Alcantara v. Donaghue

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------- x

CIRILO ALCANTARA, :

:

Plaintiff, :

: MEMORANDUM & ORDER

-against- :

: 15-cv-5584 (ENV) (RML)

RICHARD DIGANGI and JOHN WEIBURG, :

:

Defendants. :

-------------------------------------------------------------- x

VITALIANO, D.J.

Plaintiff Cirilo Alcantara, currently incarcerated at Clinton Correctional Facility, brings

this pro se action under 42 U.S.C. § 1983, alleging that Officers Richard DiGangi and John

Weiburg, both members of the NYPD, used excessive force during his May 30, 2012 arrest and

then denied him timely access to medical treatment for the injuries he sustained during that

arrest. The parties engaged in discovery, and defendants now move for summary judgment on

all claims. Defs. Br., Dkt. 70.1 For the reasons that follow, defendants’ motion is granted in part

and denied in part.

Background

The underlying facts are drawn from the submissions of the parties, including defendants’

statement of undisputed material facts (“SOF”), Dkt. 75, which accepts plaintiff’s version of

events as true for purposes of the motion only.2 The facts are construed, as they must be in the

1 The Court denied a prior motion for summary judgment filed by defendants for failure to

follow Local Civil Rule 56.2 (Notice to Pro Se Litigant who Opposes a Motion for Summary

Judgment). See Dkt. 68. Their re-filed summary judgment motion is now in compliance with

Rule 56.2 and the order granting leave to re-file.

2 Defendants’ SOF complies with Local Civil Rule 56.1. That same rule requires plaintiff, as the

party opposing the motion, to submit a response to defendants’ SOF, indicating which facts are

summary judgment context, in the light most favorable to Alcantara as the non-movant party.

Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007).

Though the parties quarrel over certain specifics of the confrontation between Alcantara

and Officers DiGangi and Weiburg, the core events surrounding plaintiff’s arrest are undisputed.

On May 30, 2012, from their home on Staten Island, Cirilo Alcantara’s stepsons called the police

to report that Alcantara had raped his daughter. SOF ¶ 1; CSOF ¶ 1. Upon learning that the

police had been called, Alcantara, who was “very drunk” at the time, went outside, hid

underneath his car, and fell asleep. SOF ¶¶ 2–4; CSOF ¶¶ 2–4. When Alcantara awoke several

hours later, his neighbor reiterated to him that the police had been called. SOF ¶ 4; CSOF ¶ 4.

Alcantara told his neighbor that he “didn’t want to go to jail,” the two men began “pushing and

shoving” each other and, eventually, his neighbor threw Alcantara to the ground. SOF ¶¶ 5–6;

Manningham Decl. Ex. B (Alcantara Dep.), Dkt. 72-2, at 24:14–25:13.

After the scuffle, officers DiGangi and Weiburg arrived on the scene and placed

Alcantara in handcuffs. SOF ¶¶ 7–8; CSOF ¶¶ 7–8. Alcantara then sat on the sidewalk and

in dispute. See Local Civ. R. 56.1(b)–(d). Ordinarily, “[a] nonmoving party's failure to respond

to a Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are

uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009).

Although pro se litigants are not excused from the requirements of Rule 56.1, see Wali v. One

Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009), they are entitled to “special solicitude . .

. when confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d 342, 344

(2d Cir. 1988). Here, Alcantara attached several pieces of evidence to, and argued the accuracy

of certain of defendants’ facts in, his initial opposition papers, but he did not submit a formal

counterstatement of facts in compliance with Rule 56.1(b). See generally Pl. Opp., Dkt. 80.

Plaintiff did, however, submit a counterstatement of facts with his sur-reply papers. See Pl. Sur-

Reply, Dkt. 85, at Ex. A (“CSOF”). Most, but not all, of the statements in plaintiff’s CSOF are

supported by citations to record evidence, as required by Rule 56.1(d). Accordingly, in light of

Alcantara’s pro se status, the Court has conducted an independent review of the record and will

consider, for purposes of the instant motion, plaintiff’s arguments that are in fact supported by

admissible record evidence. See Geldzahler v. New York Med. Coll., 746 F. Supp. 2d 618, 620

