Tracy v. Freshwater

08-1769-cv
Tracy v. Freshwater

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2008

Argued: April 17, 2009 Decided: October 14, 2010

Docket No. 08-1769-cv

_____________________________________

PATRICK TRACY,

Plaintiff-Counter-Defendant-Appellant,

-v.-

PARKER J. FRESHWATER, TOMPKINS COUNTY, and PETER MESKILL

Defendants-Counter-Claimants-Appellees.
_____________________________________

Before: SACK, LIVINGSTON, Circuit Judges, VITALIANO,* District Judge.

Plaintiff-Counter-Defendant-Appellant Patrick Tracy appeals from decisions of the United

States District Court for the Northern District of New York granting the motion for summary

judgment filed by Defendants-Counter-Claimants-Appellees on the ground of qualified immunity

(Munson, J.) and denying Tracy’s subsequent motion for reconsideration (McCurn, J.). Tracy

contends on appeal that the district court erred in concluding that he had not raised a genuine issue

*
The Honorable Eric N. Vitaliano, District Judge of the United States District Court for
the Eastern District of New York, sitting by designation.
of material fact as to whether Defendant-Counter-Claimant-Appellee Parker Freshwater, a deputy

sheriff in the Tompkins County Sheriff’s Department, used unreasonable force in the course of

arresting him. He further argues that the district court acted improperly when it endorsed a general

withdrawal from Tracy of the special solicitude ordinarily afforded to pro se litigants. In light of

conflicting evidence regarding whether Officer Freshwater used pepper spray on Tracy before or

after fully restraining him, we conclude that a material issue of fact remains in dispute with respect

to that claim. Moreover, we conclude that the general withdrawal of special solicitude amounted

to an abuse of discretion in the circumstances of this case, even though a more limited withdrawal

of solicitude may well have been warranted.

Vacated and remanded.

MICHELLE GHALI** and STUART YOUNGS** (JON
ROMBERG, of counsel), Center for Social Justice, Seton Hall
University School of Law, Newark, New Jersey, for Plaintiff-
Counter-Defendant-Appellant.

JONATHAN WOOD, County Attorney, Tompkins County
Attorney’s Office, Ithaca, New York, for Defendants-
Counter-Claimants-Appellees.

DEBRA ANN LIVINGSTON, Circuit Judge:

In this appeal, Plaintiff-Counter-Defendant-Appellant Patrick Tracy challenges the decisions

of the United States District Court for the Northern District of New York granting the motion for

summary judgment filed by Defendants-Counter-Claimants-Appellees on the ground of qualified

immunity (Munson, J.) and denying Tracy’s motion for reconsideration (McCurn, J.). Tracy

**
Appearing pursuant to 2d Cir. R. 46.1(e).

2
primarily argues that the district court erred in concluding that he had not raised a genuine issue of

material fact as to whether, in the course of arresting him, Defendant-Counter-Claimant-Appellee

Parker Freshwater, a deputy sheriff in the Tompkins County Sheriff’s Department, used

unreasonable force in violation of the Fourth Amendment. We conclude that the majority of Tracy’s

claims fail as a matter of law and that summary judgment was properly granted on them. However,

because we find that issues of material fact remain in dispute with respect to one claim – Tracy’s

excessive force claim based on Freshwater’s use of pepper spray – and that Freshwater is not entitled

to qualified immunity with respect to that claim as stated by appellant, we vacate the district court’s

grant of summary judgment and remand for further proceedings consistent with this conclusion.

Tracy separately asserts that the district court acted improperly when it endorsed a general

withdrawal from him of the special solicitude that federal courts ordinarily afford to pro se litigants.

In Sledge v. Kooi, 564 F.3d 105, 109-10 (2d Cir. 2009) (per curiam), we suggested that while it is

appropriate to charge an experienced pro se litigant with knowledge of, and therefore to withdraw

special status in relation to, particular requirements of the legal system with which he is familiar,

a general withdrawal of the solicitude ordinarily afforded pro se litigants is inappropriate absent a

showing that the particular litigant has acquired the experience necessary to deal generally with all

aspects of his case. We conclude that the district court’s general withdrawal of solicitude here

amounted to an abuse of discretion, even though a more limited withdrawal of solicitude in relation

to the requirements of opposing a motion for summary judgment may well have been warranted.

