MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se civil rights action filed by Christopher
I. RELEVANT BACKGROUND
A. Plaintiffs Claims
Generally, liberally construed, Plaintiffs Complaint alleges as follows: (1) on February 12, 2007, Plaintiff “went to Ameriear Rental Agency ... in North Syracuse!, where he] completed a purchase agreement for a black Lincoln Aviator”; (2) “while [Plaintiff] was test driving the vehicle on 1-81, a Syracuse police officer ... heard a description from a 911 dispatcher ... that Plaintiff took the vehicle at gunpoint”; (3) “[t]he officer began to chase Plaintiff south on 1-81”; (4) “Plaintiff pulled of[f] the highway on the Brighton Avenue exit”; (5) “[t]wo police officers tried to use their cars to box him in”; (6) “Plaintiff swerved out of control and briefly stopped the car”; (7) “[t]he officers fired shots into the rear tires”; (8) “Plaintiff exited the vehicle and ran”; (9) “in an act of surrendering, [Plaintiff] stopped at the corner ... and put his hands up in the air”; (10) “[w]ithout warning, [Defendants Metz, Davis, and MacDermont shot ... [P]laintiff, hitting him with multiple bullets from behind”; (11) Plaintiff was subsequently “taken into custody ..., placed in an ambulance, and delivered to the care of [D]efendant Walsh at the Justice Center”; (12) “[f]or three weeks [P]laintiff sat in the custody of [Defendant Walsh at the Justice Center with his gun shot wounds”; (13) “[o]n May 1, 2007, [P]laintiff was taken to the University Hospital”; (14) “Plaintiff was in great pain[,] ... his fingers on his left hand was stiff and did not move properly!, and he] suffered significant bone fragmentation and scarred tissue”; and (15) Defendant Walsh, who “is responsible for the custody, supervision] and training of his staff!,] ... was directly responsible for [Plaintiffs medical needs[,]” and acted with deliberate indifference to those needs. (See generally Dkt. No. 1 [Plf.’s Compl.].)
Based on these (and other) factual allegations, Plaintiffs Complaint, when liberally construed, asserts the following claims: (1) a claim of excessive force under the Fourth Amendment against City Defendants; (2) claims of assault and battery under New York State law against City Defendants; and (3) a claim of deliberate indifference to his serious medical needs under the Eighth Amendment against County Defendant. (Id.)
Familiarity with the remaining factual allegations supporting these claims in Plaintiffs Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
B. Undisputed Material Facts
The following is a general summary of material facts that are undisputed by the parties. (Compare Dkt. No. 38 [City Defs.’ Rule 7.1 Statement] and Dkt. No. 39, Attach. 1 [County Def.’s Rule 7.1 Statement] mth Dkt. No. 49 [Plf.’s Rule 7.1 Response].)
Plaintiff drove the Lincoln onto Route 81, where he was subsequently chased by a Syracuse Police vehicle driven by Officer David Metz. Before seeing the Lincoln, Officer Metz had heard over his police radio that an armed robbery had occurred at Americar on South Bay Road and, specifically, that the suspect had stolen a Lincoln SUV at gunpoint.
During the pursuit, Plaintiff abruptly stopped at a stoplight. Officer Metz stopped behind Plaintiffs vehicle and Officer MacDermont pulled his vehicle to a stop in front of Plaintiffs vehicle.
At approximately 3:20 p.m., while working in Unit 651, police officer Brian Davis heard a point-of-information broadcast from the dispatcher regarding an armed robbery that happened in North Syracuse. While in pursuit of the stolen vehicle, Officer Davis heard over his police radio that Plaintiff had rammed into a police vehicle at the corner of Calthrop Avenue and South Salina Street. Upon arriving at the 100 block of Calthrop Avenue, Officer Davis attempted to stop the Lincoln by disabling the rear tires using his gun. Shortly thereafter, Plaintiff exited his vehicle carrying a firearm, which he fired at Officer Davis. Plaintiff then ran away from the officers, who continued to pursue him. During the pursuit, more shots were fired, and Plaintiff was struck by several bullets fired from the weapon of one or more City Defendant.
