Riddick v. Thomas

Filing 31

MEMORANDUM OPINION AND ORDER: re: 16 MOTION for Summary Judgment. filed by John H. Thomas. For the reasons set forth above, defendant's motion for summary judgment is GRANTED. The Court finds, pursuant to 28 U.S.C. § 1915{a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. (Signed by Judge Katherine B. Forrest on 3/15/2012) (jfe)

USDCSDNY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC #:---t.........f"t--.4--t!'-l""'.......

DATE FILED

------------------------------------X
ANTONIO RIDDICK,

11 Civ. 2986 (KBF)

Plaintiff,

MEMORANDUM OPINION
& ORDER

-v-

JOHN H. THOMAS,
Defendant.

------------------------------------x
KATHERINE B. FORREST, District Judge:
In April 2011, plaintiff Antonio Riddick
("plaintiff"), appearing pro se, filed this action against
a Postal Police Officer with the United States Postal
Inspection Service Security Force.

This Court has

liberally construed plaintiff's claim as one brought
pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), alleging the use
of excessive force in violation of his Fourth Amendment
constitutional rights.

Plaintiff amended his complaint on

June 17, 2011, naming the officer individually as John H.
Thomas ("Thomas" or "defendant").

Defendant has now moved

for summary judgment.
For the reasons set forth below, defendant's motion is
GRANTED.

BACKGROUND
In support of the motion for summary judgment,
defendant submitted a Statement of Undisputed Material
Facts pursuant to Local Rule 56.1.

(See Def.'s Statement

of Undisputed Material Facts Pursuant to Local Civil Rule
56.1 ("Def.'s 56.1 Stmt.").)

Plaintiff has not submitted

any factual materials in response.

Plaintiff's failure to

submit such materials was not a result of being uninformed
of the opportunity to do so.
At a conference that this Court held on December 9,
2011,

(the "December 9th conference") counsel for defendant

stated an intention to move for summary judgment.

{Initial

Pretrial Conference Tr. at 3:16-23, December 9, 2011 ("Dec.
9, 2011 Tr.").)

This Court then described to plaintiff

what such a motion was and steps that plaintiff would need
to take in order to put forth a material issue of fact.
(Id. at 16-17.)

The Court informed plaintiff that if he

had witnesses who could corroborate his version of events,
he should submit to the Court statements from them.

(Id. )

The Court also told plaintiff that if the defendant
submitted affidavits in support of his motion and plaintiff
wanted to speak with those individuals whose affidavits
were submitted by defendant, the Court would help
facilitate that.

(Id. )
2

Pursuant to Local Rule 56.1, plaintiff also received a
Notice to Pro Se Litigant Who Opposes a Motion for Summary
Judgment.

(Dkt No. 24.)

The Notice explained to plaintiff

that he "must submit evidence, such as witness statements
or documents, countering the facts asserted by the
defendant and raising material issues of fact," or else
"the court may accept defendant's factual assertions as
true.

II

Rather than submit affidavits or documentary evidence
contradicting defendant's Rule 56.1 Statement, plaintiff's
submission on this motion states only "I did nothing wrong

II

and "Proper Peace on Earth through peripheral Pluto Please"
and "Think about eating Chinese, Japanese Asian food with
chopsticks.

II

(Aff. in Opp. to Mot. for Summ. J. at 1-2.)

The law is clear that "[aJ nonmoving party's failure
to respond to a Rule 56.1 statement permits the court to
conclude that the facts asserted in the statement are
uncontested and admissible.

1I

See T.Y. v. New York City

Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).
litigants are not excused from this rule.

Pro se

See S.E.C. v.

Tecumseh Holdings Corp., 765 F. Supp. 2d 340, 344 n.4
(S.D.N.Y. 2011)

("Pro se litigants are

. . not excused

from meeting the requirements of Local Rule 56.1

•

• II )

(citing Wali v. One Source Co., 678 F. Supp. 2d 170, 178
3

(S.D.N.Y. 2009)).

