Connolly v. Calvanese et al

Filing 17

DECISION AND ORDER granting Defts' 13 Motion for Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 6/7/12. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------RICHARD J. CONNOLLY,
Plaintiff,
v.

1:11:-cv-0164

JOSEPH F. CALVANESE and
ROBERT COLEMAN,
Defendant.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Plaintiff Richard J. Connolly commenced the instant action pursuant to 42 U.S.C. §
1983 alleging claims of false arrest, malicious prosecution, and the use of excessive force in
connection with his arrest and prosecution. Presently before the Court is Defendants’ motion
for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complain in its
entirety. Plaintiff opposes the motion.
I.

FACTS
On August 7, 2008, Plaintiff was at a friend’s house for dinner. Sometime

thereafter, Plaintiff left his friends house and proceeded to drive on the New York State
Thruway. Plaintiff entered the Thruway at Exit 21 at approximately 11:40 p.m. At
approximately 11:45 p.m., the toll collector radioed the Thruway dispatcher and reported that
a northbound red Subaru bearing license plate DVT7533 was being operated in an erratic
manner and identified the situation as a possible “1192" or driving while intoxicated (“DWI”).

Plaintiff ultimately ended up on the Thruway heading south. Plaintiff pulled into the
southbound New Baltimore Service Area parking lot so he could use the restroom and get a
cup of coffee. Unsure whether the service area was open, Plaintiff remained in his car with
the motor running to see whether anyone came out of the building. Plaintiff remained in his
vehicle for approximately thirty minutes.
Defendant New York State Trooper Joseph Calvanese heard the radio
transmission concerning the red Subaru. At 11:57 p.m., Calvanese responded that he had
located the red Subaru at the New Baltimore Service Area.1 Calvanese noted that Plaintiff
was not in a parking space, but was positioned over the parking lines in the parking lot with
the engine running. Calvanese asked Plaintiff if he knew why he had been pulled over, to
which Plaintiff replied, “[y]ou didn’t; I’ve been sitting her about a half an hour now.”
Calvanese responded that Plaintiff smelled like alcohol and inquired whether Plaintiff had
been drinking. Calvanese further claims that he observed Plaintiff’s eyes to be glassy and
his speech slurred. Plaintiff admitted to drinking one beer at approximately 5:00 or 6:00 p.m.
Calvanese directed Plaintiff to exit the vehicle. Plaintiff responded that he had a
brain injury, was partially paralyzed on one side, and, among other things, could not walk.2
Due to Plaintiff’s injuries, he was unable to perform various standard field sobriety tests.
Calvanese did have Plaintiff touch his right thumb to the fingers on his right hand while

1

Calvanese claims that he suspected that Plaintiff made an illegal u-turn on the Thruway
because the toll collector reported the vehicle as proceeding northbound, but Calvenese located Plaintiff
at the southbound New Baltimore Service Area.
2

Plaintiff suffers from various ailments as a result of having sustained two gunshot wounds to
his head during nighttime live ammunition practice at Fort Drum while on army reserve duty. Plaintiff
suffered a traumatic brain injury. His injuries include left side paralysis, memory loss, language
difficulties, depression, post-traumatic stress disorder, and vision problems.
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indicating which digit he was touching and recite the alphabet. The parties dispute whether
Plaintiff passed these tests. Calvanese also asked Plaintiff to blow into a small hand held
device. Plaintiff complied to the best of his ability. Plaintiff claims that the device registered
a blood alcohol content of 0.0%. Calvanese, on the other hand, states that, based on the
device’s design, the person taking the test cannot see the results. While Plaintiff was
blowing into the machine, Calvanese cursed at Plaintiff, asked whether Plaintiff was “a
fucking retard,” and placed Plaintiff under arrest.
Calvanese handcuffed Plaintiff’s right wrist only and placed Plaintiff in the back of
the police car. Calvanese read Plaintiff his Miranda rights. Calvanese also requested that
Plaintiff submit to a breathalyzer test. Defendants contend that Plaintiff refused to take a
breathalyzer test. Plaintiff denies that he refused to take such a test anytime while at the rest
area or while in the police car.
Calvanese arrived with Plaintiff at the Troop T station at approximately 1:00 a.m.
The parties dispute the next series of events. According to Plaintiff, he was taken directly to
the area in the station where fingerprinting is done.3 Defendant New York State Trooper
Robert Coleman fingerprinted Plaintiff’s right hand and then attempted to fingerprint his left
hand. To fingerprint Plaintiff’s left hand, Coleman grabbed around the fingers of Plaintiff’s
left hand and yanked his hand out straight toward the paper and ink, trying to get Plaintiff to
open his fingers. In the process of doing so, Coleman pulled Plaintiff’s left arm out of the
socket. Plaintiff complained to the sergeant that “they started to hurt me, pull my arm out.”

