Landy v. Irizarry, 884 F. Supp. 788 (S.D.N.Y. 1995)

*789 *790 Don Landy, Ossining, NY, pro se.

Peter D. Winebrake, Asst. Corp. Counsel, Paul A. Crotty, Corp. Counsel, New York City, for defendants.

KIMBA M. WOOD, District Judge.

Defendants Irizarry and Lafferty have filed a motion for summary judgment in this § 1983 action, and plaintiff has filed a cross-motion for summary judgment. Defendant Chimon has not been served with process and has not answered or otherwise appeared. In a Report and Recommendation ("Report") dated July 27, 1994, Magistrate Judge Katz recommended that plaintiff's cross-motion be denied, that defendants' motion be granted, and that the complaint be dismissed without prejudice as to defendant Chimon. Plaintiff filed objections on September 7, 1994.

After a de novo review of the Report and plaintiff's objections, I adopt the Report in its entirety. The complaint is hereby dismissed without prejudice as to defendant Chimon.

SO ORDERED.

KATZ, United States Magistrate Judge.

This Section 1983 action was referred to me for all pretrial purposes, including dispositive motions. Plaintiff pro se claims that he was unlawfully arrested, that excessive force was used in the course of his arrest, and that he was denied necessary medical treatment for injuries he suffered during the arrest. Plaintiff seeks damages for his physical injuries and the pain and suffering alleged to have resulted from denial of medical treatment. (Complaint ¶ V.) Defendants Irizarry and Lafferty have filed a Motion for Summary Judgment and Plaintiff has filed a Cross-Motion for Summary Judgment.^[1] Defendant Chimon has never been served with process and has not answered or *791 otherwise appeared in the action. For the reasons set forth below, I recommend that Plaintiff's Cross-Motion be denied and Defendants' Motion be granted, and that the Complaint be dismissed without prejudice as to Defendant Chimon.

This action arises out of events surrounding Plaintiff's arrest on October 26, 1990. In the early evening of that day, Plaintiff entered an apartment building at 120 West 70th Street, New York, New York. (Pl.'s Dep. at 58.)^[2] There he encountered a resident, Elise Cohen, on an upper floor. (Pl.'s Dep. at 65-66.) Ms. Cohen started screaming loudly for help, and Plaintiff descended the staircase. (Pl.'s Dep. at 65-66; Irizarry Decl. ¶ 2.) The screams alerted several tenants who opened their doors to see what was afoot. (Pl.'s Dep. at 66; Irizarry Decl. ¶ 2.) One of these tenants was off-duty New York City Police Lieutenant Dorian Irizarry. Lieutenant Irizarry saw Plaintiff walking down the stairs, and he asked Plaintiff what was going on. (Id.) Plaintiff replied, "I don't know." (Id.) Irizarry then asked Plaintiff to wait a minute, to which Plaintiff reacted by "trotting" to the door. (Pl.'s Dep. at 67, 78; Irizarry Decl. ¶ 2.) Irizarry contends that he then yelled, "Police, don't move." (Irizarry Decl. ¶ 3.) Plaintiff claims that Irizarry did not identify himself as an officer until later.^[3] Irizarry also claims that two tenants came running down the stairs and said words to the effect of "stop him, he attacked Elise."^[4] (Irizarry Decl. ¶ 3.) Irizarry then attempted physically to restrain Plaintiff from leaving the building. Irizarry claims he tried to block the door; Plaintiff claims Irizarry grabbed him from behind. (Pl.'s Dep. at 78-79, 81; Irizarry Decl. ¶ 3.)

A struggle ensued, spilling out onto the sidewalk. (Pl.'s Dep. at 83-89; Irizarry Decl. ¶ 5.) At least one of the other tenants came to help Irizarry in the struggle.^[5] According to Plaintiff, Irizarry was trying to handcuff him as they struggled on the ground. Irizarry told him he was going to jail. (Pl.'s Dep. at 88, 148-149.)

During the struggle, Irizarry noticed that Plaintiff had what appeared to be a gun. (Pl.'s Dep. at 116; Irizarry Decl. ¶ 5.) Plaintiff concedes that he was in possession of a knife shaped like a gun. (Pl.'s Dep. at 116.) After seeing this weapon, Irizarry told the other person(s) to get off of Plaintiff; when they complied, Plaintiff started to get up. (Pl.'s Dep. at 83, 85-88; Irizarry Decl. ¶ 5.)

Irizarry then drew his revolver and pointed it at Plaintiff, ordering him to drop his weapon. (Irizarry Decl. ¶ 5.) Plaintiff claims Irizarry "shoved" or "jammed" the revolver into the back of his head. (Complaint ¶ IV.A; Pl.'s Dep. at 149.) Plaintiff grabbed the gun, pushed it away, stood up, *792 and ran down 70th Street toward Broadway, where he turned the corner and entered a taxi. (Pl.'s Dep. at 85-88; Irizarry Decl. ¶¶ 5-6.) Plaintiff acknowledges that while he was running away Irizarry identified himself as a police officer. (Pl.'s Dep. at 149.) Irizarry pursued Plaintiff and ordered the taxi driver not to pull away. (Pl.'s Dep. at 95; Irizarry Decl. ¶ 6.) Irizarry states that he pulled Plaintiff out of the taxi and held him by a phone booth. (Irizarry Decl. ¶ 6.) Plaintiff claims the arrest took place in the taxi. (Pl.'s 3(g) Statement ¶ 6.)

Moments later, New York City Police Officer Daniel Lafferty appeared on the scene. (Pl.'s Dep. at 105; Irizarry Decl. ¶ 6.) After Irizarry told him what had happened, Lafferty took Plaintiff into custody and transported him to the 20th Precinct. (Id.) Later at the stationhouse, Ms. Cohen identified Plaintiff. (Pl.'s Dep. at 105; Irizarry Decl. ¶ 6.)

