Negron v. Jacobs et al

Filing 22

MEMORANDUM-DECISION and ORDER - That the defendants' 15 Motion for Summary Judgment is DENIED. That this case is deemed trial ready and the court, in due course, shall issue a trial scheduling order. Signed by Chief Judge Gary L. Sharpe on 9/27/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CARMEN NEGRON,
Plaintiff,

1:11-cv-1385
(GLS/RFT)

v.
POLICE OFFICER RICHARD
JACOBS et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Sussman, Watkins Law Firm
55 Main Street, Suite 6
P.O. Box 1005
Goshen, NY 10924
FOR THE DEFENDANTS:
Goldberg, Segalla Law Firm
8 Southwoods Boulevard
Suite 300
Albany, NY 12211-2526

MICHAEL H. SUSSMAN, ESQ.

JONATHAN M. BERNSTEIN,
ESQ.
WILLIAM J. GREAGAN, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Carmen Negron commenced this action against defendants
Police Officer Richard Jacobs and Police Officer David Kindt, both

employed by the Village of Ellenville Police Department, pursuant to 42
U.S.C. § 1983, alleging that defendants used excessive force against her
in violation of the Fourth Amendment. (Compl. ¶¶ 2, 17, Dkt. No. 1.)
Pending is defendants’ motion for summary judgment. (Dkt. No. 15.) For
the reasons that follow, the motion is denied.
II. Background1
On the morning of August 9, 2010, Negron’s son, Jose, was stopped
by officer Kindt for Vehicle and Traffic infractions near the Negron home
while operating Negron’s vehicle. (Pl.’s Statement of Material Facts (SMF)
¶¶ 1-2, 5, 8, 10, Dkt. No. 16.) After learning about the stop, Negron,
accompanied by her husband and other son Christopher, left her home,
approached her stopped vehicle, and asked Jose why he had been pulled
over. (Id. ¶¶ 2, 4, 7, 8.) Negron made a similar inquiry of officer Kindt to
which he responded “mind [your] own business.” (Id. ¶¶ 12, 13.) Officer
Kindt eventually presented Jose with two tickets, and began to pull away in
his police vehicle. (Id. ¶¶ 6, 15-16.) Thereafter, Jose approached officer
Kindt’s police car, which prompted the officer to tell Jose that he was under