Accordingly, while this Court construes

facts in favor of the nonmovant on a motion for summary
judgment - and construes submissions made by a pro se
nonmovant particularly liberally - here, there are no
material issues of fact.
Plaintiff's claim arises from an incident that
occurred in the James A. Farley Post Office Building ("the
post office") located at 34th Street and 8th Avenue in New
York City on April 10, 2011.
Thomas Decl.

~

2.)

~

(See Def.'s 56.1 Stmt.

2;

Plaintiff claims that he was at a

window inside the post office when a clerk was trying "to
instigate [him]./I

(See Def.'s 56.1 Stmt.

Tr. at 9:5-6, 18-20.)

1

8i Dec. 9, 2011

A Postal Supervisor, Kevin McKeogh,

believed that plaintiff had made rude remarks and was
causing a disturbance.
McKeogh Decl.

~

2.}

See Def.'s 56.1 Stmt.

~ IIi

Mr. McKeogh asked plaintiff not to

speak to the clerk in "that way" and asked that he leave
the window.

(Def.'s 56.1 Stmt.

1

12; McKeogh Decl.

~

3.)

Mr. McKeogh saw plaintiff leave the window, return to the
line, while continuing to make loud comments.
Decl.

1

4.)

Postal Police Officer Thomas was in the post

office at this time.

1

(McKeogh

5; Thomas Decl.

1

(Def.'s 56.1 Stmt.
6.)

1

1; McKeogh Decl.

Mr. McKeogh communicated with

Thomas regarding the incident and Thomas approached
4

plaintiff.

(Def./s 56.1 Stmt. ~ 13-14; Thomas Decl. ~ 7.)

Plaintiff proceeded to make loud and inappropriate comments
regarding his anatomy.
6.)

(Thomas Decl. ~ 7; Solano Decl. ~

While plaintiff denies that he was engaged in an

argument

I

several witnesses confirm that plaintiff became

"louder and louder" when speaking with Officer Thomas.
(See ~I McKeogh Decl. ~ 6; Solano Decl. ~ 6.)
Officer Thomas requested that plaintiff leave the
building.

(Def./s 56.1 Stmt. ~ 16; Thomas Decl. ~ 9.)
(Def./s 56.1 Stmt. ~ 16; Thomas Decl. ~

Plaintiff refused.

9; Solano Decl. ~ 7i McKeogh Decl. ~ 6.)

Officer Thomas

and Officer Solano then escorted plaintiff out of the
building.

(Def./s 56.1 Stmt. ~ 17i Thomas Decl. ~~ 10-11i

Solano Decl. ~~ 8-9.)

Plaintiff did not physically resist

and walked out with the officers.

(Def./s 56.1 Stmt. ~ 20i

Thomas Decl. ~ 12i Solano Decl. ~ 9; McKeogh Decl. ~ 7.)
Outside of the front of the post office
dropped to the ground.

(Def./s 56.1 Stmt.

Decl. ~ 13; Solano Decl. ~ 10.)

I

~

plaintiff
21; Thomas

Plaintiff told this Court

at the December 9th conference that he did not get up
because "[i]f I get
up.

UPI

nothing happened. So I didn/t get

I said I need an ambulance to report the incident

what happened

I

because if I got up and got back down

not the same thing

I

as far as lim concerned."
5

I

(Dec. 9

I

it/s
1

2011 Tr. at 8:12-15.}

Plaintiff did not state then, or at

any other time apart from assertions made in his complaint,
that he was injured as a direct result of being escorted
out of the post office.

See Def.'s 56.1 Stmt. , 24;

Thomas Decl. , 15; Solano Decl. , 11.)
An ambulance arrived and transported plaintiff to

Bellevue Hospital.

(See Def.'s 56.1 Stmt. , 26; Thomas

Decl. , 21; Solano Decl. , 15; Beatty Decl. Ex. C at 2-3.)
When plaintiff entered the ambulance, an Emergency Medical
Technician asked plaintiff about a hospital bracelet that
was already on his arm.

(Def.'s 56.1 Stmt. , 29; Thomas

Decl. , 21; Solano Decl. , 15; Beatty Decl. Ex. C at 2-3.)
Plaintiff stated that he had been at a hospital earlier
that day for pain in his arm.

(Def.'s 56.1 Stmt. , 30i

Thomas Decl. , 21; Solano Decl. , 15i Beatty Decl. Ex. C at
2-3.)