Plaintiff contends that he received a "hole in the head [that] wouldn't stop bleeding" from Irizarry "jamm[ing] the barrel of his gun behind his left ear." (Complaint ¶ IV.A.) He further claims he was sent to Bellevue Hospital for treatment the day after his arrest. (Pl.'s 3(g) Statement ¶ 7.) Plaintiff also contends that he was kicked by Officer Irizarry during the struggle. (Pl.'s Dep. at 83, 85, 87.) Defendant Irizarry denies that he either hit Plaintiff with his gun or kicked Plaintiff. (Irizarry Decl. ¶ 5.)

Because of his injuries, Plaintiff alleges that he asked police officials to be taken to a hospital for medical treatment, (Complaint ¶ IV), and he was told, at least twice, that he would receive medical care after his arraignment, which would be shortly (Pl.'s Dep. at 144-147). It is not clear when and to whom these requests were made. In his 3(g) Statement, Plaintiff stated Sam Chimon, supposedly a fellow officer with Lafferty at the 20th Precinct, failed to give him medical treatment. None of the other Defendants are specifically identified in the Complaint or Plaintiff's 3(g) Statement in connection with the alleged denial of Plaintiff's request for medical care.

Plaintiff was charged with the crimes of burglary in the first degree, an attempt to commit the crime of kidnapping in the second degree, and criminal possession of a weapon in the third degree (two counts). These charged were dismissed on April 14, 1992, pursuant to New York C.P.L. § 30.30, on the ground that Plaintiff had not been afforded a speedy trial. (Pl.'s Dep. at 24; People v. Landy, No. 13037/90, N.Y.S.Ct., Memorandum Decision (May 20, 1992)).

Plaintiff filed the Complaint in this action on August 11, 1992, naming as defendants Lieutenant Irizarry, Officer Lafferty, and Sam Chimon. Plaintiff claims that Lieutenant Irizarry used excessive force and unlawfully arrested him. Plaintiff also claims that Officer Lafferty conspired with Irizarry to unlawfully arrest him. Plaintiff alleges that Sam Chimon refused him medical treatment.

Defendants Lafferty and Irizarry were properly served and acknowledged receipt of the Summons and Complaint on September 25, 1992. Defendant Chimon, however, was not located by the U.S. Marshal's Service, which noted on the Process Receipt and Return that New York City Police Department personnel had no listing of him. In a letter to Plaintiff from the Court, dated September 10, 1992, Plaintiff was advised of the time limit for service, pursuant to then Rule 4(j), Fed.R.Civ.P., and that if service was not effected within the 120-day period, that I would recommend dismissal of the Complaint as to Defendant Chimon. In another letter, dated April 15, 1994, I specifically advised Plaintiff: (1) of his obligation under newly enacted Rule 4(m), Fed.R.Civ.P., to serve the Summons and Complaint within 120 days of the Complaint's filing, which would have been by December 9, 1992; (2) that the docket did not reflect that such service had occurred; and (3) that I would recommend to the district judge (Hon. Kimba M. Wood) that the action be dismissed as to Defendant Chimon if Plaintiff did not show good cause by May 6, 1994 for the failure of service. Plaintiff responded to that letter with an Affidavit, dated May 3, 1994, stating that "Sam Chimon McCio" worked at the 20th Precinct and he had not failed to serve him. *793 Plaintiff attached to his Affidavit an otherwise blank piece of paper containing three photocopied signatures which Plaintiff claims "show[s] that each defendant knew one another, and knew about the acts that they have committed against the Plaintiff."^[6] Plaintiff did not produce any proof of service of the Summons and Complaint upon Defendant Chimon and the docket does not evidence that service was effected.

Rule 4(m), Fed.R.Civ.P., which took effect on December 1, 1993, retained much of the language of former Rule 4(j), particularly as it relates to a party's having to show "good cause" for the failure to serve the Summons and Complaint within 120 days of filing. However, in contrast to the former rule, it is explicit that where a party does show "good cause" for his failure, the Court must extend the time for service for an appropriate period. If "good cause" is not shown, the Court may either dismiss the action or order that service be effected within a specified period of time.^[7]

Where, as in this action, Plaintiff is proceeding pro se in forma pauperis and has been forced to depend upon the U.S. Marshals for execution of service, care must be taken not to penalize him for the failings of the U.S. Marshal. See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986); Korkala v. National Sec. Agency/Cent. Sec. Serv., 107 F.R.D. 229 (E.D.N.Y.1985); Friday v. U.S. Dep't of Justice, No. 93-283-FR, 1994 WL 48956 (D.Or. Feb. 7, 1994). Here, however, it is not the Marshal's Service which is responsible for the failure to serve Defendant Chimon. The Process Receipt and Return Form executed by the Marshal's Service indicates that service was unsuccessful because the personnel department at the NYCPD did not have a Sam Chimon listed as an officer, as stated by the Plaintiff.

Plaintiff has failed to offer any further justification for his failure to serve Defendant Chimon or to assist the Marshal's Service in effecting service, other than that he initially provided the Marshal's Service with information he thought was correct. This assertion, absent any further action by Plaintiff over the nearly two years since he received information, advice, and warning from the Court, does not constitute "good cause" for the failure to effect service. Even allowing for Plaintiff's pro se status, given the time he has had to address the problem it cannot be reasonably concluded that he has been diligent or made a good faith effort to do so. Cf. Delicata v. Bowen, 116 F.R.D. 564 (S.D.N.Y.1987) (without deciding whether prejudice to Defendant resulting from failure to effect timely service is ever a relevant consideration in dismissal pursuant to Rule 4, court precluded any such concern where Plaintiff had not been diligent in attempting service); Gordon v. Hunt, 116 F.R.D. 313, 318-25 (S.D.N.Y.), aff'd, 835 F.2d 452 (2d Cir.1987), cert. denied, 486 U.S. 1008, 108 S. Ct. 1734, 100 L. Ed. 2d 198 (1988). I therefore recommend that the action be dismissed without prejudice as to Defendant Chimon.

