
In reversing, the Supreme Court noted that the parties’ sworn testimony was
diametrically opposed as to the conditions of the chase, and that, normally, “[w]hen things are in
such a posture, courts are required to view the facts and draw reasonable inferences in the light
most favorable to the party opposing the [summary judgment] motion.” Id. Nevertheless, the
Court observed that there was a “wrinkle in this case: existence in the record of a videotape
capturing the events in question.” Id. Based on its review of the videotape, the Court held that
no reasonable jury could credit the plaintiff’s version of the events, and that the plaintiff’s
testimony was therefore insufficient to raise a genuine issue of fact. It reached this conclusion
even though Justice Stevens, in dissent, observed that “[r]ather than supporting the [Court’s]
conclusion . . . the [video]tape actually confirms, rather than contradicts, the lower courts’
appraisal of the factual questions at issue.” Id. at 390, 127 S.Ct. at 1781.
As the disagreement between the majority and the dissent in Scott suggests, the principle
that sufficient evidence can overcome an unsupported version of facts, while to be invoked
sparingly, need not be confined to recordings because recordings themselves are rarely 100%
conclusive. Other cases have rejected uncorroborated claims either because the plaintiff in those
cases contradicted his own statements or because overwhelming documentary or neutral party
evidence showed that a jury would be unreasonable in accepting the plaintiff’s version of the
In Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011), for
example, a Title VII case, the plaintiff opposed summary judgment solely on the basis of her
affidavit and sworn deposition testimony. Not only did these contradict her own prior sworn
statements, but the defendant “submitted competent and persuasive evidence” that refuted her
position on summary judgment. Id. at 105. The Second Circuit affirmed the district court’s
order granting summary judgment because “in certain cases a party’s inconsistent and
contradictory statements transcend credibility concerns and go to the heart of whether the party
has raised genuine issues of material fact to be decided by a jury.” Id. at 106.
Similarly, in Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), the plaintiff
claimed that the police had beaten him during his arrest without provocation. But because he
had never mentioned the beating during his post-arrest confession or medical examinations, the
Second Circuit held:
While it is undoubtedly the duty of district courts not to weigh the credibility of
the parties at the summary judgment stage, in the rare circumstance where the
plaintiff relies almost exclusively on his own testimony, much of which is
contradictory and incomplete, it will be impossible for a district court to
determine whether “the jury could reasonably find for the plaintiff,” and thus
whether there are any “genuine” issues of material fact, without making some
assessment of the plaintiff’s account.
Id. at 554 (citation omitted). Accord, Bilan v. Davis, No. 11 Civ. 5509, 2013 WL 3940562
(S.D.N.Y. July 31, 2013); Taylor v. Ridley, 904 F. Supp. 2d 222, 232 (E.D.N.Y. 2012) (“this is
one of those ‘extraordinary cases’ in which no reasonable factfinder could conclude in favor of
plaintiff on his excessive force claim because that claim relies almost exclusively upon plaintiff’s
allegations in his complaint, which are unexplainedly inconsistent and contradictory with his
testimony at the criminal trial and his deposition, at least in terms of the force allegedly used
during his arrest, and are uncorroborated by any independent evidence in the record”) (citation
omitted); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 468-71 (S.D.N.Y. 1998) (Sotomayor,
These cases compel the result here. The entirety of plaintiff’s remaining claim is that he
was held in the District Attorney’s office for either four or five days with no water, food, or
bathroom access. But we know from his own testimony that he in fact had water and bathroom
access and that for the relatively brief time he was in the District Attorney’s office, on February
22nd and 23rd, he never asked for any food (accepting his version of the events; the officer states
that he offered plaintiff food and plaintiff refused it). We also know, from unimpeached
business records, that plaintiff was at Central Booking from February 23rd to through February
25th (with one brief return back to the District Attorney’s office), and we also know, again from
plaintiff’s own testimony, that after his arraignment on February 25th, he was taken to Rikers
Island, with no indication that he ever returned.
I cannot see empaneling a jury based on plaintiff’s self-contradicted and documentary
evidence-contradicted story. It seems highly likely that a jury would reject it, but if it did not, I
would have no choice to but to set it aside because it would be unreasonable. Defendants have
met the standard for obtaining summary judgment.
Defendants’ motion for summary judgment is granted. The Court certifies that an appeal
from this decision and order would not be taken in good faith and therefore in forma pauperis
status is denied for purposes of an appeal. The Clerk is directed to enter judgment against
plaintiff and in favor of defendants dismissing the complaint. 1
Digitally signed by
Brian M. Cogan
Dated: Brooklyn, New York
October 16, 2013
Plaintiff has filed over twenty motions during the course of this case and at least one interlocutory appeal to the
Circuit, as well as an appeal to me from a discovery ruling by Magistrate Judge Gold. A few of plaintiff’s motions
remain outstanding. Of note is his motion for an extension of time  to file opposition to defendants’ summary
judgment motion. I am denying that motion for a number of reasons: (a) I had already granted him a lengthy
extension to put in opposition; (b) he already made a submission that appears to be opposition ; (c) he has
moved for summary judgment himself at least three times, one of which is still pending; (d) although claiming that
he needs more time, plaintiff, simultaneously with filing his motion for an extension, filed a motion for
reconsideration  of my prior Order granting partial summary judgment, which addresses the same issues; (e)
plaintiff’s prior filings have not been illuminating; and (f) I see no way that plaintiff could overcome his own
contradictions or the business records that defendants have submitted. The remainder of plaintiff’s pending motions
are denied as moot or, like the motion for reconsideration, without merit.
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