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Sherman v. Platosh

United States District Court, D. Connecticut

March 13, 2017

MARK S. SHERMAN, Plaintiff,


          Michael P. Shea, U.S.D.J.

         Plaintiff Mark Sherman brings this case against Vernon Police Department officers James Platosh and Bryan Sembersky under 42 U.S.C. § 1983 for use of excessive force in violation of the Fourth Amendment. (ECF No. 24.) Mr. Sherman claims that the defendants arrested him and verbally compelled him to enter a too-small police cruiser while he was in handcuffs, causing him pain and injuries. On January 12, 2016, I dismissed the claims against the defendants in their official capacities. (ECF No. 33.) The defendants have now moved for summary judgment on the remaining individual capacity claims. (ECF No. 38.) As no reasonable juror could conclude that defendants used excessive force in light of the undisputed facts, I GRANT the defendants' motion and DISMISS the case.

         I. Facts

         The following facts are taken from the parties' Local Rule 56(a) Statements and the documents cited therein. See Defendants' Local Rule 56(a)(1) Statement, ECF No. 38-2 (“Def.'s LRS”); Plaintiff's Local Rule 56(a)(2) Statement, ECF No. 39-1 (“Pl.'s LRS”). Facts are undisputed unless otherwise stated.

         On September 29, 2012, after finishing a ten-hour work day, Mr. Sherman went to the Azteca restaurant in Manchester and drank three margaritas without eating. (Def.'s LRS ¶ 3; Pl.'s LRS ¶ 3; ECF No. 38-3 at 3-4.) He then began to drive home. (Id.)

         Officer Platosh pulled Mr. Sherman over and approached the driver's side window. (Def.'s LRS ¶¶ 6-7; Pl.'s LRS ¶¶ 6-7.) He observed that Mr. Sherman had bloodshot eyes, slurred speech, and alcohol on his breath. (Id. ¶ 7.) Mr. Sherman stated that he had been drinking that evening, and he was not able to recite the alphabet, count backwards, or pass a field sobriety test. (Id. ¶¶ 8-9, 11-12.) During this time, Officer Sembersky arrived on the scene. (Id. ¶ 10.) Officer Platosh told Mr. Sherman that he was under arrest, and handcuffed his arms behind his back, checking the handcuffs for proper fit. (Id. ¶ 13.) At that point, Mr. Sherman did not complain about the handcuffs or mention any pain. (Id. ¶ 14.)

         The defendants then told Mr. Sherman to get into the backseat of Officer Platosh's small-sized police cruiser. (Def.'s LRS ¶ 15; Pl.'s LRS ¶¶ 15, B.4.) According to the defendants, Officer Sembersky instructed Mr. Sherman on how properly to enter the cruiser, and Mr. Sherman ignored those instructions. (Def.'s LRS ¶¶ 16-17.) Mr. Sherman does not recall receiving any such instructions. (Pl.'s LRS ¶¶ 16-17; ECF No. 38-3 at 32.) Mr. Sherman, who is over six feet tall and weighs 260 pounds, claims that the back seat of the non-standard police cruiser was obviously too small for him, with plastic seats and a large hump in the center. (Pl.'s LRS ¶¶ 3-4.) He attempted to place his left foot in the backseat but had trouble, and told the defendants he would not fit. (Def.'s LRS ¶ 18; Pl.'s LRS ¶ 18.) Officer Sembersky responded, “Get in, you'll fit, ” in a manner that Mr. Sherman describes as “[v]ery strict[].” (Id. ¶ 18; ECF No. 38-3 at 15.) Mr. Sherman then attempted to place his foot in a second time, again had trouble, and told the defendants that he would not fit. (Id.) Officer Sembersky repeated, “Get in, you'll fit.” (Id.) According to Mr. Sherman, “[a]t that time I was feeling quite intimidated and thought I'll just comply to comply.” (ECF No. 38-3 at 15.) Mr. Sherman entered the backseat of the vehicle without any assistance or use of any force, and the defendants closed the door behind him. (Def.'s LRS ¶ 19; Pl.'s LRS ¶ 19.)

         According to Mr. Sherman, after he entered the vehicle, he was on his back with the handcuffs pressed against the hard hump in the middle of the back seat, and “the pain was off the charts, it was worse than broken ribs or the dislocated shoulder and the pain just got worse.” (Pl.'s LRS ¶ B.6; ECF No. 38-3 at 17.) He began to scream in pain. (Def.'s LRS ¶ 20; Pl.'s LRS ¶ 20.) Defendants claim, and Mr. Sherman disputes, that Officer Sembersky tried to explain how to change position to avoid sitting on his wrists. (Id. ¶ 21.)

         However, the parties agree that the defendants assisted Mr. Sherman out of the vehicle within 15 to 30 seconds of his entering it. (Id. ¶¶ 22, 24.) The defendants had Mr. Sherman sit cross-legged outside the vehicle, removed the handcuffs, and replaced them with two pairs of handcuffs. (Id. ¶¶ 22-25.) Mr. Sherman did not find “anything inappropriate” about the way the defendants assisted him out of the small cruiser. (Id. ¶ 23; ECF No. 38-3 at 23.) The defendants then moved Mr. Sherman into the backseat of Officer Sembersky's standard-sized police cruiser and transported him to the station, where he was issued a misdemeanor summons for operating under the influence and failing to give a proper signal. (Def.'s LRS ¶¶ 26-27; Pl.'s LRS ¶¶ 26-27.) The Vernon Police Department later conducted an internal affairs investigation into the incident. (Id. ¶ 30.)

         Mr. Sherman claims that as a result of the incident, he has suffered serious and permanent physical injuries to his wrist. (Pl.'s LRS ¶ B.9.)

         II. Legal Standard

         Summary judgment is appropriate when “the movant shows 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). The “party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists.” Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Konikoff v. Prudential Ins. Co. of America, 234 F.3d 92, 97 (2d Cir. 2000) (citation and quotation marks omitted). “A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (citation and quotation marks omitted). On summary judgment, a court must “construe the facts in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013) (citation and quotation marks omitted). However, “conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996).

         III. Discussion

         Mr. Sherman argues that the defendants used unreasonable force in violation of the Fourth Amendment when they ordered him to enter the backseat of a police cruiser that was obviously too small for him, while he was in handcuffs. ...

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