Jackson v. Gunsalus et al

Filing 111

ORDER denying 97 Motion for Summary Judgment. Signed by Judge Brenda K. Sannes on 11/28/2018. (Copy served on plaintiff via regular mail)(rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KELVIN JACKSON,
Plaintiff,

5:16-cv-00647 (BKS/TWD)

v.
JOHN GUNSALUS, as police officer of Syracuse Police
Department and in individual capacity; and WILLIAM
LASHOMB, as police officer of Syracuse Police
Department and in individual capacity,
Defendants.
Appearances:
Kelvin Jackson
Syracuse, NY 13205
Plaintiff pro se
Khalid Bashjawish
City of Syracuse Corporation Counsel
300 City Hall
233 East Washington Street
Syracuse, NY 13202
For Defendants
Hon. Brenda K. Sannes, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff pro se Kelvin Jackson brings this action under 42 U.S.C. § 1983 alleging that

Defendants subjected him to excessive force in violation of the Fourth Amendment. (Dkt. No. 8,
at 4). Defendants move for summary judgment under Rule 56 of the Federal Rules of Civil
Procedure on the ground that, because Plaintiff was convicted of resisting arrest, Heck v.

Humphrey, 512 U.S. 477 (1994), bars his excessive force claim. 1 (Dkt. No. 97). Plaintiff opposes
Defendants’ motion. (Dkt. No. 108). For the reasons discussed below, Defendants’ motion is
denied.
II.

FACTS 2
On June 9, 2013, at approximately 2:00 a.m., Defendants “observed a disturbance being

caused by Plaintiff inside of Acropolis Pizza located at 167 Marshall Street in the City of
Syracuse.” (Dkt. No. 97-8, ¶ 1; Dkt. No. 108, ¶ 1). The parties dispute what happened next.
Defendants assert that they entered Acropolis Pizza and “advised Plaintiff he was under arrest.”
(Dkt. No. 97-8, ¶ 2). Plaintiff claims that “[w]hen the [Defendants] entered the establishment
there were no words they went into action with excessive force.” (Dkt. No. 108, ¶ 2). According
to Defendants, “Plaintiff actively resisted Defendants’ efforts” to place him under arrest. (Dkt.
No. 97-8, ¶ 3). Defendants and Plaintiff both admit that there was a struggle. Defendants assert
that after the struggle they “were able to place Plaintiff in handcuffs.” (Dkt. No. 97-8, ¶ 4).
Plaintiff claims that the struggle was due to Defendants’ use of excessive force. (Dkt. No. 108, ¶
4).
Plaintiff alleges that Defendant Gunsalus “punched [him] in [his] face several times”
during Plaintiff’s arrest “causing contusions to [his] head along with swelling to [his] eyes.”
(Dkt. No. 8, at 3). Plaintiff asserts that Defendant Lashomb punched him “in the back along with
using his knees, kneeing [Plaintiff] in [his] back area.” (Id.). Plaintiff alleges that he “was beaten

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Defendants served Plaintiff with a “Notification of the Consequences of Failing to Respond to a Summary
Judgment Motion” in accord with Local Rule 56.2. (Dkt. No. 97-10).

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The facts are drawn from Defendants’ statement of material facts (Dkt. No. 97-8) and the attached exhibits,
Plaintiff’s response thereto (Dkt. No. 108), and the verified amended complaint (Dkt. No. 8). Although Plaintiff
failed to provide a “specific citation to the record” for the facts he asserts in his response to the Defendants’
statement of material facts, in accord with Local Rule 7.1(a)(3), those factual disputes are immaterial to the
resolution of this motion.

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by these officers to the point where [he] became unable to breath [sic],” and that he suffered
“fractures in [his] back.” (Id.).
Plaintiff was charged with the crimes of disorderly conduct, resisting arrest, and trespass,
in violation of N.Y. Penal Law §§ 240.20, 205.30 and 140.05, respectively. (Dkt. No. 97-8, ¶¶ 5–
6). A jury convicted Plaintiff of disorderly conduct and resisting arrest. (Id. ¶ 7).
III.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if

all the submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
The moving party bears the initial burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. A fact is “material” if it “might affect the outcome of
the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see
also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). The
movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
If the moving party meets this burden, the nonmoving party must “set out specific facts
showing a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex, 477 U.S. at
323-24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary
judgment motion, the district court must construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the
movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Moreover,
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where a plaintiff proceeds pro se, the Court must read his submissions liberally and interpret
them “to raise the strongest arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276,
280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
IV.

