Garcia v. Sistarenik , 603 F. App'x 61 ( 2015 )

14-3306
Garcia v. Sistarenik
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 A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of May, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PETER W. HALL,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 DENISE ANN GARCIA, as administrator
14 of the estate of James J. Healy, Jr.,
15 deceased,
16 Plaintiff-Appellee,
17
18 -v.- 14-3306
19
20 DEPUTY BENJAMIN SISTARENIK,
21 Defendant-Appellant.*
22
23 - - - - - - - - - - - - - - - - - - - -X
*
The Clerk of Court is respectfully directed to
amend the official caption in this case to conform with the
caption above.
1 FOR APPELLANT: DAVID L. POSNER (with Kimberly
2 Hunt Lee, on the brief), McCabe
3 & Mack LLP, Poughkeepsie,
4 New York.
5
6 FOR APPELLEE: MICHAEL ZILBERG (with Gary Todd
7 Certain, on the brief), Law
8 Office of Certain & Zilberg,
9 PLLC, New York, New York.
10
11 Appeal from an order of the United States District
12 Court for the Southern District of New York (Stein, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15 AND DECREED that the order of the district court be AFFIRMED
16 in part, and that the appeal be DISMISSED in part.
17
18 Dutchess County Sheriff’s Deputy Benjamin Sistarenik
19 appeals from an interlocutory order of the United States
20 District Court for the Southern District of New York (Stein,
21 J.) denying his motion for summary judgment on the basis of
22 qualified immunity. We assume the parties’ familiarity with
23 the underlying facts, the procedural history, and the issues
24 presented for review.
25
26 Typically, “[t]he denial of a motion for summary
27 judgment is . . . not immediately appealable because such a
28 decision is not a final judgment.” Jones v. Parmley, 465
29 F.3d 46, 54 (2d Cir. 2006) (internal quotation marks
30 omitted). The collateral-order doctrine, however, provides
31 a limited exception, under which “the denial of a
32 qualified-immunity-based motion for summary judgment is
33 immediately appealable to the extent that the district court
34 has denied the motion as a matter of law, although not to
35 the extent that the defense turns solely on the resolution
36 of questions of fact.” Id. (internal quotation marks
37 omitted). In other words, this Court has appellate
38 jurisdiction “to determine whether a [a disputed factual]
39 issue is material, but not whether it is genuine.” Bolmer
40 v. Oliveira, 594 F.3d 134, 141 (2d Cir. 2010).
41
42 1. As to the excessive force claim, we dismiss for
43 lack of appellate jurisdiction.
2
1 Relying on conflicting witness testimony, the district
2 court held that “a reasonable jury could conclude that Healy
3 was no longer resisting the officers when he was tased,”
4 Dist. Ct. Op. at 15; that “Healy did not pose an immediate
5 threat to the safety of the officer[s] or others at the time
6 Sistarenik tased Healy,” Dist. Ct. Op. at 17; and that
7 “Sistarenik . . . administer[ed] two taser shocks against
8 Healy in short succession without advance warning and while
9 Healy was restrained on the floor by four other officers,”
10 Dist. Ct. Op. at 21.
11
12 It cannot be disputed that the fact issue of whether
13 (and to what extent) Healy presented a threat at the time
14 Sistarenik used the taser is material. See, e.g., Amnesty
15 Am. v. Town of W. Hartford, 361 F.3d 113, 124 (2d Cir. 2004)
16 (“Because a reasonable jury could . . . find that the
17 officers gratuitously inflicted pain in a manner that was
18 not a reasonable response to the circumstances, . . . the
19 determination as to the objective reasonableness of the
20 force used must be made by a jury following a trial.”). On
21 appeal, Sistarenik refuses to accept plaintiff’s version of
22 the facts, and argues--just as he did in the district
23 court--that “[f]rom Sistarenik’s perspective[, Healy]
24 presented a live and continuing threat,” Appellant’s Br. at
25 21, at the time of the tasing. Perhaps he did; perhaps he
26 did not. But we lack appellate jurisdiction to review the
27 genuineness of these factual disputes. Bolmer, 594 F.3d at
28 141.
29
30 2. As to the due process claim for denial of medical
31 care, we affirm the denial of summary judgment.
32 Sistarenik’s only argument on appeal is that, although the
33 four state troopers on the scene had a duty to provide
34 medical care to Healy, Sistarenik had no such duty because
35 he was a “non-custodial officer.” Appellant’s Br. at 29.
36 Sistarenik cites no authority for this proposition.
37
38 In any event, the argument is forfeited, because
39 Sistarenik raised it for the first time in his reply brief
40 in support of his motion for summary judgment. Presumably,
41 that is why the district court did not address the argument
42 (in what is otherwise a thorough written opinion).
43 Accordingly, we decline to consider it for the first time on
3
1 appeal. See, e.g., Dalberth v. Xerox Corp., 766 F.3d 172,
2 184 (2d Cir. 2014).
3
4 * * *
5
6 For the foregoing reasons, and finding no merit in
7 Sistarenik’s other arguments, we hereby AFFIRM the order of
8 the district court, in part; and DISMISS for lack of
9 appellate jurisdiction, in part.
10
11 FOR THE COURT:
12 CATHERINE O’HAGAN WOLFE, CLERK
13
4