Defendants Irizarry and Lafferty move for summary judgment on the grounds that (1) probable cause existed to arrest Plaintiff; (2) any force used by Defendant Irizarry during the arrest was reasonable under the circumstances; (3) Defendant Irizarry is immune from suit under the doctrine of qualified immunity; and (4) Defendant Lafferty is entitled to summary judgment because his only involvement in the incident was transporting Plaintiff to the 20th precinct. In his Cross-Motion for Summary Judgment, Plaintiff asserts that the facts lead to the opposite conclusion with respect to each of the Defendants' contentions.

A party is entitled to summary judgment if he can show that no genuine issue exists as to any material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. *794 56(c); Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 440, 121 L. Ed. 2d 359 (1992). Once a motion for summary judgment, properly supported by documents, answers to interrogatories, affidavits, or depositions has been made, the burden shifts to the nonmoving party to show that a genuine issue as to a material fact does exist. To defeat an otherwise properly supported motion for summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Mazurkiewicz v. New York City Transit Auth., 810 F. Supp. 563, 566 (S.D.N.Y.1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). He may not rely on the bare assertions contained in his pleadings, Fed.R.Civ.P. 56(e), but must introduce affirmative evidence, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986), which supports "more than a `metaphysical doubt as to the material facts.'" McCormack v. Cheers, 818 F. Supp. 584, 593 (S.D.N.Y.1993) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986)). See also Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir.1992).

A dispute alleged in opposition to the motion must be genuine; "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis added). The evidence introduced in opposition must be such that "a jury [could] return a verdict for [the nonmoving] party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S. Ct. at 2511. However, the Court is not to resolve issues of fact but rather to see if there are fact issues which require resolution at trial. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993). In determining whether there is a genuine issue for trial, evidence introduced by the nonmovant "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S. Ct. at 2513.

To defeat Defendants' motion for summary judgment, Plaintiff must offer evidence sufficient to support a reasonable finding that the elements of Plaintiff's Section 1983 claims, on which he would have the burden of proof at trial, have been established. A claim under 42 U.S.C. § 1983 requires proof by the plaintiff that the defendants (1) deprived him of a right, privilege, or immunity secured by the Constitution or federal laws; and (2) that the defendants were acting under color of state law. 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994); Robinson v. City of Mt. Vernon, 654 F. Supp. 170, 171-172 (S.D.N.Y.1987).

Construing the pro se pleadings in this case liberally, it is apparent that Plaintiff complains of deprivations of his constitutional rights protected by the Fourth Amendment, due to unlawful arrest and excessive force, and the Fourteenth Amendment, due to denial of medical treatment. Further, although Lieutenant Irizarry was off-duty at the time of the events in issue, there is no dispute that both he and Officer Lafferty were acting under color of state law in arresting Plaintiff and taking him into custody.^[8]

To succeed on a claim of unlawful or false arrest, a plaintiff must show that there was a lack of probable cause for the arrest. Thomas v. Culberg, 741 F. Supp. 77, 79 (S.D.N.Y.1990) (citing Alberts v. City of New York, 549 F. Supp. 227, 231 (S.D.N.Y. 1982)). Probable cause exists when officers "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." United States v. Fisher, 702 F.2d 372, 375 (2d Cir.1983); see also Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir.1989); Thomas, 741 F. Supp. at 79. Probable cause should be assessed in light of the "totality of the circumstances," Illinois v. Gates, 462 U.S. 213, 230-232, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527 (1983), measured at the moment of the arrest.^[9]O'Neill v. Town of Babylon, 986 F.2d 646, 649-650 (2d Cir.1993); Thomas, 741 F. Supp. at 79 (citing Beck v. Ohio, 379 U.S. 89, 93, 85 S. Ct. 223, 226, 13 L. Ed. 2d 142 (1964)). The rule of probable cause is a "practical, nontechnical conception." Beck, 379 U.S. at 91, 85 S. Ct. at 226.

Plaintiff holds the mistaken notion that an officer must himself have witnessed a suspect committing a crime in order to have probable cause to make the arrest. (Pl.'s Mem. at 9.) That is not the law. "Officers have probable cause to arrest if they receive `information from some person ... who it seems reasonable to believe is telling the truth.'" Thomas, 741 F. Supp. at 80 (quoting Daniels v. United States, 393 F.2d 359, 361 (D.C.Cir. 1968)).^[10] Plaintiff is also mistaken in his view that it makes a difference in this action whether the tenants who informed Lieutenant Irizarry of the attack on Elise Cohen actually viewed the attack or heard it from Ms. Cohen herself. "[P]robable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information." Bernard v. United States, 25 F.3d 98, 102 (2d Cir.1994) (citing Colon v. City of New York, 60 N.Y.2d 78, 468 N.Y.S.2d 453, 455 N.E.2d 1248 (1983)); Dirienzo v. United States, 690 F. Supp. 1149, 1156 (D.Conn.1988).

The uncontested facts demonstrate that Lieutenant Irizarry had sufficient information to justify an officer of reasonable caution in believing that Plaintiff had committed a crime. Irizarry heard a person screaming for help and witnessed a man descending the stairs from the direction of the screams who, after being asked what was going on and to wait, started trotting toward the door. Irizarry was also told by two of his co-tenants to stop Plaintiff because he had attacked another tenant. Under such circumstances, probable cause existed, because a person of reasonable caution would be warranted in believing that Plaintiff had committed a *796 crime.^[11]

As events subsequently transpired, probable cause to arrest Plaintiff grew even stronger. After attempting to stop Plaintiff from leaving the building, Plaintiff resisted, resulting in a struggle. During the struggle with Irizarry as well as the other tenants, Irizarry noticed Plaintiff had what appeared to be a gun (it turned out to be a gun-shaped knife). Plaintiff concedes that Irizarry identified himself as a police officer, pulled his own revolver, and ordered Plaintiff to stop. Plaintiff nevertheless pushed Irizarry's gun aside and fled to Broadway. That probable cause to arrest Plaintiff existed at any point during these subsequent circumstances is beyond dispute. Resisting arrest, possession of a weapon, and fleeing arrest, along with what had previously transpired, all gave Irizarry knowledge of facts and circumstances that are more than sufficient to warrant a person of reasonable caution in the belief that an offense had been committed by Plaintiff.