BACKGROUND

The following facts are drawn from the record on appeal and, unless otherwise noted, are

3
construed in the light most favorable to Tracy. On the evening of April 8, 2000, Tracy was driving

through the town of Danby, New York, located in Tompkins County. The weather was bad –

darkness had fallen, it was snowing, and the wind was gusting. Officer Freshwater, observing traffic

from a public parking lot, saw Tracy’s car, noticed that the windows were covered with snow which

likely impaired the driver’s ability to see, and pulled Tracy over.1 Officer Freshwater asked Tracy

for his license and registration and Tracy told him that he did not have them in his possession.

Officer Freshwater asked Tracy to exit the car and clean off the windows while he ran a check on

the car’s license plate number. After running this check, which revealed that the car was registered

to Beverly M. Ruggles, Officer Freshwater approached the car and began to question Tracy, who,

having finished cleaning the windows, was once again seated inside the vehicle.

Officer Freshwater first asked whether the car was registered in the name of Ms. Ruggles,

to which Tracy responded affirmatively. He next asked Tracy for his name, receiving the answer

“Seth A. Ruggles.” After some further questioning regarding his date of birth, Tracy admitted that

he was not, in fact, Seth Ruggles. Officer Freshwater then asked Tracy for his real name. Tracy

professes not to have understood this question, but admits that after hearing “something about a

name,” he stated “Jeff A. Kerns.” Following this exchange, Officer Freshwater ordered Tracy to exit

his car, and Tracy did so.

Officer Freshwater affirms that by this time he strongly suspected that Tracy might be

1
Officer Freshwater also indicated that one of Tracy’s headlights was out. Although
Tracy appears to accept the truth of this assertion on appeal, he purported to challenge it below.
Resolution of this factual dispute is not necessary to our disposition of this case and,
accordingly, we do not consider the issue further.

4
wanted in connection with a criminal offense. As Tracy stood outside his car, Officer Freshwater,

intending to pat him down for weapons and then to arrest him, ordered Tracy to place his hands on

top of his head. According to Tracy, he obeyed this order. Officer Freshwater then demanded that

Tracy, who at that point was facing him, turn around. Tracy alleges that he began to do so but,

before he could fully comply, he slipped on a patch of ice and thereafter grabbed the car to prevent

himself from falling. According to Tracy, Officer Freshwater then struck him twice with a metal

flashlight. Tracy contends that he then ran in the direction of Officer Freshwater’s patrol car,

Officer Freshwater grabbed him, and the two struggled. Although Tracy did not attempt to strike

Officer Freshwater, he asserts Officer Freshwater hit him twice more with the flashlight. Officer

Freshwater alleges, to the contrary, that after he directed Tracy to turn around and place his hands

on the top of his head, Tracy began to run toward him and the roadway. Officer Freshwater grabbed

Tracy and hit him with the flashlight, he says, only after Tracy had attempted to punch him.

Both parties agree that Tracy eventually broke free and began to run from Officer

Freshwater. Before Tracy could get far, however, he slipped and fell to the ground, after which

Officer Freshwater jumped on him. Tracy immediately felt severe pain. According to Tracy, while

lying on top of Tracy, Officer Freshwater screamed at him and immediately placed one of Tracy’s

hands in handcuffs. Tracy’s other hand, however, was pinned beneath his body. Despite this

difficulty, Officer Freshwater demanded repeatedly and stridently that Tracy present this hand so

that it might also be placed in handcuffs. Eventually, Tracy was able to work his hand free, at which

point Officer Freshwater placed it in handcuffs as well. While he was attempting to extract his hand

from under his body, Tracy contends that he expressly told Officer Freshwater that he was not

5
resisting. He asserts, moreover, that after he was fully handcuffed, Officer Freshwater, while

continuing to yell at him, sprayed his face with pepper spray from a distance of only a few inches

and then pushed it into the muddy ground. Officer Freshwater alleges, to the contrary, that he

pepper-sprayed Tracy while Tracy was actively continuing to resist.

