Kirby v. Hanks et al

Filing 80

MEMORANDUM-DECISION AND ORDER granting 67 Motion for Summary Judgment: The Court hereby ORDERS that Defendant's motion for summary judgment (Dkt. No. 67) is GRANTED; and the Court further ORDERS that the Clerk of the Court shall enter judg ment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 09/24/2024. (Copy served via regular mail upon plaintiff)(ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
DAVID L. KIRBY, III,
Plaintiff,
vs.

5:21-CV-886
(MAD/MJK)

BRANDON HANKS,
Defendant.
_______________________________________________
APPEARANCES:

OF COUNSEL:

DAVID L. KIRBY, III
05002304
Onondaga County Justice Center
555 South State Street
Syracuse, New York 13202
Plaintiff, pro se
THE REHFUSS LAW FIRM, P.C.
40 British American Blvd.
Latham, New York 12110
Attorney for Defendant

STEPHEN J. REHFUSS, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On August 6, 2021, pro se Plaintiff David L. Kirby, III, commenced this action by filing a
complaint. See Dkt. No. 1. Plaintiff did not pay the Court's filing fee or file a motion to proceed
in forma pauperis ("IFP"), and the Court administratively closed the case. See Dkt. No. 2.
Plaintiff subsequently filed a motion to proceed IFP. See Dkt. No. 4. Plaintiff filed an amended
complaint. See Dkt. No. 10. Upon review of his amended complaint, the Court dismissed
Plaintiff's complaint without prejudice and with leave to amend. See Dkt. No. 11. Plaintiff filed a

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second amended complaint. See Dkt. No. 23. The Court permitted only an excessive force claim
against Defendant Brandon Hanks to proceed. See Dkt. No. 36. Plaintiff alleged that while he
was being arrested on July 27, 2021, Defendant used excessive force when handcuffing Plaintiff
such that it "tore the front of [Plaintiff's] ring finger." Dkt. No. 23 at 4. Defendant answered the
complaint. See Dkt. No. 46.
Presently before the Court is Defendant's motion for summary judgment. See Dkt. No. 67.
Plaintiff responded in opposition. See Dkt. No. 70. For the following reasons, Defendant's
motion is granted.
II. BACKGROUND
Plaintiff's operative complaint alleges, in relevant part, as follows:
I was asked [sic] to stop Officer Hank at nighttime on July 27, 2021
because he thought I was a suspect he was looking for. After they
did what they did I was placed in handcuffs by Officer Hanks.
When he placed the cuffs [sic] on me he used excessive force where
he tore the front of my right finger. . . . Placed in handcuffs which
he used excessive force twisting my hand which resulted to the
injury I still feel to my right ring finger.
Dkt. No. 23 at 4-5.
As set forth in Defendant's statement of material facts, Defendant is a Syracuse Police
Officer who was working on July 27, 2021. See Dkt. No. 67-3 at ¶¶ 1-2. At approximately 11:26
PM, Defendant received a dispatch call for drug trafficking and gun violence. See id. at ¶¶ 3-4.
As Defendant and Officer J. Harriman were searching the area identified in the dispatch call,
Defendant noticed a male "acting suspiciously." Id. at ¶ 5. Plaintiff "was speed walking" down
the street and "holding his waistband and continuously looking back." Id. at ¶ 6. Defendant
believed Plaintiff might have been carrying a weapon and Plaintiff matched the description of the
individual the officers were looking for. See id. at ¶¶ 7-8. As Defendant and Officer Harriman

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pursued Plaintiff, Plaintiff ran across the street and around a corner. See id. at ¶ 9. Once the
officers caught up with Plaintiff, he dropped to his knees. See id. at ¶ 10.
Defendant then placed Plaintiff in handcuffs. See id. at ¶ 14. After being in the handcuffs
for approximately two minutes, Defendant "lock[ed] out the handcuffs to ensure that they would
not tighten with movement and explain[ed] to [Plaintiff] what he was doing." Id. at ¶ 15.
Defendant patted Plaintiff down and escorted him to a Syracuse Police Department vehicle. See
id. at ¶¶ 16-17. Plaintiff entered the backseat of the vehicle without any assistance. See id. at ¶
18.
Plaintiff's entire response to Defendant's motion states as follows:
I David L Kirby III is [sic] responding to the motion for summary
judgment. That you should not dismiss none [sic] of my cases
because I filed a lawsuit as soon as I got upstairs in the Justice
Center and received all paperwork to file one. Months later I filed
one soon as I found out he violated my rights which turned
unconstitutional from what happen [sic] when I was in jail.
Another reason to not dismiss my cases is because they are trying to
use what I'm in jail for now which [does not have anything] to do
with the lawsuit. So please don't dismiss my excessive force or
civil rights lawsuit. I am writing this to the best of my ability. I am
pro se and this is my first time.
Dkt. No. 70.1