Plaintiff's unlawful arrest claim against Officer Lafferty has even less force. The record does not conclusively establish whether Lafferty actually participated in the arrest, after Plaintiff attempted to escape in a taxi, or only transported Plaintiff to the 20th Precinct, and hence was not directly involved in the arrest. Even if Lafferty arrested Plaintiff, under the circumstances there would be probable cause. Lafferty had been provided the details of Plaintiff's encounter with Irizarry by Irizarry himself, a fellow police officer. Irizarry was unquestionably a reliable source of information and since his own knowledge of Plaintiff's conduct gave him probable cause to arrest Plaintiff, it follows logically that the same knowledge gave Officer Lafferty probable cause to arrest Plaintiff. See United States v. Tussa, 816 F.2d 58, 63 (2d Cir.1987) (fact that arresting officer lacked personal knowledge of facts deemed irrelevant since other officers who gave the signal to arrest had probable cause); United States v. Valez, 796 F.2d 24, 28 (2d Cir.1986), cert. denied, 479 U.S. 1067, 107 S. Ct. 957, 93 L. Ed. 2d 1005 (1987) ("[S]ometimes [an officer's] authority to arrest a suspect is based on facts known only to his superiors or associates."); United States v. Canieso, 470 F.2d 1224, 1230 n. 7 (2d Cir.1972) ("`In a large metropolitan police establishment the collective knowledge of the organization as a whole can be imputed to an individual officer when he is requested or authorized by superiors or associates to make an arrest.'") (quoting Williams v. United States, 308 F.2d 326, 327 (D.C.Cir. 1962)). See also United States v. Llanes, 357 F.2d 119, 120 (2d Cir.1966). Cf. Rivera, 1993 WL 76202, at *5.

Even if probable cause was lacking, Defendants Irizarry and Lafferty would be entitled to qualified immunity for their conduct. The doctrine of qualified immunity shields "government officials performing discretionary functions ... from liability for civil damages." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). Qualified immunity is available if it was objectively reasonable for Defendants to believe that probable cause existed, based on the information they had at the time of arrest, Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987); see also Hunter v. Bryant, 502 U.S. 224, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991); Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986); Cartier v. Lussier, 955 F.2d 841, 843 (2d Cir.1992), or "that officers of reasonable competence could disagree on whether the probable cause test was met." Thomas, 741 F. Supp. at 81 (quoting Robison v. Via, 821 F.2d 913, 921 (2d Cir.1987)). "[T]o defeat qualified immunity, the record must show it to be `obvious that no reasonable competent officer would have concluded that a[n arrest] should issue.'" Id. at 81 (quoting id. at 921).

*797 The Second Circuit has observed that there is a difference between the reasonableness inquiry of a Fourth Amendment claim for arrest without probable cause and that of a qualified immunity defense. See Warren v. Dwyer, 906 F.2d 70 (2d Cir.), cert. denied, 498 U.S. 967, 111 S. Ct. 431, 112 L. Ed. 2d 414 (1990). "Evidence that is insufficient to sustain a finding of probable cause may still be adequate to support the conclusion that it was reasonable for an individual to believe he had a good faith basis for his actions." Craig v. Krzeminski, 764 F. Supp. 248, 251 (D.Conn.1991).

Applying these standards, I conclude that Defendants Irizarry and Lafferty are entitled to qualified immunity. Even if a court was to conclude in hindsight that probable cause for the arrest was lacking, it was reasonable for Defendants to believe probable cause existed at the time and under the circumstances described above. Further, at a minimum, reasonable police officers could disagree as to whether probable cause existed.

For the foregoing reasons, Defendants' Motion for Summary Judgment as to unlawful arrest should be granted and Plaintiff's Cross-Motion should be denied.^[12]

The Supreme Court's decision in Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), provides the analytic framework for assessing claims of excessive force in the course of an arrest. Such claims are "properly analyzed under the Fourth Amendment's `objective reasonableness' standard," and therefore are viewed without reference to the officers' underlying intent or motivation. Graham, 490 U.S. at 388, 109 S. Ct. at 1867-68. Reasonableness must be measured "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396, 109 S. Ct. at 1873. Since the right to make an arrest necessarily allows the use of some degree of force to effect it,^[13] the determination of whether a particular use of force was objectively reasonable requires "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S. Ct. at 1873; see also, United States v. Schatzle, 901 F.2d 252, 254-55 (2d Cir.1990); Calamia v. City of New York, 879 F.2d 1025, 1034-35 (2d Cir.1989); Miller v. Lovett, 879 F.2d 1066, 1069-70 (2d Cir.1989).

As a general matter, the fact intensive inquiry of whether a particular use of force was reasonable is best left for a jury to decide. See, e.g., Calamia, 879 F.2d at 1035 (after jury trial, court affirmed denial of judgment n.o.v., stating that it was for jury to determine whether use of force was objectively reasonable); Messina v. Mazzeo, 854 F. Supp. 116, 133-34 (E.D.N.Y.1994) (court refused to dismiss complaint for failure to state claim for relief, where there had been no discovery and where plaintiff alleged gratuitous, repeated slaps and other blows by arresting officers, resulting in injuries to abdomen, wrist, face and legs, while he was handcuffed and in custody in police car and at police station); Mazurkiewicz, 810 F. Supp. at 568 (court denied summary judgment where there were factual disputes about whether plaintiff had been resisting arrest and had struck the arresting officers, the amount of force used and the extent of injury suffered, all requiring assessment of credibility); Johnson v. Doherty, 713 F. Supp. 69 (S.D.N.Y.1989) (claim that officer intentionally and without provocation assaulted protester at march with nightstick, with no evidence that person assaulted had either provoked or justified the use of force, required denial of summary judgment and completion of discovery).