While Officer Freshwater was lying on top of Tracy, Freshwater attempted to call for help

on his portable radio. The radio, however, malfunctioned and Officer Freshwater received no

response.2 He then attempted to move Tracy. Tracy contends that Officer Freshwater angrily

ordered him to get up and persisted in that demand after being told that Tracy was in pain. Tracy

alleges that when he continued to protest that he was injured, Officer Freshwater grabbed him by

his arms and hauled him to his feet. Officer Freshwater asserts, in contrast, that he assisted Tracy

“by picking him up under his arms from behind.” Both parties agree that as Tracy was made to

stand, his body made a distinct popping noise. Tracy states that he immediately felt excruciating

pain. According to Tracy, although he again indicated that he was injured and needed medical

attention, Officer Freshwater held him up by his hands and forced him to walk the roughly twenty

feet to the patrol car. Once they reached the patrol car, Officer Freshwater put Tracy in the back seat

and used the car’s radio to call for backup and medical personnel. Shortly afterwards, an ambulance

arrived and took Tracy to a nearby hospital, where he received medical treatment, primarily for a

fracture dislocation of his hip. Tracy was subsequently transferred to a larger hospital, where he

2
Tracy does not directly mention these actions. His statements, however, also do not
directly dispute Officer Freshwater’s assertion that he attempted to call for backup from his
portable radio. Indeed, Tracy’s deposition testimony that Officer Freshwater “was fiddling
around with something” while he lay on top of Tracy appears to corroborate Officer
Freshwater’s account of this portion of the incident.

6
underwent at least one extensive surgical procedure as the result of the hip injury.

An examination of Tracy’s fingerprints revealed his true identity, along with the fact that he

had a criminal history and, indeed, was then the subject of an outstanding arrest warrant for federal

drug charges. Tracy was then charged with several additional state law offenses stemming from his

altercation with Officer Freshwater, and, after a jury trial, was convicted of resisting arrest in

violation of New York Penal Law § 205.30 and criminal impersonation in the second degree in

violation of New York Penal Law § 190.25.3 Tracy has also since been convicted of the federal

drug charges for which he was sentenced principally to 144 months’ imprisonment.

Tracy thereafter initiated the instant case, asserting, inter alia, a claim against Officer

Freshwater pursuant to 42 U.S.C. § 1983 for the use of excessive force in violation of the Fourth

Amendment.4 After extended motion practice, which included some thirty-six motions filed by

Tracy, proceeding pro se, the magistrate judge assigned to the case issued a report and

recommendation urging that a motion for summary judgment with regard to all of Tracy’s claims

filed by Defendants-Counter-Claimants-Appellees be granted in full. The magistrate judge, after

noting that Tracy had participated in at least ten previous federal and state actions, had engaged in

3
Tracy was also convicted of Criminal Possession of a Controlled Substance in the
Fourth Degree, New York Penal Law § 220.09, a Class C Felony under New York law, and
Criminal Possession of Marihuana in the Fourth Degree, New York Penal Law § 221.15, a Class
A Misdemeanor, both in connection with illegal substances recovered from him as a result of his
encounter with Officer Freshwater.
4
Tracy also asserted a claim for common-law battery against Officer Freshwater, as well
as a variety of claims against the other Defendants-Counter-Claimants-Appellees. In their
answer, Defendants-Counter-Claimants-Appellees asserted a counterclaim for common-law
battery against Tracy. As none of these claims are renewed on appeal, however, we do not
consider them here.

7
substantial motion practice in this action, and had demonstrated substantial competence in the course

of that motion practice, first recommended that Tracy should be denied the solicitude ordinarily

afforded by federal courts to pro se litigants. Turning then to Tracy’s substantive claims, the

magistrate judge concluded with regard to the excessive force claims at issue in this appeal that,

even viewing the evidence in the light most favorable to Tracy, Officer Freshwater was entitled to

qualified immunity as his actions were objectively reasonable and, accordingly, did not amount to

a constitutional violation. Over Tracy’s objection, the district court adopted the report and

recommendation in full and judgment was entered in favor of Defendants-Counter-Claimants-

Appellees. Tracy subsequently filed a motion for reconsideration, which the district court denied

on the ground that it merely sought to relitigate the same issues already decided in the previous

order. This appeal followed.