Plaintiff was eventually taken into custody and transported by ambulance to University Hospital, where he was treated for multiple gunshot wounds. Plaintiff was admitted overnight and treated for a superficial abrasion on the posterior right scapula, a bullet entry wound in the right lateral leg, and a fifth digit pylon comminuted fracture. Plaintiffs wounds were cleaned, and his left arm and hand were splinted. Plaintiff was also evaluated by psychiatry and placed on psychiatric medications.
The next day, on February 13, 2007, Plaintiff was discharged from University Hospital with instructions to keep his left arm and hand in the splint that was provided to him for two weeks, after which
In addition to the initial nursing assessment, Plaintiff was seen by mental health staff for a mental health assessment. Due to Plaintiffs psychiatric and medical status, he was taken to “5A medical housing” at the Justice Center and placed on constant observation status. He was also given Tylenol and Motrin for pain.
On February 14, 2007, Plaintiff was examined by Dr. James Greenwald at the Justice Center. Plaintiffs vitals were taken and his shoulder and leg wounds were examined and cleaned. Dr. Greenwald noted that Plaintiff was doing well and could move all fingers on his left hand despite the splint not being removed. Dr. Greenwald wrote orders directing that Plaintiff be scheduled for a follow up appointment at the orthopedic hand clinic in two weeks. While Plaintiff was awaiting his follow up appointments at the hand clinic and trauma clinic, his wounds were cleaned and dressed, and he received pain medication.
On February 28, 2007, Plaintiff was seen at University Hospital Orthopedic Hand Clinic. Surgery on Plaintiffs left small finger was scheduled for the following day.
On March 1, 2007, Plaintiff was taken to University Hospital Orthopedic Hand Clinic where Dr. Mosher performed an open reduction, internal fixation and application of external fixator to Plaintiffs left small finger proximal phalanx. Plaintiff was placed in a splint, which he was directed to keep clean and dry until his follow up appointment one week later.
Upon his return to the Justice Center, Plaintiff requested a sling for his arm, which he was given on March 2, 2007. The physician assistant directed the nursing staff to ensure that there was no vascular compromise resulting from the use of the sling.
On March 8, 2007, before being taken to University Hospital for a follow up appointment, Plaintiff was seen briefly by Dr. Yambo at the Justice Center. At Plaintiffs follow up appointment, his wounds were examined and cleaned. Plaintiff was instructed to return to the hand clinic for his left hand injury, and to return to the trauma clinic in two weeks for further evaluation of his back and leg wounds.
On March 14, 2007, Plaintiff was examined by Dr. Klena at University Hospital Orthopedic Hand Clinic. Plaintiff complained of experiencing some intermittent pain when he removed the hand splint in order to shower. He also complained of some pain when attempting to extend and flex his small finger. Dr. Klena removed the sutures in Plaintiff’s hand and explained that he was not entirely optimistic about how much range of motion Plaintiff would develop, and that additional surgery may be required to maximize flexibility. Plaintiff was scheduled for a follow-up appointment. After his appointment, Plaintiff returned to the Justice Center, where he continued to receive wound care and medication to address his medical and physical needs.
On March 18, 2007, Plaintiff complained to nursing staff that he inadvertently jarred the external fixator to his hand, causing him extreme pain, swelling and some bleeding. The nurse examined his hand, noted that the bleeding had stopped, and scheduled Plaintiff for a “priority 1”
On March 19, 2007, Dr. Greenwald examined Plaintiff, and directed that a follow up appointment at the hand clinic be scheduled for one week later.
On March 22, 2007, Plaintiff was seen and evaluated at the University Hospital Trauma Clinic. Staff noted that the wound to Plaintiffs right leg had completely healed, and the wound to his back was almost healed, with just a small open sore remaining. It was recommended that Plaintiff follow up with the orthopedic hand clinic for his finger injury, and that he be evaluated by psychiatry; however, no further follow up appointment at the trauma clinic was necessary.
On March 28, 2007, Plaintiff was seen again at the University Hospital Orthopedic Hand Clinic for a follow up appointment with Dr. Weiss. Plaintiff was fitted by Occupational Therapy with a volar forearm-based splint and his fourth and fifth digits were buddy taped. A follow up appointment was scheduled for April 18, 2007.