(S.D.N.Y. 2010); Wali, 678 F. Supp. 2d at 178. And, given plaintiff’s overall substantial

compliance with the rule, any Rule 56.1 deficiencies in his filings will not be considered as an

independent basis for decision.

waited. SOF ¶ 9; CSOF ¶ 9. Next, for reasons unexplained anywhere in the record, a third

police officer arrived on the scene in a second police car. SOF ¶ 11; CSOF ¶ 11. Officers

DiGangi and Weiburg “stood [Alcantara] up,” and the third officer punched him in the face

twice. SOF ¶¶ 12–13; CSOF ¶¶ 12–13. Defendants then turned Alcantara over to two other

officers, Sergeant Donaghue-Gold and Officer Liconti, who transported plaintiff back to the

122nd precinct, SOF ¶¶ 14, 17; CSOF ¶¶ 14, 17, while the third officer—never identified or

sued, even as “John Doe”—mysteriously disappears from the tale.

Once at the precinct, Alcantara told the detective assigned to his case, Detective Ng, that

he was feeling bad and asked to be taken to the hospital. SOF ¶ 18; CSOF ¶ 18. Detective Ng

eventually acquiesced and called Alcantara an ambulance. Id.; Alcantara Dep. at 30:4–14.

Though the record is unclear as to how much time passed before he complained to Detective Ng

or precisely how long it took for an ambulance to be called, see Alcantara Dep. at 30:15–31:19,

medical records show that Alcantara arrived at the hospital in an ambulance at 3:25 a.m. on May

31, 2012, approximately four hours after his arrest. SOF ¶¶ 16, 19; CSOF ¶¶ 16, 19. Emergency

room doctors then treated a wound on Alcantara’s lip with sutures and cleaned and dressed an

abrasion on the bridge of his nose. SOF ¶ 19; CSOF ¶ 19; Manningham Decl. Ex. D, Dkt. 72-4,

at 18. Alcantara returned to the precinct and was detained at Rikers and awaited trial. Alcantara

Dep. at 34:20–25.

On April 25, 2013, Alcantara was convicted of sexual abuse in the first degree and

criminal sexual act in the first degree. SOF ¶ 21; CSOF ¶ 21; see also Manningham Decl. Ex. E,

Dkt. 72-5, at 2. Before trial and after, while in custody, Alcantara would request and receive

additional treatment for the injuries he was dealt on the night of his arrest. Most notably, the day

after his hospital visit, Alcantara noticed significant shoulder pain. Alcantara Dep. at 32:8–13.

He was eventually treated in June 2012 for an abrasion on his shoulder that had become infected.

Pl. Opp. Ex. F, Dkt. 80-6.3 Further, in August 2013, it was determined that Alcantara’s nose had

in fact been broken on the night of his arrest, following the physical confrontation first with his

neighbor and later with police, and would require surgery. Pl. Opp. Ex. G, Dkt. 80-6. This

lawsuit followed.

Legal Standard

Summary judgment shall be granted in the absence of a genuine dispute as to any

material fact and upon a showing that the movant is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed.

2d 265 (1986). “[A] fact is material if it ‘might affect the outcome of the suit under the

governing law.’” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of the City

of New York, 746 F.3d 538, 544 (2d Cir. 2014) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). Courts do not try issues of fact at the

summary judgment stage, but instead merely “determine whether there are issues of fact to be

tried.” Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire

& Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)).

The movant carries the burden of demonstrating there is no genuine dispute as to any

material fact, Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005), and the motion

court will resolve all ambiguities and draw all permissible factual inferences in the light most

favorable to the party opposing the motion. See Sec. Ins. Co. of Hartford v. Old Dominion

Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Where the nonmoving party “will bear the

3 Although plaintiff has not authenticated these medical records, the Court may consider them on

this motion, as defendants have not objected to their authenticity and, in any event, “it is well-

established that even inadmissible evidence may properly be considered on summary judgment if

it may reasonably be reduced to admissible form at trial.” Parks v. Blanchette, 144 F. Supp. 3d

282, 293 (D. Conn. 2015) (cleaned up).

burden of proof at trial,” it bears the initial procedural burden at summary judgment of

demonstrating that undisputed facts “establish the existence of [each] element essential to that

party’s case.” Celotex Corp., 477 U.S. at 322–23. “If, as to the issue on which summary

judgment is sought, there is any evidence in the record from which a reasonable inference could

be drawn in favor of the opposing party, summary judgment is improper.” Hetchkop v.

Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997). When the parties cross-move for

summary judgment, “each party’s motion must be examined on its own merits, and in each case

all reasonable inferences must be drawn against the party whose motion is under consideration.”

Lumbermens Mut. Cas. Co. v. RGIS Inventory Specialists, LLC, 628 F.3d 46, 51 (2d Cir. 2010)

(quoting Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir. 2001)).

Finally, mindful that plaintiff is proceeding pro se, the Court reads his papers liberally

and interprets them as raising the strongest arguments they suggest. See Weinstein v. Albright,

261 F.3d 127, 132 (2d Cir. 2001); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

Discussion

I. Excessive Force

The Fourth Amendment prohibits the use of excessive force by a police officer against a

pre-trial detainee.4 See Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). In evaluating an

excessive force claim, the central question is “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them, without regard to their

4 Alcantara’s complaint purports to bring claims of excessive force under the Eighth and

Fourteenth Amendments, see Compl., Dkt. 1, at ¶¶ 24–29, but excessive force claims pleaded by

pre-trial detainees must be brought under the Fourth Amendment, which is more favorable to §

1983 plaintiffs. See Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d

443 (1989). Notwithstanding the complaint’s misidentification of the proper legal vehicle, the

Court proceeds to analyze Alcantara’s excessive force claims under the Fourth Amendment. See

Portillo v. City of New York, 2020 WL 2836435, at *4 (S.D.N.Y. June 1, 2020).

underlying intent or motivation.” Graham, 490 U.S. at 396. Objective reasonableness depends

on the totality of the circumstances, but may turn on: (1) the nature and severity of the crime

leading to the arrest; (2) whether the suspect posed an immediate threat to the safety of the

officer or others; and/or (3) whether the suspect actively resisted or attempted to evade arrest. Id.

Further, courts must be mindful that “‘[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Id. at 396,

109 S. Ct. 1865, 1872 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

There are two theories under which an excessive force claim may lie: (1) when the officer

“directly participates in an assault”; or (2) when the officer “is present during the assault[] and

fails to intercede on behalf of the victim even though he had a reasonable opportunity to do so.”

Vesterhalt v. City of New York, 667 F. Supp. 2d 292, 297 (S.D.N.Y. 2009) (quoting Ricciuti v.

N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)). Alcantara contends defendants are

liable under both theories.

A. Direct Participation

Alcantara first claims that defendants used excessive force when they brought him to the

ground to effectuate his arrest. In support, Alcantara points to the medical evidence of his

shoulder injury and the grand jury testimony from both officers. Specifically, he highlights that

Officer Weiburg testified that he “grabbed both of [plaintiff’s] wrists to turn him around to place

handcuffs on him” and “had taken him down to the ground asking him to stop resisting.” Pl.

Opp. Ex. A, Dkt. 80-1, at 5:1–18. Likewise, Officer DiGangi testified that they “placed

[Alcantara] up against the house” and, after he resisted arrest and tried to run away, they took

him down. Pl. Opp. Ex. B, Dkt. 80-2, at 14:14–24. In his own deposition, plaintiff did not

mention the takedown, stating only that at the time of his arrest, “they g[o]t me a shirt, I put it on,

and then they handcuffed me.” Alcantara Dep. at 26:12–13.

Little separates the accounts of the involved parties’ stories of Alcantara’s handcuffing.

Those accounts hobble the “direct participation” subset of plaintiff’s excessive force claim from

the outset. They show that the amount of force used by the officers to effectuate Alcantara’s

arrest was neither excessive nor exceptional; indeed, other courts have found similar uses of

force to be de minimis. See Rodriguez v. Village of Ossining, 918 F. Supp. 2d 230, 241

(S.D.N.Y. 2013) (finding officer’s grabbing of plaintiff’s arms and pushing her against a car to

be de minimis and granting summary judgment) Rincon v. City of New York, No. 03 CIV. 8276

(LAP), 2005 WL 646080, at *5 (S.D.N.Y. Mar. 21, 2005) (finding officer’s wrestling plaintiff to

the ground de minimis and granting summary judgment).