DISCUSSION

A. Excessive Force

Tracy first challenges the district court’s conclusion that Freshwater was entitled to summary

judgment on all of Tracy’s excessive force claims. We review a grant of summary judgment de

novo, and in so doing, we construe the evidence in the light most favorable to the nonmoving party

and draw all reasonable inferences in that party’s favor. See Okin v. Vill. of Cornwall-on-Hudson

Police Dep’t, 577 F.3d 415, 427 (2d Cir. 2009); Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d

Cir. 2007). Summary judgment is warranted only where “there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2);

8
see Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). “A fact is material

when it might affect the outcome of the suit under governing law.” McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks and citations omitted).

“Under the doctrine of qualified immunity, ‘government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would have

known.’” Kelsey v. County of Schoharie, 567 F.3d 54, 60-61 (2d Cir. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Accordingly, when a defendant official invokes qualified

immunity as a defense in order to support a motion for summary judgment, a court must consider

two questions: (1) whether the evidence, viewed in the light most favorable to the plaintiff, makes

out a violation of a statutory or constitutional right, and (2) whether that right was clearly established

at the time of the alleged violation. See Gilles v. Repicky, 511 F.3d 239, 243-44 (2d Cir. 2007); see

also Saucier v. Katz, 533 U.S. 194, 208 (2001), modified by Pearson v. Callahan, – U.S. –, 129 S.

Ct. 808 (2009). While the Supreme Court has recently made clear that we may “exercise [our]

sound discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first,” Pearson, 129 S.Ct. at 818, we begin, as the district court did, with the first. Cf. id.

(suggesting that the traditional sequence is appropriate where “discussion of why the relevant facts

do not violate clearly established law may make it apparent that in fact the relevant facts do not

make out a constitutional violation at all”).

The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by

a police officer in the course of effecting an arrest. See Graham v. Connor, 490 U.S. 386, 395

9
(1989). Because “[t]he Fourth Amendment test of reasonableness ‘is one of objective

reasonableness,’” Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (quoting Graham,

490 U.S. at 399), the inquiry is necessarily case and fact specific and requires balancing the nature

and quality of the intrusion on the plaintiff’s Fourth Amendment interests against the countervailing

governmental interests at stake. Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir.

2004). In conducting that balancing, we are guided by consideration of at least three factors: (1) the

nature and severity of the crime leading to the arrest, (2) whether the suspect poses an immediate

threat to the safety of the officer or others, and (3) whether the suspect was actively resisting arrest

or attempting to evade arrest by flight. Graham, 490 U.S. at 396; Jones v. Parmley, 465 F.3d 46,

61 (2d Cir. 2006).

However, in doing so, we are careful to evaluate the record “‘from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Jones, 465 F.3d

at 61 (quoting Graham, 490 U.S. at 396). Morever, we are required to “make ‘allowance for the fact

that police officers are often forced to make split-second judgments – in circumstances that are

tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular

situation.’” Id. (quoting Graham, 490 U.S. at 397). “Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Graham,

490 U.S. at 397 (internal quotations and citation omitted).

Tracy’s complaint can be read to allege that Officer Freshwater exceeded Fourth Amendment

constraints in four different ways: first, by striking Tracy with a flashlight several times; second, by

jumping on Tracy as Tracy, by his own admission, attempted to flee from Freshwater; third, by

10
spraying Tracy with pepper spray after Tracy had already been placed in handcuffs; and fourth, by

forcibly moving Tracy from the ground to the police car despite the fact that Tracy had told

Freshwater that he was in pain and could not move. As noted above, Freshwater disputes Tracy’s

account of the facts underlying at least some of those claims. However, the district court concluded

that none of the four claims survived the motion for summary judgment because, even if any factual

disputes were resolved in Tracy’s favor, none of the alleged conduct constituted unreasonable force

– and thus a constitutional violation for purposes of the qualified immunity analysis – as a matter

of law. We agree with respect to claims one, two, and four.

