Scott Bros. v. Akshar , 383 F. App'x 47 ( 2010 )

07-3204-cv
Brothers v. Akshar
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING
A SUM M ARY 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of June, two thousand and ten.
PRESENT: JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
PETER W. HALL,
Circuit Judges.
_______________________________________________________
Scott Brothers,
Plaintiff-Appellant,
v. No. 07-3204-cv
Frederick J. Akshar II, Sheriff David E. Harder, Broome County
Sheriff’s Office, County of Broome,
Defendants-Appellees.
_____________________________________________________
For Appellant: STEPHEN C. GLASSER, (Frank V. Floriani, Susan M. Jaffe, of
counsel, on the brief), Sullivan Papain Block McGrath & Cannavo,
P.C., New York, New York.
For Appellees: JOHN L. PERTICONE, (Maria Lisi-Murray, of counsel, on the brief)
Levene, Gouldin & Thompson, LLP, Vestal, New York.
Appeal from a judgment of the United States District Court for the Northern District of
New York (McAvoy, J.), granting summary judgment to the defendants.
UPON DUE CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Scott Brothers appeals from the July 10, 2007 judgment of the district
court granting summary judgment in favor of the defendants-appellees on his civil rights claim
asserting excessive use of force pursuant to 42 U.S.C. § 1983. Brothers makes three principal
arguments on appeal: (1) the district court erred by granting defendants summary judgment on
his excessive use of force claim; (2) the district court abused its discretion by excluding
appellant’s proffered expert testimony; and (3) the district court erred by finding that appellant’s
§ 1983 claims are barred by the doctrine of collateral estoppel.
We review a summary judgment award de novo, viewing the facts in the light most
favorable to the non-moving party. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163
(2d Cir. 2008). While we will not uphold an award in favor of the defendant if the evidence is
sufficient to permit a reasonable jury to find for the plaintiff, the plaintiff must point to more than
a “scintilla” of evidence in support of its claims to defeat summary judgment. See id.; see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We review a district court’s rulings
on admission and consideration of expert testimony under Daubert v. Merrel Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), for abuse of discretion, and we only find such abuse
if the court’s decision was “manifestly erroneous.” Amorgianos v. Nat’l R.R. Passenger Corp.,
303 F.3d 256, 264-65 (2d Cir. 2002). In applying these standards, we assume the parties’
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familiarity with the facts and proceedings in the district court, which we reference only as
necessary to explain our decision.
Having carefully examined the record before the district court, we agree with that court’s
order granting summary judgment in favor of the defendants on Brothers’s § 1983 claim for
excessive use of force. “[I]n order to establish that [Akshar’s] use of force was constitutionally
excessive within the meaning of the Fourth Amendment, [Brothers] was required to show that
[Akshar’s] actions were objectively unreasonable in light of the facts and circumstances
confronting him . . ..” See Nimely v. City of New York, 414 F.3d 381, 390 (2d Cir. 2005)
(internal quotation marks and alteration omitted). “‘ [A]n officer’s decision to use deadly force
is objectively reasonable only if the officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or others.’ ” Id. (quoting
Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003)). The reasonableness
of an officer’s decision to use force “‘depends only upon the officer’s knowledge of
circumstances immediately prior to and at the moment that he made the split-second decision to
employ deadly force.’” Id. at 390-91 (quoting Cowan, 352 F.3d at 762). Akshar testified that
Brothers sat up and began “to lower his weapon towards” Akshar and his colleague. That
testimony is corroborated, at least to some extent, by the defendants’ forensic pathologist who
testified that “[t]he pattern of gunshot wounds received by Mr. Brothers is entirely consistent
with the statements made by Deputy Akshar.” Brothers presented no admissible evidence to
rebut Akshar’s testimony. Because Akshar’s unrebutted testimony establishes that he had
probable cause to believe Brothers posed a significant threat of death or serious physical injury to
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him and his colleague, his decision to use deadly force was objectively reasonable. See Nimely,
414 F.3d at 390-91.
With respect to Brothers’s claim that the district court improperly excluded his expert’s
testimony, we find any such error immaterial. Federal Rule of Evidence 702 requires district
courts to perform the “gatekeeping” function of determining “that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant field.”
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). “[T]he trial judge must ensure that
any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert,
509 U.S. at 589.
Here, the district court did not abuse its discretion in excluding Henry Branche’s
testimony. First, we agree with the district court that Branche lacks the qualifications to testify as
to “forensic crime scene reconstruction or forensic pathology.” The court thus properly excluded
Branche’s testimony “that based upon the nature and location of the Plaintiff’s wounds, Plaintiff
could not have been positioned as ascribed by Deputy Akshar at the time of the shooting.”
Additionally, any error in excluding Branche’s testimony regarding police-safety procedures is of
no consequence because the majority of that testimony was not relevant to Brothers’s excessive
use of force claim. See Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“The reasonableness
inquiry depends only upon the officer’s knowledge of circumstances immediately prior to and at
the moment that he made the split-second decision to employ deadly force.”). For these reasons,
the district court did not abuse its discretion by excluding Brothers’s proffered expert testimony.
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Because we conclude that the district court properly granted summary judgment in favor
of the defendants and did not abuse its discretion in excluding Branche’s expert testimony, we do
not reach the question of whether the district court erred in holding that, under the doctrine of
collateral estoppel, Brothers could not assert that he did not intentionally point his gun at Akshar.
Upon review, we find Brothers’s remaining arguments without merit. The judgment of
the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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