Summary
analyzing claim by parolee that parole officers attacked him in a parole office and threw him to the floor under Fourth Amendment "excessive force" analysis
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No. 00 CIV. 4708 (DLC)
September 25, 2002
Attorney for Plaintiff: Pro Se, Derek Sloane, P-38424 Westchester County Jail, Valhalla, NY.
Attorney for Defendants: Eliot Spitzer and Melinda Chester-Spitzer from State of New York Attorney General's Office, New York, NY.
OPINION AND ORDER
Plaintiff pro se Derek Sloane ("Sloane") filed this action pursuant to 42 U.S.C. § 1981, 1983, 1985(3), and 1988 on June 26, 2000, complaining principally of excessive force used by certain of the defendants at the time of his arrest in March 2000, on a parole violation and of charges falsely accusing him of violating his parole. He filed an amended complaint on September 6, 2000. Defendants moved to dismiss the action on January 9, 2001. By Opinion and Order dated May 10, 2001,Sloane v. Getz, et al., No. 00 Civ. 4708 (DLC), 2001 U.S. Dist. LEXIS 6064 (S.D.N.Y. May 10, 2001) (the "May 10 Opinion"), defendants' motion to dismiss was granted in part. By leave of the Court, Sloane filed a second amended complaint on June 29, 2001. By Order dated September 20, 2001 (the "September 20 Order"), all claims set forth in Sloane's second amended complaint that were previously dismissed by the May 10 Opinion were again dismissed. Defendants now move, unopposed, for summary judgment on Sloane's remaining claims, to wit, that three defendants participated in filing a parole violation report of March 31, 2000, falsely accusing him of possessing a burglary tool, and that the same three defendants participated in the use of excessive force at his arrest on March 29, 2000. For the reasons stated, defendants' motion is granted.
By Order dated April 11, 2002, any opposition to the defendants' motion, made on May 17, was to be submitted by June 14, 2002. Sloane has never submitted any request for an extension c)f time in which to submit his opposition, and last communicated with the Court in March 2002.
Background
The facts recited in a movant's Rule 56.1 statement are deemed admitted when no opposition has been filed. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001) Because Sloan's original, amended, and second amended complaints were unverified, they may not serve as affidavits for purposes of summary judgment. See Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000). Accordingly, the following facts are as described by defendants in their Rule 56.1 statement unless otherwise noted.
On September 17, 1999, Sloane was conditionally released from Wende Correctional Facility in Alden, New York, where he had been serving a two-to-four year concurrent sentence for grand auto larceny in the fourth degree and criminal possession of stolen property in the fourth degree. On November 24, 1999, Sloane was arrested in Fishkill, New York for operating a motor vehicle without a license. On December 8, he reported to the Mount Vernon Parole Office for a scheduled visit with his parole officer, Trudi Burns ("Burns"). During the visit, Sloane stated that, at the time of his November 24 arrest, he was driving his employer's automobile and believed that his license had been reinstated. Based on these statements, and at the direction of her supervisor, Special Parole Officer Jeffrey Getz ("Getz"), Burns submitted a Violation of Release Report on December 14, 1999, for operating a motor vehicle without a license, but recommended "no delinquency pending court action."
On February 4, 2000, Sloane was arrested in the Bronx, New York, for possession of a stolen motor vehicle. He was taken into custody by the Bronx Police Department and held at the Bronx County Detention until March 17, 2000, at which time he appeared in Bronx County Criminal Court. Sloane pleaded guilty to the unauthorized use of a motor vehicle in the third degree and was sentenced to a jail term of forty-five days. Sloane was released on March 17 for time served.
On March 22, 2000, Sloane reported to the Mount Vernon Parole Office for a scheduled appointment. Burns was unavailable, so Sloane reported to Parole Officer Dennis Fernandez ("Fernandez"). Sloane told Fernandez that on March 17, 2000, all criminal charges stemming from his February 4, 2000 arrest were dismissed. Burns and Getz subsequently discovered that Sloane's criminal charges had not in fact been dismissed and that Sloane had been sentenced to a forty-five day jail term.
Accordingly, on March 29, 2000, Burns prepared a First Supplementary Parole Violation Report, charging Sloane with multiple parole violations, and provided it to Getz for review. Getz approved Burn's recommendation that Sloane be taken into custody when he arrived for an office visit later that day. Getz directed Absconder Search Unit Officer H. Gene Washington ("Washington") and Fernandez to assist Burns in apprehending Sloane. Getz also prepared a warrant for Sloane's arrest.
Later on March 29, Sloane arrived at the Mount Vernon Parole Office. A receptionist informed Burns, and Burns in turn informed Washington and Fernandez, that Sloane had arrived. Burns met Sloane in the reception area and asked him to accompany her to the rear of the office, which was the designated area to take parolees into custody.