3

Defendants contend that they never fingerprint an individual before the individual has either
refused to submit to a breathalyzer test or tested positive after consenting to the test.
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Defendants contend that this is not possible because the fingerprint card is secured on the
very outside of a waist-high counter, the suspect stands at the ink plate with his elbow flexed
at approximately 90 degrees, and someone extending their arm out would reach beyond the
ink plate. Defendants further maintain that Coleman offered to not fingerprint Plaintiff's left
hand or to do the best they could and that Plaintiff agreed to fingerprint his left hand.
According to Plaintiff, his fingers ultimately did extend out and Coleman
fingerprinted the fingers on Plaintiff’s left hand all at the same time. Defendants argue that
the fingerprint card demonstrates that Plaintiff's left hand was never fingerprinted all at once.
Coleman did not successfully fingerprint Plaintiff’s left hand.
Plaintiff asserts that Defendants then proceeded to put certain information into the
breathalyzer machine in anticipation of conducting a breathalyzer test. Defendants claim to
have asked Plaintiff twice whether he would submit to the test. According to Plaintiff, he
refused to take the test after Defendants injured him during the course of fingerprinting.4
Defendants then drove Plaintiff to the New Baltimore Town Court for arraignment.
After arraignment, Plaintiff was taken to the Greene County Correctional Facility. Plaintiff
was not placed in a cell, but was permitted to wait for his girlfriend in the visiting room.
On August 8, Plaintiff’s girlfriend arrived and picked him up from the Greene County
Correctional Facility. Within a week or two thereafter, and before going to see a doctor,
Plaintiff reduced his left should dislocation by himself. Shortly thereafter, Plaintiff went to his
doctor at the V.A. Plaintiff complained of shoulder pain for the prior one to two weeks, which
had worsened in the immediately preceding four days. An x-ray was read as “possible mild

4

Again, Defendants claim that Plaintiff was asked to submit to a breathalyzer before being
fingerprinted.
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degenerative osteoarthritis in the left shoulder.” No other abnormality was noted. Plaintiff
was diagnosed with “probable exacerbation” of his adhesive capsulitis. Motrin was ordered
as needed with hydrocodone for severe pain.
On September 1, 2008, Plaintiff was treated at the V.A. emergency room for
worsening left arm pain. Plaintiff was given a shot and told to call his primary care provider
the following day. Plaintiff did not follow up with any treatment for the remainder of 2008.
The charges against Plaintiff ultimately were dismissed. Plaintiff them commenced
the instant action asserting claims of false arrest, malicious prosecution, and the excessive
use of force. Presently before the Court is Defendants’ motion for summary judgment
pursuant to Fed. R. Civ. P. 56 seeking dismissal of the Complaint in its entirety.
II.

