United States District Court, D. Connecticut
MARK S. SHERMAN, Plaintiff,
JAMES A. PLATOSH and BRYAN F. SEMBERSKY, Defendants.
RULING ON MOTION FOR SUMMARY JUDGMENT
Michael P. Shea, U.S.D.J.
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.
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.
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.)
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.)
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.)
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.)
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.)
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.)
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).
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. ...