DISCUSSION
Defendants argue that because Plaintiff was convicted of resisting arrest, Heck bars his

excessive force claim. (Dkt. No. 97-9, at 3). In Heck, the Supreme Court held:
[I]n order [for a state prisoner] to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, a plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such
determination or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence that has not been
so invalidated is not cognizable under § 1983.
512 U.S. at 486–87. The Court continued:
Thus, when a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already
been invalidated. But if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the absence of some
other bar to the suit.
Id. at 487 (first emphasis added, second in original). As a general matter, however, it is “well
established that an excessive force claim does not usually bear the requisite relationship under
Heck to mandate its dismissal.” McGrew v. Holt, No. 13-cv-792, 2015 WL 736614, at *4, 2015
U.S. Dist. LEXIS 20231, at *9 (N.D.N.Y. Feb. 20, 2015) (quoting Smith v. Fields, No. 95-cv8374, 2002 WL 342620, at *4, 2002 U.S. Dist. LEXIS 3529, at *13–14 (S.D.N.Y. Mar. 4,
2002)). The Second Circuit has explained that “[u]nlike malicious prosecutions, many violations
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of constitutional rights, even during the criminal process, may be remedied without impugning
the validity of a conviction,” noting that when, for example, “a suspect sues his arresting officer
for excessive force, a § 1983 suit may proceed even if the suspect is ultimately convicted of
resisting arrest.” Poventud v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014).
Here, Plaintiff’s § 1983 action rests on whether Defendants used excessive force in
violation of the Fourth Amendment during his arrest on June 9, 2013. (Dkt. No. 8, at 3–4). The
Fourth Amendment protects individuals from excessive force by police officers during an arrest.
Graham v. Connor, 490 U.S. 386, 395 (1989). Whether the force used by an arresting officer was
excessive is determined by an objective balancing test where “the nature and quality of the
intrusion on the plaintiff’s Fourth Amendment interests” is weighed “against the countervailing
governmental interests at stake.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). At least
three factors guide the determination: “(1) the nature and severity of the crime leading to the
arrest, (2) whether the suspect poses an immediate threat to the safety of the officer or others,
and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.”
Tracy, 623 F.3d at 96.
Defendants argue that Plaintiff’s conviction for resisting arrest is “incompatible with the
claim of excessive force” raised here, but fail to explain how. Defendants have submitted trial
transcripts from the state court trial. (Dkt. Nos. 97-6; 109–110). However, there is nothing in that
record suggesting that, in order to find Plaintiff guilty of the crime of resisting arrest, the jury
had to find facts incompatible with his claim of excessive force. The trial court instructed the
jury that “[i]n order for you to find [Plaintiff] guilty of this crime, the People are required to
prove from all the evidence that you have heard beyond a reasonable doubt both of the following
two elements: One, that on June 9th, 2013 at 167 Marshall Street in the City of Syracuse, . . .

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Kelvin Jackson, prevented, or attempted to prevent a police officer from affecting an authorized
arrest of himself; and, Number 2, that he did so intentionally.”)). (See Dkt. No. 110, at 16–17).
Thus, in finding Plaintiff guilty, the jury only determined that he “intentionally prevent[ed] . . . a
police officer or peace officer from effecting an authorized arrest of himself or another person.”
N.Y. Penal Law § 205.30. As such, a finding that the Defendants used excessive force during the
arrest would not necessarily “imply the invalidity of his conviction or sentence” for resisting
arrest. Heck, 512 U.S. at 487; see Adams v. O’Hara, No. 16-cv-527, 2018 U.S. Dist. LEXIS
124524, at *22 (N.D.N.Y. July 24, 2018) 3 (finding Heck did not bar the plaintiff’s excessive
force claims, explaining that “courts have found that a conviction for assault would not
necessarily preclude an excessive force claim against the responding officers, because the fact
that plaintiff assaulted an officer does not preclude a reasonable jury finding that the force used
during the incident, or after the incident, was excessive under the circumstances”), report and
recommendation adopted, 2018 WL 4590015, 2018 U.S. Dist. LEXIS 163944 (N.D.N.Y. Sep.
25, 2018); Casey v. Brockley, No. 13-cv-01271, 2018 WL 1399244, at *5, 2018 U.S. Dist.
LEXIS 26880, at *13 (N.D.N.Y. Feb. 16, 2018) (explaining that Heck did not bar the plaintiff’s
excessive force claim “[b]ecause it is possible for a fact finder to accept the validity of Plaintiff’s
disciplinary convictions and still conclude that Defendants used excessive force”), report and
recommendation adopted, 2018 WL 1393787, 2018 U.S. Dist. LEXIS 44194 (N.D.N.Y. Mar. 19,
2018). Accordingly, Heck does not bar Plaintiff’s excessive force claim.
V.

CONCLUSION
For these reasons, it is hereby

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No Westlaw cite available.

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ORDERED that Defendants’ motion for summary judgment (Dkt. No. 97) is DENIED.

IT IS SO ORDERED.
Dated: November 28, 2018
Syracuse, New York

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