STANDARD OF REVIEW
Defendants move for summary judgment pursuant to Rule 56. It is well settled that,

on a motion for summary judgment, the Court must construe the evidence in the light most
favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.
1999), and may grant summary judgment only where "there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). An issue is genuine if the relevant evidence is such that a reasonable jury could return
a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A
party seeking summary judgment bears the burden of informing the court of the basis for the
motion and of identifying those portions of the record that the moving party believes
demonstrate the absence of a genuine issue of material fact as to a dispositive issue.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant is able to establish a prima
facie basis for summary judgment, the burden of production shifts to the party opposing
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summary judgment who must produce evidence establishing the existence of a factual
dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a properly supported
motion for summary judgment may not rest upon "mere allegations or denials" asserted in his
pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on
conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998).
With these standards in mind, the Court will address the pending motion.
III.

DISCUSSION
a.

False Arrest/Malicious Prosecution
1.

Trooper Coleman

Defendants moves to dismiss the false arrest and malicious prosecution claims
against Coleman on the ground that he was not personally involved in Plaintiff’s arrest or
prosecution. Plaintiff’s concede that Coleman was not involved. Accordingly, the false arrest
and malicious prosecution claims are dismissed as to Coleman.
2.

Trooper Calvanese

Defendants also move to dismiss the false arrest and malicious prosecution claims
against Calvanese on the ground that he acted with probable cause, or arguable probable
cause. Defendants contend that the radio transmission from the toll collector claiming to
have spotted a red Subaru driving erratically together with Calvenese’s claimed observations
(Plaintiff’s vehicle was parked across the lines; Plaintiff smelled of alcohol, had slurred
speech, an unsteady gait and bloodshot eyes; and Plaintiff failed the finger count and

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alphabet tests)5 gave him probable cause or, at least, arguable probable cause to believe
that Plaintiff was driving under the influence of alcohol. Defendants also note that Plaintiff
was reported by the toll collector to be proceeding northbound, but was found shortly
thereafter at the southbound rest area, thereby suggesting that Plaintiff had made an illegal
u-turn on the highway. Plaintiff counters that triable issues of fact remain because he
successfully passed the alphabet test, the Alco-sensor produced a reading of 0.0%, and
Plaintiff stated he drank only one beer.
Probable cause exists when officers “have knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient to warrant a person of reasonable
caution in the belief that the person to be arrested has committed or is committing a crime.”
Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). “A probable cause
determination does not require proof beyond a reasonable doubt; it is the mere probability of
criminal activity, based on the totality of the circumstances, that satisfies the Fourth
Amendment.” Hahn v. County of Otsego, 820 F. Supp. 54, 55 (N.D.N.Y. 1993), aff'd, 52 F.3d
310 (2d Cir. 1995). Arguable probable cause exists if (1) it was objectively reasonable for the
officer to believe there was probable cause to make the arrest, or (2) reasonably competent

5

In their statement of material facts, Defendant Calvanese states that “in addition to the smell
of alcohol, plaintiff’s eyes were glassy and his speech was slurred. . . .” Defs.’ Stmnt. of Mat. Facts at
¶ 38. In response, Plaintiff denies this fact and, in support of the denial, points to paragraph 37 of his
affidavit, which states:
The charge . . . brought against your deponent was untrue and both charges were filed out of
malice based on the Defendants’ perception that your deponent was not cooperating when, in
fact, you deponent’s disability was preventing him from performing field sobriety tests.
This response does not properly address Defendants’ statement that Plaintiff smelled of alcohol, his
eyes were glassy, and his speech was slurred. Accordingly, these facts are deemed admitted.
See N.D.N.Y.L.R. 7.1(a)(3).
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police officers could disagree as to whether there was probable cause to arrest. Ricciuti v.
N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997).
Here, Defendants were not able to conduct the standard sobriety tests due to
Plaintiff’s disabilities. The toll collector’s observations of erratic driving could reasonably be
found to have been corroborated by a potentially illegal u-turn (which, in and of itself, would
give rise to probable cause to arrest, see Atwater v. Lago Vista, 532 U.S. 318, 354, 121 S.
Ct. 1536 (2001)), the manner in which Plaintiff’s car was parked, and the observations of
Plaintiff’s eyes, speech, and the smell of alcohol. Even assuming Plaintiff passed the finger
and alphabet tests, these above-listed facts, together with Plaintiff’s admission that he had
consumed alcohol, are enough to establish arguable probable cause. Scully v. City of
Watertown, 2005 WL 1244838, at *9 n.11 (N.D.N.Y. 2005) (and cases cited therein).6 These
same factors provide sufficient arguable probable cause for Plaintiff’s prosecution on charges
of driving while intoxicated. Accordingly, the false arrest and malicious prosecution claims
must be dismissed.
b.