*798 Nevertheless, summary judgment in an excessive force case is not precluded if the evidence, viewed in a light most favorable to the plaintiff, would support a directed verdict for the defendants, i.e., "[i]f reasonable minds could [not] differ as to the import of the evidence" and "there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S. Ct. at 2511. As the Second Circuit stated in Cartier, 955 F.2d at 845, "if even when all facts as alleged by the nonmoving party are regarded as true the moving party is still entitled to judgment as a matter of law, then factual disputes however genuine are not material, and their presence will not preclude summary relief." See also Odom v. Bruno, No. 91 Civ. 7273, 1994 WL 132286, at **3-4 (S.D.N.Y. Apr. 14, 1994) (even accepting plaintiff's version of disputed facts, court granted summary judgment where only force used was removal of a soft arm cast in order to handcuff plaintiff who had attempted to flee and was sought on arson and attempted murder charges); Franklin v. City of Boise, 806 F. Supp. 879, 885-886 (D.Idaho 1992) ("It is thus apparent that not every excessive force claim must be presented to a jury. There are circumstances where the evidence is so clear that summary judgment is warranted."); Roundtree v. City of New York, 778 F. Supp. 614, 622 (E.D.N.Y.1991) (court dismissed excessive force claim in which only force alleged was being pushed into a car, resulting in emotional pain and suffering; issue of whether force used was reasonable "is submitted to the jury only when the court finds itself unable to discern a clear answer."); Brooks v. Pembroke City Jail, 722 F. Supp. 1294 (E.D.N.C.1989) (summary judgment granted against bicyclist intentionally hit by officer in the eye; officer's actions held reasonable where plaintiff was drunk and physically resisted arrest by swinging at and pushing officers); Ford v. Retter, 840 F. Supp. 489 (N.D.Ohio 1993) (summary judgment granted where arresting officer grabbed arrestee, pulled him from bathroom, tripped him and threw him to ground, injuring his finger; use of force found to be reasonable from perspective of reasonable officer on the scene, who had to make split-second judgment); cf. Reid v. Coughlin, No. 86 Civ. 1351, 1994 WL 23152, **3-4 (S.D.N.Y. Jan. 26, 1994) (summary judgment granted on Eighth Amendment excessive force claim based upon disputed facts where court found that, assuming facts as propounded by the plaintiff, force did not rise to the level of constitutional violation).

In this case Plaintiff accuses Officer Irizarry of using excessive force. (Complaint ¶ IV.) The following facts are undisputed. Officer Irizarry heard screams for help and received reports that a tenant in his building had been attacked. Plaintiff, coming from the direction of the screams, refused to heed Defendant's request to stop and trotted toward the door of the apartment house in order to leave. As discussed supra, Defendant Irizarry had probable cause to effect an arrest. He tried to stop Plaintiff by blocking the door and grabbing him. He was unsuccessful and at least one, if not two, other tenants in the building tried to assist him by wrestling Plaintiff to the ground. Plaintiff continued to struggle and, by his own account, succeeded in resisting efforts to handcuff him. During his struggle with Defendant Irizarry and the other tenant(s), Plaintiff was in possession of a dangerous weapon. Defendant Irizarry saw it and believed it to be a small gun. It was in fact a knife shaped like a gun. Despite the efforts of two or three people to subdue him, and after Defendant Irizarry had identified himself as a police officer and ordered Plaintiff to stop, Plaintiff ran away and attempted to escape in a taxi. All of these facts are conceded by Plaintiff to be true.

There is, however, some dispute as to the nature and amount of force Defendant Irizzary used. Plaintiff claims that while he was struggling with Irizarry and the tenant(s), he was kicked by Irizarry. (Pl.'s Dep. at 83, 85, 87.) Defendant Irizarry denies kicking Plaintiff. (Irizarry Decl. ¶ 5.)^[14]*799 Plaintiff acknowledges that he continued to struggle and resisted being handcuffed. (Pl.'s Dep. at 83, 85, 87.) Then, as Plaintiff described in his deposition: "[Irizarry] stuck the pistol to the back of my neck, I grabbed the pistol with my left hand and I pushed it away from me and I jumped up and I ran." (Pl.'s Dep. at 88.) Elsewhere, Plaintiff characterizes Irizarry's action as having "jammed" the barrel of his gun against the back of his head. (Complaint, ¶ IV-A.)^[15] Plaintiff alleges that this resulted in a "hole" which bled until the next day. Defendant Irizarry claims that he did not place his gun to Plaintiff's head but merely pointed it at Plaintiff and ordered him to drop his weapon. (Irizarry Decl. ¶ 5.) Irizarry contends, however, that even if he had placed or "jammed" the gun to the back of Plaintiff's head and kicked Plaintiff, those actions would have been reasonable under the circumstances. In any event, it is also undisputed that whatever Defendant Irizarry did with his gun did not serve to subdue Plaintiff, cause him to drop his weapon or effect his arrest. He admits to having pushed the gun aside and fleeing.

