Cunningham v. U.S., 03 CV 3677(CLP).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation472 F.Supp.2d 366
Docket NumberNo. 03 CV 3677(CLP).,03 CV 3677(CLP).
PartiesHubert CUNNINGHAM, Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date23 January 2007

Steve Newman, Law Offices of Steve Newman, New York City, for Plaintiff.

Kelly Coleen Horan, United States Attorneys Office, Brooklyn, NY, for Defendant.


POLLAK, United States Magistrate Judge.

On July 28, 2003, plaintiff Hubert Cunningham filed this action against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 ("FTCA"), seeking damages for injuries suffered as a result of an incident that occurred on the morning of August 7, 2002, at the Veterans Administration Hospital ("VA Hospital") in Brooklyn, New York. Plaintiff alleges that on that morning, after he entered the VA Hospital, federal police officers employed by the Department of Veterans' Affairs used excessive force in restraining and arresting him. He has raised claims of assault and battery, intentional infliction of emotional distress, and negligence.

Following discovery, the parties consented1 to a bench trial before the undersigned which commenced on November 16, 2005, and continued on February 1, 2006 through February 3, 2006. Prior to trial, plaintiff stated that he did not intend to pursue his claims of intentional infliction of emotional distress or negligence, and thus the only claim before the Court on trial was the claim of assault and battery. (See Proposed Joint Pre-Trial Order at 3). In connection with that claim, plaintiff seeks compensatory damages in the amount of one million dollars. (Compl. ¶ 30).

Having heard the testimony and considered the evidence and arguments presented by the parties, this Court finds in favor of defendant for the reasons set forth below.


During the trial, plaintiff testified and called as witnesses, Officer Henry Flores, Officer Jamie Dunlap, and Dr. Stanley Portnow. In addition, plaintiff introduced into evidence a videotape of the incident taken from cameras installed at the VA Hospital. (See Ex. N-1). The government called Brenda Torres, Dr. Stuart Kleinman, and plaintiff's counselor, Elizabeth Giasemedis, as witnesses.

A. Testimony of Hubert Cunningham

In the summer of 2002, plaintiff Hubert Cunningham, a United States military veteran, was a patient receiving treatment at the VA Hospital, located at 800 Poly Place in Brooklyn. (Compl. at ¶¶ 18-9). At the time, Mr. Cunningham was not employed and was receiving Social Security Disability payments as a result of various illnesses from which he was suffering. (Tr. at 19).2 Among other things, Mr. Cunningham was diabetic, suffered from coronary artery disease, and had been diagnosed in 1998 with a bipolar disorder. (Id. at 92).

On the morning of August 7, 2002, Mr. Cunningham caught the bus from his home in Staten Island to attend a regularly scheduled appointment at the Brooklyn VA Hospital. (Id. at 24-25). He testified that on that morning, he was feeling mentally fine, and that he had taken all of his prescribed medications,3 including Depakote insulin, blood pressure and asthma medications. (Id. at 35-36). Upon arriving at the VA Hospital on August 7, 2002, Mr. Cunningham testified that he entered the main doors to the facility and looked at the clock because he "liked to be on time for his appointments." (Id. at 25-26). According to plaintiff, as he was looking at the clock, Officer Henry Flores,4 who was on duty at the entrance, looked over at plaintiff. (Id. at 26). Plaintiff testified that Officer Flores asked Mr. Cunningham what he was looking at and whether there was something wrong with him. (Id.) Mr. Cunningham testified that after he responded that there was nothing wrong with him, Officer Flores asked him, "what the fuck are you looking at?" to which he replied, "Sir, I'm not looking at anything but the clock." (Id.)

After the verbal exchange with Officer Flores, Mr. Cunningham stated that he proceeded to empty his pockets and place his belongings on the conveyor belt in the basket provided. (Id.) He then walked through the metal detector, where Officer Jamie Dunlap proceeded to scan the plaintiff using a hand-held wand. (Id.) Plaintiff explained that he had been through the wanding process with Officer Dunlap "every time I go through the metal detector," and that he had never had a problem. (Id. at 36).

Plaintiff described the procedure by which the officer scanned him with the wand, requiring plaintiff to raise his arms in the air. (Id. at 27-28). Mr. Cunningham claims that after Officer Dunlap had completed the wanding process and Mr. Cunningham had produced his identification for the officer, Officer Flores approached, yelling at Mr. Cunningham and at Officer Dunlap. (Id. at 28).