At Bellevue, according to plaintiff, he received a

"psychological, crazy test."

(Def.'s 56.1 Stmt. , 21i Dec.

9, 2011 Tr. 8:16-17.)
Officer Solano and Mr. McKeogh believe that Officer
Thomas acted appropriately in removing plaintiff from the
post office.

(Solano Decl. , 18; McKeogh Decl. , 8.)

6

DISCUSSION
1. Standard of Review
Summary judgment is appropriate when there is no
genuine issue of material fact in dispute.
56.

Fed. R. civ. P.

In reviewing a motion for summary judgment, this Court

must construe the evidence in the light most favorable to
the nonmovant and draw all reasonable inferences in his
favor.

Sledge v. Kooi, 564 F.3d lOS, 108 (2d Cir. 2009)

(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247­
50 (1986)).
In reviewing a motion for summary judgment involving a
nonmoving, pro se plaintiff, this Court "liberally
construe[s]

[the] pleadings and briefs submitted by [the]

pro se litigant [] ," "reading such submissions to raise the
strongest arguments they suggest."

Bertin v. United

States, 478 F.3d 489, 491 (2d Cir. 2007)
omitted).

(quotation marks

However, even pro se plaintiffs must offer some

evidence that would defeat a motion for summary judgment.
Saldana v. Local 32B-32J Servo Emps. Int'l Union, No. 03
Civ. 1853, 2005 U.S. Dist. LEXIS 464, at *4 (S.D.N.Y. 2005)
("Even a pro se plaintiff [] cannot withstand a motion for
summary judgment by relying merely on the allegations of a
complaint. ")

Where, as here, plaintiff has failed to

submit any facts in opposition to defendant's motion for
7

summary judgment, this Court "must still assess whether the
moving party has fulfilled its burden of demonstrating that
there is no genuine issue of material fact and its
entitlement to judgment as a matter of law."

Vermont Teddy

Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d
Cir. 2004).
2. Excessive Force Claim
The Court, as well as defendant, construes
plaintiff's claim as an excessive force claim under the
Fourth Amendment.

(See Mem. of Law in Supp. of Def.'s

Motion for Summ. J. at 6.)

The Supreme Court has held that

courts should review excessive force claims under an
"objective reasonableness" standard.
490 U.S. 386, 388 (1989).

See Graham v. Connor,

Determining the reasonableness

of the use of force by a police officer requires a
balancing of the risk of harm by the officer against the
threat to the public.
(2007).

Scott v. Harris, 550 U.S. 372, 382

In making this determination, this Court must

consider the "on the scene" perspective of a "reasonable
officer."

Graham, 490 U.S. at 395.

Here, there is no material issue of fact as to the
reasonableness of defendant's conduct.

The following facts

are undisputed: there was some form of an altercation in
the interior of the post officei defendant observed
8

plaintiff, an "emotionally-disturbed person,lI "getting out
of control"

(Thomas Decl. , 6); defendant escorted

plaintiff out of the post office (after he was first asked
to leave on his own) using a technique consistent with the
training given to Postal Police Officers and which was
intended to produce "little or no potential for injury"
(and, as discussed below, did in fact produce no apparent
injury)

(Def.'s 56.1 Stmt. "

1-21; Del Giudice Decl. Exs.

A, B).

Under these circumstances, there is no credible

claim that defendant did not act as the "reasonable
officer" would have.
Based on the record, there is also no dispute that
plaintiff was not injured as a result of defendant's
actions - plaintiff did not complain of physical injuries
in the ambulance and has failed to put forward any evidence
of physical injury.

(See Def.'s 56.1 Stmt. ,

24.)

In his

amended complaint, plaintiff asserts that he experienced
"damage to the left elbow, left knee, slight headaches to
left eye portion of head."

(Am. Compl. at 3.)

However, he

has not put forward any facts on this motion suggesting
that defendant's recitation of events was incorrect.

At

the December 9th conference, plaintiff did not tell the
Court that he received medical attention for physical
injuries following the incident - but rather that he was
9

given a psychological evaluation.
8:16-19.)

