Rolkiewicz v. City of N.Y.

442 F.Supp.3d 627

James ROLKIEWICZ, Plaintiff,

v.The CITY OF NEW YORK et al., Defendants.

1:16-CV-06771 (ALC)

United States District Court, S.D. New York.

Signed March 3, 2020

Pamela Susan Roth, Law Office of Pamela S. Roth, New York, NY, for Plaintiff.

Erin Teresa Ryan, Wilda Jacqueline Rodriguez, New York City Law Department, New York, NY, for Defendant.

OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge:

Plaintiff James Rolkiewicz brought this action against New York City and New York City Police Officers Colin Sullivan and James Quirk, alleging violations of his federal constitutional and state common law rights. Because Rolkiewicz voluntarily dismissed all claims of municipal liability, his remaining claims are against only Sullivan and Quirk. Liberally construing his First Amended Complaint ("FAC"), Rolkiewicz's remaining claims are for excessive force, failure to intervene, denial of medical treatment, intentional infliction of emotional distress ("IIED"), and conspiracy. Defendants moved for summary judgment on all claims. That Motion is GRANTED in full.

BACKGROUND

According to his Amended Complaint, Rolkiewicz was brutally beaten by two police officers on September 1, 2015. That night, Rolkiewicz alleges that he was walking along Barrow Street in Greenwich Village when he experienced an asthma attack and sat down on the front steps of the Greenwich House Music Society to search for his inhaler. (FAC at ¶ 21). While he was sitting on the stairs, Police Officers Sullivan and Quirk pulled up in a marked squad car. The officers exited the vehicle and approached Rolkiewicz. (Id. at ¶ 22). Rolkiewicz alleges that the first thing the officers did was call him a "fucking faggot" and then demand his ID. (Id. at ¶ 23; ECF No. 56-3 at 9:21–10:1). Sullivan then "immediately grabbed [him] and repeatedly smashed his face and head into the hood of [his] NYPD patrol car." (Id. at ¶ 24). The Complaint also states that at some point in the course of this attack, Rolkiewicz was "placed in a chokehold, handcuffed and choked until he lost consciousness ... dragged to the back of the patrol car while still unconscious, thrown to the ground," and had his spine "repeatedly punched on." (Id. at ¶27).

Rolkiewicz provided additional details about the attack throughout the course of litigation. He testified that after Sullivan called him a "faggot," he "grabbed [him], swung [him] around, handcuffed [him] so tight that he cut into [his] wrists" all while Rolkiewicz could "barely breathe." (ECF No. 56-3 at 10:2–6). Rolkiewicz then tripped and fell while Sullivan had him "by the back of the neck" and was choking him using the "heavy gold chain" that Rolkiewicz wore around his neck." (Id. at 10:7–10). Sullivan then "drag[ged]" Rolkiewicz over to the NYPD cruiser and "bashed" the right side of Rolkiewicz's face "into the side of the car, cut[ting] [his] whole face open." (Id. at 10:10–12). Rolkiewicz testified that Sullivan continued to call him names and then "start[ed] punching [Rolkiewicz] and hitting him ... in the back of the neck ... [w]ith his elbow." He "punch[ed] [Rolkiewicz] in the middle of [his] spinal column to the point where he lost consciousness[,]" approximately 10 or 11 times. (Id. at 10:20–22; ECF No. 56-6 at 12:9–11).

Defendants dispute this version of events. According to Defendants, the officers saw Rolkiewicz and another man sitting on the steps of a residential apartment building on Barrow Street when they pulled over and approached. (ECF No. 56-8 at 12:16–13:7). Sullivan then asked the two men to step in front of the patrol car and asked Rolkiewicz for his ID, which he provided. (Id. at 14:23–15:1). Sullivan ran the ID and learned that Rolkiewicz had five active warrants and a prior conviction for manslaughter. (Id. at 15:2–10; Def. 56.1 at ¶¶ 11). Sullivan testified that at some point before he arrested Rolkiewicz, the officers discovered a "crack pipe, with crack cocaine residue inside a pack of cigarettes that Mr. Rolkiewicz had thrown to the base of the stairway which he was seated on when [the officers] approached." (ECF No. 56-8 at 15:10–16).

Based on the open arrest warrants and pipe, Sullivan decided to place Rolkiewicz under arrest. Rolkiewicz resisted the arrest, "stiffen[ing] [his] body, [he] threw [his] arms back, and [he] made it hard [for the officer] to handcuff [him]." (Def. 56.1 at ¶¶ 14–15). As a result of Rolkiewicz's resistance, "a physical struggle ensued," which led to Sullivan placing the right side of Rolkiewicz's face down on top of the patrol car. (Id. at ¶ 13, 16). Rolkiewicz continued to resist arrest. Sullivan testified that he managed to handcuff one of Rolkiewicz's wrists, but as he was "attempt[ing] to place the second handcuff[,]" Rolkiewicz "struck [him] twice above [his] left elbow with his elbow, and began to violently resist arrest." (ECF No. 56-8 at 16:37). Quirk testified that he assisted Sullivan in trying to restrain Rolkiewicz by facing Rolkiewicz and taking his "right arm, right hand, and attempt[ing] to place it behind his back." (ECF No. 56-17 at 4:9–10).

