Tracy v. Freshwater

• Decision Date: 14 October 2010
• Docket Number: Docket No. 08-1769-cv.
• Citation: 623 F.3d 90
• Parties: Patrick TRACY, Plaintiff-Counter-Defendant-Appellant, v. Parker J. FRESHWATER, Tompkins County, and Peter Meskill, Defendants-Counter-Claimants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

623 F.3d 90

Patrick TRACY, Plaintiff-Counter-Defendant-Appellant,

v.Parker J. FRESHWATER, Tompkins County, and Peter Meskill, Defendants-Counter-Claimants-Appellees.

Docket No. 08-1769-cv.

United States Court of Appeals,Second Circuit.

Argued: April 17, 2009.

Decided: Oct. 14, 2010.

COPYRIGHT MATERIAL OMITTED.

Michelle Ghali ^* and Stuart Youngs ^* ( Jon Romberg, of counsel), Center for Social Justice, Seton Hall University School of Law, Newark, NJ, for Plaintiff-Counter-Defendant-Appellant.

Jonathan Wood, County Attorney, Tompkins County Attorney's Office, Ithaca, NY, for Defendants-Counter-Claimants-Appellees.

Before: SACK, LIVINGSTON, Circuit Judges, VITALIANO, ^** District Judge.

DEBRA ANN LIVINGSTON, Circuit Judge:

In this appeal, Plaintiff-Counter-Defendant-Appellant Patrick Tracy challenges the decisions of the United States District Court for the Northern District of New York granting the motion for summary judgment filed by Defendants-Counter-Claimants-Appellees on the ground of qualified immunity (Munson, J.) and denying Tracy's motion for reconsideration (McCurn, J.). Tracy primarily argues that the district court erred in concluding that he had not raised a genuine issue of material fact as to whether, in the course of arresting him, Defendant-Counter-Claimant-Appellee Parker Freshwater, a deputy sheriff in the Tompkins County Sheriff's Department, used unreasonable force in violation of the Fourth Amendment. We conclude that the majority of Tracy's claims fail as a matter of law and that summary judgment was properly granted on them. However, because we find that issues of material fact remain in dispute with respect to one claim-Tracy's excessive force claim based on Freshwater's use of pepper spray-and that Freshwater is not entitled to qualified immunity with respect to that claim as stated by appellant, we vacate the district court's grant of summary judgment and remand for further proceedings consistent with this conclusion.

Tracy separately asserts that the district court acted improperly when it endorsed a general withdrawal from him of the special solicitude that federal courts ordinarily afford to pro se litigants. In Sledge v. Kooi, 564 F.3d 105, 109-10 (2d Cir.2009) (per curiam), we suggested that while it is appropriate to charge an experienced pro se litigant with knowledge of, and therefore to withdraw special status in relation to, particular requirements of the legal system with which he is familiar, a general withdrawal of the solicitude ordinarily afforded pro se litigants is inappropriate absent a showing that the particular litigant has acquired the experience necessary to deal generally with all aspects of his case.

We conclude that the district court's general withdrawal of solicitude here amounted to an abuse of discretion, even though a more limited withdrawal of solicitude in relation to the requirements of opposing a motion for summary judgment may well have been warranted.

BACKGROUND

The following facts are drawn from the record on appeal and, unless otherwise noted, are construed in the light most favorable to Tracy. On the evening of April 8, 2000, Tracy was driving through the town of Danby, New York, located in Tompkins County. The weather was bad-darkness had fallen, it was snowing, and the wind was gusting. Officer Freshwater, observing traffic from a public parking lot, saw Tracy's car, noticed that the windows were covered with snow which likely impaired the driver's ability to see, and pulled Tracy over. ¹ Officer Freshwater asked Tracy for his license and registration and Tracy told Officer Freshwater that he did not have them in his possession. Officer Freshwater asked Tracy to exit the car and clean off the windows while he ran a check on the car's license plate number. After running this check, which revealed that the car was registered to Beverly M. Ruggles, Officer Freshwater approached the car and began to question Tracy, who, having finished cleaning the windows, was once again seated inside the vehicle.

Officer Freshwater first asked whether the car was registered in the name of Ms. Ruggles, to which Tracy responded affirmatively. He next asked Tracy for his name, receiving the answer “Seth A. Ruggles.” After some further questioning regarding his date of birth, Tracy admitted that he was not, in fact, Seth Ruggles. Officer Freshwater then asked Tracy for his real name. Tracy professes not to have understood this question, but admits that after hearing “something about a name,” he stated “Jeff A. Kerns.” Following this exchange, Officer Freshwater ordered Tracy to exit his car, and Tracy did so.