Viewing the facts in a light most favorable to Plaintiff, and accepting his version of Defendant's actions, I must still conclude that no reasonable juror could find it objectively unreasonable for Officer Irizzary to have kicked Plaintiff during the struggle to subdue him or to have "stuck" or "jammed" a gun against his head. Present in this case are all of the factors the Supreme Court suggested require close attention in determining whether a use of force was objectively reasonable. See Graham, 490 U.S. at 396, 109 S. Ct. at 1873, 104 L. Ed. 2d 443 (severity of the crime at issue, whether the suspect poses an immediate threat to safety of police officer or others, whether he is actively resisting arrest or attempting to evade arrest by flight). Plaintiff was reasonably believed to have assaulted an elderly woman; he was forcefully resisting arrest, wrestling with a police officer and civilians; at the time, he was carrying a dangerous weapon, reasonably believed to be a gun; he attempted to flee on two occasions and was successful in fleeing even after the alleged use of force.

Accepting Plaintiff's version of the facts, Defendant's actions and use of force were graduated he first requested Plaintiff to stop; he then tried to restrain him by blocking the door and holding on to him; he then wrestled him to the ground and, if Plaintiff is to be believed, while Plaintiff was armed, still resisting being handcuffed, and fighting with Defendant as well as civilians, Defendant kicked him, resulting in no injury. Even if Irizarry did kick him, this did not subdue Plaintiff or cause him to comply. Only when he failed to comply did Officer Irizarry either point his gun at him, or, as Plaintiff contends, jam it or stick it against his head. Plaintiff still did not drop his weapon and he fled.^[16] Since the force used was ineffective, there is no reasonable basis to conclude that a lesser amount of force would have been effective in preventing Plaintiff from fleeing, protecting Officer Irizarry and the people who were struggling with Plaintiff while he was in possession *800 of a weapon, or achieving Plaintiff's arrest.

Indeed, Plaintiff himself does not appear to argue that it was unnecessary to use force to subdue or arrest him or that the force itself was excessive; rather, the thrust of his claim is that his arrest and any use of force were unreasonable because Defendant Irizarry did not have sufficiently reliable information to believe he committed a crime so as to justify stopping him or effecting an arrest. (Pl.'s Mem., Argument Point Two.) Further, although state of mind is irrelevant to a use of excessive force inquiry, there is no suggestion here that Defendant Irizzary struck Plaintiff gratuitously or simply to inflict injury. Nor is there an allegation that Defendant Irizarry continued to use force once Plaintiff dropped his weapon and ceased resisting. All of these undisputed facts distinguish this case from the more common situation in which factual questions require the jury to resolve whether the officer's use of force was objectively reasonable. See, e.g., Finnegan v. Fountain, 915 F.2d 817, 818 (2d Cir.1990) (factual dispute as to whether, without provocation or warning, police shoved plaintiff and her mother into a wall, dragged her by the hair and knocked her face into a squad car, or whether plaintiff resisted arrest by kicking police officer in the groin and screaming obscenities at police); Calamia, 879 F.2d at 1035 (as soon as arrestee answered door he was shoved to the floor, tightly cuffed with hands behind his back and left in that painful position for many hours while officers searched his apartment; proper to allow jury to decide whether this use of force was objectively reasonable); Mazurkiewicz, 810 F. Supp. 563 (sharp factual dispute as to whether plaintiff was beaten and battered without provocation).

Viewing Officer Irizarry's conduct from the perspective of a reasonable officer, required to make an on-the-spot judgment in light of the facts and circumstances confronting him, it is my conclusion that the force he used, if any, was, as a matter of law, objectively reasonable.^[17] He is therefore entitled to summary judgment.

Since I recommend dismissal of Plaintiff's excessive force claim on the merits, it would appear that the claim could also be dismissed on qualified immunity grounds for similar reasons. To be entitled to qualified immunity, a police officer must establish facts satisfying one of two tests: "either that his conduct did not violate `clearly established rights' of which a reasonable person would have known, or that it was `objectively reasonable' to believe that his acts did not violate these clearly established rights." Finnegan, 915 F.2d at 823 (citing Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir.1990) and Calamia, 879 F.2d at 1035).

Although the Second Circuit has held "that the qualified immunity defense is generally available against excessive-force claims," Finnegan, 915 F.2d at 822-24, it has also observed that there is a "doctrinal tension" in applying qualified immunity to these claims. Id. 915 F.2d at 824 n. 11. The practical difference between the objective reasonableness required to defend on the merits of an excessive force claim and that required for a qualified immunity defense, is difficult to decipher. See Ford, 840 F. Supp. at 491-492 ("[T]he distinction between the defense of qualified immunity and the substantive law of an excessive force claim have [sic] become blurred."); Merzon v. County of Suffolk, 767 F. Supp. 432 (E.D.N.Y.1991) (objective reasonableness determination of excessive force under Fourth Amendment may merge with the question of whether there is qualified immunity available).^[18] Although *801 this issue need not be resolved here, suffice it to say that the doctrine of qualified immunity is intended to provide a threshold of protection to public officials even where their actions, although perhaps unlawful, do not violate clearly established rights of which they should have known. "The doctrine evolved as an accommodation between the need to provide private redress when government officials abuse their positions of public trust and the need to shield officials who responsibly perform their duties from the costs of defending an action." Cartier, 955 F.2d at 844.

Thus, as a matter of logic, if it was objectively reasonable for Defendant Irizarry to use the force he employed based upon his perception of the circumstances at the time and under the pressure of the moment, it would follow that it was objectively reasonable for him to believe that his conduct did not violate any clearly established rights of which a reasonable officer should have known.^[19]

For the foregoing reasons, I recommend that Defendant Irizzary be granted summary judgment on Plaintiff's claim of excessive force.

Defendants Lafferty and Irizarry are also entitled to summary judgment on Plaintiff's claim of denial of medical treatment.^[20] In order to be liable under Section 1983, "the plaintiff must allege that the defendants `were directly and personally responsible for the purported unlawful conduct.'" Herrera v. Scully, 815 F. Supp. 713, 722 (S.D.N.Y.1993) (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883 (2d Cir.1987)). See also Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987); Cepeda v. Coughlin, 785 F. Supp. 385, 390 (S.D.N.Y.1992); Owens v. Coughlin, 561 F. Supp. 426, 428 (S.D.N.Y. 1983). In their 3(g) Statement, Defendants asserted that it is unknown who Plaintiff asked for medical assistance. Neither in his Complaint, 3(g) Statement, nor in his deposition does Plaintiff mention Defendants Irizarry or Lafferty as being involved in any denial of medical treatment. His only specific reference to any individual concerning a *802 denial of medical treatment is to Sam Chimon, who has never been served with the Complaint in this action.