Simply put, using the yardstick fashioned by the Supreme Court in Graham, there can be

no reasonable dispute that the officers’ use of force was objectively reasonable. Alcantara was

arrested on suspicion of rape, an unquestionably serious crime. He also posed at least some

threat to those around him, as Alcantara, a full-grown man, was drunk and had been belligerent

towards his neighbor prior to the officers’ arrival. See Alcantara Dep. at 24:14–16 (“I told him

that I didn’t want to go to jail and so we were like pushing and shoving.”). Finally, Alcantara

was brought to the ground only after he began resisting arrest.5 Under these circumstances, no

5 During his deposition, far from undercutting the officers’ testimony, Alcantara admitted that he

wanted to run away before the officers arrived and that he fought with his neighbor because “he

didn’t want to be arrested.” Alcantara Dep. at 24:14–25, 26:5–6. The only countervailing

consideration is the contention in his opposition memorandum that, at his criminal trial, “the jury

rejected [the] prosecutor’s contention that plaintiff had resisted arrest.” Pl. Opp. at 5. To the

contrary, as is clear from the public court documents submitted by the parties and filed in

Alcantara’s habeas petition, of which the court may properly take judicial notice on a motion for

summary judgment, see, e.g., Sutton ex rel. Rose v. Wachovia Sec., LLC, 208 F. App'x 27, 29 (2d

Cir. 2006); Spandex House, Inc. v. Hartford Fire Ins. Co., 407 F. Supp. 3d 242, 256 (S.D.N.Y.

2019), aff'd, 816 F. App'x 611 (2d Cir. 2020), no resisting arrest charge was presented to the

jury. See Pl. Ex. I (Certificate of Conviction), Dkt. 80-9 (“Charge(s): Crim Sex Act 1o, PL

130.50-3; Sex Abuse 3o, PL 130.65-3”); see generally State Court Record, Dkt. 9, Alcantara v.

Bell, 19-cv-3686 (June 19, 2019).

reasonable jury could find the officers’ mild use of force excessive.

In what appears to be an effort to embellish his claims, in his motion papers, Alcantara

also spotlights his allegation that Officers DiGangi and Weiburg threw him to the ground and

stomped on his shoulder and back in front of the 122nd precinct. See Pl. Opp. (citing Compl. ¶

18). At this point, though, mere allegations will not do. Although there is evidence that

Alcantara suffered shoulder injuries, his contention that they were caused by Officers DiGangi

and Weiburg is unsupported. Much to the contrary, both officers attest in sworn statements that

they did not even transport plaintiff back to the precinct, let alone stomp Alcantara upon his

arrival there. See Weiburg Decl., Dkt. 59, ¶¶ 10–11; DiGangi Decl., Dkt. 60, ¶¶ 10–11.

Moreover, plaintiff’s shifting narrative helps eviscerate his claims. Pointedly, although his

complaint alleged that the officers attacked him outside of the precinct, see Compl. ¶ 18,

Alcantara’s motion papers claim that the alleged attack occurred after he was in handcuffs but

before defendants turned him over to Sergeant Donaghoue-Gold and Officer Liconti, see Pl.

Opp. at 3, which, as the undisputed Rule 56.1 statements show, occurred at the scene of his

arrest, see SOF ¶¶ 14–15; CSOF ¶¶ 14–15. What’s more, although Alcantara was asked at his

deposition about defendants’ conduct both during the arrest and at the precinct, conspicuously

absent from his answers is any mention of a shoulder stomp. See Alcantara Dep. at 26–30.

Plaintiff did, however, admit that his neighbor “threw him to the floor” before the officers

arrived. See id. at 25:12.

Accordingly, given the material facts about which there is no genuine dispute, no

reasonable juror could find that the officers used excessive force when arresting Alcantara.

Defendants’ motion for summary judgment on the direct participation subset of plaintiff’s

excessive force claim must, therefore, be granted.

