Alcantara v. Donaghue et al

Filing 86

MEMORANDUM & ORDER, Defendants' motion for summary judgment is granted in part and denied in part. The litigation may proceed solely as to Alcantara's failure-to-intervene claim. The parties are respectfully referred to Magistrate Judge Robert M. Levy for continued pre-trial management of this case. So Ordered by Judge Eric N. Vitaliano on 4/30/2022. (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CIRILO ALCANTARA,
:
:
Plaintiff,
:
:
-against:
:
RICHARD DIGANGI and JOHN WEIBURG,
:
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Defendants. :
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MEMORANDUM & ORDER
15-cv-5584 (ENV) (RML)

VITALIANO, D.J.
Plaintiff Cirilo Alcantara, currently incarcerated at Clinton Correctional Facility, brings
this pro se action under 42 U.S.C. § 1983, alleging that Officers Richard DiGangi and John
Weiburg, both members of the NYPD, used excessive force during his May 30, 2012 arrest and
then denied him timely access to medical treatment for the injuries he sustained during that
arrest. The parties engaged in discovery, and defendants now move for summary judgment on
all claims. Defs. Br., Dkt. 70.1 For the reasons that follow, defendants’ motion is granted in part
and denied in part.
Background
The underlying facts are drawn from the submissions of the parties, including defendants’
statement of undisputed material facts (“SOF”), Dkt. 75, which accepts plaintiff’s version of
events as true for purposes of the motion only.2 The facts are construed, as they must be in the

1

The Court denied a prior motion for summary judgment filed by defendants for failure to
follow Local Civil Rule 56.2 (Notice to Pro Se Litigant who Opposes a Motion for Summary
Judgment). See Dkt. 68. Their re-filed summary judgment motion is now in compliance with
Rule 56.2 and the order granting leave to re-file.
2

Defendants’ SOF complies with Local Civil Rule 56.1. That same rule requires plaintiff, as the
party opposing the motion, to submit a response to defendants’ SOF, indicating which facts are
1

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summary judgment context, in the light most favorable to Alcantara as the non-movant party.
Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007).
Though the parties quarrel over certain specifics of the confrontation between Alcantara
and Officers DiGangi and Weiburg, the core events surrounding plaintiff’s arrest are undisputed.
On May 30, 2012, from their home on Staten Island, Cirilo Alcantara’s stepsons called the police
to report that Alcantara had raped his daughter. SOF ¶ 1; CSOF ¶ 1. Upon learning that the
police had been called, Alcantara, who was “very drunk” at the time, went outside, hid
underneath his car, and fell asleep. SOF ¶¶ 2–4; CSOF ¶¶ 2–4. When Alcantara awoke several
hours later, his neighbor reiterated to him that the police had been called. SOF ¶ 4; CSOF ¶ 4.
Alcantara told his neighbor that he “didn’t want to go to jail,” the two men began “pushing and
shoving” each other and, eventually, his neighbor threw Alcantara to the ground. SOF ¶¶ 5–6;
Manningham Decl. Ex. B (Alcantara Dep.), Dkt. 72-2, at 24:14–25:13.
After the scuffle, officers DiGangi and Weiburg arrived on the scene and placed
Alcantara in handcuffs. SOF ¶¶ 7–8; CSOF ¶¶ 7–8. Alcantara then sat on the sidewalk and

in dispute. See Local Civ. R. 56.1(b)–(d). Ordinarily, “[a] nonmoving party's failure to respond
to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are
uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).
Although pro se litigants are not excused from the requirements of Rule 56.1, see Wali v. One
Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009), they are entitled to “special solicitude . .
. when confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344
(2d Cir. 1988). Here, Alcantara attached several pieces of evidence to, and argued the accuracy
of certain of defendants’ facts in, his initial opposition papers, but he did not submit a formal
counterstatement of facts in compliance with Rule 56.1(b). See generally Pl. Opp., Dkt. 80.
Plaintiff did, however, submit a counterstatement of facts with his sur-reply papers. See Pl. SurReply, Dkt. 85, at Ex. A (“CSOF”). Most, but not all, of the statements in plaintiff’s CSOF are
supported by citations to record evidence, as required by Rule 56.1(d). Accordingly, in light of
Alcantara’s pro se status, the Court has conducted an independent review of the record and will
consider, for purposes of the instant motion, plaintiff’s arguments that are in fact supported by
admissible record evidence. See Geldzahler v. New York Med. Coll., 746 F. Supp. 2d 618, 620
(S.D.N.Y. 2010); Wali, 678 F. Supp. 2d at 178. And, given plaintiff’s overall substantial
compliance with the rule, any Rule 56.1 deficiencies in his filings will not be considered as an
independent basis for decision.
2

