MEMORANDUM AND ORDER
This is а civil rights action in which Plaintiff, John Usavage, alleges that on October 31, 2009, the Port Authority of New York and New Jersey (PATH), the PATH Police Department, Police Officer James Sweizer, and Police Officer Michael Jones (collectively, “Defendants”) violated his state and federal rights by subjecting him to excessive force. Defendants have moved for summary judgment on all of Plaintiffs claims. Plaintiff has moved for sanctions based on the alleged spoliation of evidence by PATH officials. For the reasons that follow, Plaintiffs motion is denied and Defendants’ motion is granted in part and denied in part.
I. Background
A. Facts Relevant to Allegations of Excessive Force
On October 31, 2009, Plaintiff attended a Halloween party in Manhattan. (Denalli Deck, Dkt. No. 21, Def. Ex. M (“Usavage Dep.”), at 33:17-38:19.) Plaintiff states that he ate some food and consumed “about three beers” over the course of the festivities, which began at around 3:00 or 4:00 p.m. {Id. at 37:3-8.) When he left .the party at around 9:00 p.m., Plaintiff traveled to the PATH 33rd Street station and boarded a train to New Jersey. {Id. at 36:19.) When his train arrived at the Journal Square (JSQ) station, Plaintiff
When she saw Plaintiff, Haines acted in accordance with PATH protocol by stopping her train and notifying the Control Center of Plaintiffs presence in the track area. She then exited the train and told the conductor to contact the Control Center. (Haines Dep. at 20:7-23:9.) Haines recalls that she asked Plaintiff why he was in the restricted track area and informed him that it was dangerous to remain there (id. at 27:8-11), but Plaintiff denies that any such interaction ever occurred between him- and Haines (Usavage Dep. at 44:22-43:4). Haines adds that Plaintiff “did not appear to be normal,” based on his walk and demeanor, and notes that Plaintiff walked right past her without acknowledging her presence. (Haines Dep. at 29:3-18.)
Frank Comes, an engineer switchman at the JSQ station, received an order from the terminal supervisor to cut power because of Plaintiffs presence in the track area. He then saw Plaintiff walk up from the stairway that leads to the track area, through a gate, onto the train platform, and then onto a train. (Denalli Deck, Dkt. No. 21, Def. Ex. D (“Comes Dep.”), at 13:15-18:11.) Meanwhile, several PATH police officers — Juan Cancel, Jones, Nicholas Kowana, Wilfred Quаshie and Sweizer — responded to the incident and arrived on the platform. Comes informed the officers that Plaintiff was on a train. (Id. at 18:23.) Comes states that Plaintiff was “attempting to conceal himself by hiding in the corner” of the train car (id. 21:1), while Plaintiff reports that he was standing because the train was crowded (Usavage Dep. at 44:21). The officers asked Plaintiff to exit the train. (Id. at 43:25-44:1.) Comes states that Plaintiff appeared to be intoxicated while disembarking the train. (Comes Dep. at 18:25-19:1.)
On Kowana’s orders, Cancel arrested Plaintiff for trespassing and interfering with a railroad. (Denalli Deck, Dkt. No. 21, Def. Ex. I (“Kowana Dep.”), at 23:18-24:7.) The parties dispute what happened during the ■ arrest. Cancel states that Plaintiff acted belligerently toward the officers — mainly by cursing profusely at them, calling them “assholes,” and saying that they should “get the fuck off [him].” (Denalli Deck, Dkt. No. 21, Def. Ex. C (“Cancel Dep.”), at 44:10-14.) Cancel further reports that Plaintiff said that he “know[s] the system,” that he “worked for the NYPD [Civilian Complaint Review Board],” and that he was going to get back at the arresting officers. (Id. at 44:2-5.) Cancel adds that Plaintiff failed to cooperate during the arrest, tensed up his body, and refused to follow directions, and that Cancel therefore handcuffed Plaintiff with his hands behind his back. (Id. at 34:17-18, 41:20-42:23, 45:24-46:23.) Cancel recalls that he needed help from Sweizer to move Plаintiffs arms so that Cancel could place the handcuffs on Plaintiff. (Id. at 43:8.) Plaintiff, in contrast, states that when he was arrested he acted in a calm manner despite being called derogatory names, including “rambo” and “faggot,” by the officers. (Usavage Dep. at 49:4-9, 49:13-19.) Plaintiff reports that the officers acted unprofessionally and that he did not respond to the officers’ insults, though he also states that he grew frustrated with the officers and was not polite and courteous. (Id. at 64:4-19.)