1

Unless otherwise noted, the facts are undisputed.
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arrest, and sent Jose running toward the nearby Negron home. (Id. ¶¶ 1920, 22.) Officer Kindt waited for backup and, at some point, officer Jacobs
arrived. (Id. ¶¶ 24, 27.)
Christopher “advise[d] his brother[, who had by then gotten to the
threshold of the home,] not to exit the home.” (Id. ¶¶ 23, 38.) The parties
dispute several of the details regarding what transpired afterward.
Ultimately, Kindt and Jacobs “attempted to arrest [Negron] for obstruction
of governmental administration and disorderly conduct,” and Negron
resisted arrest. (Defs.’ Statement of Material Facts (SMF) ¶¶ 3-4, Dkt. No.
15, Attach. 14.) As a result of the arrest, Negron suffered some injuries
and sought medical treatment for same. (Dkt. No. 15, Attachs. 8-9.)
Following a jury trial in Ellenville Justice Court, Negron was found guilty of
obstructing governmental administration, see N.Y. Penal Law § 195.05,
resisting arrest, see N.Y. Penal Law § 205.30, and one count of disorderly
conduct, see N.Y. Penal Law § 240.20(1), but not guilty of a separate
count of disorderly conduct, see N.Y. Penal Law § 240.20(3), or unlawful
disposal of a uniform traffic summons and complaint, see N.Y. Veh. & Traf.
Law § 207(5), related to the incident with officers Kindt and Jacobs. (Dkt.
No. 15, Attach. 10 at 426-27, 434-35.)
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Negron commenced this action in November 2011 alleging that
defendants used excessive force in effectuating her arrest on August 9,
2010. (Compl. ¶¶ 4-17) Following joinder of issue, (Dkt. No. 6), and the
close of discovery, (Dkt. No. 12 at 1), defendants moved for summary
judgment, (Dkt. No. 15.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d, 489 F. App’x 500 (2d Cir.
2012).
IV. Discussion
Defendants argue that they are entitled to summary judgment on
Negron’s sole claim of excessive force. (Dkt. No. 15, Attach. 15 at 2-10.)
Specifically, defendants contend that Negron’s conviction for resisting
arrest “collaterally and judicially estop[s her] from claiming she did not
resist,” and justified the use of force, which an expert opines was
reasonable in this case. (Id. at 5-9.) According to defendants, Negron’s
alleged injury was also “minimal at best,” and, alternatively, they are
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entitled to qualified immunity. (Id. at 10-13.) Negron argues, and the court
agrees, that disputed issues of fact preclude summary judgment. (Dkt. No.
17 at 17-21.)
“In order to establish that the use of force to effect an arrest was
unreasonable and therefore a violation of the Fourth Amendment, [a]
plaintiff[] must establish that the government interests at stake were
outweighed by the nature and quality of the intrusion on [the plaintiff’s]
Fourth Amendment interests.” Barlow v. Male Geneva Police Officer Who
Arrested Me on Jan. 2005, 434 F. App’x 22, 26 (2d Cir. 2011) (internal
quotation marks and citation omitted). “‘In other words, the factfinder must
determine whether, in light of the totality of the circumstances faced by the
arresting officer, the amount of force used was objectively reasonable at
the time.’” Id. (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
123 (2d Cir. 2004)).
“[C]laims of excessive force arising in the context of an arrest under
the Fourth Amendment’s objective reasonableness test,” are analyzed
“paying ‘careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and
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whether [s]he is actively resisting arrest or attempting to evade arrest by
flight.’” Phelan v. Sullivan, No. 12-3604-cv, 2013 WL 5183664, at *2 (2d
Cir. Sept. 17, 2013) (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). The entirety of the record must be evaluated “‘from the
perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’” Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006)
(quoting Graham, 490 U.S. at 396)); accord Tracy v. Freshwater, 623 F.3d
90, 96 (2d Cir. 2010). Indeed, “‘[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.’” Tracy, 623 F.3d at 96 (quoting Graham, 490 U.S. at
397).
“[T]he Second Circuit and district courts in the Circuit recognize the
concept of de minimis injury and, when the injury resulting from alleged
excessive force falls into that category, the excessive force claim is
dismissed.” Jackson v. City of N.Y., No. 11-CV-2925, 2013 WL 1621994,
at *7 (E.D.N.Y. Apr. 16, 2013) (internal quotation marks and citation
omitted). “‘[S]hort-term pain, swelling, and bruising, brief numbness from
tight handcuffing, claims of minor discomfort from tight handcuffing, and
two superficial scratches from a cut inside the mouth’” have been held to
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be de minimis, and, thus unactionable. Id. (quoting Lemmo v. McKoy, No.
08-CV4264, 2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011)).
Here, there is no doubt that material issues of fact exist such that a
trial is necessary. There are disputes about what happened leading up to
Negron’s arrest, the amount and application of the force used to arrest her,
and the extent of her injuries. Officer Kindt claimed during his deposition
that Negron made certain statements to the effect that, among other
things, she would not permit the officers to arrest her son and that they
were “pigs.” (Dkt. No. 15, Attach 4 at 33-34.) Officer Jacobs explained
during his deposition that Negron pushed Jose into the house, slammed
the door closed behind him, and blocked the door to deny the officers
entry, which prompted him to tell her that she was “under arrest for
obstructing.” (Dkt. No. 15, Attach., 5 at 40-43, 57.) Negron admitted
during her deposition that, after the police officers handcuffed Christopher,
she said to them: “well, just for that, you’re not coming into my house.”
(Dkt. No. 15, Attach. 7 at 99.) She flatly denies, however, that she made
any statement that the police were pigs, she blocked the doorway, and
officer Jacobs told her that she was under arrest for obstructing. (Dkt. No.
19 ¶ 2(a)-(b), (f).)
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On the question of the force used, officer Jacobs claims that he
merely “grabbed [Negron’s] wrist” to handcuff her, which caused her to
“flail[],” try to “pull away”, and “spin[] around.” (Dkt. No. 15, Attach 5 at 43.)
Officer Kindt stated that Negron began “pulling, kicking, [and] fighting”
when officer Jacobs grabbed her arm to handcuff her, and that she also
“attempt[ed] to punch.” (Dkt. No. 15, Attach. 4 at 42-43.) According to
officer Jacobs, officer Kindt came over when Negron began to resist and
directed her to “stop resisting” two or three times, and officer Kindt then
grabbed Negron’s left wrist. (Dkt. No. 15, Attach 5 at 43.) In an effort to
maintain control of Negron, officer Jacobs stated that he “pushed” her
against the wall, “leaned against her with [his] weight,” and “had [his] right
shoulder in her shoulder blade to maintain control and leverage, and she
was immediately handcuffed . . . and taken into custody.” (Id. at 43-44.)
Negron disputes defendants’ version of events. In particular, she asserts
that she did not flail, pull away, fight, punch, or kick as she was
handcuffed. (Dkt. No. 19 ¶ 2(c), (f)-(i).) She also alleges that she was
“slammed” from behind after closing the door behind Jose into the side of
her home, as opposed to only “pushed.” (Dkt. No. 15, Attach. 7 at 102,
104, 107; Dkt. No. 19 ¶ 2(d), (j).)
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There are also issues regarding the seriousness of Negron’s injuries.
Undisputably, she suffered bruising and an abrasion to her eye, and
shoulder bruising. (Dkt. No. 15, Attach. 7 at 144, 153-55; Dkt. No. 15,
Attach 9 at 3-6.) Negron further contends that she ultimately required
surgery to “reconstruct [her] whole shoulder” as a “result from [sic] the
beating from the cops.” (Dkt. No. 15, Attach. 7 at 32-33.)2 All of these
issues of fact must be resolved by a jury to determine whether defendants
used excessive force.
Collateral estoppel3 does not dictate that the motion be granted
either. Indeed, a conviction for resisting arrest, which under New York law
requires proof that the defendant “intentionally prevent[ed] or attempt[ed] to