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waited. SOF ¶ 9; CSOF ¶ 9. Next, for reasons unexplained anywhere in the record, a third
police officer arrived on the scene in a second police car. SOF ¶ 11; CSOF ¶ 11. Officers
DiGangi and Weiburg “stood [Alcantara] up,” and the third officer punched him in the face
twice. SOF ¶¶ 12–13; CSOF ¶¶ 12–13. Defendants then turned Alcantara over to two other
officers, Sergeant Donaghue-Gold and Officer Liconti, who transported plaintiff back to the
122nd precinct, SOF ¶¶ 14, 17; CSOF ¶¶ 14, 17, while the third officer—never identified or
sued, even as “John Doe”—mysteriously disappears from the tale.
Once at the precinct, Alcantara told the detective assigned to his case, Detective Ng, that
he was feeling bad and asked to be taken to the hospital. SOF ¶ 18; CSOF ¶ 18. Detective Ng
eventually acquiesced and called Alcantara an ambulance. Id.; Alcantara Dep. at 30:4–14.
Though the record is unclear as to how much time passed before he complained to Detective Ng
or precisely how long it took for an ambulance to be called, see Alcantara Dep. at 30:15–31:19,
medical records show that Alcantara arrived at the hospital in an ambulance at 3:25 a.m. on May
31, 2012, approximately four hours after his arrest. SOF ¶¶ 16, 19; CSOF ¶¶ 16, 19. Emergency
room doctors then treated a wound on Alcantara’s lip with sutures and cleaned and dressed an
abrasion on the bridge of his nose. SOF ¶ 19; CSOF ¶ 19; Manningham Decl. Ex. D, Dkt. 72-4,
at 18. Alcantara returned to the precinct and was detained at Rikers and awaited trial. Alcantara
Dep. at 34:20–25.
On April 25, 2013, Alcantara was convicted of sexual abuse in the first degree and
criminal sexual act in the first degree. SOF ¶ 21; CSOF ¶ 21; see also Manningham Decl. Ex. E,
Dkt. 72-5, at 2. Before trial and after, while in custody, Alcantara would request and receive
additional treatment for the injuries he was dealt on the night of his arrest. Most notably, the day
after his hospital visit, Alcantara noticed significant shoulder pain. Alcantara Dep. at 32:8–13.
He was eventually treated in June 2012 for an abrasion on his shoulder that had become infected.
3

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Pl. Opp. Ex. F, Dkt. 80-6. 3 Further, in August 2013, it was determined that Alcantara’s nose had
in fact been broken on the night of his arrest, following the physical confrontation first with his
neighbor and later with police, and would require surgery. Pl. Opp. Ex. G, Dkt. 80-6. This
lawsuit followed.
Legal Standard
Summary judgment shall be granted in the absence of a genuine dispute as to any
material fact and upon a showing that the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed.
2d 265 (1986). “[A] fact is material if it ‘might affect the outcome of the suit under the
governing law.’” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of the City
of New York, 746 F.3d 538, 544 (2d Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Courts do not try issues of fact at the
summary judgment stage, but instead merely “determine whether there are issues of fact to be
tried.” Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire
& Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)).
The movant carries the burden of demonstrating there is no genuine dispute as to any
material fact, Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005), and the motion
court will resolve all ambiguities and draw all permissible factual inferences in the light most
favorable to the party opposing the motion. See Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Where the nonmoving party “will bear the

3

Although plaintiff has not authenticated these medical records, the Court may consider them on
this motion, as defendants have not objected to their authenticity and, in any event, “it is wellestablished that even inadmissible evidence may properly be considered on summary judgment if
it may reasonably be reduced to admissible form at trial.” Parks v. Blanchette, 144 F. Supp. 3d
282, 293 (D. Conn. 2015) (cleaned up).
4