After Plaintiffs appointment at the hand clinic, Dr. Greenwald referred him for physical therapy. On April 10, 2007, Plaintiff was evaluated by a physical therapist. Plaintiff attended physical therapy again on April 17, 2007.
On April 18, 2007, Plaintiff attended his follow up appointment at the hand clinic. Staff noted that Plaintiff was doing “o.k.,” and recommended that he continue to buddy tape his right and little finger. It was also noted that Plaintiff would probably require more surgery. A follow up appointment was scheduled for May 9, 2007.
On April 24, 2007, and May 8, 2007, Plaintiff attended more physical therapy. On May 9, 2007, Dr. Mosher examined Plaintiffs finger at the hand clinic, and decided that he would schedule Plaintiff for tenolysis and arthrolysis.
On May 23, 2007, Plaintiff attended a preoperative appointment at University Hospital, where pre-testing was performed. Plaintiff was scheduled to undergo surgery on May 31, 2007. However, Plaintiff had already been sentenced, and was expected to be transferred from the Onondaga County Justice Center to Elmira Correctional Facility. As a result, the hand clinic cancelled Plaintiffs scheduled surgery, and directed Justice Center officials to send Plaintiffs pre-operative packet with him to Elmira. Plaintiff pled guilty to three counts of attempted aggravated murder.
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties’ Rule 7.1 Statements and Rule 7.1 Response, is assumed in this Decision and Order, which (again) is intended primarily for review by the parties. (Id.)
C. Defendants’ Motions
1. City Defendants’ Motion
Generally, in support of their motion for summary judgment, City Defendants argue as follows: (1) to the extent Plaintiffs excessive force claim is brought under the Eighth Amendment, it should be dismissed because Plaintiff was not incarcerated at the time of the incident giving rise to his excessive force claim; (2) to the extent Plaintiffs excessive force claim is brought under the Fourth Amendment, it should be dismissed against (a) Defendant MacDermont because, based on the undisputed material facts, he never fired his gun, and (b) Defendants Metz and Davis because, based on the undisputed material facts, it was reasonable for them to use deadly force against Plaintiff; (3) in the alternative, Plaintiffs Fourth Amendment should be dismissed on grounds of qualified im
In Plaintiffs response to City Defendants’ motion for summary judgment, he apparently argues that it was not reasonable for City Defendants to shoot him because witnesses told police that he “had his hands up when he was shot in the back.”
In their reply, City Defendants argue, inter alia, that (1) the admissible record evidence adduced by Plaintiff does not permit a rational factfinder to conclude that he was not in possession of a gun during the incident giving rise to his claims, and (2) rather, based on the undisputed material facts, he was in possession of a gun, which he fired at law enforcement officials, before his arrest. (See generally Dkt. No. 50 [City Defs.’ Reply Memo, of Law].)
2. County Defendant’s Motion
Generally, in support of his motion for summary judgment, County Defendant argues as follows: (1) Plaintiffs claim against him should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational fact-finder could conclude that he was personally involved in the alleged violation of Plaintiffs constitutional rights; (2) in the alternative, Plaintiffs claim against him should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that the alleged violation of Plaintiffs constitutional rights resulted from a custom or policy; and (3) in the alternative, Plaintiffs claim against him should be dismissed because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that any of the Justice Center staff under the supervision of County Defendant were deliberately indifferent to Plaintiffs serious medical needs. (See generally Dkt. No. 39, Attach. 10 [County Def.’s Memo, of Law].)
In Plaintiffs response to County Defendant’s motion for summary judgment, he argues that his claims against County Defendant should not be dismissed because he has adduced admissible record evidence from which a rational factfinder could conclude that County Defendant failed to train, and/or negligently supervised, Justice Center staff, who acted with deliberate indifference to Plaintiffs serious medical needs. (See generally Dkt. No. 49 [Plf.’s Response Memo, of Law].)
II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(a). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lob
A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson,
As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson,
Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party willfully fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmoving party is proceeding pro se.