Plaintiff was then escorted to the Journal Square command and placed in a cell area. (Denalli Deck, Dkt. No. 21, Def. Ex. H (“Jones Dep.”), at 44:10-11.) Plaintiff states that at some point on his way to the holding cell, Sweizer used the handcuffs as a weapon against him (“the Handcuff Incident”). In his deposition, Plaintiff stated:
[Sjweizer [], he was picking the handcuffs high up in the air. As we entered the station, he started lowering it. And he stаrted pushing down on my shoulder, to the point where I was almost like duck walking. That’s when I said to him “could you lighten up a little or loosen up a little.” That’s when he raised them all the way up to almost where my feet came off the ground. In one full jerking motion, he ripped my hands up in the air, put his knee in my back, with all his weight. First he did the right side. He compressed the handcuffs all the way down as hard as he could. And then he did the same thing to the left ...
(Usavage Dep. at 77:24-78:15.) Later in the deposition, when asked again about the Handcuff Incident, Plaintiff stated that Sweizer raised Plaintiffs handcuffed arms upward “as far [as] I thought they could go” (id. at 191:2-3), and that just as he entered the police station,
[Sweizer] lowered them again all the way down ... He started pushing down on the cuffs and pushing down on my right shoulder. So he is pushing down on the cuffs with his left hand and he is pushing down on my right shoulder with his right hand. And that’s when I said, “Could you loosen up a little bit” or “Lighten up,” or something like that. And that’s when he ripped them straight up into the air and clamped down first on my right hand and then on my left ... A few seconds later, he took the cuffs off.
(Id. at 193:12-194:3.) Plaintiff reports that pain in his left wrist lasted ten minutes before the onset of numbness, but in “the right wrist and the right hand, the pain was considerable, even to this day.” (Id. at 73:15-19.)
Plaintiff discussed the Handcuff Incident in a recorded interview with PATH officer Lieutenant Geraldo Silva on November 17, 2009. In that interview, Plaintiff states that Swеizer was “pushing down on the cuffs,” so he “said something like, you know, could you loosen the cuffs or something like that,” and Sweizer “then tightened them quite hard ... like all the way.” (Denalli Deck, Dkt. No. 21, Def. Ex. K (“Silva Dep.”), at 75:8-24.) Plaintiff clarified that Sweizer “gripped with all his strength.” (Id. at 76:5-6.) When asked “He closed them further than they were?”, Plaintiff replied “Until I couldn’t feel my hands. I still cannot feel the top of my right hand.” (Id. at 76:20-24.) In this interview, Plaintiff states that he thought the Handcuff Incident occurred either at the top or the bottom of the stairs on the way to JSQ command, but also states that he was in too much pain to recognize his surroundings and notes that he was “very distracted” by pain. (Id. at 77:11-78:18.) Sweizer disputes Plaintiffs statements pertaining to the Handcuff Incident. (Denalli Deck, Dkt. No. 21, Def. Ex. L (“Sweizer Dep.”), at 66:5-72:11.) Jones was standing nearby when the Handcuff Incident allegedly occurred.
To demonstrate that it was really attached, because apparently he didn’t believe me, I took one step towards him pulling on it. And I said, ‘here. It’s attached to the pants.’ He thought I was lying. So he tried to remove it by shaking me or whatever. I started flopping around. And then I started to fall. That’s when I touched him. That’s when he lunged at me with an opened hand and slammed my head into the wall.
(Id. at 58:21-59:7.) In his deposition, Plaintiff mentions that on the night in question, he complained “primarily” about his right hand and right wrist, observing that “the back of my head, I felt there was no blood. I didn’t see any.” (Id. at 73:12-15.)