2

The court notes defendants’ assertion that Negron has submitted
inadmissible evidence regarding her injuries, and has fatally failed to
come forward with expert evidence regarding causation. (Dkt. No. 20,
Attach. 2 at 5-6.) Mindful of the requirement that “only admissible
evidence need be considered” when ruling on a summary judgment
motion, see Presbyterian Church of Sudan v. Talisman Energy, Inc., 582
F.3d 244, 264 (2d Cir. 2009), the court notes that sufficient admissible
evidence exists to demonstrate an issue of fact regarding the severity of
Negron’s injuries—namely, her own deposition testimony. See Phelan,
2013 WL 5183664, at *2.
3

This court must apply the rules of collateral estoppel of the state in
which the prior judgment was rendered, here, New York. See Sullivan v.
Gagnier, 225 F.3d 161, 166 (2d Cir. 2000); see also 28 U.S.C. § 1738.
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prevent a police officer or peace officer from effecting an authorized arrest
of h[er]self or another person,” N.Y. Penal Law § 205.30, “is not
incompatible with [a] claim for excessive force.” Sullivan v. Gagnier, 225
F.3d 161, 166 (2d Cir. 2000).4 Despite defendants’ arguments, the criminal
jury did not necessarily find that the testimony of officers Kindt and Jacobs
was entirely true, including the portions that would suggest that the amount
of force used by them was reasonable. (Dkt. No. 15, Attach. 10 at 70-71,
135-36.) All that can be gleaned from Negron’s conviction for resisting
arrest is that the jury found the elements of that crime to be satisfied, none
of which concern the use of force by a police officer. Finally, the opinion of
defendants’ expert Richard Cox relies on the very facts that are in dispute,
and, therefore, is of no moment at this juncture. (Dkt. No. 15, Attach. 11
¶¶ 11, 19, 20; Dkt. No. 15, Attach. 13 at 2, 4.)
Briefly, turning to qualified immunity, because “[s]ummary judgment
should not be granted on the basis of a qualified immunity defense
premised on an assertion of objective reasonableness unless the

4

The same can be said of Negron’s conviction of disorderly conduct
pertaining to her “intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof” by “engag[ing] in fighting or in
violent, tumultuous or threatening behavior.” N.Y. Penal Law § 240.20(1).
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defendant ‘show[s] that no reasonable jury, viewing the evidence in the
light most favorable to the [p]laintiff, could conclude that the defendant’s
actions were objectively unreasonable in light of clearly established law’”
O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003)
(quoting Ford v. Moore, 237 F.3d 156, 162 (2d Cir. 2001)), that defense is
unavailable here in light of the factual disputes highlighted above. Given
the foregoing, the case is deemed trial ready and the court, in due course,
shall issue a trial scheduling order.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
15) is DENIED; and it is further
ORDERED that this case is deemed trial ready and the court, in due
course, shall issue a trial scheduling order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 27, 2013
Albany, New York
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