With respect to the first claim, which centers on Freshwater’s use of his flashlight, we agree

with the reasoning of the magistrate judge and conclude that even if Tracy’s account is credited,

Officer Freshwater’s use of force was reasonable. From Freshwater’s perspective, a suspect he

strongly – and correctly – presumed to be a fugitive from the law, made a quick and sudden

movement as Freshwater attempted to effect an arrest without the assistance of other officers. His

decision to use his flashlight to protect himself and subdue an arrestee he perceived to be actively

resisting was therefore a reasonable response. Consideration of the three Graham factors only

further supports that finding. First, the scope of crime in question was not simply driving without

a license or criminal impersonation but was unknown and potentially far more serious. As noted,

Freshwater had ample basis to presume that Tracy was at that time a fugitive seeking to evade

capture. Second, the risk posed to officer safety appeared to be both real and imminent. It is

uncontested that Freshwater was operating without back up on the side of a road at night and in bad

weather. Accordingly, what appeared to be Tracy’s attempt to flee or fight back posed a potentially

11
serious and imminent risk to Freshwater’s safety. Third, from Freshwater’s perspective, Tracy

appeared to fail to comply with a direct order and to instead actively resist arrest, thus necessitating

a forceful response.

Tracy contends that he merely slipped on the ice, and, as such, Freshwater’s use of force was

both unnecessary and unreasonable. We reject that argument, because our focus is not on Tracy’s

motivations but instead on the sequence of events from the perspective of a reasonable officer at the

scene. In finding that such an officer would reasonably have construed Tracy’s conduct as

intentional and threatening, we emphasize that the events in question took place at night and during

inclement weather which undoubtedly reduced visibility and made all the more reasonable

Freshwater’s “split-second judgment” that Tracy’s sudden movement constituted non-compliant and

threatening behavior. Graham, 490 U.S. at 397. Moreover, we note that Tracy’s own account of

the incident describes a close-quarters, hand-to-hand struggle at night and in bad weather, which

further supports the reasonableness of Freshwater’s view of the events. Finally, Tracy’s description

of the injuries he suffered – a small laceration or abrasion to the scalp – also bolsters our conclusion

that Freshwater’s use of force was a reasonable and proportionate response under the circumstances.

Accordingly, we agree with the district court that Tracy’s first claim fails, as a matter of law, to

allege a constitutional violation, and, consequently, Freshwater is entitled to summary judgment on

that claim.

With respect to the second claim – that Freshwater jumped on Tracy as he attempted to flee

– we also find that, as a matter of law, the use of force was reasonable under the circumstances. By

Tracy’s own account, he had managed to struggle free and was attempting to escape when he slipped

12
and fell. Given that he was clearly resisting arrest at that point, it was not unreasonable for

Freshwater to respond by diving on top of Tracy and pinning him down so that he could not get back

up and continue to flee. Turning again to the Graham analysis, we note, first, that the crime in

question was now arguably more serious because Tracy was unquestionably resisting arrest which,

in turn, only further bolstered Freshwater’s presumption that Tracy was a fugitive seeking to evade

potentially serious charges. Second, the risk to officer safety and the public persisted. Third, as

noted, Tracy was, by his own admission, actively resisting arrest at this point. In finding

Freshwater’s decision to tackle Tracy to be reasonable, we note again that Freshwater was

proceeding on his own without the assistance of other officers. While the injury sustained by Tracy

was more serious here, we note that, as a result of the encounter, Freshwater was also injured, giving

further credence to our conclusion that his use of force was both necessary and reasonable under

the circumstances. Tracy provides no factual issue or legal argument that would discredit any of

the above, and, accordingly, we have no difficulty concluding, as the district court did, that

Freshwater’s use of force was reasonable.

Finally, with respect to Tracy’s fourth claim – that Freshwater forcibly moved him to the

patrol car despite Tracy’s protestations that he could not walk due to injury – we similarly find the

use of force to be reasonable. While it is certainly possible that, under different circumstances, the

forcible movement of an injured arrestee might amount to the employment of excessive force, here,

the undisputed evidence indicates that Officer Freshwater attempted to request assistance using his

portable radio, but was frustrated in this attempt by equipment failure. Moreover, in light of Tracy’s

previous conduct (i.e., attempting to flee arrest) and the cold and wet weather conditions, it was not

13
objectively unreasonable for Officer Freshwater to have declined to leave Tracy unattended while

he returned to his patrol car to summon aid. Summary judgment here too was appropriate.