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Plaintiff has filed six other pro se complaints in this Court. Three of them concern the exact
same conduct underlying this case. See Kirby v. SPD, et al., 9:22-CV-210; Kirby v. Hanks, 5:24CV-124; Kirby v. Hanks, et al., 9:21-CV-1030. Two of Plaintiff's seven cases have been
dismissed for failure to state a claim. See Kirby v. Jamesville Corr. Fac., 9:21-CV-87, Dkt. No.
23; Kirby v. Cruz et al., 9:24-CV-264, Dkt. No. 10. Another case has been dismissed for failure
to pay the filing fee or complete an IFP application. See Kirby v. SPD et al., 9:22-CV-210, Dkt.
No. 13. A fourth case was dismissed for failure to comply with the deadlines for filing an
amended complaint. See Kirby v. Hanks, 5:24-CV-124, Dkt. No. 17. The Court cautions Plaintiff
about the "three strikes" rule. "The 'three strikes' rule of 28 U.S.C. § 1915(g) prohibits the filing
of an IFP action when the plaintiff has had federal actions or appeals dismissed on at least three
prior occasions, either for failure to state a claim or for frivolousness." Grefer v. New York State
Dept/Bd. of Educ., No. 5:23-CV-178, 2023 WL 4073751, *2 (N.D.N.Y. June 20, 2023).
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III. DISCUSSION
A.

Local Rule 56.1
Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file a

response "admitting and/or denying each of the movant's assertions" in the movant's Statement of
Material Facts, and "[e]ach denial shall set forth a specific citation to the record where the factual
issue arises." N.D.N.Y. L.R. 56.1(b). Where the opposing party fails to follow Local Rule
56.1(b), the Court shall accept the properly supported facts stated in the movant's Statement of
Material Facts. See id. ("The Court shall deem admitted any properly supported facts set forth in
the Statement of Material Facts that the opposing party does not specifically controvert"). While
this Court must construe a pro se litigant's pleadings and papers liberally and interpret them to
raise the strongest arguments that they suggest, this standard "does not excuse a pro se litigant
from following the procedural formalities of summary judgment," including Local Rule 56.1(b).
Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003) (citing Showers v. Eastmond, No.
00-CV-3725, 2001 WL 527484, *4 (S.D.N.Y. May 16, 2001)). "The courts of the Northern
District have adhered to a strict application of Local Rule [56.1]'s requirement on summary
judgment motions." Id. (citations omitted).
Plaintiff has not even attempted to comply with Local Rule 56.1's mandate. Therefore,
Defendant's facts, as properly supported by Defendant's sworn affidavit, body camera footage,
and Plaintiff's deposition testimony, are deemed admitted for purposes of ruling on Defendant's
motion for summary judgment.
B.

Summary Judgment Motion
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue

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warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting FED. R. CIV. P. 56(c)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d
139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion
for summary judgment "would derogate the truth-finding functions of the judicial process by
substituting convenience for facts").
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan, 289 F. Supp. 2d at 295 (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has
opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from
inadvertently forfeiting legal rights merely because they lack a legal education. Govan, 289 F.
Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). However, this does
not mean that a pro se litigant is excused "from following the procedural requirements of

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summary judgment." Id. (citation omitted). Specifically, "a pro se party's 'bald assertion,'
completely unsupported by evidence, is not sufficient to overcome a motion for summary
judgment." Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991)).
"The Fourth Amendment provides that '[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.'" Jennings v. Decker, 359 F. Supp. 3d 196, 205 (N.D.N.Y. 2019) (quoting U.S. Const.
amend. IV). "That language has been interpreted as 'protect[ing] persons from the use of
excessive force by state police officers incident to an arrest.'" Id. (quoting Messina v. Mazzeo,
854 F.Supp. 116, 128 n.6 (E.D.N.Y. 1994)). "Fourth Amendment claims of excessive force are
governed by an objective reasonableness standard, such that no claim will lie when 'the force used
by the officers was objectively reasonable under the circumstances.'" Id. (quotation omitted). "In
making this determination, courts examine 'the severity of the crime at issue, whether the suspect
pose[d] an immediate threat to the safety of the officers or others, and whether he [wa]s actively
resisting arrest or attempting to evade arrest by flight.'" Id. (quoting Graham v. Connor, 490 U.S.
386, 395 n.10 (1989)). "'Not every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers, violates the Fourth Amendment.'" Id. (quoting Brown v. City of New
York, 798 F.3d 94, 107 (2d Cir. 2015) (additional quotations omitted).
Specifically, in the context of handcuffing an arrestee, the Second Circuit has affirmed the
consideration of factors such as: "'(1) the [arrestee's] handcuffs were unreasonably tight; (2) the
defendants ignored the arrestee's pleas that the handcuffs were too tight; and (3) the degree of
injury to the [arrestee's] wrists.'" Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019)
(quoting Esmont v. City of New York, 371 F. Supp. 2d 202 (E.D.N.Y. 2005)). However, the