Upon entering that area of the office, defendants have shown that the following occurred. Washington directed Sloane to turn around and place his hands against the wall. After Sloane complied, one of the defendants placed Sloane's hands around his back and handcuffed him. Washington then directed Sloane to sit in a chair. Sloane complied, at which time Washington placed leg irons on him. Washington then conducted a pat-frisk of Sloane, which revealed that Sloane was carrying a nine-inch knife, a six-inch burglar's tool, and approximately fifty car keys. Defendants have submitted a photocopy of the knife and burglar's tool. Defendants have also submitted affidavit testimony from Burns, Washington, and Getz identifying the tool as a "six-inch long tool object, commonly known and used as a burglar's tool." Washington and Burns then directed Sloane to an automobile located in an alley directly adjacent to the parole office, and drove Sloane to the Westchester County Jail in Valhalla, New York.
At the Westchester County Jail, staff of the jail removed Sloane's handcuffs and leg irons. Sloane was then seen by a physician's assistant and a nurse for medical screening. He did not complain of any medical problems or injuries and the physician's assistant and nurse did not observe him to have any injuries. Defendants have submitted copies of Sloane's medical records from Westchester County Jail, including the report the physician's assistant completed while screening Sloane on March 29. This report indicates that Sloane presented no "abnormalities." In the "Inmate Questionnaire" section, the report indicates a "No" response to the question "Do you have a medical problem such as bleeding or injuries that requires immediate medical attention?" The report also indicates a "No" response to the question "Do you have any medical problems we should know about?" The physician's assistant also noted that Sloane "exhiibited agitation, hostility . . . and is noncompliant [with] screening."
Sloane's medical records indicate that approximately two weeks later, on April 15, 2000, Sloane submitted a "Health Services Request Form" in which he complained of "having bad (back) problems since I came here on 3-29-00. I am requesting that this be looked in[to], because I am having bad back pain on my right side." Notes written by a nurse on the form on April 17, 2000, record under the "Subjective" heading that Sloane told the nurse that he was in an "altercation" and that he "was stepped on my lower back. Now there is pain." Notes under the "Objective" heading indicate that Sloane was suffering from "scohosis [with] muscular hypertrophy of [right] lumbosacral area."
As set forth in the May 10 Opinion, Sloane, 2001 U.S. Dist. LEXIS 6064, at *1-3, Sloane alleged in his unverified second amended complaint that when he entered the area of the office to which he was directed by Burns, the "defendants" attacked him from behind, grabbed him by the neck, and threw him to the floor. At that point, "more defendants came running in[to]" the office, pulled him up from the floor, and then threw him down again. Sloane identifies parole officers Gene Washington ("Washington") and Jeff Getz ("Getz") as well as other unnamed defendants as among those involved in the "attack." In his deposition testimony, Sloane further states that Washington "attacked" him from behind without explanation, that a "tussle" ensued for "five to ten minutes," and that Washington threw him to the floor. After Sloane got up from the floor, Washington and Getz threw him down to the floor a second time in an attempt to handcuff him. Sloane states that Burns merely stood and watched as the assault was taking place.
In his deposition testimony, Sloane states that when he arrived at the Westchester County Jail, he told a nurse that:
I was injured in an altercation. I didn't put on the record to her that I was beat up by my parole officer. I didn't put on the record that I'm on parole and I didn't explain to her how the incident happened. . . . I don't believe it's their business to be informed of how the incident happened.
On March 31, 2000, Burns prepared a Second Supplementary Parole Violation Report ("Second Supplementary Report"), in which she charged Sloane with violating the conditions of his parole by being found in possession of a nine-inch knife and burglar's tool. Burns provided the report to Getz for his review. Getz approved the report and forwarded it to Area Supervisor David Wight.
In his unverified pleadings and deposition testimony, Sloane alleges that Burns, Washington, and Getz conspired against him, "contrived a story to justify their illegal conduct," and submitted false parole reports accusing Sloane of possessing a nine-inch knife and six-inch burglary tool. In his deposition, Sloane admits that he was carrying a knife, but states that he used it as part of his maintenance job "to cut floor tiles." Sloane also admits in his deposition that he was carrying what Burns, Washington, and Getz identify in their affidavit testimony as a burglar's tool, but stated that the tool was a "center punch" given to him by his employer to use in his employment.
On April 10, 2000, Commissioner Vivian Clark of the New York State Board of Parole ("Commissioner Clark") signed and approved the Second Supplementary Report and directed that Sloane be declared delinquent as of February 4, 2000, the date of his arrest for possession of a stolen motor vehicle. Commissioner Clark further ordered that Sloane receive a final revocation hearing.