B. Failure to Intervene

Whether an officer had a realistic chance to intervene to blunt the use of excessive force

by another officer “is normally a question for the jury, unless, considering all the evidence, a

reasonable jury could not possibly conclude otherwise.” Terebesi v. Torreso, 764 F.3d 217, 244

(2d Cir. 2014) (cleaned up). As the Second Circuit has explained, this question turns on the

totality of the circumstances the record establishes, including “the number of officers present,

their relative placement, the environment in which they acted, the nature of the assault, and a

dozen other considerations.” Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir. 2016). “Among

these considerations, of course, the assault's duration will always be relevant and will frequently

assume great importance.” Id.

Figueroa itself is instructive. There, two officers faced a claim brought under a failure-

to-intervene theory after plaintiff had been punched multiple times in a police car by an officer

who, as is the case here, remained unidentified throughout the proceedings. Id. at 106. At trial,

the district court interpreted the plaintiff’s testimony to be a reenactment of the assault and timed

the assault to have lasted 20 seconds. Id. The court then reasoned that when an assault takes less

than 30 seconds, officers who are present lack sufficient time to intervene and, as a result, it

granted the arresting officers’ judgment as a matter of law. Id.

The Second Circuit disagreed. Id. at 108. It observed that other testimony at the trial

suggested the assault lasted longer than 30 seconds. Id. at 107. But, more instructively here, the

Figueroa court rejected any bright-line rule based on the length of the assault, directing courts

instead to evaluate the totality of the circumstances. Id. “The essential inquiry,” the Circuit

held, “is whether, under the circumstances actually presented, an officer’s failure to intervene

permits a reasonable conclusion that he became a ‘tacit collaborator’ in the unlawful conduct of

another.” Id. at 107–08 (quoting O'Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir. 1988)).

Focused on the record, Figueroa highlighted the officers’ close proximity to plaintiff and found

that nothing suggested they could not have either physically intervened by getting out of the

police car or at least called out to rebuke the assaulting officer. Id. at 108. Accordingly, the

Circuit concluded it could not hold that the assault “occurred so quickly that the defendant

officers lacked time to intercede as a matter of law.” Id.

Here, the record upon which the summary judgment motion lies creates issues ripe for

jury resolution. Indeed, according to defendants’ own Rule 56.1 statement, “[a]fter being placed

in handcuffs, [p]laintiff sat on the sidewalk and waited.” SOF ¶ 8. At that point, the assaulting

officer arrived, defendants “stood plaintiff up,” and “the third officer punched plaintiff in the

face twice.” Id. ¶¶ 12–13. The only relevant, additional detail in the record is Alcantara’s

deposition testimony that when the assaulting officer arrived, he asked, “It was this one?” and

defendants replied, “Yes.” Alcantara Dep. at 28:24–25.

Neither Officer DiGangi nor Officer Weiburg contends that the punches were excusable

in any way. Instead, they seek to avoid liability by arguing that the punches were “unexpected”

and did not allow “adequate time to intervene.” Defs. Br. at 5–6. But nothing in the record

indicates how much time elapsed between the anonymous officer’s arrival and the first punch, or

between the first and second punches. Nor have the officers identified any “obstacles that might

have hindered [their] ability to intercede.” See Ekukpe v. Santiago, 823 F. App'x 25, 32 (2d Cir.

2020) (affirming denial of summary judgment on failure to intervene claim) (quoting Figueroa,

825 F.3d at 107). Without evidence to establish these critical facts, defendants cannot show as a

matter of law they could not have intervened either before the first punch or between the first and

second punch, especially given their close physical proximity to plaintiff, having just stood him

up. See also Ross v. Willis, 2021 WL 3500163, at *15 (S.D.N.Y. Aug. 9, 2021) (denying

summary judgment on failure to intervene claim where the defendant-officers “were in easy

reach of” the assaulting officer and “physically capable of stopping him”).

Certainly, why defendants identified plaintiff to and stood him up for the unidentified

officer is unexplained and troubling, and viewing this evidence in the light most favorable to

plaintiff, a reasonable jury could readily conclude that defendants were, in fact, “tacit

collaborator[s].” Figueroa, 825 F.3d at 108. Defendants’ motion for summary judgment on this

claim is, consequently, denied.6

II. Deliberate Indifference to Serious Medical Needs

The Fourteenth Amendment protects pre-trial detainees from deliberate indifference to

serious medical needs. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Such

claims are analyzed using a two-prong test. Id. First, plaintiff must have been deprived adequate

medical care for a sufficiently serious medical condition. Id. This “contemplates ‘a condition of

urgency’ that may result in ‘degeneration’ or ‘extreme pain.’” Id. at 703 (quoting Hathaway v.

Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). Second, each defendant must have “recklessly failed

to act with reasonable care to mitigate the risk that the condition posed . . . even though the

defendant-official knew, or should have known, that the condition posed an excessive risk to

health or safety.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). This “requires proof of a

mens rea greater than mere negligence.” Id. at 36.7

Here, the Court need not decide whether plaintiff was deprived adequate care for a

6 Defendants’ throwaway argument that they should be granted qualified immunity at the very

least because “the law did not put defendants on notice that they could be liable for failing to

intervene when the force consisted of two unexpected punches,” Defs. Br. at 6, is rejected for the

same reasons; that is, defendants’ argument rests on the representation that the punches were

unexpected, which a jury might find is belied by other circumstances.

7 After Darnell, claims made under the Fourteenth Amendment, like Alcantara’s, do not require

a showing of subjective awareness; a showing of objective recklessness is sufficient. See

Simmons v. Mason, 2019 WL 4525613, at *9–10 (S.D.N.Y. Sept. 18, 2019).

sufficiently serious medical condition because no reasonable jury could find that either defendant

had the mens rea requisite to establish liability. Plaintiff has offered no proof that defendants

knew or should have known that plaintiff’s condition posed an excessive risk to his health or

safety. For one, the record evidence shows that the only injury that would have been apparent to

Officers DiGangi and Weiburg was some bleeding and facial abrasions. See Pl. Opp. Ex. D, Dkt.

63-4, at 1; Alcantara Dep. at 30:4–6. But slight bleeding and abrasions, especially when viewed

alongside Alcantara’s failure to complain to defendants about his injuries and acknowledgement

that he initially “didn’t feel the blows” due to his intoxication, see Alcantara Dep. at 30:23–25,

would not lead an objectively reasonable officer to believe his injuries posed an “excessive”

health or safety risk. See, e.g., Mikulec v. Town of Cheektowaga, 909 F. Supp. 2d 214, 223

(W.D.N.Y. 2012) (“[I]t cannot be said that Mikulec’s resulting injuries—some bleeding and

abrasions—could have produced ‘death, degeneration, or extreme pain.’”); Ford v. Phillips, 2007

WL 946703, at *12 (S.D.N.Y. Mar. 27, 2007) (“Abrasions, a minor bruise, slight bleeding and

scratches are not injuries that may produce death, degeneration or extreme pain, and no

reasonable jury could find to the contrary.”).

Finally, any claim of reckless indifference on the part of Officers DiGangi and Weiburg

is belied by the fact that they did not simply leave Alcantara to suffer. In fact, defendants turned

Alcantara over to other officers who took him back to the precinct, and after complaining about

his pain, Detective Ng called an ambulance, and plaintiff arrived at the hospital about four hours

after his arrest. Since no evidence suggests that his condition was aggravated during that time,

no reasonable jury could conclude that allowing such a short delay was reckless. See Simpson v.

Town of Warwick Police Dep’t, 159 F. Supp. 3d 419, 447 (S.D.N.Y. 2016) (“In light of the

absence of any indication that more prompt treatment was necessary and the relatively minor

delay before the officers brought [the arrestee] to [the jail where he received treatment], no

reasonable jury could conclude that the police officers delayed providing [the arrestee] treatment

with the subjective recklessness necessary to satisfy the subjective element of a deliberate

indifference claim.” (quotations omitted)). With the nature of the injury sustained by plaintiff at

the scene of the arrest and the time between his arrest and dispatch to the hospital all beyond

genuine dispute, Officers DiGangi and Weiburg are entitled to summary judgment on this claim.

Conclusion

For the foregoing reasons, defendants’ motion for summary judgment is granted in part

and denied in part. The litigation may proceed solely as to Alcantara’s failure-to-intervene

claim.

The parties are respectfully referred to Magistrate Judge Robert M. Levy for continued

pre-trial management of this case.

So Ordered.

Dated: Brooklyn, New York

April 30, 2022

/s/ Eric N. Vitaliano

ERIC N. VITALIANO

United States District Judge