Because Plaintiff fails to allege or offer specific facts linking either Defendant Irizarry or Lafferty to his requests and alleged denial of medical treatment, Defendants are entitled to summary judgment on this issue.

For the reasons set forth above, I respectfully recommend that Plaintiff's Cross-Motion for Summary Judgment be denied and the Motion for Summary Judgment brought by Defendants Irizarry and Lafferty be granted and the action be dismissed with prejudice as to them. Further, I recommend that the action as to Defendant Chimon be dismissed without prejudice, pursuant to Rule 4(m), Fed.R.Civ.P.

Pursuant to 28 U.S.C. § 636(b) (1) (C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6(a) and (e). Such objection shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Kimba M. Wood, U.S.D.J., and to the chambers of the undersigned, Room 115. Any requests for an extension of time for filing objections must be directed to Judge Wood. Objections that are not filed on time will be waived for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).

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[1] Defendants have treated Plaintiff's submissions as simply a response in opposition to their motion rather than as a Cross-Motion for Summary Judgment. The better view is to treat them as both a response and a Cross-Motion, as it is clear on their face that they were intended as both and they do in fact satisfy both purposes.

[2] References will be to the transcript of Plaintiff's Deposition held August 10, 1993, annexed to the Declaration of Assistant Corporation Counsel Jyll D. Townes as Exhibit "1" ("Pl.'s Dep."); to the Declaration of Lieutenant Dorian Irizarry, dated October 27, 1993, ("Irizarry Decl."); to the Declaration of Dan Landy, dated November 17, 1993, ("Landy Decl."); to Plaintiff's Statement pursuant to Rule 3(g) of the Civil Rules of the Southern District of New York, ("Pl.'s 3(g) Statement"); to Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment ("Pl.'s Mem."); and to the Declaration of Assistant Corporation Counsel Peter D. Winebrake in Response to Plaintiff's Motion for Summary Judgment, dated November 29, 1993 ("Winebrake Decl.").

[3] Plaintiff alleges that Irizarry did not identify himself until after they struggled and Plaintiff was running down the street. (Pl.'s Dep. at 149; Pl.'s Mem. ¶ 8.)

[4] Although Plaintiff does not directly controvert this assertion, he questions whether Irizarry could have been told by other tenants that Ms. Cohen was in trouble or that Plaintiff attacked her if, as Ms. Cohen testified at Plaintiff's parole revocation hearing, she "ran up the stairs to her apartment, and lock[ed] the door, and call[ed] 911 and waited until the police came bec[a]use she was terrified." (Pl.'s Mem. at 3; Pl.'s 3(g) Statement ¶ 3-4; see also Pl.'s Mem. at 10.) Plaintiff's doubt in this respect is inconsistent with his deposition testimony in which he conceded that a tenant who came down to where he and Irizarry were, had been on the second floor speaking to the woman who was screaming. (Pl.'s Dep. at 81.)

[5] Although Plaintiff claimed at his deposition that there was only one, (Pl.'s Dep. at 81, 83-89), in his declaration he indicates that more than one other tenant was involved in the struggle (Landy Decl. ¶ 3). Irizarry claims there were two. (Irizarry Decl. ¶¶ 3-5.)

[6] The signatures are photocopied from an unknown source and the signature claimed to be Sam Chimon's is practically illegible and not dated.

[7] Neither Rule 4(m) nor the Advisory Committee notes suggest, however, that a new standard for judging "good cause" exists under the recent revision to the rule.

[8] Even if it was in dispute, that Irizarry was acting "under color of state law" is clear. Although "[a]cts of police officers in the ambit of their personal, private pursuits fall outside of 42 U.S.C. § 1983, Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir.1975), cert. granted, 425 U.S. 910, 96 S. Ct. 1505, 47 L. Ed. 2d 760, cert. dismissed, 429 U.S. 118, 97 S. Ct. 514, 50 L. Ed. 2d 269 (1976), "the lack of outward indicia suggestive of state authority such as being on duty, wearing a uniform, or driving a patrol car are not alone determinative of whether a police officer is acting under color of state law, [r]ather, the nature of the act performed is controlling." Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989). See also Pitchell, 13 F.3d at 547-548; Rivera v. La Porte, 896 F.2d 691 (2d Cir.1990) (off-duty corrections officer held to be acting under color of state law when, after a traffic dispute with arrestee, he used handcuffs and a gun and identified himself as a police officer to effect the arrest); Stengel, 522 F.2d at 441; Drewitt v. Pratt, No. 2:92 Civ. 13, 1992 WL 516032, at *2 (E.D.Va. Oct. 9, 1992), aff'd, 999 F.2d 774 (4th Cir.1993);

Irizarry's actions of questioning Plaintiff, identifying himself as a police officer, drawing his revolver, and attempting to stop and arrest Plaintiff are actions that clearly are in the nature of a police officer's duties.

[9] "The experience of a police officer is a factor to be considered in the determination of probable cause..." Fisher, 702 F.2d at 378 (citing United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)), cert. denied, 455 U.S. 923, 102 S. Ct. 1281, 71 L. Ed. 2d 464 (1982). Irizarry had been a police officer for almost eleven years at the time of the incident. (Irizarry Decl. ¶ 1.)