III. ANALYSIS
A. Plaintiffs Excessive Force Claim Against City Defendants
As stated above in Part I.C. of this Decision and Order, City Defendants seek
As an initial matter, City Defendants are correct that, because Plaintiff was not incarcerated at the time of the incident giving rise to his excessive force claim, the claim must be dismissed to the extent it is asserted under the Eighth Amendment. See Graham v. Connor,
Moreover, based on the current record, the Court agrees with City Defendants’ argument that Plaintiffs excessive force claim against Defendant MacDermont must be dismissed. This is because there is no admissible evidence in the record from which a rational factfinder could conclude that Defendant MacDermont (1) fired his gun at any point during the incident giving rise to Plaintiffs excessive force claim, and/or (2) otherwise subjected Plaintiff to any level of force.
Furthermore, based on the current record, the Court accepts City Defendants’ argument that, based upon the undisputed material facts, the use of force by Defendants Metz and Davis was reasonable, and therefore not excessive, under the circumstances.
To establish that the use of force by Defendants Metz and Davis was constitutionally excessive within the meaning of the Fourth Amendment, Plaintiff must show that their actions were “objectively unreasonable in light of the facts and circumstances confronting [them], without regard to [their] underlying intent or motivation.” Maxwell v. City of New York,
With respect to deadly force in particular, “an officer’s decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Cowan ex rel. Estate of Cooper v. Breen,
Based on these undisputed material facts, Defendants Davis and Metz clearly had probable cause to believe, before shooting Plaintiff, that he posed a significant threat of death or serious physical injury to them or others. As a result, it was objectively reasonable for Defendants Davis and Metz to use deadly force, as a matter of law.
Finally, because the Court has concluded that the conduct of Defendants Davis and Metz was “objectively reasonable,” the Court need not address City Defendants’ argument regarding qualified immunity. However, even assuming that the use of force by Defendants Davis and Metz may somehow be viewed as existing on the “hazy border between excessive and acceptable force,”
For each of these alternative reasons, Plaintiffs excessive force claim against City Defendants is dismissed.
B. Plaintiffs State Law Claims of Assault and Battery Against City Defendants
As stated above in Part I.C. of this Decision and Order, City Defendants seek the dismissal of Plaintiffs claims of assault and battery for two reasons: (1) Defendant MacDermont never fired his gun; and (2) Defendants Metz and Davis were justified in their use of deadly force because the record establishes that Plaintiff was the aggressor. Based on the current record, the Court accepts City Defendants’ arguments.
“To prove his state law civil battery claim ..., [Plaintiff must] ... to show that the officer made ‘bodily contact, that the contact was offensive, and that [the officer] intended to make the contact.’ ” Nimely, 414 F.3d at 391 (quoting Laurie Marie M. v. Jeffrey T.M.,
Pursuant to N.Y. Penal Law § 35.30(1), “[a] police officer ... in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he ... reasonably believes to have committed an offense, may use physical force when and to the extent he ... reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he ... reasonably believes to be the use or imminent use of physical force[.]” Furthermore, a police officer may use “deadly physical force” when he “reasonably believes that ... [t]he offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon.” N.Y. Penal Law § 35.30(l)(b). Similarly, a police officer may use “deadly physical force” when he “reasonably believes that ... the use of deadly physical force is necessary to defend [himself] or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.” N.Y. Penal Law § 35.30(l)(c).
As noted above in Part III.A. of this Decision and Order, there is no evidence in the record from which a rational factfinder could conclude that Defendant MacDermont (1) fired his gun at any point during the incident giving rise to Plaintiffs arrest, and/or (2) otherwise subjected Plaintiff to any level of force. Nor is there any admissible evidence from which a rational factfinder could conclude that Defendant MacDermont drew his weapon on Plaintiff, or otherwise intentionally placed Plaintiff in reasonable fear of imminent harmful or offensive bodily contact. Furthermore, based on the admissible evidence in the record, a rational factfinder could only conclude that Defendant MacDermont had probable cause to attempt to stop Plaintiffs vehicle using his vehicle, or take whatever other actions he may have taken in an attempt to effectuate Plaintiffs arrest. As a result, Plaintiffs assault and battery claims against Defendant MacDermont are dismissed.
