13‐2697 Simcoe v. Gray

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of August, two thousand fourteen.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________

Thomas B. Simcoe,

Plaintiff‐Appellant,

v. 13‐2697

Lieutenant Timothy Gray, NTPD, et al.,

Defendants‐Appellees.

_____________________________________ FOR PLAINTIFF‐APPELLANT: Thomas B. Simcoe, pro se, Attica, NY

FOR DEFENDANTS‐APPELLEES: Charles E. Graney, Webster Szanyi LLP, Buffalo, NY

Appeal from a judgment of the United States District Court for the Western

District of New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

VACATED and REMANDED for further proceedings consistent with this order.

Appellant Thomas Simcoe, proceeding pro se, appeals from the district

court’s grant of summary judgment in favor of the defendants in his

action alleging excessive force and failure to intervene. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

We review orders granting summary judgment de novo. Miller v. Wolpoff &

Abramson, L.L.P.,

(2d Cir. 2003). “Summary judgment is

appropriate only if the moving party shows that there are no genuine issues of

material fact and that the moving party is entitled to judgment as a matter of

2 law.”

We are required to resolve all ambiguities and draw all inferences in

favor of the nonmovant; the inferences to be drawn from the underlying facts

revealed in materials such as affidavits, exhibits, interrogatory answers, and

depositions must be viewed in the light most favorable to the nonmoving party.

Nationwide Life Ins. Co. v. Bankers Leasing Ass’n,

(2d Cir. 1999)

(citing Cronin v. Aetna Life Ins. Co.,

(2d Cir. 1995)). Summary

judgment is appropriate “[w]here the record taken as a whole could not lead a

rational trier of fact to find for the non‐moving party.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp.,

(1986).

Simcoe stated in his affidavit that the defendants yanked on his arms even

though he did not resist arrest, that Officer Gray repeatedly smashed his face into

the ground and stood on his hands after he was handcuffed, and that Officers

Smith and Glass failed to intervene. The defendants, on the other hand, testified

that Simcoe resisted arrest and that the two officers were unable to intervene.

The court granted summary judgment to the defendants, determining that they

were entitled to qualified immunity because, inter alia, their use of force was

objectively reasonable because Simcoe was resisting arrest. The court did not

address Simcoe’s statements that the defendants assaulted him after he was

3 handcuffed. Simcoe’s testimony that he did not resist arrest and that he was

assaulted after being handcuffed creates genuine issues of material fact. See Tracy

v. Freshwater,

(2d Cir. 2010); Hemphill v. Schott,

, 417‐18

(2d Cir. 1998). Viewing the evidence in the light most favorable to Simcoe, a

reasonable factfinder could conclude that the officers’ conduct was objectively

unreasonable.1 Amnesty Am. v. Town of West Hartford,

(2d Cir.

2004); Tracy,

.

Moreover, the district court did not specifically address Simcoe’s third

claim—that Glass and Smith failed to intervene when Gray allegedly used

excessive force against Simcoe. Drawing all inferences in Simcoe’s favor, a

reasonable trier of fact could conclude that Glass and Smith should have

prevented Gray from using excessive force. “It is widely recognized that all law

enforcement officials have an affirmative duty to intervene to protect the

1 Simcoe’s violent actions toward his wife and Smith, and any struggle that occurred before he was tasered, would not render the force used against him reasonable if a jury found that, after falling to the ground, he was not resisting arrest and did not pose a danger to the officers. See Hemphill,

(“[T]o allow the nature of the crime alone to justify the use of such severe force would thwart a central purpose of the Fourth Amendment limitations on use of force in making arrests, which is to preserve determination of guilt and punishment for the judicial system.”).

4 constitutional rights of citizens from infringement by other law enforcement

officers in their presence,” and a police officer is liable for failing to intercede

when excessive force is being used when there was “a realistic opportunity to

intervene to prevent the harm from occurring.” Anderson v. Branen,

(2d Cir. 1994). Thus, there remain disputed issues of fact as to each of the

defendants regarding excessive force, and to Smith and Glass regarding their

failure to intervene.

Appellees acknowledge that Simcoe disputed these facts, but argue that his

“self‐serving” and “implausible” testimony did not create a genuine issue of

material fact. Specifically, they argue that Simcoe’s version of events should not

be credited because: (1) he testified at his criminal trial that he remembered being

handcuffed after he was tasered “and that was about it,” and that he did not

“know what was going on”; (2) he testified that he was “out of his mind” and lost

control that evening and did not regain it; and (3) he did not mention excessive

force in an apology letter he wrote to Smith and the police department. For the

reasons below, we disagree.

While a court should ordinarily not make credibility determinations in

deciding a summary judgment motion, “in the rare circumstance where the

5 plaintiff relies almost exclusively on his own testimony, much of which is

contradictory and incomplete, it will be impossible for a district court to

determine whether the jury could reasonably find for the plaintiff, and thus

whether there are any genuine issues of material fact, without making some

assessment of the plaintiff’s account.” Jeffreys v. City of New York,

(2d Cir. 2005) (internal quotation marks and citation omitted). Here,

however, we view Simcoe’s testimony during his criminal trial as more

accurately characterized as “ambiguous, confusing, or . . . incomplete,” rather

than wholly inconsistent with his deposition testimony. See

at 555 n.2

(internal quotation marks and emphasis omitted); see also Rojas v. Roman Catholic

Diocese of Rochester,

, 104‐06 (2d Cir. 2011). Moreover, his testimony at

his criminal trial was not dispositive because it was not necessary to the verdict.

See Hemphill,

. Simcoe’s testimony that he “lost control” that

evening and failed to regain it is likewise more ambiguous than it is inconsistent.

Finally, while Simcoe did not mention excessive force in his apology letter, we do

not view this omission as sufficiently contradictory so as to render his testimony

unreliable. In sum, this is not the type of “extraordinary case” where the facts are

so contradictory as to discredit Simcoe’s testimony at the summary judgment

6 stage. See Rojas,

. Accordingly, summary judgment should not

have been granted based on qualified immunity where, as here, there are genuine

disputes of material fact. See Hemphill,

.

Accordingly, the judgment of the district court is VACATED and the

matter is REMANDED for further proceedings consistent with this opinion. All

outstanding motions are hereby DENIED as moot.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

7