Harrell v. Cnty. of Nassau
| Decision Date | 27 September 2013 |
| Docket Number | 10-CV-5894 (MKB) |
| Parties | RONNIE HARRELL, Plaintiff, v. COUNTY OF NASSAU, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY POLICE OFFICERS JOSEPH LOBELLO, JOHN TUCKER, RALPH SWANSON, GARY FARLEY and REGIS BENEVILLE, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Ronnie Harrell brought the above-captioned action against Defendants County of Nassau, Nassau County Police Department, Nassau County Police Officers Joseph Lobello, John Tucker, Ralph Swanson and Gary Farley, and Ambulance Medical Technician Regis Beneville, alleging false arrest, false imprisonment, malicious prosecution and excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, 42 U.S.C. § 1983 and "the laws and statutes of the State of New York." (Am. Compl. ¶ 1.) Plaintiff also alleged claims of negligence in hiring, training and supervising against Nassau County and Nassau County Police Department, and claims of negligence in the performance of their duties and intentional and negligent infliction of emotional distress against all Defendants. Plaintiff has since abandoned all of his claims except his excessive force and intentional infliction of emotional distress claims. Defendants moved for summary judgment. The Court heard oral argument on August 6, 2013. For the reasons set forth below, Defendants' motion for summaryjudgment is denied as to Plaintiff's claim for excessive force and granted as to Plaintiff's claim for intentional infliction of emotional distress.
On September 19, 2009, Plaintiff and his friend Phillip Silver attended a "barbecue backyard party" in Roosevelt, New York, of approximately 75-100 people. (Pl. Dep. 17:10—21:16; Pl. 50-h 51:24—52:14, 54:21—25.1) When they arrived at the party, Plaintiff stayed outside the front of the house speaking on his cellular telephone and Silver went to the back of the house. (Pl. Dep. 19:5—13; Pl. 50-h 5—12.) While Plaintiff was having a conversation on the telephone, Plaintiff's friend Jason drove by the house. (Pl. Dep. 19:14—17, 22:6—24.) Jason stopped and spoke to Plaintiff. (Id. at 19:17—19, 22:25—6.) Plaintiff heard individuals behind him arguing about money while he was speaking with Jason. (Id. at 19:20—20:2, 23:7—24:25.) Plaintiff heard gunshots and started running. (Id. at 24:23—25:11.) Plaintiff was shot and fell to the concrete ground. (Id. at 19:13—27, 25:10—26:14.) Plaintiff started to get up, and several people yelled at him not to move. (Id. at 26:4—27:11.) Plaintiff fainted. (Id. at 31:7—12.) Plaintiff testifiedduring his deposition that, after being shot, he "started going crazy," but did not explain what he meant or provide any details as to how he was "going crazy." (Id. at 26:7-10.)
On September 19, 2009, at approximately 1:18 a.m., Nassau County Police Department ("NCPD") Communications Bureau received a 911 call for a fight on W. Roosevelt Avenue. (Defs. Ex. E ("NCPD Case Report") 1.) Upon arriving on the scene, NCPD officers2 observed approximately 200 people in the street. (Defs. 56.1 ¶ 5; Pl. 56.1 ¶ 5.) Soon thereafter, NCPD officers heard gunshots, and a NCPD officer was flagged down by a group of people who stated that Plaintiff had been shot in the back by an unknown individual. (Defs. 56.1 ¶¶ 5-6; Pl. 56.1 ¶¶ 5-6.) NCPD officers requested assistance and that an ambulance be dispatched. (Defs. 56.1 ¶ 7; Pl. 56.1 ¶ 7.) After Plaintiff fainted, the police and the Ambulance Medical Technician ("AMT") Regis Beneville told everyone to move away from Plaintiff, picking him off the ground and putting him on a stretcher.3 (Pl. Dep. 30:17-22.) Plaintiff was surrounded by approximately five to six officers and AMT Beneville as he was placed on the stretcher. (Pl. Dep. 32:13-33:3.) The parties dispute whether Plaintiff resisted the attempts of the officers and Beneville to render assistance. (Defs. 56.1 ¶ 14; Pl. 56.1 ¶ 14.) According to Beneville, Plaintiff attempted to flee from the officers. (Beneville Aff. ¶ 7.) NCPD officers and Beneville noted in their reports filed after the incident that Plaintiff refused to provide "information or history." (Defs. 56.1 ¶ 15; seealso NCPD Case Report; Defs. Ex. F ("NY EMS Report").) Plaintiff asserts that NCPD officers did not ask him any questions. (Pl. 56.1 ¶ 15; see also Pl. 50-h 69:10-15.)