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burden of proof at trial,” it bears the initial procedural burden at summary judgment of
demonstrating that undisputed facts “establish the existence of [each] element essential to that
party’s case.” Celotex Corp., 477 U.S. at 322–23. “If, as to the issue on which summary
judgment is sought, there is any evidence in the record from which a reasonable inference could
be drawn in favor of the opposing party, summary judgment is improper.” Hetchkop v.
Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997). When the parties cross-move for
summary judgment, “each party’s motion must be examined on its own merits, and in each case
all reasonable inferences must be drawn against the party whose motion is under consideration.”
Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010)
(quoting Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)).
Finally, mindful that plaintiff is proceeding pro se, the Court reads his papers liberally
and interprets them as raising the strongest arguments they suggest. See Weinstein v. Albright,
261 F.3d 127, 132 (2d Cir. 2001); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Discussion
I.

Excessive Force
The Fourth Amendment prohibits the use of excessive force by a police officer against a

pre-trial detainee. 4 See Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). In evaluating an
excessive force claim, the central question is “whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their

4

Alcantara’s complaint purports to bring claims of excessive force under the Eighth and
Fourteenth Amendments, see Compl., Dkt. 1, at ¶¶ 24–29, but excessive force claims pleaded by
pre-trial detainees must be brought under the Fourth Amendment, which is more favorable to §
1983 plaintiffs. See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d
443 (1989). Notwithstanding the complaint’s misidentification of the proper legal vehicle, the
Court proceeds to analyze Alcantara’s excessive force claims under the Fourth Amendment. See
Portillo v. City of New York, 2020 WL 2836435, at *4 (S.D.N.Y. June 1, 2020).
5

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underlying intent or motivation.” Graham, 490 U.S. at 396. Objective reasonableness depends
on the totality of the circumstances, but may turn on: (1) the nature and severity of the crime
leading to the arrest; (2) whether the suspect posed an immediate threat to the safety of the
officer or others; and/or (3) whether the suspect actively resisted or attempted to evade arrest. Id.
Further, courts must be mindful that “‘[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Id. at 396,
109 S. Ct. 1865, 1872 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
There are two theories under which an excessive force claim may lie: (1) when the officer
“directly participates in an assault”; or (2) when the officer “is present during the assault[] and
fails to intercede on behalf of the victim even though he had a reasonable opportunity to do so.”
Vesterhalt v. City of New York, 667 F. Supp. 2d 292, 297 (S.D.N.Y. 2009) (quoting Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)). Alcantara contends defendants are
liable under both theories.
A.

Direct Participation

Alcantara first claims that defendants used excessive force when they brought him to the
ground to effectuate his arrest. In support, Alcantara points to the medical evidence of his
shoulder injury and the grand jury testimony from both officers. Specifically, he highlights that
Officer Weiburg testified that he “grabbed both of [plaintiff’s] wrists to turn him around to place
handcuffs on him” and “had taken him down to the ground asking him to stop resisting.” Pl.
Opp. Ex. A, Dkt. 80-1, at 5:1–18. Likewise, Officer DiGangi testified that they “placed
[Alcantara] up against the house” and, after he resisted arrest and tried to run away, they took
him down. Pl. Opp. Ex. B, Dkt. 80-2, at 14:14–24. In his own deposition, plaintiff did not
mention the takedown, stating only that at the time of his arrest, “they g[o]t me a shirt, I put it on,
and then they handcuffed me.” Alcantara Dep. at 26:12–13.
6