Excessive Force

Plaintiff next contends that he was subjected to the excessive use of force during
the fingerprinting process. Plaintiff claims that during the attempts to fingerprint his left hand,
Defendant Coleman grabbed around the fingers of Plaintiff’s left hand and yanked on his
fingers until his shoulder came out of the socket. Plaintiff claims that Coleman then
proceeded to fingerprint his left hand simultaneously on one spot of the fingerprint card.

6

Plaintiff reported to his treating physician that "his tiredness and disabilities were
misinterpreted as intoxication," thereby substantiating the objective reasonableness of Calvanese’s
actions.
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Defendants respond that Plaintiff’s version of the fingerprinting card is directly refuted by the
fingerprint card and there is no medical evidence substantiating the claim that Plaintiff’s
shoulder was dislocated during the fingerprinting process or that he was otherwise subjected
to an unreasonable amount of force.
“[A]ll claims that law enforcement officers have used excessive force-deadly or
not-in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard . . . .” Graham v.
Connor, 490 U.S. 386, 394 (1989). Defendants’ motive or intent is irrelevant. Maxwell v. City
of New York, 380 F.3d 106, 108 (2d Cir. 2004). Determining whether the force used was
excessive requires an assessment of the facts and circumstances of the case, including the
severity of the crime, whether the suspect poses a safety threat, and whether he is resisting
arrest or attempting to evade arrest. Calamia v. City of New York, 879 F.2d 1025, 1034-35
(2d Cir. 1989).
Here, there is no indication that Plaintiff had engaged in a crime of violence, posed
a safety threat, was resisting arrest, or otherwise attempted to evade arrest. Other than an
apparent refusal to take a breathalyzer test, it appears that Plaintiff was otherwise
cooperative. Thus, the ordinary circumstances in which force is typically used are not
present here. Nonetheless, considering the totality of the evidence, and looking at the
evidence in the light most favorable to Plaintiff, the Court finds that there is insufficient
evidence from which a fair minded trier of fact could reasonably conclude that Plaintiff was
subjected to the excessive use of force.
“Although a showing of excessive force does not require proof of permanent injury,
. . . [t]he absence of any injury . . . is [a] compelling [indication that excessive force was not
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used].” Jennejahn v. Village of Avon, 575 F. Supp.2d 473, 480-81 (W.D.N.Y. 2008); see also
Wysner v. Dallas County Sheriff’s Dept., 1997 WL 10030, at *4 (N.D. Tx. 1997). For the
following reasons, the Court finds that Plaintiff has failed to demonstrate a triable issue of
fact on whether excessive force was used.
First, the physical evidence (i.e. the fingerprint card) demonstrates that the fingers
and thumb of Plaintiff’s left hand were printed individually, thereby directly refuting his
contention that Coleman grabbed the fingers of his left hand and fingerprinted the whole
hand simultaneously. See Scott v. Harris, 550 U.S. 372 (2007) (on a summary judgment
motion, a court need not adopt a version of events clearly contradicted by the record
evidence). The print of each of Plaintiff’s left hand fingers is placed within the applicable box
on the fingerprint card and at the same height. Taking into account the fact that Plaintiff’s
fingers are not all the same length, it would have been impossible for Coleman to print the
left hand all at once. Further, that portion of the fingerprint card where Plaintiff’s four fingers
would ordinarily be printed together was left blank. In that space, it was written that
Defendants were unable to fingerprint the left hand fingers due to Plaintiff’s disability.7 The
fact that the print card shows individual prints of four fingers and a thumb from Plaintiff’s left
hand (and no print of a whole hand) directly contradicts his claim that Coleman printed the
whole hand at once and possibly a few fingers thereafter. Pl. Dep. at 147; Scott, 550 U.S.
372.