Moreover, as also noted above in Part III.A. of this Decision and Order, the admissible evidence in the record undisputedly establishes that, before Defendants Metz and Davis shot Plaintiff, Plaintiff had (1) committed a felony, (2) attempted to evade law enforcement officials while carrying a firearm, and (3) fired the firearm at Defendant Davis as well as others. Based on these undisput
For these reasons, Plaintiffs state law civil battery and assault claims against Defendants Metz and Davis are dismissed.
C. Plaintiffs Medical Indifference Claim Against County Defendant
As stated above in Part I.C. of this Decision and Order, County Defendant seeks the dismissal of Plaintiffs medical indifference claim because Plaintiff has failed to adduce admissible record evidence from which a rational factfinder could conclude that (1) County Defendant was personally involved in the alleged violation of his constitutional rights, (2) the alleged violation of his constitutional rights resulted from a custom or policy, or (3) any of the Justice Center staff under the supervision of County Defendant were deliberately indifferent to Plaintiffs serious medical needs. Based on the current record, the Court accepts County Defendant’s third argument.
“Where a pre-trial detainee alleges deliberate indifference to a medical need while incarcerated, such a claim is evaluated under the Due Process Clause of the Fourteenth Amendment.” Dzwonczyk v. Syracuse City Police Dept.,
As a result, to establish a claim for deliberate indifference to a serious medical need, a pre-trial detainee plaintiff must allege as follows: “(1) a deprivation that is sufficiently serious, i.e., a deprivation that presents a condition of urgency, one that may produce death, degeneration, or extreme pain, and (2) reckless [or intentional] indifference, that is, defendants were aware of plaintiffs serious medical needs and consciously disregarded a substantial risk of serious harm.” Id. (internal quotation marks and citations omitted).
1. Whether Plaintiff’s Injuries Constituted Serious Medical Need
“A serious medical condition must be ‘a condition of urgency, one that may produce death, degeneration, or extreme pain.’ ” Osacio v. Greene, 08-CV-0018,
Plaintiff has introduced evidence that he suffered the following injuries as a result of being shot on February 12, 2007: (1) a “superficial” bullet wound in the upper right quadrant of his back;
The Court assumes, for the sake of argument, that a rational factfinder could conclude from such evidence that Plaintiffs injuries were sufficiently serious to constitute a serious medical condition. However, the Court makes this assumption with some hesitation.
2. Whether Defendants Were Deliberately Indifferent to Plaintiffs Medical Needs
“The subjective prong of the deliberate indifference standard requires proof that the accused defendant knew of and disregarded ‘an excessive risk to inmate health or safety.’ ” Ford v. Phillips, 05-CV-6646,
Plaintiff has also introduced evidence that, on February 28, 2007, he was seen again by Dr. Klena, who performed two additional x-rays of Plaintiffs hand, and discussed with Plaintiff the need for operative intervention. (Dkt. No. 49, Attach. 1, at 16.) During this discussion, Dr. Klena “reinforced” to Plaintiff that there was “nothing [medical staff] could do to give him a normal MP joint of the small finger but [they] would direct [their] efforts toward trying to keep him from having a fusion.” (Id.) Dr. Klena also “discussed the possibility that [Plaintiff] may require tendon and nerve repairs at the same time.” (Id.)
Plaintiff has also introduced evidence that surgery was performed on his finger on March 1, 2007, during which time (1) “several free fragments [of bone] were removed,” (2) his wounds were “irrigated with copious quantities of sterile saline,” (3) “[a] foreign body was seen and removed[,]” (4) “[a] minimal amount of the proximal phalanx was removed in order to preserve as much bone stock as possible!,]” (5) “[a]n EBI mini external fixator, articulated, was placed through a proximal and distal 1.6 threaded wires[,]” and (6) his wounds were closed with sutures, and his finger was placed in a splint. (Dkt. No. 49, Attach. 1, at 13-14.)