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Little separates the accounts of the involved parties’ stories of Alcantara’s handcuffing.
Those accounts hobble the “direct participation” subset of plaintiff’s excessive force claim from
the outset. They show that the amount of force used by the officers to effectuate Alcantara’s
arrest was neither excessive nor exceptional; indeed, other courts have found similar uses of
force to be de minimis. See Rodriguez v. Village of Ossining, 918 F. Supp. 2d 230, 241
(S.D.N.Y. 2013) (finding officer’s grabbing of plaintiff’s arms and pushing her against a car to
be de minimis and granting summary judgment) Rincon v. City of New York, No. 03 CIV. 8276
(LAP), 2005 WL 646080, at *5 (S.D.N.Y. Mar. 21, 2005) (finding officer’s wrestling plaintiff to
the ground de minimis and granting summary judgment).
Simply put, using the yardstick fashioned by the Supreme Court in Graham, there can be
no reasonable dispute that the officers’ use of force was objectively reasonable. Alcantara was
arrested on suspicion of rape, an unquestionably serious crime. He also posed at least some
threat to those around him, as Alcantara, a full-grown man, was drunk and had been belligerent
towards his neighbor prior to the officers’ arrival. See Alcantara Dep. at 24:14–16 (“I told him
that I didn’t want to go to jail and so we were like pushing and shoving.”). Finally, Alcantara
was brought to the ground only after he began resisting arrest.5 Under these circumstances, no

5

During his deposition, far from undercutting the officers’ testimony, Alcantara admitted that he
wanted to run away before the officers arrived and that he fought with his neighbor because “he
didn’t want to be arrested.” Alcantara Dep. at 24:14–25, 26:5–6. The only countervailing
consideration is the contention in his opposition memorandum that, at his criminal trial, “the jury
rejected [the] prosecutor’s contention that plaintiff had resisted arrest.” Pl. Opp. at 5. To the
contrary, as is clear from the public court documents submitted by the parties and filed in
Alcantara’s habeas petition, of which the court may properly take judicial notice on a motion for
summary judgment, see, e.g., Sutton ex rel. Rose v. Wachovia Sec., LLC, 208 F. App'x 27, 29 (2d
Cir. 2006); Spandex House, Inc. v. Hartford Fire Ins. Co., 407 F. Supp. 3d 242, 256 (S.D.N.Y.
2019), aff'd, 816 F. App'x 611 (2d Cir. 2020), no resisting arrest charge was presented to the
jury. See Pl. Ex. I (Certificate of Conviction), Dkt. 80-9 (“Charge(s): Crim Sex Act 1o, PL
130.50-3; Sex Abuse 3o, PL 130.65-3”); see generally State Court Record, Dkt. 9, Alcantara v.
Bell, 19-cv-3686 (June 19, 2019).
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reasonable jury could find the officers’ mild use of force excessive.
In what appears to be an effort to embellish his claims, in his motion papers, Alcantara
also spotlights his allegation that Officers DiGangi and Weiburg threw him to the ground and
stomped on his shoulder and back in front of the 122nd precinct. See Pl. Opp. (citing Compl. ¶
18). At this point, though, mere allegations will not do. Although there is evidence that
Alcantara suffered shoulder injuries, his contention that they were caused by Officers DiGangi
and Weiburg is unsupported. Much to the contrary, both officers attest in sworn statements that
they did not even transport plaintiff back to the precinct, let alone stomp Alcantara upon his
arrival there. See Weiburg Decl., Dkt. 59, ¶¶ 10–11; DiGangi Decl., Dkt. 60, ¶¶ 10–11.
Moreover, plaintiff’s shifting narrative helps eviscerate his claims. Pointedly, although his
complaint alleged that the officers attacked him outside of the precinct, see Compl. ¶ 18,
Alcantara’s motion papers claim that the alleged attack occurred after he was in handcuffs but
before defendants turned him over to Sergeant Donaghoue-Gold and Officer Liconti, see Pl.
Opp. at 3, which, as the undisputed Rule 56.1 statements show, occurred at the scene of his
arrest, see SOF ¶¶ 14–15; CSOF ¶¶ 14–15. What’s more, although Alcantara was asked at his
deposition about defendants’ conduct both during the arrest and at the precinct, conspicuously
absent from his answers is any mention of a shoulder stomp. See Alcantara Dep. at 26–30.
Plaintiff did, however, admit that his neighbor “threw him to the floor” before the officers
arrived. See id. at 25:12.
Accordingly, given the material facts about which there is no genuine dispute, no
reasonable juror could find that the officers used excessive force when arresting Alcantara.
Defendants’ motion for summary judgment on the direct participation subset of plaintiff’s
excessive force claim must, therefore, be granted.

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B.