Sweizer disputes Plaintiffs account of the Holding Cell Incident. According to Sweizer, he told Plaintiff to remove the string pursuant to PATH safety procedure. (Sweizer Dep. at 74:7-20.) Sweizer recalls that when he told Plaintiff to remove the string, Plaintiff cursed at him and insisted that Sweizer “do it himself.” (Id. at 74:13.) Sweizer then attempted to remove the drawstring and realized that it “wouldn’t come out.” (Id. at 74:23-75:2.) Sweizer reports that Plaintiff never told him that the string would not come out (id. at 75:6), and states that, “as [I] was pulling the draw string, [Plaintiff] grabbed my arm, my right arm” (id. at 76:18-19). Sweizer adds that, in response, he “restrained [Plaintiff] onto the bench” inside the cell by pushing Plaintiffs chest. (Id. at 78:6-9.) Jones, who was assisting Sweizer, states that Plaintiff told Sweizer that “the string did not come out of his pants.” (Jones Dep. at 48:22-23.) Jones adds that after Sweizer told Plaintiff to remove his pants, Plaintiff stated “he wasn’t going to or something along those lines.” (Id. at 49:20-21.) According to Jones, Sweizer “grabbed [Plaintiff] by the chest area and pushed him down to the cell area bench.” (Id. at 50:6-7.) Jones states that he does not recall whether Plaintiffs head hit the back wall. (Id. at 50:10.)
The Court has independently examined an edited video clip of the Holding Cell Incident. (Strockyj Deck, Dkt. No 37, Pi’s. Ex. C (“Cell Footage”).) This video lacks sound, but it does afford a clear view of the interaction. Sweizer appears to ask Plaintiff to pull the drawstring out of his pants. After indicating and demonstrating that he cannot do so, Plaintiff takes a few steps that land him very close to Sweizer. Sweizer then puts his arm out and onto Plaintiffs chest as if to motion that Plaintiff should keep a distance. Sweizer attempts to pull the string out of Plaintiffs pants by tugging at it aggressively while maintaining a hand on Plaintiffs chest; this causes Plaintiff to shake and flop around. After several seconds, Plaintiff moves his hand to Sweizer’s elbow. Sweizer jerks his own arm away, then puts one hand on Plaintiffs chest, keeps his other hand on Plaintiffs drawstring, and uses both hands to forcefully push Plaintiff. Plaintiff is propelled backward a few steps and is then knocked into a sitting position when his legs hit up against a bench attached to the walk Plaintiffs head does appear to knock against the wall as he is forced into a sitting position, but it does not appear to be a hard blow and Plaintiff
After being fingerprinted and photographed, Plaintiff was released at approximately 12:45 a.m. (Denalli Deck, Dkt. No. 21, Def. Ex. F (“Gilleece Dep.”), at 31:22.) At that time, Officer Greg Gilleece, who released Plaintiff from the holding cell, gave Plaintiff a copy of his complaint summons, which Plaintiff then crumpled up. (Id. 32:4-16.) After his release, Plaintiff complained of pain in his right wrist and Gilleece told the police desk to call an ambulance. (Id. at 34:2-6.) Plaintiff did not want to go at first, but eventually took an ambulance from the JSQ command to Jersey City Medical Center (“JCMC”). (Id. at 34:14-35:23; Usavage Dep. at 93:6-95:14.) According to JCMC records, Plaintiff complained of pain and numbness in his right hand and wrist. (Denalli Deck, Dkt. No. 21, Def. Ex. W (“Hospital Records.”), at 6-7, 12.) The JCMC records, under “Assessment,” indicate “right wrist and right hand pain” and “injury from handcuffs.” (Id. at 7.) When asked to rank the severity of his pain on a scale from zero to ten, Plaintiff selected zero.' His treating physician’s nоtes contain a diagnosis of neuropraxia and the observation that sensation was “intact but decreased to the dorsal surface of right hand.” (Id. at 12-13.) Plaintiff was able to “move the right hand without difficulty.” (Id. at 14.) At the hospital, X-rays were taken of Plaintiffs wrist, but did not show any broken or fractured bones. (Strockyj Deck Dkt. No 37, Ex. G (“Fietti Report”).) Within an hour of his admittance to JCMC, Plaintiff was discharged and instructed to follow up within two days (Hospital Records at 14), but did not do so (Usavage Dep. at 121:3-4). Plaintiff states that he followed up at the Veterans Administration Hospital in Lyons, New Jersey, but cannot recall the name of his physician or if he was given any prescription medication for the pain. (Id. at 122:10-23:4).