[10] Plaintiff claims that Irizarry did not see him in criminal activity and should have gone upstairs to the source of the screams rather than relying on "hearsay" from the other tenants. Such an argument is misplaced in light of the authorities, supra, and the rule that once probable cause is established there is "no affirmative duty to weigh conflicting versions of the alleged offense presented by the suspect or by passersby," Rivera v. Granucci, No. N-87-480, 1993 WL 76202, at *4 (D.Conn. Mar. 12, 1993), and no "affirmative duty to exhaust all possible avenues of investigation." Dirienzo v. United States, 690 F. Supp. 1149, 1157 (D.Conn.1988).

[11] Plaintiff contends that it is not a crime to run. That statement is true, but such action was accompanied by screams for help and statements from others that he tried to assault someone. It is the "totality of the circumstances" not "isolated facts" that determines probable cause. See United States v. Morales, 923 F.2d 621, 623-624 (8th Cir.1991). See also Rivera, 1993 WL 76202, at *3 (probable cause for arresting suspect after officers saw him leave premises where burglary was reported and he then ran from the officers); United States v. Margeson, 259 F. Supp. 256, 264 (E.D.Pa.1966).

[12] Plaintiff's claim that there was a conspiracy between Defendants Lafferty and Irizarry in effectuating his arrest is easily dismissed. Since his arrest was not illegal, whether they acted in concert to effect it is of no legal significance.

[13] "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers' ... violates the Fourth Amendment." Id. at 396, 109 S. Ct. at 1873 (quoting Johnson v. Glick, 481 F.2d 1028, 1033, cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)).

[14] Plaintiff alleges no injury as a result of being kicked. An arrestee must prove some injury, even if insignificant, to prevail in an excessive force claim. Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1298, 122 L. Ed. 2d 688 (1993) (arrestee required to prove that he suffered some injury, even if insignificant); Roundtree, 778 F. Supp. at 620-623.

[15] In a subsequent Affidavit, Plaintiff embellished upon this description, stating that Irizarry "hit me upside my head with his gun." (Landy Decl. ¶ 3; Pl.'s Mem. at 6.) To the extent that this embellishment can be viewed as contradicting Plaintiff's deposition testimony it should be disregarded. "It is well settled in this circuit that a party's affidavit which contradicts his own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124-125 (2d Cir. 1987). See also Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir.1991); Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 24 (2d Cir.), cert. denied, 474 U.S. 851, 106 S. Ct. 148, 88 L. Ed. 2d 122 (1985).

[16] Although Plaintiff is not required to demonstrate a substantial or permanent injury to prevail on his excessive force claim, the severity of his injury could shed some light on the amount of force that was used. No medical records have been produced which document the fact or severity of Plaintiff's head injury, although it appears to be undisputed that he sustained some sort of cut. There are, nevertheless, some logical limits to the possible severity of Plaintiff's injuries, given the record in this case. After having the gun placed or "jammed" against his head, Plaintiff was still able to forcibly escape, run a block, and attempt to leave in a taxi.

[17] Comparable levels of force have been found to be objectively reasonable in other cases where the suspect was either resisting arrest or trying to flee. See, e.g., Pride v. Does, 997 F.2d 712 (10th Cir.1993) (trooper's placing hand around arrestee's neck and applying force where arrestee was combative and acting in threatening manner found objectively reasonable); Brooks, 722 F. Supp. at 1299 (after plaintiff resisted arrest and shoved officer to pavement, even if officer delivered intentional blow which resulted in black eye, there was no Fourth Amendment violation).

[18] Although the Fourth Amendment objective reasonableness standard also applies to the question of whether probable cause for an arrest existed, that inquiry can more readily be distinguished from the qualified immunity inquiry than the substantive inquiry can be distinguished from qualified immunity analysis in the excessive force context. As the Second Circuit has explained, the probable cause inquiry on a false arrest issue involves an ex post inquiry, i.e., viewing the actual circumstances found to have existed at the time of the arrest; the qualified immunity defense involves an ex ante inquiry, i.e., from any reasonable point of view the officer may have harbored at the time of the arrest, even if he misperceived the facts. However, in assessing the merits of an excessive force claim, reasonableness is judged ex ante, from the perspective of a reasonable officer on the scene, rather than with hindsight. Finnegan, 915 F.2d at 824 n. 11.

[19] In one relatively recent Second Circuit decision, the distinction between the objective reasonableness of the arresting officers' use of force and their defense of qualified immunity was more apparent. See Soares v. Connecticut, 8 F.3d 917 (2d Cir.1993). That case, however, involved a set of facts and a legal question that distinguish it from the routine excessive force case. The force challenged in Soares was the use of handcuffs, and the Court refused to adopt a per se rule that handcuffing is reasonable whenever an arrest is made, regardless of whether the arrestee is resisting, attempting to flee, accused of a non-violent crime or considered dangerous. Nevertheless, it went on to find qualified immunity because of the absence of existing caselaw recognizing a right not to be handcuffed, and a few conflicting decisions on the issue. In contrast, in most excessive force cases, as in the instant case, the only clearly established right is the generalized right to be free from excessive force and the conduct challenged falls within a fact specific spectrum as to which the "objective reasonableness" test must then be applied.

[20] Denial of medical treatment to a sentenced prisoner is a violation of the Eighth Amendment when it involves "deliberate indifference to a prisoner's serious illness or injury." Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). In cases involving a pretrial detainee, which I assume is the case here, the applicable constitutional protection is the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S. Ct. 1861, 1872 n. 16, 60 L. Ed. 2d 447 (1979). Although the Supreme Court and the Second Circuit have left unresolved precisely what the standard of care is under the Fourteenth Amendment, "the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protection available to a convicted prisoner." City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 2983, 77 L. Ed. 2d 605 (1983). "[A]t the very least, more than mere negligence, and, at the very most, a deliberate indifference to plaintiff's medical needs [is required]." Messina v. Mazzeo, 854 F. Supp. 116, 140 (E.D.N.Y.1994). There is, however, no need to apply any particular standard of care in this case as I do not reach the issue directly.