Failure to Intervene

Whether an officer had a realistic chance to intervene to blunt the use of excessive force
by another officer “is normally a question for the jury, unless, considering all the evidence, a
reasonable jury could not possibly conclude otherwise.” Terebesi v. Torreso, 764 F.3d 217, 244
(2d Cir. 2014) (cleaned up). As the Second Circuit has explained, this question turns on the
totality of the circumstances the record establishes, including “the number of officers present,
their relative placement, the environment in which they acted, the nature of the assault, and a
dozen other considerations.” Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016). “Among
these considerations, of course, the assault's duration will always be relevant and will frequently
assume great importance.” Id.
Figueroa itself is instructive. There, two officers faced a claim brought under a failureto-intervene theory after plaintiff had been punched multiple times in a police car by an officer
who, as is the case here, remained unidentified throughout the proceedings. Id. at 106. At trial,
the district court interpreted the plaintiff’s testimony to be a reenactment of the assault and timed
the assault to have lasted 20 seconds. Id. The court then reasoned that when an assault takes less
than 30 seconds, officers who are present lack sufficient time to intervene and, as a result, it
granted the arresting officers’ judgment as a matter of law. Id.
The Second Circuit disagreed. Id. at 108. It observed that other testimony at the trial
suggested the assault lasted longer than 30 seconds. Id. at 107. But, more instructively here, the
Figueroa court rejected any bright-line rule based on the length of the assault, directing courts
instead to evaluate the totality of the circumstances. Id. “The essential inquiry,” the Circuit
held, “is whether, under the circumstances actually presented, an officer’s failure to intervene
permits a reasonable conclusion that he became a ‘tacit collaborator’ in the unlawful conduct of
another.” Id. at 107–08 (quoting O'Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir. 1988)).
9

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Focused on the record, Figueroa highlighted the officers’ close proximity to plaintiff and found
that nothing suggested they could not have either physically intervened by getting out of the
police car or at least called out to rebuke the assaulting officer. Id. at 108. Accordingly, the
Circuit concluded it could not hold that the assault “occurred so quickly that the defendant
officers lacked time to intercede as a matter of law.” Id.
Here, the record upon which the summary judgment motion lies creates issues ripe for
jury resolution. Indeed, according to defendants’ own Rule 56.1 statement, “[a]fter being placed
in handcuffs, [p]laintiff sat on the sidewalk and waited.” SOF ¶ 8. At that point, the assaulting
officer arrived, defendants “stood plaintiff up,” and “the third officer punched plaintiff in the
face twice.” Id. ¶¶ 12–13. The only relevant, additional detail in the record is Alcantara’s
deposition testimony that when the assaulting officer arrived, he asked, “It was this one?” and
defendants replied, “Yes.” Alcantara Dep. at 28:24–25.
Neither Officer DiGangi nor Officer Weiburg contends that the punches were excusable
in any way. Instead, they seek to avoid liability by arguing that the punches were “unexpected”
and did not allow “adequate time to intervene.” Defs. Br. at 5–6. But nothing in the record
indicates how much time elapsed between the anonymous officer’s arrival and the first punch, or
between the first and second punches. Nor have the officers identified any “obstacles that might
have hindered [their] ability to intercede.” See Ekukpe v. Santiago, 823 F. App'x 25, 32 (2d Cir.
2020) (affirming denial of summary judgment on failure to intervene claim) (quoting Figueroa,
825 F.3d at 107). Without evidence to establish these critical facts, defendants cannot show as a
matter of law they could not have intervened either before the first punch or between the first and
second punch, especially given their close physical proximity to plaintiff, having just stood him
up. See also Ross v. Willis, 2021 WL 3500163, at *15 (S.D.N.Y. Aug. 9, 2021) (denying
summary judgment on failure to intervene claim where the defendant-officers “were in easy
10

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reach of” the assaulting officer and “physically capable of stopping him”).
Certainly, why defendants identified plaintiff to and stood him up for the unidentified
officer is unexplained and troubling, and viewing this evidence in the light most favorable to
plaintiff, a reasonable jury could readily conclude that defendants were, in fact, “tacit
collaborator[s].” Figueroa, 825 F.3d at 108. Defendants’ motion for summary judgment on this
claim is, consequently, denied. 6
II.