Eventually, "to gain [Rolkiewicz's] compliance, Officer Sullivan took out his expandable baton and held it inside of his fist, but did not expand the baton. While holding the unopened baton in his fist, Sullivan struck plaintiff twice with the base of the baton ‘in the muscle portion’ of plaintiff's back." (Def. 56.1 at ¶ 18). Sullivan testified that when he struck Rolkiewicz, he "was fearful for personal injury, potentially serious physical injury." (ECF No. 56-8 at 21:16–17). He testified that he struck Rolkiewicz only to assist in subduing him and that the strikes stopped once they were determined to have been effective. (Id. at 24:23–25). He also testified that he struck Rolkiewicz because he felt that he could not use pepper spray to subdue Rolkiewicz because he felt "there was a high probability that [he] would spray himself and [he] might spray [his] partner. It wasn't a viable option in close quarters." (Id. at 28:10–20). Eventually, the officers secured handcuffs on Rolkiewicz and arrested him for Resisting Arrest ( N.Y. P.L. § 205.30 ) and Criminal Possession of a Controlled Substance ( N.Y. P.L. § 220.03 ). (ECF No. 56-9).

The officers then transported Rolkiewicz to the police station. (Def. 56.1 at ¶ 22). Rolkiewicz testified that he was unconscious during this transport because the next thing he remembers after the attack was being placed on a gurney at the precinct. (ECF No. 56-3 at 14:3—8). Rolkiewicz testified that the officers and EMTs brought him to Lenox Hill Trauma Center for treatment. The physicians at Lenox Hill took X-rays and examined and bandaged Rolkiewicz. Rolkiewicz alleges that the doctors then instructed the officers to bring him to a different hospital for further treatment. According to Rolkiewicz, the Lenox Hill doctors told the officers and himself that as a specialty trauma center, Lenox Hill was not equipped to treat Rolkiewicz's injuries fully. (Id. at 15). Rolkiewicz testified that despite the physicians' instructions, the officers refused to take him to another hospital. (Id. at 15:5–17).

Defendants dispute Rolkiewicz's account of these transports. Sullivan testified that Rolkiewicz never lost consciousness. (ECF No. 56-8 at 23:1–2). He testified that Rolkiewicz asked for medical attention after he was transported to the police station and that the officers then requested it. (Id. at 27:21–23). According to EMS records submitted by Defendants, when Rolkiewicz was transported to the hospital, he was "awake & breathing and responsive to tactile stimuli." (ECF No. 56-11 at 4).

On September 2, 2015, the day after Rolkiewicz was arrested, he was arraigned on his charges in a New York Criminal Court. (ECF No. 56-15). He pled guilty to only one charge, Resisting Arrest, and received time served. (Id. at 4:9–15).

I. Procedural Background

On September 3, 2015, two days after his arrest, Rolkiewicz filed complaints with the Civilian Complaint Review Board ("CCRB") and the Internal Affairs Bureau ("IAB"). On August 29, 2016, he filed his complaint in the instant suit against The City of New York and Police Officers Colin Sullivan and James Quirk. (ECF No. 1). Rolkiewicz amended his complaint on January 24, 2017. (ECF No. 15).

Rolkiewicz's Amended Complaint set out 16 causes of action, many of which are unclear or repetitive. On June 21, 2019, Rolkiewicz voluntarily withdrew seven of these claims. Specifically, he withdrew his Fifth Cause of Action for Malicious Prosecution, Sixth Cause of Action for Malicious Abuse of Process, Seventh Cause of Action for Negligent Hiring, Screening, Retention, Supervision and Training, Eighth Cause of Action for False Arrest and False Imprisonment, Ninth Cause of Action for Negligence, Tenth Cause of Action for Negligent Infliction of Emotional Harm, Fourteenth Cause of Action for Municipal Liability, and Sixteenth Cause of Action for Malicious Abuse of Process. (ECF No. 52). Additionally, although Rolkiewicz did not explicitly withdraw his Twelfth Cause of Action, which alleges only that the Defendants "owed a duty of care to this Plaintiff," I will proceed as if this claim too has been withdrawn since it seems to allege only a component of negligence, a cause of action that Rolkiewicz withdrew in his June 21 letter. Similarly, to the extent the FAC's remaining counts contain language regarding "false arrest," "false imprisonment," "negligence," and "malicious prosecution," I will treat these allegations as having been withdrawn as well.

Liberally construing his Amended Complaint, Rolkiewicz's remaining claims appear to be for excessive force and the related failure to intervene under 42 U.S.C. § 1983 (FAC at ¶¶ 24–27, 45, 50, 54), denial of medical treatment under 42 U.S.C. § 1983 (Id. at ¶¶33–34, 37), conspiracy under 42 U.S.C. § 1985 (Id. at ¶¶ 111–113), and intentional infliction of emotional distress under New York State law (Id. at ¶¶...