According to plaintiff, Officer Flores told Officer Dunlap that he was "not finished with this guy," and demanded to see Mr. Cunningham's "goddamn ID again. ..." (Id.) Plaintiff testified that although he showed his identification to Officer Flores and pleaded to be let go, Officer Flores told plaintiff to "shut up" and instructed Officer Dunlop to "wand" the plaintiff again. (Id.) Mr. Cunningham testified that after he raised his arms to be wanded, Officer Flores grabbed plaintiff's identification, put his hand over Officer Dunlop's, and proceeded to wand plaintiff again. (Id. at 28-29).

After Officer Flores completed the wanding process, plaintiff began to proceed to his group, but Officer Flores grabbed plaintiff, and threw him to the ground. (Id.) Mr. Cunningham claims that Officer Flores, along with four or five officers, dragged him face down across the floor to the information desk, where he was slammed head first into the desk. (Id. at 29, 46-49). Two of the officers got on top of plaintiff, and one had his knee in Mr. Cunningham's back. (Id.) Plaintiff claims that he started to panic because he had no idea why the officers were doing this. (Id.) According to plaintiff, one officer was putting so much pressure on his neck that he could not scream. (Id. at 48-49). At one point, plaintiff asserts that the officers handcuffed him, warning that he would be arrested if he did not shut up. (Id. at 29). He was eventually taken to the Security Office in the VA hospital, where he was then shackled to hooks on the wall for 45 minutes to an hour. (Id. at 30-34).

Plaintiff claims that while he was in the Security Office, four other officers came by and laughed at him. (Id. at 30). Despite the fact that he told the officers that he felt like his blood sugar level was either elevated or low, the officers would not remove him from the wall. (Id. at 30-31). Finally, the supervisor took him off the hook, removed his handcuffs, and had him taken to the emergency room. (Id. at 30). There he was held for two or more hours cuffed to the bed. (Id. at 39). His blood sugar was tested, he was treated with insulin, and given something to eat. (Id. at 38-39). While in the emergency room, plaintiff claims that he asked to see his therapist. (Id. at 38). Another therapist came to see plaintiff, but plaintiff claims that he was "very distraught" and "mentally dazed." (Id. at 38-39).

When he was released from the emergency room, he was taken back to the security office where the supervisor told Mr. Cunningham that he was going to be given a couple of tickets. (Id. at 39-40). Plaintiff, however, refused to leave and demanded that Officer Flores be arrested. (Id. at 40). When the officers refused to arrest Officer Flores, plaintiff asked them to call his therapist. (Id.) Again, they refused. (Id.) At some point, around 5:00 or 5:30 in the evening, plaintiff's counselor, "Evelyn Glassmere,"5 saw the plaintiff through the security office window as she was leaving to go home. (Id. at 40-41). Plaintiff explained what had happened and she took plaintiff upstairs to the director's office to file a complaint. (Id. at 41-42). Ms. Glassmere then accompanied plaintiff to the bus and his sister met him near his home. (Id. at 44-45).

On cross-examination, plaintiff initially admitted that he was diagnosed with "schizo-effective disorder[-]bipolar" in 1998. (Id. at 92). However, he later disputed whether he had been diagnosed with this illness, and he disputed the accuracy of certain medical records shown to him that stated that in 1998 he was "hearing voices." (See id. at 93-95, 97; Gvt's Ex. A).6 He attempted to explain his prior deposition testimony that "[m]y symptoms of schizophrenia may be a disease of hearing voices ... I constantly all my life heard voices and I just lived with it." (Id. at 93-94). Instead, at trial, he claimed that he was not hearing voices, but that he had certain "thoughts." (Id. at 95). He was inconsistent about whether or not he had experienced depression in the past (see id. at 101), and claimed that although he attended anger management programs, he had never been violent.7 Moreover, when he claimed that he took his medications every day, counsel showed him records indicating that in March 2002, he had not taken his medications because he was depressed and isolated himself for a significant period of time. (Id. at 112-113). At trial, Mr. Cunningham sometimes denied having any history of drug use. (Id. at 137). However, medical records admitted into evidence document that he abused alcohol and drugs. (Id. at 427).

B. Testimony of Officer Henry Flores

Officer Henry Flores, who was forty years old at the time of trial, testified that on the date of the incident in question, he had been working for the VA for approximately two years. (Id. at 228-229). Prior to his employment with the VA, Officer Flores had been a police officer in various New York State and New York City positions for about twelve years. (Id. at 229). He has a high school diploma and completed one year of college at John Jay College of...

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