Upon leaving JCMC, Plaintiff returned to the JSQ command and filed a complaint alleging, inter alia, that the handcuffs had been excessively tight and that his head had been slammed against the wall while he was in the cell. (Strockyj Deck Dkt. No. 37, Ex. E.) Specifically, in that complaint, he alleged that:
After leaving NYC on the PATH it took approximately] 50 minu[ute]s to reach the Journal Sq. Upon arrival I went to the end of the platform to relieve myself. At the moment I reached the end of the platform the PATH train to Newark pulled up. I ran back towards the train and was placed in handcuffs. I asked the officer to loosen the .cuffs and instead he tightened them which cаused my right wrist to go numb. I was treated at Jersey City Hospital. The same officer who handcuffed me also asked me to take a string out of my pants. When I demonstrated to the officer that the string was attached to the waste of the pants, the officer grabbed me by the neck and slammed my head against the walk He then tore my pants in attempting to remove the string. My newspapers were missing from my bag. Upon request, Sgt. Kowana retrieved them.
(Id.)
Plaintiff reports that the Handcuff Incident resulted in a long-lasting injury. He notes that “initially, it was a very sharp pain ... about as much pain as I would ever want to experience, or not experience ... Ten [on a scale of one to ten].” (Usavage Dep. at 97:11-17.) He adds: “[B]oth wrists went numb after that for quite a
At the recommendation of his friend and attorney, Carl Sandel, Plaintiff followed up with Dr. Vincent G. Fietti, Jr. on April 7, 2010. (Id. at 120:3-121:5) In a letter to Sandel, Fietti reported that “exam of [Plaintiffs] wrist shows an oval area of numbness on the dorso-ulnar aspect of his wrist and hand,” “forearm rotation is full but rapid prono-supination causes a painful click on the ulnar side of [Plaintiffs] wrist,” and “[Plaintiff] has full motion of his fingers but intrinsic muscles of the right hand are slightly weaker than on the left.” (Fietti Letter at 1-2.) Fietti notes his “clinical impression” that “patient had signs and symptoms of compression of the ulnar nerve at the wrist and possible [sic] a tear of the triangular fibrocartilage,” adding that he referred Plaintiff to a specialist for MRI and EMG/NCV tests. (Id. at 2.) The MRI revealed “an area of inflammation and thickening of the extensor carpi ulnaris tendon at the level of the ulnar styloid consistent with a compression injury,” and the EMG “confirmed an injury to the dorsal sensory branch of the right ulnar nerve at the wrist level.” (Id.) Fietti noted that local steroid injections or exploration and decompression of the nerve and tendon might be indicated, and that “it is likely that withоut treatment [Plaintiff] will have permanent symptoms.” (Id.) In letters dated September 26, 2011, two other physicians — Herbert Sherry and Daniel Feuer — report that they examined Plaintiff and did not discover any evidence of nerve damage. (Denalli Deck, Dkt. No. 48, Exs. DD, EE.)
B. Facts Relevant to Allegations of Spoliation
Plaintiffs complaint was assigned to Lt. Geraldo Silva of the Civil Complaint Investigative Unit. (Silva Dep. at 17:11-15.) In-relevant part, Plaintiffs complaint stated: “At the moment I reached the end of the platform the PATH train to Newark pulled up. I ran back towards the train and was placed in handcuffs. I asked the officer to loosen the cuffs and instead he tightened them which caused my right wrist to go numb. I was treated at Jersey City Hospital.” Silva states that the complaint did
Silva states that, based on his conversation with Plaintiff and the other information available to him, he made a request for video footage that he believed relevant to Plaintiff’s complaint. (Id. at 55:8-9.) Silva notes that he “primarily took interest in the areas where Mr. Usavage claimed to have had any physical interaction, negative or otherwise with the police” (id. at 112:12-15), and that he “base[d] the video that [he] requested] on the complaint’s, allegation[s], and location[s] of [the] allegations” (id. at 120:21-23). Silva therefore requested footage primarily from cameras located on the platform and in the cell area. (Id. at 121.) He did not request footage from the walkway inside the station leading to the cell:
[Ilt’s based on the investigation ' and where the investigation will have led me and the location where the complainant ... had said where the allegation took place of either force or whatever other allegations he had of discourtesy ... [This wоuld not include the walkway because] he alleged that the handcuffing wrenching happened at the top of the stairs. There is no stairs inside the police station as you well know. And he alleged that the physical force utilized against him in retaliation to the pants being ripped and the head being against the wall was inside of cell 1. So those are the areas that I requested video of.
