Milfort v. Prevete

922 F. Supp. 2d 398, 2013 WL 519041, 2013 U.S. Dist. LEXIS 27107
CourtDistrict Court, E.D. New York
DecidedFebruary 13, 2013
DocketNo. 10-CV-4467
StatusPublished
Cited by12 cases

This text of 922 F. Supp. 2d 398 (Milfort v. Prevete) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milfort v. Prevete, 922 F. Supp. 2d 398, 2013 WL 519041, 2013 U.S. Dist. LEXIS 27107 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ, II, District Judge.

Plaintiff Getro Milfort (“Plaintiff’) commenced this action against defendants Felix Prevete (“Lt. Prevete”) and Christopher Ferrari (“Court Officer Ferrari”) (collectively “Defendants”), court officers of the New York State Unified Court System, arising from an incident where Plaintiff was arrested for disorderly conduct for an alleged violation of N.Y. Penal Law § 240.20. Plaintiff seeks recovery, under 42 U.S.C. § 1983, for false arrest, false imprisonment, excessive force, denial of equal protection, and deprivation of due process. Defendants move for summary judgment to dismiss the complaint pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, Defendants’ motion is granted in part and denied in part.

I. Factual Background

A. Undisputed Facts

On June 18, 2010, Plaintiff was present at the Civil Court of the City of New York, Kings County, located at 141 Livingston Street, Brooklyn, New York. Defendants’ Rule 56.1 Statement, at ¶¶ 1, 16 (“Defs.’ 56.1 ”). As Plaintiff stood in the courthouse security line, he spoke on his phone with an unknown individual. Id. at ¶ 19. Noticing Plaintiff, Lt. Prevete approached Plaintiff and informed him that he must exit the line if he wished to continue his phone call. Id. at ¶ 20. Lt. Prevete instructs individuals on a daily basis to finish their calls and continue through security or else leave the building to finish their calls. Aff. of Felix Prevete in Supp. of the Defs. ’ Mot. for Summ. J., at ¶ 19 (“Prevete Aff.”).

While the parties dispute the series of ensuing events to follow, as articulated below, Plaintiff and Lt. Prevete continued to talk. Defs.’ 56.1, at ¶¶23-26; Decl. of Getro Milfort at ¶¶ 12-13 (“Pi’s Decl”). Eventually, Lt. Prevete and Court Officer Ferrari arrested and handcuffed Plaintiff. Defs. ’ 56.1, at ¶¶ 34-35. Defendants and other court officers then escorted Plaintiff into the elevator and to the Operations Office on the tenth floor of the courthouse. Id. at ¶¶ 39-40.

[402]*402While in the Operations Office, Lt. Prevete documented the incident by writing an Unusual Occurrence Report. Id. at ¶43. Plaintiff was issued a summons for violation of Penal Law § 240.20(2), Disorderly Conduct, which states in pertinent part: “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] [h]e makes unreasonable noise.” Id. at ¶ 44; N.Y. Penal Law § 240.20(2). Due to his arrest, Plaintiff was not able to go to the courtroom where he was scheduled to appear that day, so court officers arranged to have his case adjourned to another date to avoid a default judgment against him. Defs.’ 56.1, at ¶45. After Plaintiff was issued the summons, he was released from custody. Id. at ¶ 46.

B. Plaintiffs Account

According to Plaintiff, and corroborated by Court Officer Ferrari, after Lt. Prevete told Plaintiff to exit the line, Plaintiff did so and moved into a small nearby alcove that was far enough away from the security checkpoint such that Plaintiff could not have been blocking anyone from moving along. Pl.’s Decl., at ¶¶ 11, 18; Femri Dep. Tr. at 17:3-24. Lt. Prevete then walked over to Plaintiff and again told him to end his phone call, and Plaintiff indicated he would do so. Id. at ¶¶ 12-13. Before Plaintiff could do so, however, Lt. Prevete grabbed Plaintiffs phone out of his hand and pushed Plaintiff, causing Plaintiff to strike his head against a wall. Id. at ¶¶ 14-15. Several court officers then grabbed Plaintiff and told him he was under arrest. Id. at ¶ 16. Neither Plaintiff nor Lt. Prevete raised their voices prior to the arrest. Id. at ¶ 17.

During Plaintiffs arrest, an individual whom Plaintiff believes to have been Court Officer Ferrari shoved him against the wall and pulled his wrist up towards his neck behind his back, causing him to feel a “popping” sensation in his neck and back area. Id. at ¶¶ 27-28. Four other court officers then forcibly held Plaintiff against the wall. Id. at ¶ 29. In the elevator, Court Officer Ferrari pulled and twisted Plaintiffs arm in a way that caused Plaintiff to feel extreme pain and a tearing sensation in his shoulder. Id. at ¶ 31. Plaintiff also asserts that while in the elevator, Court Officer Ferrari placed his knee into Plaintiffs back, and, with one hand on his face and one hand on his shoulder, twisted Plaintiffs body. PL’s Dep. Tr. at 73: 5-17. When Plaintiff complained of the pain, Court Officer Ferrari called him a “motherfucker” and told him to “shut the fuck up.” PI. ’s Deck, at ¶ 32.

Plaintiff contends that after receiving the summons, he asked an officer to call him an ambulance because he was in pain, but that the unnamed officer responded by saying that if Plaintiff did not leave, he would spend the weekend in jail. PL’s Deck, at ¶ 35. Following his release, Plaintiff went directly to Long Island College Hospital via taxi for treatment. Id. at ¶ 40. At the hospital, Plaintiff complained of extreme pain and lost range of motion in his arm due to the incident with Court Officer Ferrari. Id. at ¶ 41. Plaintiff received an injection to treat his pain. Id. at ¶ 42. Plaintiff then consulted with his primary care physician, who sent him to Brooklyn Hospital Orthopedics for physical therapy. Id. at ¶ 43. Plaintiff attended approximately fifteen physical therapy sessions between August 2010 and January 2011. Id. According to Plaintiff, after failing to show marked improvement, Plaintiff received an MRI in January 2011, the report of which stated the following:

“There is retrolisthesis of C6 on C7 of approximately 2 mm. [Tjhere is loss of disc space height at this level. There is anterior osteophyte formation along the [403]*403anterior margin of the vertebral body however, given the retrolisthesis and history of trauma, posttraumatic retrolisthesis is not excluded .... 2 mm retrolisthesis of C6 on C7 in combination with a moderate central disc herniation may represent the sequela of traumatic disc herniation as outlined above.”

Id. at ¶ 44; Pl.’s Resp. to Defs.’ 56.1, Ex. 8. Plaintiff still suffers from lingering effects of the June 18, 2010 incident, including decreased range of motion in his arms, shoulders, and neck, as well as pain in his shoulder and neck. Pi’s Deal, at ¶45.

C. Defendants’ Account

According to Defendants, rather than terminate his conversation as instructed, Plaintiff told Lt. Prevete that he did not have to listen to a court officer and that he was finishing his phone call. Defs.’ 56.1, at ¶21. Concerned that Plaintiff was preventing people behind him from gaining access to and going through the security checkpoint, Lt.

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Bluebook (online)
922 F. Supp. 2d 398, 2013 WL 519041, 2013 U.S. Dist. LEXIS 27107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milfort-v-prevete-nyed-2013.