Sloane's final revocation hearing occurred on May 16, 2000. At the hearing, Sloane pleaded guilty to operating a motor vehicle without his parole officer's consent. The Division of Parole withdrew with prejudice all other charges it had brought against Sloane for violating the terms of his parole. Administrative Law Judge Norman Romanick took notice of the fact that plaintiff had recently pled guilty to unauthorized use of a motor vehicle for which he had received a forty-five day sentence. After entering Sloane's guilty plea, the ALJ imposed a time-assessment of five months and a sustained delinquency date of February 4, 2000.
On May 19, 2000, Sloane filed a Notice of Appeal with the Board of Parole. Sloane never filed a brief or any other papers relating to his appeal. As of the date that this motion was filed, Sloane's revocation had not been overturned either by the Board of Parole or in a subsequent habeas corpus proceeding.
Standard
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 151 L.Ed.2d 378, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
Where, as here, the nonmoving pro se party has failed to submit papers in opposition, summary judgment should not be "granted automatically."Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, summary judgment may be granted as long as the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law," and plaintiff has received notice that failure to file an opposition may result in dismissal of his case. Champion, 76 F.3d at 486. Included in the defendants' papers was a "Notice to Pro Se Litigant Opposing Motion for Summary Judgment," informing Sloane, among other things, that his failure to respond to the motion could result in the dismissal of his complaint. The Court also provided Sloane with a notice regarding opposition to a summary judgment motion on November 17, 2000, and again on May 10, 2001.
Discussion
For the reasons stated in the May 10 Opinion, Sloane, 2001 U.S. Dist. LEXIS 6064, at *5-15, Sloane's remaining claims are: (1) the due process claim against Burns, Washington, and Getz in their individual capacities for the statements made in the parole violation report, and (2) the claim against Burns, Washington, and Getz in their individual capacities for the use of excessive force. Each is considered in turn.
I. Sloane's Due Process Claim
In his pleadings, Sloane argued that Burns, Washington, and Getz violated his due process rights by conspiring to submit a false parole violation report and making false statements in the report. Specifically, Sloane argued that his due process rights were violated by their falsely accusing him of possessing a burglary tool. Because, at Sloane's final revocation hearing, the Division of Parole withdrew with prejudice its charges relating to Sloane's possession of a burglary tool, the question of whether the tool found in Sloane's possession on March 29, 2000, was in fact a burglary tool was never adjudicated below.
At his deposition, Sloane admitted that he possessed the object described in the parole violation report, but asserted that it was a "center punch" he used for work and not a burglary tool. In his unverified second amended complaint, Sloane similarly asserts that Burns submitted a false parole report when she charged him with being in possession of a burglary tool. Sloane has submitted no opposition, however, to defendants' motion for summary judgment. He has not explained why the Court should not credit the affidavit testimony of three Parole Officers, who each testify that the tool in Sloane's possession is "commonly known and used as a burglar's tool," and who are presumably well-informed in these matters. Sloane has also failed to explain why he was in possession of approximately fifty car keys. These keys provide additional support for the defendants' conclusion that the object was a burglar's tool. In light of these undisputed facts, Sloane's due process claim must be dismissed.
An internet search of the terms "center punch" and "automobile" shows that a center punch is a commonly used tool to break automobile glass, in cases of either emergency or theft, and that certain businesses provide treatments for automobile glass that make it resistant to forcible entry by means of tools such as center punches.
II. Sloane's Use of Excessive Force Claim
"[A]l1 claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis omitted). The reasonableness question is whether the officers' actions were "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at 397.
Sloane claimed in his pleadings that Washington grabbed him around his neck and threw him to the floor, that Washington and Getz threw him to the floor a second time, and that Burns merely stood by arid watched as the assault was taking place. Sloane has not, however, opposed entry of summary judgment.
Sloane's medical records indicate that when he was screened by medical personnel at the Westchester County Jail soon after the alleged assault, he showed no injuries and did not indicate that he was in need of medical attention. On April 15, nearly two weeks after the alleged assault, Sloane complained of unspecified back pain on his right side which he stated resulted from an unidentified "altercation." Affidavits submitted by Washington, Getz, and Burns in support of the summary judgment motion deny that Sloane was grabbed by the neck or thrown to the floor. This undisputed evidence requires entry of summary judgment on the excessive force claim.
Because Sloane has not disputed the defendants' evidence that no unreasonable force was used against Sloane when he was taken into custody on March 29, 2000, Sloane's claim of excessive force would also be dismissed under an Eighth Amendment analysis. Defendants have shown that Washington and Getz violated no objective or subjective standards of conduct when they took Sloane into custody. See Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (setting forth the objective and subjective requirements for a showing of a constitutional violation under the Eighth Amendment).
Conclusion
For the reasons stated, defendants' motion for summary judgment is granted. The Clerk of Court shall close the case.SO ORDERED.