(Id. at 125:4-22.) Silva states that the video footage is saved on hard drive like devices and, thus, he has no way of knowing how long footage recorded by PATH cameras would be preserved and what footage would be erased if not specifically requested. (Id. at 65:5-15.)
C. Procedural Posture
By letter dated February 3, 2012, Plaintiff withdrew his false arrest, false imprisonment, and malicious prosecution claims as to all defendants. At a status conference on March 21, 2012, Plaintiff withdrew all remaining claims against Officers Cancel and Flynn, and the Court dismissed those claims. At a conference on April 12, 2012, Plaintiff also withdrew all remaining claims against Officer Quashie, and the Court dismissed those claims as well. In his filing in opposition to summary judgment, Plaintiff withdraws “all of his § 1985 and § 1986 claims” and “all claims against retired Sgt. Kowana and Police Officer Greg Gilleece.” These claims are now dismissed. The remaining defendants are thus PATH, the PATH Police Department, Sweizer, and Jones. The remaining сlaims are state and federal law claims of excessive force against Sweizer and Jones, state law claims of assault and' battery against Sweizer and Jones, state law claims of assault and battery against PATH and the PATH Police Department on a theory of respondeat superior liability, and § 1983
II. Discussion
A. Standard of Review
Summary judgment is appropriate in' a case where the evidence, viewed in the light most favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Vacold, LLC v. Cerami
B. Spoliation
Plaintiff has moved for the sanction of an' adverse inference on the ground of spoliation. Specifically, Plaintiff alleges that PATH should be sanctioned for failing to preserve video footage from two surveillance cameras that allegedly would have been in a position to record what happened to the Plaintiff while he was escorted to the holding cell in JSQ Command.
Spoliation is the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co.,
Whether the court sanctions a party for violation of a court order or as part of its inherent power to control litigation, a party seeking sanctions for the spoliation of evidence must establish three elements: “(1) that the party having con
Here, the gravamen of Plaintiffs argument is that PATH failed to preserve portions of camera footage that might have captured the alleged Handcuff Incident. Plaintiff acknowledges that PATH officials did preserve some footage, but argues that footage from certain camera angles was improperly excluded and, as a result, this footage was ultimately erased.
This claim does not succeed bеcause Plaintiff fails to prove the culpability element prerequisite to a sanction for spoliation. First, the Court discerns no malice or recklessness in the fact that potentially relevant footage ultimately was erased, since the creation and retention of footage pursuant to ordinary PATH procedures is driven by operational and technical factors entirely independent of this case. (Denalli Deck, Dkt. No. 40, Def. Ex. 3, at 48-51, 69-71.) Nor has Plaintiff adduced any evidence that even remotely supports the conclusion that Silva or any other PATH official acted with actual malice or recklessness in selecting footage.
Second, the Court concludes that PATH did not act negligently. PATH was under no duty to preserve the disputed footage because, as a result of Plaintiffs own statements, PATH was not on notice of the potential salience of that footage. Plaintiff filed a complaint with PATH on the night of the disputed events in which he declined even to specify a general location within JSQ station or offer guidance as to which evidence might be relevant. To the contrary, his filing referred only to being “placed in handcuffs” and then those handcuffs being tightened. This vague complaint, on its own, did not trigger a duty on the part of PATH officials to obtain cаmera footage from each and every part of JSQ station that could theoretically have been relevant to his claims. Then, when Plaintiff spoke with Silva just over two weeks later, Plaintiffs description of the Handcuff Incident focused almost exclusively on the staircase, not the vestibule and hallway in which Plaintiff now alleges the Incident occurred.