Deliberate Indifference to Serious Medical Needs
The Fourteenth Amendment protects pre-trial detainees from deliberate indifference to

serious medical needs. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Such
claims are analyzed using a two-prong test. Id. First, plaintiff must have been deprived adequate
medical care for a sufficiently serious medical condition. Id. This “contemplates ‘a condition of
urgency’ that may result in ‘degeneration’ or ‘extreme pain.’” Id. at 703 (quoting Hathaway v.
Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). Second, each defendant must have “recklessly failed
to act with reasonable care to mitigate the risk that the condition posed . . . even though the
defendant-official knew, or should have known, that the condition posed an excessive risk to
health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). This “requires proof of a
mens rea greater than mere negligence.” Id. at 36.7
Here, the Court need not decide whether plaintiff was deprived adequate care for a

6

Defendants’ throwaway argument that they should be granted qualified immunity at the very
least because “the law did not put defendants on notice that they could be liable for failing to
intervene when the force consisted of two unexpected punches,” Defs. Br. at 6, is rejected for the
same reasons; that is, defendants’ argument rests on the representation that the punches were
unexpected, which a jury might find is belied by other circumstances.
7

After Darnell, claims made under the Fourteenth Amendment, like Alcantara’s, do not require
a showing of subjective awareness; a showing of objective recklessness is sufficient. See
Simmons v. Mason, 2019 WL 4525613, at *9–10 (S.D.N.Y. Sept. 18, 2019).
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sufficiently serious medical condition because no reasonable jury could find that either defendant
had the mens rea requisite to establish liability. Plaintiff has offered no proof that defendants
knew or should have known that plaintiff’s condition posed an excessive risk to his health or
safety. For one, the record evidence shows that the only injury that would have been apparent to
Officers DiGangi and Weiburg was some bleeding and facial abrasions. See Pl. Opp. Ex. D, Dkt.
63-4, at 1; Alcantara Dep. at 30:4–6. But slight bleeding and abrasions, especially when viewed
alongside Alcantara’s failure to complain to defendants about his injuries and acknowledgement
that he initially “didn’t feel the blows” due to his intoxication, see Alcantara Dep. at 30:23–25,
would not lead an objectively reasonable officer to believe his injuries posed an “excessive”
health or safety risk. See, e.g., Mikulec v. Town of Cheektowaga, 909 F. Supp. 2d 214, 223
(W.D.N.Y. 2012) (“[I]t cannot be said that Mikulec’s resulting injuries—some bleeding and
abrasions—could have produced ‘death, degeneration, or extreme pain.’”); Ford v. Phillips, 2007
WL 946703, at *12 (S.D.N.Y. Mar. 27, 2007) (“Abrasions, a minor bruise, slight bleeding and
scratches are not injuries that may produce death, degeneration or extreme pain, and no
reasonable jury could find to the contrary.”).
Finally, any claim of reckless indifference on the part of Officers DiGangi and Weiburg
is belied by the fact that they did not simply leave Alcantara to suffer. In fact, defendants turned
Alcantara over to other officers who took him back to the precinct, and after complaining about
his pain, Detective Ng called an ambulance, and plaintiff arrived at the hospital about four hours
after his arrest. Since no evidence suggests that his condition was aggravated during that time,
no reasonable jury could conclude that allowing such a short delay was reckless. See Simpson v.
Town of Warwick Police Dep’t, 159 F. Supp. 3d 419, 447 (S.D.N.Y. 2016) (“In light of the
absence of any indication that more prompt treatment was necessary and the relatively minor
delay before the officers brought [the arrestee] to [the jail where he received treatment], no
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reasonable jury could conclude that the police officers delayed providing [the arrestee] treatment
with the subjective recklessness necessary to satisfy the subjective element of a deliberate
indifference claim.” (quotations omitted)). With the nature of the injury sustained by plaintiff at
the scene of the arrest and the time between his arrest and dispatch to the hospital all beyond
genuine dispute, Officers DiGangi and Weiburg are entitled to summary judgment on this claim.
Conclusion
For the foregoing reasons, defendants’ motion for summary judgment is granted in part
and denied in part. The litigation may proceed solely as to Alcantara’s failure-to-intervene
claim.
The parties are respectfully referred to Magistrate Judge Robert M. Levy for continued
pre-trial management of this case.
So Ordered.
Dated: Brooklyn, New York
April 30, 2022
/s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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