As Plaintiff was placed on the stretcher and into the ambulance, Plaintiff got "very upset" and "went crazy" because he was in pain and was "laid . . . flat on [his] back where [he] got shot." (Pls. 56.1 ¶ 16; Pl. 50-h 69:21-70:6.) Plaintiff told the officers and Beneville "get off of me, get off of me, get off of me," and "it's hurting, it's hurting, it's hurting." (Pl. 50-h 71:7-21.) One of the officers "came in the [ambulance] and punched [Plaintiff] in the eye" while he was being strapped to the stretcher. (Pl. 50-h 71:15-21; 77:21-78:3; see also Pl. Dep. 35:14-16.) Plaintiff stated at his 50-h hearing that the officer "just came in, walked in, and punched [Plaintiff's] eye for no reason," and then tried to move out of the way so Plaintiff would not be able to see him.4 (Pl. 50-h 71:18-21; 77:10-78:3.) Plaintiff testified at his deposition that the officer first tried to calm him down before punching him in the eye. (Pl. Dep. 34:18-35:13.) Plaintiff got blood in his eye. (Pl. Dep. 36:19-22; Pl. 50-h 78:14-20.) Plaintiff told Beneville that he could not see, but Beneville did not assist Plaintiff. (Pl. Dep. 36:18-24.)
According to Beneville, Plaintiff "needed to be restrained for his safety and the safety of the personnel on the ambulance." (Beneville Aff. ¶ 7.) However, even after being restrained, Plaintiff "remained combative and uncooperative during transport." (Id. ¶ 9; see also Defs. 56.1¶ 16; Pl. 56.1 ¶ 16; NY EMS Report.) Plaintiff "refused to allow [AMT Beneville] to place an IV or take his blood pressure" and "continuously remove[d] his oxygen mask." (Beneville Aff. ¶¶ 7-9.) Plaintiff's physical and mental state were communicated to the Nassau University Medical Center's ("hospital") trauma team, and the trauma team requested that Plaintiff be "immobilized as best as possible." (Id. ¶ 10.) Beneville denies that he or any of the officers punched, hit or kicked Plaintiff.5 (Pl. 56.1 ¶ 16; Pl. Dep. 34:18-36:22; Beneville Aff. ¶ 12.)
After arriving at the hospital, Plaintiff was immediately sedated. (Defs. 56.1 ¶ 19; Pl. 56.1 ¶ 19; Beneville Aff. ¶ 11; Pl. Dep. 37:17-38:2; Defs. Exs. I, J.) The sedative put Plaintiff to sleep. (Pl. Dep. 37:22-25.) When Plaintiff awoke, he had a cut with a Band-Aid on his eye that covered the side of his face. (Pl. Dep. 38:9-12.) Doctors gave him ice to apply to his eye to reduce the swelling. (Pl. 50-h 96:25-97:11.) According to hospital records, Plaintiff's chief complaint was a gunshot wound to the left interior scapular region of the back. (Defs. 56.1 ¶ 20; Pl. 56.1 ¶ 20; Defs. Exs. I, J.) Plaintiff had an "abrasion over the left eyebrow," but "no other injuries were noted." (Defs. 56.1 ¶21; Pl. 56.1 ¶21; Defs. Ex. K, L.) Plaintiff submitted photographs of his face, purportedly taken soon after the incident, that depict an abrasion over his left eyebrow.6 (Pl. Ex. C.)
Plaintiff was released from the hospital on or about September 20, 2009, (Defs. 56.1 ¶ 22; Pl. 56.1 ¶ 23), and filed a complaint with the police about his shooting. (Pl. Dep. 40:6-8.) On September 21, 2009, NCPD Public Information Office issued a News Release requesting that"anyone with information regarding [the shooting] contact Crime Stoppers at 1-800-244-TIPS." (Defs. 56.1 ¶ 25; Pl. 56.1 ¶ 25.) According to Defendants, Plaintiff did not return telephone calls or otherwise assist NCPD in the investigation of his shooting. (Defs. 56.1 ¶ 26; see NCPD Case Report 2-3). Plaintiff claims that no police officers came to speak with him while he was in the hospital and no one from the police precinct contacted him about the shooting. (Pl. Dep. 39:20-23, 42:21-24, 46:8-22.)
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Kwong v. Bloomberg, --- F.3d ---, ---, 2013 WL 3388446, at *4 (2d Cir. July 9, 2013); Redd v. N.Y. Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. The "mere existence of a scintilla of evidence" is not sufficient to defeat summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id. The court's function is to decide "whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
Plaintiff cannot maintain his suit against NCPD. NCPD is an administrative arm of the County of Nassau, and under New York law, agencies of a municipality are not suable entities. See Miller v. County of Nassau, No. 10-CV-3358, 2013 WL 1172833, at *4 (E.D.N.Y. Mar. 19, 2013) (); Rose v. County of Nassau, ...
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