C. Excessive Force
1. General Standard
“Claims that law enforcement officers have used excessive force ... 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,
“To determine whether the amount of force applied, to the plaintiff was reasonable the Court should consider: [i] the severity of the crime at issue, [ii] whether the suspect poses an immediate threat to the safety of the officers or others, and [iii] whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.” Pelayo,
2. Handcuffs and Excessive Force
“Courts apply a separate standard to claims for excessive force in the use of handcuffs.” Sachs v. Cantwell, No. 10 Civ. 1663,
The injury requirement is “particularly important.” Sachs,
3. Qualified Immunity and Excessive Force
“The doctrine of qualified immunity protects government officials ‘from liability for civil damages' insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Pearson v. Callahan,
A plaintiff can prevail against a qualified immunity defense by raising a genuine issue of material fact as to whether the officers’ conduct violated clearly established law and as to whether “officers of reasonable competence could disagree on the legality of the defendants’] actions.” Id. (citations omitted); see also Toliver v. City of New York, No. 10 Civ. 5803,
“It is well established that qualified immunity may operate as a defense to excessive force claims.” Mesa,
In the excessive force context, “the question for the purposes of qualified immunity is Vhether a reasonable officer could have believed that the use of force alleged was objectively reasonable in light of the circumstances.’ ” Lennon v. Miller,
4. Handcuff Incident
In a traditional handcuff-based excessive force claim, a plaintiff alleges that a police officer tightened handcuffs to an unreasonable degree, that the plaintiff protested to no avail, and that the plaintiff suffered serious injury as a result. Here, Plaintiff alleges a variation on that familiar theme: specifically, that Sweizer pushed down on the handcuffs over Plaintiffs protests and compressed them to an excessive degree, thereby causing physical injury. This difference does not justify a departure from the general rule, since the heart of Plaintiffs allegation — that an officer used handcuffs as a weapon against an arrestee— falls squarely within the imagined scenario for which this rule was created. See
Applying that rule, the Court concludes that summary judgment is inappropriate. In the post-incident complaint that Plaintiff filed at JSQ command, in his recorded interview with Silva, in the hospital records from JCMC, and again in his deposition, Plaintiff has described a course of events that creates a genuine dispute of fact as to each element of an excessive force claim.
The first question is whether the handcuffs were “unreasonably tight” under the totality of the circumstances. Esmont,
The second question is whether “the defendants ignored the arrestee’s pleas that the handcuffs were too tight.” Esmont,
Defendants’ main argument with respect to the second element is that the Court should discredit Plaintiffs testimony because it has not remained perfectly consistent across time. The alleged discrepancies include: (1) variation in Plaintiffs account of where the Handcuff Incident occurred and (2) failure by Plaintiff to identify which officer allegedly used the handcuffs as a weapon against him. Specifically, Defendants argue that Plaintiffs initial complaint, filed on the night in question, indicates that the Handcuff Incident occurred on the train platform and that Cancel, rather than Sweizer, employed excessive force. They add that, in contrast, Plaintiffs statements to Silva refer to a staircase near the station platform, rather than a corridor leading to JSQ command. Defendants assert that these supposed contradictions in Plaintiffs account exclude this case from the realm of genuine factual dispute.
Defendants, however, have imposed an interpretation on Plaintiffs statements that the statements cannot fairly bear. The complaint filed at JSQ command states only that “I ran back towards the train and was placed in handcuffs. I asked the officer to loosen the cuffs and instead he tightened them.... ” Plaintiff describes the events only in general terms and hardly commits himself to a particular location or arresting officer. There is no necessary contradiction between the complaint and his subsequent recollections. Further, given that Plaintiff wrote this complaint late at night, after a visit to the hospital, and while allegedly in pain, the Court declines to impute sinister motive to the non-specificity of his narrative. Defendants also take issue with Plaintiffs statement to Silva that he believed the Handcuff Incident occurred on or near the stairs leading from the train platform. Yet Plaintiff repeatedly qualified these statements in his conversation and-noted that he could not identify the location with precision. Moreover, on a summary judgment standard of review, Plaintiff might be forgiven his lack of detailed memory, several weeks after the fact, concerning the location of a series of events that occurred immediately after an arrest, in an unfamiliar location, while he was allegedly in great pain from the handcuffs. Because Defendants’ arguments to undermine Plaintiffs account do not succeed, the Court concludes that Plaintiff has demonstrated a genuine dispute of material fact as to the second element of his excessive force claim.
