Torres v. Dennis
MEMORANDUM AND ORDER granting 83 Motion for Summary Judgment. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. Plaintiff's claims are DISMISSED WITH PREJUDICE, except for the false arrest claim, which is DI SMISSED WITHOUT PREJUDICE. Accordingly, the Clerk of the Court is directed to mark this case as CLOSED. Counsel for Defendant is ORDERED to serve a copy of this Memorandum and Order on the pro se Plaintiff and file proof of service via ECF within seven (7) days of the date of this Memorandum and Order. So Ordered by Judge Joanna Seybert on 6/13/2013. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JOSE E. TORRES,
MEMORANDUM & ORDER
OFFICER ERIC DENNIS, Shield # 5600,
Jose E. Torres, pro se
49 Brooklyn Avenue
Wyandanch, NY 11798
Brian C. Mitchell, Esq.
Suffolk County Attorney’s Office
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, NY 11788
SEYBERT, District Judge:
Currently pending before the Court is a motion for
summary judgment by Defendant Police Officer Eric Denis s/h/a
following reasons, this motion is GRANTED.
Pro se Plaintiff Jose E. Torres commenced this action
on February 22, 2010 against Defendant asserting claims under 42
The following facts are drawn from the parties’ Local Civil
Rule 56.1 Statements (“56.1 Stmt.”) and their evidence in
support. Any factual disputes are noted.
U.S.C. § 1983 for false arrest and excessive force, and under
New York State common law for assault and battery.2
Police Officer Michael Gorey (“Gorey”) responded to a domestic
(56.1 Stmt. ¶ 1; 56.1 Counterstmt ¶ 1.)
While there, Defendant
and Gorey went to Plaintiff’s bedroom to speak with him.
Stmt. ¶ 2; 56.1 Counterstmt. ¶ 2.)
According to Defendant,
foot, right arm, and right side of his face.
Stmt. ¶ 4.)
(56.1 Stmt. ¶ 3.)
Plaintiff disputes ever having slammed the door or
Counterstmt. ¶¶ 3-4).
Defendant and Gorey subsequently entered Plaintiff’s
room and attempted to place him under arrest.
(56.1 Stmt. ¶ 5.)
A struggle ensued during which Defendant claims that Plaintiff
flailed his legs and kicked his feet and attempted to reach
Although the Complaint seeks relief on various grounds, the
Court reads the Complaint to assert only the aforementioned
claims, as there are no factual allegations to support
Plaintiff’s additional claims for defamation, destruction of
property, and harassment. Furthermore, Plaintiff’s 56.1
Counterstatement acknowledges that he filed his Complaint
against Defendant for “false arrest and excessive force and pain
and suffering.” (56.1 Counterstmt. ¶ 11.)
Defendant struck Plaintiff on his right hand with a flashlight
and the struggle continued until the officers placed Plaintiff
(56.1 Stmt. ¶¶ 8-9.)
Plaintiff recounts that
Defendant struck the right side of his head with a flashlight
and punched Plaintiff.
(56.1 Counterstmt. ¶ 83.)
As a result of these events, Plaintiff was charged
with one count of Harassment in the Second Degree and one count
of Resisting Arrest.
(56.1 Stmt. ¶ 10; 56.1 Counterstmt. ¶ 10.)
On June 24, 2011, a jury convicted Plaintiff of both charges.
(56.1 Stmt. ¶ 12 & Ex. H.)
Plaintiff is currently appealing his
(56.1 Counterstmt. ¶ 15.)
Harassment and Resisting Arrest bars his false arrest claim.
Defendant likewise maintains that Plaintiff is precluded from
bringing his excessive force claim.
Finally, Defendant argues
that he is entitled to qualified immunity.
The Court will first
address the relevant legal standard on a motion for summary
Plaintiff’s 56.1 Counterstatement also asserts that he suffered
a dislocated shoulder. The Complaint, however, lists as his
only injuries those to his head and ear. (Compl. ¶ IV.A.)
I. Summary Judgment Standard
Summary judgment is only appropriate where the moving
party can demonstrate that there is “no genuine dispute as to
any material fact” and that the moving party is entitled to
FED. R. CIV. P.
considering this question, the Court considers “the pleadings,
depositions, answers to interrogatories and admissions on file,
together with any other firsthand information including but not
limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d
Cir. 2011) (internal citation omitted); see also FED. R. CIV. P.
“In assessing the record to determine whether there is a
genuine issue to be tried . . . the court is required to resolve
all ambiguities and draw all permissible factual inferences in
favor of the party against whom summary judgment is sought.”
McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997).
burden of proving that there is no genuine issue of material
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994)
(citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320
(2d Cir. 1975)).
Once that burden is met, the non-moving party
must “come forward with specific facts,” LaBounty v. Coughlin,
evidence is such that a reasonable jury could return a verdict
for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 218 (1986).
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.
2000), superseded by statute on other grounds as stated in Ochei
Harassment and Resisting Arrest bars his Section 1983 claim for
The Court agrees.
“A claim for false arrest must be dismissed if the
defendant had probable cause to arrest the plaintiff.”
v. Barry, No. 09-CV-3390, 2011 WL 32371, at *4 (E.D.N.Y. Jan. 5,
2011); accord Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006)
(“Under New York law, the existence of probable cause is an
absolute defense to a false arrest claim.”).
In addition, “a
conviction of the plaintiff following the arrest is viewed as
Fogerty, 806 F.2d 380, 387 (2d Cir. 1986).
(56.1 Stmt. Ex. H.).
Plaintiff here was
Without more, this is conclusive
Accordingly, Plaintiff’s false arrest claim is DISMISSED WITHOUT
PREJUDICE subject to reinstatement if Plaintiff’s conviction is
Defendant further argues that Plaintiff’s convictions
preclude his claim for excessive force.
Defendant asserts that
the issue of force was raised and litigated during Plaintiff’s
Defendant argues, Plaintiff is estopped from denying he used
force against Defendant.
As a result, there remains no triable
issue of fact and Defendant’s use of force was reasonable as a
matter of law.
Finally, Defendant maintains that he is entitled
excessive force claims and qualified immunity for such claims
before turning to Defendant’s specific contentions.
“A claim that excessive force was used in the course
of a seizure is subject to an objective test of reasonableness
consideration of the specific facts in each case . . . . ”
Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000).
whether the suspect posed an immediate threat to the safety of
others and whether he is actively resisting arrest.”
particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”
Graham v. Connor, 490 U.S. 386, 396, 109
S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989), overruled on other
grounds by Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150
L. Ed. 2d 272 (2001).
Ultimately, then, summary judgment is
appropriate where “no rational jury could [find] that the force
used was so excessive that no reasonable officer would have made
the same choice.”
Lennon v. Miller, 66 F.3d 416, 426 (2d Cir.
immunity if it was objectively reasonable for him to believe
that his actions were lawful at the time of the act.
See id. at
3533158, at *4 (E.D.N.Y. Dec. 22, 2005).
Preclusion of Plaintiff’s Excessive Force Claim
Defendant asserts that, because the relevant issues
criminal case, collateral estoppel now bars Plaintiff’s Section
1983 claim for excessive force.
“Collateral estoppel, or issue
preclusion, precludes a party from relitigating in a subsequent
action or proceeding an issue clearly raised in a prior action
or proceeding and decided against that party . . . .”
225 F.3d at 166 (internal quotation marks and citation omitted).
The doctrine applies where the following four criteria have been
(1) the issues . . . [are] identical, (2)
the issue [was] actually litigated and
actually decided in the prior proceeding;
(3) there [was] a full and fair opportunity
to litigate the issue . . . ; and (4) the
resolution of the issue [was] necessary to
support a valid and final judgment on the
United States v. U.S. Currency in Amount of $119,984.00, More or
Less, 304 F.3d 165, 172 (2d Cir. 2002).
necessarily preclude a claim for excessive force.
F.3d at 165-66 (“The fact that a person whom a police officer
attempts to arrest resists, threatens, or assaults the officer
no doubt justifies the offer’s use of some degree of force, but
limit.” (emphasis in original)).
Rather, collateral estoppel
conviction are incompatible with the claim of excessive force
being raised in the subsequent civil suit.”
Id. at 166.
Resisting Arrest, Plaintiff’s conduct, not that of Defendant,
was at issue.
See Diggs, 2005 WL 3533158, at *3.
litigated and decided in the criminal trial.
Furthermore, it is
possible that even though Plaintiff resisted arrest, Defendant’s
conceivable under the objective standard, however unlikely under
these facts, that a police officer’s response to an attempt on
his life could be unreasonable”).
Therefore, Defendant’s motion
for summary judgment on Plaintiff’s excessive force claim on the
basis of collateral estoppel is DENIED.
Preclusion of Specific Issues
estoppel does not preclude Plaintiff’s excessive force claim as
The Court agrees.