7

Defendants claim that, due to Plaintiff’s disability, they offered not to print his hand “or . . .
[to] do the best we can” and that Plaintiff agreed to do the best they could. Coleman Aff. at ¶ 17.
This is consistent with the fact that Defendants did not handcuff Plaintiff’s left wrist due to his
disability.
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Second, there is no indication that, after the fingerprinting incident, Plaintiff
complained of shoulder plain to Defendants, the Sergeant at the station,8 the judge at
arraignment, anyone at the Greene County Correctional Facility, or to his girlfriend when she
picked him up from the Greene County Correctional Facility. Similarly, there is no evidence
that he requested medical attention at any time while in custody.
Third, Plaintiff did not seek medical attention for over two weeks, thereby
suggesting that any pain caused to his left shoulder during the fingerprinting process was de
minimis. Plaintiff, who does not appear to have any medical training, claims to have selfreduced his dislocated shoulder within a week or two.9
Fourth, although Plaintiff complained of increased shoulder pain when he visited
the doctor on August 25, 2008, the objective medical evidence does not substantiate that his
shoulder had been dislocated. Prior to the subject incident, Plaintiff had a history of left
shoulder pain, including adhesive capsulitis10 of the left shoulder. At the August 25, 2008
8

In his affidavit, Plaintiff does claim to have stated “loudly to the sergeant, ‘Hey Sergeant your
men just hurt me.’” There is no indication, however, that Plaintiff further complained of pain or
requested medical attention.
9

At deposition, Plaintiff was asked the following questions and gave the following answers:

Q:

And how was it –

A:

Put back in?

Q:

– put back in? Yes.

A:

I put it back in.

Q:

How did you do it?

A.

Tried to push it like this (indicating), when I went on the rowing machine I got.. . .
10

The Court takes judicial notice of the definition of adhesive capsulitis, also known as frozen
shoulder. This is “a shoulder affected by severe pain, stiffness, and restricted motion.”
(continued...)
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medical appointment, Plaintiff was diagnosed with “probable excerbation [sic]” of adhesive
capsulitis in the left shoulder. An x-ray taken on August 25, 2008 revealed “slight irregularity
in the articular margin of the glenoid process of scapula suggesting mild degenerative
osteoarthritis. . . There is no fracture or other bony abnormality.” The impression was of
“[p]ossible mild degenerative osteoarthritis in the left shoulder.” There is no medical
evidence in the record suggesting that any exacerbation of Plaintiff’s adhesive capsulitis was
caused, or could be caused, by the manner in which he is alleged to have been fingerprinted.
On September 1, 2008, Plaintiff was treated at the V.A. emergency room for worsening left
arm pain. Plaintiff was given a shot and advised to contact his primary care provider’s nurse
the following day. Plaintiff did not do so. Plaintiff also did not follow up with a scheduled
orthopedic consult. Moreover, none of the medical records make any reference to the
subject incident, thereby suggesting that Plaintiff never claimed to his medical providers that
his shoulder pain was related to his arrest.
Based on the foregoing, the Court finds that there is insufficient evidence from
which it reasonably can be concluded that Defendants used excessive force in fingerprinting
Plaintiff or, in the alternative, that Defendants are entitled to qualified immunity concerning
the amount of force used to obtain Plaintiff’s fingerprints.

10

(...continued)
http://www.merriam-webster.com/medlineplus/frozen+ shoulder; see also
http://www.thefreedictionary.com/adhesive+ capsulitis;
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001490/;
http://www.mayoclinic.com/health/frozen-shoulder/DS00416 (all websites accessed on June 4, 2012)
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IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is

GRANTED and Plaintiff’s Complaint is DISMISSED IN ITS ENTIRETY.
IT IS SO ORDERED.
Dated:June 7, 2012

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