The third question turns on the “degree of injury to [Plaintiffs] wrists.” Esmont,
The injuries described in Plaintiffs interview with Silva, Plaintiffs deposition, and the Fietti letter include a species of long-lasting nerve damage that plainly satisfies the “particularly important” injury requirement. Sachs,
The central question, then, is whether the evidence that Plaintiff adduces at this stage in the litigation suffices to create a genuine dispute about this material fact. In short, the answer to that question is yes. It is well established that a “plaintiffs testimony about the injuries and subsequent treatment alone is sufficient to support an excessive force claim on a motion for summary judgment.” Pelayo,
This conclusion withstands Defendants’ forceful assault on Plaintiffs statements and Fietti’s credibility. Defendants argue that Plaintiffs characterizations of his suffering on the night in question are greatly exaggerated, pointing to video clips in which Plaintiff appears to make effective use of his wrists and fingers without expressing pain or distress, the brevity of Plaintiff’s stay in the JCMC emergency department (less than an hour), the fact that Plaintiff checked “zero” when asked in JCMC to rate his pain on a scale from “zero” to “ten,” and the fact that Plaintiff was not prescribed pain medication at JCMC. Defendants also seek to impugn Fietti’s credibility by pointing out that Plaintiff was referred to Fietti by his
These are powerful arguments. They might well persuade reasonable jurors. They are not, however, arguments that so decisively settle the matter as to flatten the genuine dispute of fact created by Plaintiffs evidence. As the Second Circuit has explained:
When determining whether there is a genuine- issue of fact to be tried, the court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought. On a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried. Resolutions of credibility conflicts and choices between conflicting versions of the factsare matters for the jury, not for the court on summary judgment.
United States v. Rem,
The last remaining issue is whether Defendants’ invocation of qualified immunity alters the conclusion. The Court concludes that it does not. The constitutional law that governs excessive force claims, including handcuff-based excessive force claims, was clearly estаblished at the time of the events in question. See Green,
5. Holding . Cell Incident
Defendants’ motion for summary judgment on Plaintiffs excessive force claim arising from the Holding. Cell Incident is granted. The Court has examined footage of the incident, as well as the parties’ depositions, and concludes that the defendant officers’ actions were objectively reasonable under the circumstances. Specifically, the officers undertook a routine search of Plaintiff pursuant to PATH safety protocols, Plaintiff reached out and touched Sweizer, Sweizer used minimal force in pushing Plaintiff back to the bench, and Plaintiff does not appear to
6. Duty to Intercede
“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Anderson v. Branen,
In the qualified immunity context, “[a] police officer cannot be held liable in damages for failure to intercede unless such failure permitted fellow officers to violate a suspect’s ‘clearly established statutory or constitutional rights’ of which a reasonable person would have known.” Ricciuti v. N.Y.C. Transit Auth.,
Failure to intervene claims are “contingent upon the disposition of the primary claims underlying the failure to intervene claim.” Matthews,
Where the record does not disclose an underlying excessive force violation, and does not suggest that an officer who observed the disputed incident could have been aware of the use of excessive force, summary judgment on a duty to intercede claim is appropriate. See Ferraresso v. Town of Granby,
Defendant Jones was present during the escort of Plaintiff from the station platform to JSQ command, along with Sweizer and Quashie. Plaintiff argues that Jones’ physical proximity and his presumed knowledge of the law that governs excessive force justify the conclusion that Jones was in a position to intercede and nonetheless declined to do so. Defendants’ principal response is that the Court should grant summary judgment as to Jones because Plaintiff voluntarily dismissed an otherwise identical claim against Quashie, who was also present during the Handcuff Incident. This argument does not succeed; the fact that Plaintiff dismissed a claim against one officer in no way relieves any other officer on the scene of liability for excessive force or failure to intervene. In the alternative, Defendants argue that Jones would not have been in a position to realize that Sweizer used the handcuffs as a weapon and, in any event,
7. State Law Assault and Battery Claims Against Sweizer and Jones
Under New Jersey law, “[i]n order to succeed on [an] assault and battery claim, [a plaintiff] must demonstrate that [a defendant] attempted to cause, or purposely, knowingly, or recklessly caused him bodily injury.” Hendrix v. City of Trenton, No. 06 Civ. 3942,