Officer Freshwater affirms that by this time he strongly suspected that Tracy might be wanted in connection with a criminal offense. As Tracy stood outside his car, Officer Freshwater, intending to pat him down for weapons and then to arrest him, ordered Tracy to place his hands on top of his head. According to Tracy, he obeyed this order. Officer Freshwater then demanded that Tracy, who at that point was facing him, turn around. Tracy alleges that he began to do so but, before he could fully comply, he slipped on a patch of ice and thereafter grabbed the car to prevent himself from falling. According to Tracy, Officer Freshwater then struck him twice with a metal flashlight. Tracy contends that he then ran in the direction of Officer Freshwater's patrol car, Officer Freshwater grabbed him, and the two struggled. Although Tracy did not attempt to strike Officer Freshwater, he asserts that Officer Freshwater hit him twice more with the flashlight. Officer Freshwater alleges, to the contrary, that after he directed Tracy to turn around and place his hands on the top of his head, Tracy began to run toward him and the roadway. Officer Freshwater grabbed Tracy and hit him with the flashlight, he says, only after Tracy had attempted to punch him.

Both parties agree that Tracy eventually broke free and began to run from Officer Freshwater. Before Tracy could get far, however, he slipped and fell to the ground, after which Officer Freshwater jumped on him. Tracy immediately felt severe pain. According to Tracy, while lying on top of Tracy, Officer Freshwater screamed at him and immediately placed one of Tracy's hands in handcuffs. Tracy's other hand, however, was pinned beneath his body. Despite this difficulty, Officer Freshwater demanded repeatedly and stridently that Tracy present this hand so that it might also be placed in handcuffs. Eventually, Tracy was able to work his hand free, at which point Officer Freshwater placed it in handcuffs as well. While he was attempting to extract his hand from under his body, Tracy contends that he expressly told Officer Freshwater that he was not resisting. He asserts, moreover, that after he was fully handcuffed, Officer Freshwater, while continuing to yell at him, sprayed his face with pepper spray from a distance of only a few inches and then pushed it into the muddy ground. Officer Freshwater alleges, to the contrary, that he pepper-sprayed Tracy while Tracy was actively continuing to resist.

While Officer Freshwater was lying on top of Tracy, Freshwater attempted to call for help on his portable radio. The radio, however, malfunctioned and Officer Freshwater received no response. ² He then attempted to move Tracy. Tracy contends that Officer Freshwater angrily ordered him to get up and persisted in that demand even after being told that Tracy was in pain. Tracy alleges that when he continued to protest that he was injured, Officer Freshwater grabbed him by his arms and hauled him to his feet. Officer Freshwater asserts, in contrast, that he assisted Tracy “by picking him up under his arms from behind.” Both parties agree that as Tracy was made to stand, his body made a distinct popping noise. Tracy states that he immediately felt excruciating pain. According to Tracy, although he again indicated that he was injured and needed medical attention, Officer Freshwater held him up by his hands and forced him to walk the roughly twenty feet to the patrol car. Once they reached the patrol car, Officer Freshwater put Tracy in the back seat and used the car's radio to call for backup and medical personnel. Shortly afterwards, an ambulance arrived and took Tracy to a nearby hospital, where he received medical treatment, primarily for a fracture dislocation of his hip. Tracy was subsequently transferred to a larger hospital, where he underwent at least one extensive surgical procedure as the result of the hip injury.

An examination of Tracy's fingerprints revealed his true identity, along with the fact that he had a criminal history and, indeed, was then the subject of an outstanding arrest warrant for federal drug charges. Tracy was then charged with several additional state law offenses stemming from his altercation with Officer Freshwater, and, after a jury trial, was convicted of resisting arrest in violation of New York Penal Law § 205.30 and criminal impersonation in the second degree in violation of New York Penal Law § 190.25. ³ Tracy has also since been convicted of the federal drug charges for which he was sentenced principally to 144 months' imprisonment.

Tracy thereafter initiated the instant case, asserting, inter alia, a claim against Officer Freshwater pursuant to 42 U.S.C. § 1983 for the use of excessive force in violation of the Fourth Amendment. ⁴ After extended motion practice, which included some thirty-six motions filed by Tracy, proceeding pro se, the magistrate judge assigned to the case issued a report and recommendation urging that a motion for summary judgment with regard to all of Tracy's claims filed by Defendants-Counter-Claimants-Appellees be granted in full. The magistrate judge, after noting that Tracy had participated in at least ten previous federal and state actions, had engaged in substantial motion practice in this action, and had demonstrated substantial competence in the...