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Second Circuit has also explained that "a plaintiff asserting a claim for excessive force need not
always establish that []he alerted an officer to the fact that [his] handcuffs were too tight or
causing pain. The question is more broadly whether an officer reasonably should have known
during handcuffing that his use of force was excessive." Id. "A plaintiff satisfies this requirement
if either the unreasonableness of the force used was apparent under the circumstances, or the
plaintiff signaled [his] distress, verbally or otherwise, such that a reasonable officer would have
been aware of [his] pain, or both." Id. (collecting cases); see also Usavage v. Port Auth. of New
York & New Jersey, 932 F. Supp. 2d 575, 593 (S.D.N.Y. 2013) ("Courts may decide excessive
force claims, including claims arising from allegations of excessively tight handcuffs, on motions
for summary judgment") (collecting cases).
Plaintiff presents no evidence or argument to dispute Defendant's motion for summary
judgment or statement of material facts. Plaintiff does not assert that Defendant's handcuffing of
Plaintiff was plainly unreasonable or that Plaintiff manifested clear signs of distress. The Court
has reviewed Defendant's body camera footage which depicts his entire interaction with Plaintiff
from the foot pursuit, handcuffing, locking out the handcuffs, and escorting Plaintiff to a vehicle.
There is not a single use of force, let alone excessive force, depicted at any time in the video
footage. Plaintiff did not exert any signs of distress. Plaintiff was entirely compliant and put
himself inside of the vehicle, unassisted.
As Defendant explains, Plaintiff has also failed to present any evidence of his purported
finger injury. See Dkt. No. 67-1 at 8. In any event, "[t]he Second Circuit and district courts in the
Circuit recognize that when the 'injury resulting from alleged excessive force' is de minimis, 'the
excessive force claim is dismissed.'" Smith v. Sawyer, 435 F. Supp. 3d 417, 440 (N.D.N.Y. 2020)
(quoting Jackson v. City of New York, 939 F. Supp. 2d 235, 253 (E.D.N.Y. 2013)) (additional

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quotation and citations omitted). "'Injuries held to be de minimis for purposes of defeating
excessive force claims include short-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.'" Id. (quotations omitted). Plaintiff's blanket and unsupported
assertions that he was subjected to excessive force that "tore the front of [his] right ring finger"
which he "still feel[s]" are insufficient to establish more than de minimis injuries. Dkt. No. 23 at
4; see also Dkt. No. 70; Kaid v. Rudnikc, No. 15-CV-548, 2018 WL 3850828, *6 (W.D.N.Y. June
26, 2018) (granting summary judgment on excessive force claim where, inter alia, despite the
plaintiff alleging that after he was handcuffed, he was "punched several times in the stomach, side
and back area," and then thrown to the ground and "kicked numerous times in the stomach and
finally in the groin area" where his only claimed injury was "soreness").
To be sure, "a 'plaintiff's testimony about the injuries and subsequent treatment alone [can
be] sufficient to support an excessive force claim on a motion for summary judgment.'" Usavage,
932 F. Supp. 2d at 593 (quotation and citation omitted). During his deposition, Plaintiff testified
that Defendant "brought [his] hand up tightly." Dkt. No. 67-8 at 17. Plaintiff repeated that
Defendant "brought his hands up" multiple times. See id. at 19-20. He testified that he said, "ah
shit." Id. at 21. He stated that when he "was getting set down in the car and the cuffs was getting
put on me, my hand was – that's when we got – ring finger got hurt." Id. at 23. Plaintiff later
asserted that Defendant injured his right ring finger when he put the handcuffs on Plaintiff. See
id. at 25-26. Plaintiff stated that "the doctors they aint do nothing [sic]. They just said it's
probably fractured. They gave me ibuprofen." Id. at 28. Plaintiff's finger was never X-rayed.
See id. at 28-30. Plaintiff never sought other medical treatment. See id. at 31.

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Plaintiff has failed to raise any dispute about Defendant's conduct or his own injuries. The
body camera footage directly refutes Plaintiff's contradictory deposition testimony. There is no
evidence that Defendant's conduct was unreasonable or that Plaintiff suffered a more than de
minimis injury. Rather, based on the present record, Defendant's conduct did not constitute
excessive force as a matter of law.
Finally, on August 30, 2024, Plaintiff field a letter with the Court. See Dkt. No. 79. In his
letter, Plaintiff asks for "$10 million dollars for excessive force when Officer Brandon Hanks
fracture[d] my right ring finger when he balled my hand up when he was cuffing me." Id.
Plaintiff also states that he was subjected to a false arrest and false imprisonment as well as a
Fourteenth Amendment violation for the pat frisk conducted by Defendant. See id. Plaintiff
contends that he has experienced cruel and unusual punishment while incarcerated and a violation
of his Equal Protection rights because of his race. See id.
Even with the special solicitude and liberal construction that the Court must show pro se
litigants and their filings, Plaintiff has failed to sufficiently dispute Defendant's motion for
summary judgment. Plaintiff has presented no evidence concerning his Eighth Amendment
claim, and any other purported claims related to his arrest are not before this Court. The only
claim that the Court permitted to proceed past initial review was Plaintiff's Eighth Amendment
excessive force claim against Defendant. See Dkt. No. 36. Plaintiff has failed to support that
claim; therefore, Defendant's summary judgment motion is granted.
IV. CONCLUSION
After careful review of the record, the parties' submissions, and the applicable law, the
Court hereby

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ORDERS that Defendant's motion for summary judgment (Dkt. No. 67) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 24, 2024
Albany, New York

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