The New Jersey Tort Claims Act (NJTCA) creates a qualified immunity against common law tort claims. See N.J.S.A. 59:3-3. “The ‘objective reasonableness’ standard that is used to determine whether a defendant enjoys qualified immunity from actions brought pursuant to 42 U.S.C. § 1983 is [also] used to determine questions of good faith arising under N.J.S.A. 59:3-3.” Hill,
For the reasons set forth above with respect to the excessive force claim, Defendants’ motion for summary judgment on
D. Municipal Liability
1. Section 1983
“[U]nder § 1983, local governments are responsible only for their own illegal acts. They are not vicariously liable under § 1983 for their employees’ actions.” Connick v. Thompson, — U.S. -, -,
Defendants’ motion for summary judgment on Plaintiffs § 1983 municipal liability claim is granted. Plaintiff argues that PATH’S policy of allowing internal investigators to determine which footage to provide to a passenger when that passenger is involved in an incident, and of then deleting all non-preserved footage, supports § 1983 liability. Plaintiffs theory is that, but for their knowledge that this policy might allow their conduct to remain unrecorded, PATH police officers — including Sweizer . and Jones — would be more reluctant to use excessive force. This argument does not succeed. First, because Plaintiff did not include it .in' the .Complaint, but rather describes it as a new argument in his opposition papers, the argument is waived. Second, even if the argument were not waived, it would fail because of the rule that a municipality cannot be held liable under § 1983 unless a policy or custom causes a plaintiff to be subjected to denial of a constitutional right. Here, the requisite causal link between the municipal policy and the alleged denial of a constitutional right is extraordinarily attenuated — so attenuated that, in the relevant sense of the term, PATH’S policy of preserving video footage cannot be said to have caused the alleged excessive use of force. Summary judgment on this claim is therefore proper.
Under the NJTCA, “[a] public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances.” N.J.S.A. 59:2-2(a). However, “[a] public entity is not liable for the acts or omissions of a public employee constituting a crime, actual fraud, actual malice, or willful misconduct.” N.J.S.A. 59:2-10. Noting that excessive force, assault, and battery are intentional torts, courts have held that public entities cannot held be held liable for such acts by their employees because of the exception for “willful misconduct.” E. g., Merman v. City of Camden,
Defendants’ motion for summary judgment on Plaintiffs state law claims against PATH and the PATH Police Department, notably his assault and battery claims based on a theory of respondeat superior, is granted. Assault and battery are intentional torts and therefоre fall within the NJTCA exception for willful conduct. For that reason, New Jersey law prohibits municipal liability on these facts and summary judgment is appropriate.
III. Conclusion
For the foregoing reasons, Plaintiffs motion for sanctions is DENIED and Defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART.
The Clerk of Court is directed to terminate the motions at Dkt. Nos. 19 and 28. SO ORDERED.
Notes
. The following facts are drawn from the parties’ depositions, evidence, and other submissions filed in connection with these motions, and are undisputed unless otherwise noted.
. The parties have each provided selections of video footage to the Court, claiming that this footage illuminates the spoliation issue by revealing, through negative inference, what the missing footage might have shown. The Court has examined this footage and concludes that it sheds little light on the matter, particularly given that the footage has been spliced together by the parties, comes from a number of cameras, is at times of poor quality, and, on its face, says little about the potential probative value of any missing footage. In any event, because the Court decides this issue on the ground of culpability, the value of this footage is minimal.
. "Article 1, par. 7 of the New Jersey Constitution has been interpreted as affording greater protections than the Federal Constitution. See State v. Hempele,
. Even if the Court concluded that Plaintiff was intoxicated, a conclusion bolstered by support from the Haines and Comes depositions, it would not follow that the alleged use of force was justified by that circumstance. Further, the Haines and Comes depositions do not speak to other critical circumstances involved in the arrest and the officers’ choice about how much force to employ. In that section of Defendants' briefs, Defendants rely principally on the testimony of officers at the scene. The competing accounts presented by Plaintiff and Defendants — neither of which is conclusively supported by independent evidence — preclude summary judgment.
. Plaintiff's complaint also includes a "failure to train” theory of municipal liability, though his filings in opposition to the motion for summary judgment essentially abandon that argument. In any event. Plaintiff has not described any sort of deliberate indifference on PATH’S part to the persons with whom its employees come into contact, and for that reason any such argument would fail. See Connick,