Finally, Plaintiff has introduced evidence that, on March 14, 2007, he was seen again by Dr. Klena, during which time Dr. Klena (1) examined Plaintiffs physical condition, (2) removed his sutures, (3) advised him that the medical staff is “not entirely optimistic about how much range of motion he is going to get[,] and that he still may require further surgeries to try to maximize his motion[,]” and (4) scheduled him for a two-week follow up appointment. (Id. at 15.)
In addition, County Defendant has adduced the following record evidence regarding additional treatment that Plaintiff received during the time he was detained at the Justice Center, which Plaintiff has not refuted: (1) after he was discharged from the hospital and booked at the Justice Center on February 13, 2007, he was seen by a nurse, who took his vitals, and gave him Tylenol and Motrin for pain; (2) on February 14, 2007, Plaintiff was examined by Dr. James Greenwald at the Justice Center, during which time Plaintiffs vitals were taken, his shoulder and leg wounds were examined and cleaned, and he was scheduled for a follow up appointment at the orthopedic hand clinic in two weeks; (3) while awaiting his follow up appointments at the hand clinic and trauma clinic, Plaintiffs wounds were cleaned and dressed, and he received pain medication; (4) after returning to the Justice Center following his surgery, Plaintiff requested a sling for his arm, which he was given on March 2, 2007; (5) a physician at the Justice Center directed the nursing staff to ensure that there was no vascular compromise resulting from the use of the sling; (6) on March 8, 2007, before being taken to University Hospital for a follow up appointment, Plaintiff was seen briefly by Dr. Yambo at the Justice Center; (7) at Plaintiffs follow up appointment, his wounds were examined and cleaned; (8)
Finally, Plaintiff has failed to adduce any admissible record evidence from which a rational factfinder could conclude that he requested, but was denied, treatment or medication on any occasion while he was detained at the Justice Center. In fact, there is no admissible evidence from which a rational factfinder could conclude that Plaintiff experienced even one delay in treatment during this time.
Under these circumstances, the Court concludes that, even assuming that Plaintiffs injuries constituted a serious medical need, Plaintiff has failed to introduce sufficient admissible evidence from which a rational factfinder could conclude that any member of the medical staff supervised by County Defendant was deliberately indifferent to Plaintiffs serious medical needs. See Davidson v. Harris,
In the alternative, the Court accepts County Defendant’s other two arguments, for the reasons stated by him in his memorandum of law.
For each of these alternative reasons, Plaintiffs deliberate indifference to serious medical needs claim against County Defendant is dismissed.
ACCORDINGLY, it is
ORDERED that City Defendants’ motion for summary judgment (Dkt. No. 36) is GRANTED; and it is further
ORDERED that County Defendant’s motion for summary judgment (Dkt. No. 39) is GRANTED; and it is further
ORDERED that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED in its entirety with prejudice. The clerk is directed to enter judgment in favor of the defendants and close this case.
Notes
. The Court notes that the portion of Plaintiff's Rule 7.1 Response that responds to the undisputed material facts asserted by City Defendants improperly responds to the "statement of facts” provided by City Defendants in a declaration from their attorney. (Compare
. Although Plaintiff does not address his claims against City Defendants in his response memorandum of law, he raises this argument in a document attached to his response, which is labeled “Plaintiff's Answer to Paragraph 42 on the issue of trying to kill/ shoot defendant].” (Dkt. No. 49, at 16.)
. Cusamano v. Sobek,
. Cusamano,
. Cusamano,
. Among other things, Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court requires that the nonmoving party file a response to the moving party’s Statement of Material Facts, which admits or denies each of the moving party’s factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L.R. 7.1(a)(3).
. Cusamano,
. As noted by the Second Circuit in Nimely v. City of New York,
. See Saucier v. Katz,
. While it is not entirely clear, it appears that the bullet causing this wound did not embed itself in Plaintiff's body but created only an "abrasion.” In particular, the Court notes that Plaintiff's sealed medical records, provided by County Defendant, establish that Plaintiff suffered a "superficial 3x1 cm abrasion on the posterior right scapula.” (Dkt. No. 44 at 76.)
. See Davidson v. Harris,
. (Dkt. No. 1; Dkt. No. 49, Attach. 1, at 11.)
. (Dkt. No. 49, Attach. 1, at 6.)
. See also Hernandez v. Keane,