(Dec. 9, 2011 Tr. at

Nothing in the record suggests that plaintiff in

fact suffered any actual injuries or that any injuries he
suffered were related to his being escorted from the post
office.

Accordingly, plaintiff has not raised a triable

issue of fact with respect to the excessive force claim.
See

~,

Washpon v. Parr, 561 F. Supp. 2d 394, 406-07

(S.D.N.Y. 2008)

("[O]n an excessive force claim a plaintiff

must present sufficient evidence to establish that the
alleged use of force is objectively sufficiently serious or
harmful enough to be actionable."

(quotation marks

omitted)) i Warheit v. City of New York, No. 02 Civ. 7345,
2006 WL 2381871, at *8 (S.D.N.Y. Aug. IS, 2006)
("[Defendant's] action caused no physical injury to
[plaintiff]

Any force was de minimis, and

therefore does not amount to a constitutional violation.").
3. Qualified Immunity
Summary judgment is also warranted here for the
additional reason that defendant is entitled to qualified
immunity.

"Qualified immunity shields government officials

whose conduct 'does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.'"

Hattar v. Carelli, No. 09 Civ.

4642, 2012 WL 246667, at *4 (S.D.N.Y. Jan. II, 2012)

10

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A court analyzing a claim of qualified immunity follows the
two-part test established by the Supreme Court in Saucier
v. Katz, 533 U.S. 194, 201 (2001), whereby the court
assesses (1)

"whether the facts that a plaintiff has .

shown make out a violation of a constitutional righti" and
(2)

"whether the right at issue was clearly established at

the time of defendant's alleged misconduct."

McMillan v.

City of New York, No. 10 Civ. 2296, 2011 WL 6129627, at *11
(S.D.N.Y. Dec. 9, 2011)

(quoting Pearson v. Callahan, 555

U.S. 223, 231 (2009)).

The Supreme Court in Pearson, 555

U.S. at 236, held that the sequence of this two-part test
is not mandatory; instead, district courts, depending on
the circumstances of the case, may address either prong
first.

Id.

"[A]t least in some excessive force cases the various
parts of the Saucier analysis ultimately converge on one
question: Whether in the particular circumstances faced by
the officer, a reasonable officer could believe that the
force employed was lawful."
764 n.7 (2d Cir. 2003)

Cowan v. Breen, 352 F.3d 756,

(citing Saucier, 533 U.S. at 210

(Ginsburg, J., concurring)).

This is one such case.

As

the Court explained above, the record demonstrates that
defendant's actions were objectively reasonable and
11

therefore there was no violation of plaintiff's Fourth
Amendment rights.

Having found that defendant's actions

were objectively reasonable under the excessive force
analysis, it follows that defendant ought to have qualified
immunity.

See Biggs v. City of New York, No. 08 Civ. 8123,

2010 WL 4628360, at *6 (S.D.N.Y. Nov. 16, 2010)

("Because

[defendant] 's actions were objectively reasonable under the
Fourth Amendment excessive force standard, it follows that
Defendants are also entitled to summary judgment on
qualified immunity grounds.").

See also Pub. Adm'r of

Queens Cnty ex reI. Estate & Beneficiaries of Guzman v.
City of New York, No. 06 Civ. 7099, 2009 WL 498976, at *5
(S.D.N.Y. Feb. 24, 2009)

("[T]he answer to either the

qualified immunity or the Fourth Amendment question often
resolves the other.").

Here, "[n]o rational jury could

find that the force used was so excessive that no
reasonable officer would have made the same choice."
(alterations omitted).

Id.

See also, Garcia v. Greco, No. 05

Civ. 9587, 2010 WL 446446, at *8 (S.D.N.Y. Feb. 9, 2010).
Qualified immunity thus shields this defendant from this
suit.

12

CONCLUSION
For the reasons set forth above, defendant's motion
for summary judgment is GRANTED.

The Court finds, pursuant

to 28 U.S.C. § 1915{a) (3), that any appeal from this Order
would not be taken in good faith, and therefore in forma

pauperis status is denied for the purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 445 (1962).

SO ORDERED.
Dated:

New York, New York
March 15, 2012

KATHERINE B. FORREST

United States District Judge

13