Although Defendant’s conduct was not at issue in the
criminal trial, it is clear that Plaintiff’s conduct was fully
testified at the criminal trial regarding the events of November
7, 2009 and the apparent struggle that ensued.
Defendant and Gorey testified that Plaintiff pushed, kicked, and
shoved Defendant and that Plaintiff struck Defendant with the
(Def.’s Trial Tr., 56.1 Stmt. Ex. B, at 13, 19-
20, 22; Gorey’s Trial Tr., 56.1 Stmt. Ex. C at 11-12, 14, 1618.)
Defendant also testified that he observed Plaintiff reach
between the bed and the wall during the struggle.
Tr. at 24.)
Plaintiff testified that he never took any such
action and that he did not move at all.
(Pl.’s Trial Tr., 56.1
Stmt. Ex. D, 6/21/11 Tr. at 6, 21; 6/22/11 Tr. at 18, 21, 2426.)
Furthermore, the state court charged the jury that, in
Degree, they must find that Plaintiff “struck, shoved[,] kicked
attempted or threatened to do the same.”
(State Jury Charge,
Arrest, the state court instructed the jury that they must find
that Plaintiff “prevent[ed] or attempt[ed] to prevent a police
officer from effecting an authorized arrest of himself.”
Stmt. Ex. I.)
Accordingly, Plaintiff is precluded from arguing
motionless throughout his encounter with Defendant.
The issues, then, are whether Defendant’s use of force
was objectively reasonable and whether Defendant is entitled to
The Court finds that, even if Defendant’s
use of force was excessive, qualified immunity applies.
Defendant to believe that his actions were lawful at the time.
putting up a physical fight with the officers.
See Garcia v.
Greco, No. 05-CV-9587, 2010 WL 446446, at *7 (S.D.N.Y. Feb. 9,
2010) (“The balancing inquiry for an excessive force claim may .
In response, and construing the facts in the light
most favorable to Plaintiff, Defendant punched Plaintiff and hit
him with a flashlight.
Certainly there is no question that
Plaintiff’s actions merited some force.
See McMillan v. City of
N.Y., No. 10-CV-2296, 2011 WL 6129627, at *10 (S.D.N.Y. Dec. 9,
2011) (Where plaintiff “continued to flail her arms and kick her
legs, . . . a reasonable officer would have concluded that some
degree of force was necessary to subdue [her] and place her
In addition, Defendant believed that he saw
Plaintiff reach between the bed and the wall, potentially in an
attempt to obtain a weapon.
See Mesa v. City of N.Y., No. 09-
CV-10464, 2013 WL 31002, at *7 (S.D.N.Y. Jan. 3, 2013) (“[A]
reached between the bed and the wall, Defendant perceived a
threat and took action.
See id. at *19 (“It makes no difference
that Mesa did not, in actuality, hit Dolan, so long as it was
reasonable for the officers . . . to perceive that some sort of
forcible contact had occurred between the two.”).
circumstances, officers of reasonable competence could disagree
Freshwater, 623 F.3d 90, 97 (2d Cir. 2010) (where plaintiff
claimed to have slipped on ice, but officer observed a quick and
sudden movement, officer’s decision to strike plaintiff with a
flashlight was reasonable); see also Lennon, 66 F.3d at 420
(qualified immunity appropriate where reasonable officers would
disagree as to legality of conduct).
Accordingly, Defendant is
To the extent that the Complaint can be read to assert a claim
for assault and battery under New York State law, this claim
fails for the same reasons as Plaintiff’s Section 1983 excessive
force claim. See Glowczenski v. Taser Int’l, Inc., --- F. Supp.
2d ----, 2013 WL 802912, at *19 (E.D.N.Y. Mar. 5, 2013) (holding
that state claims for assault and battery are subject to the
same standard of review as Fourth Amendment excessive force
claims and that New York’s good faith immunity doctrine
parallels qualified immunity in excessive force cases); see also
Mesa, 2013 WL 31002, at *27 (where qualified immunity applied to
excessive force claim, assault and battery claim “must fail as
summary judgment is GRANTED.
Plaintiff’s claims are DISMISSED
WITH PREJUDICE, except for the false arrest claim, which is
Court is directed to mark this case as CLOSED.
Counsel for Defendant is ORDERED to serve a copy of
this Memorandum and Order on the pro se Plaintiff and file proof
of service via ECF within seven (7) days of the date of this
Memorandum and Order.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Date: June 13, 2013
Central Islip, New York
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