However, with respect to Tracy’s third claim of excessive force, which centers on

Freshwater’s use of pepper spray, we conclude that material issues of fact remain in dispute and

preclude a grant of summary judgment. Specifically, the parties dispute whether Freshwater used

pepper spray before or after placing Tracy in handcuffs and from what distance Freshwater deployed

the spray. Tracy further contends that, before he was sprayed, he told Freshwater that he was not

resisting. Without passing on whether the use of pepper spray as described by Freshwater was

reasonable – we are, of course, compelled at this stage to credit Tracy’s version of the events – we

conclude that a reasonable juror could find that the use of pepper spray deployed mere inches away

from the face of a defendant already in handcuffs and offering no further active resistence

constituted an unreasonable use of force. Summary judgment, thus, is inappropriate with respect

to this claim.

Unquestionably, infliction of pepper spray on an arrestee has a variety of incapacitating and

painful effects, see, e.g., Park v. Shiflett, 250 F.3d 843, 849 (4th Cir. 2001), and, as such, its use

constitutes a significant degree of force. Accordingly, a number of our sister circuits have made

clear that it should not be used lightly or gratuitously against an arrestee who is complying with

police commands or otherwise poses no immediate threat to the arresting officer. See, e.g.,

Henderson v. Munn, 439 F.3d 497, 502-03 (8th Cir. 2006); Vinyard v. Wilson, 311 F.3d 1340, 1348-

39 (11th Cir. 2002); Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125, 1128-30 (9th

Cir. 2002); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir. 1994). Here, if a jury credited Tracy’s

14
version of the events and determined that Freshwater applied pepper spray after Tracy had already

been handcuffed and was offering no physical resistence of police commands, it might well conclude

that the use of that pepper spray was unreasonable under the circumstances. The district court thus

erred in taking that issue away from a jury at the summary judgment stage.5

Freshwater seeks refuge in an alternate theory. He contends that all of Tracy’s claims,

including his pepper spray claim, should be foreclosed because of his state court conviction for

resisting arrest. Specifically, Freshwater argues that the doctrine of collateral estoppel should

preclude Tracy from relitigating those claims here. On this record, we disagree. Collateral estoppel

“precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in

a prior action or proceeding and decided against that party.” Sullivan v. Gagnier, 225 F.3d 161, 166

(2d Cir. 2000) (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500 (1984)); see also Ali v.

Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (describing the doctrine of collateral estoppel as

establishing that “‘an issue of law or fact actually litigated and decided by a court of competent

jurisdiction in a prior action may not be relitigated in a subsequent suit between the same parties or

5
While a grant of summary judgment might still be appropriate if defendants-appellees
could establish the second prong of the qualified immunity inquiry – i.e., that the constitutional
right in question was not “clearly established” at the time of the violation – Freshwater makes no
such argument before this Court, and, accordingly, we do not consider the issue in any detail.
We do note that it was well established at the time of the underlying altercation that the use of
entirely gratuitous force is unreasonable and therefore excessive, see, e.g., Breen v. Garrison,
169 F.3d 152, 153 (2d Cir. 1999), and in light of this precedent, we presume that no reasonable
officer could have believed that he was entitled to use pepper spray gratuitously against a
restrained and unresisting arrestee. See Asociacion de Periodistas de Puerto Rico v. Mueller,
529 F.3d 52, 60-62 (1st Cir. 2008) (reaching similar conclusion with regard to purportedly
unprovoked use of pepper spray against members of nonthreatening crowd); Vinyard v. Wilson,
311 F.3d 1340, 1355 (11th Cir. 2002) (finding the “clearly established” test similarly satisfied,
notwithstanding absence of fact-specific prior case law, where officer sprayed restrained
defendant in back seat of police car).

15
their privies’” (emphasis omitted) (quoting United States v. Alcan Aluminum Corp., 990 F.2d 711,

718-19 (2d Cir. 1993))). The party seeking to invoke the doctrine bears the burden of establishing

its applicability. Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir. 2006).

As we have previously explained, a prior conviction for resisting arrest may preclude a

subsequent excessive force claim where “facts actually determined in [the] criminal conviction that

were necessary to the judgment of conviction are incompatible with the claim of excessive force

being raised in the civil suit.” Sullivan, 225 F.3d at 166. However, because resistance to arrest

“does not give the officer license to use force without limit” in response, “there is no inherent

conflict between a conviction for resisting arrest . . . and a finding that the police officers used

excessive force in effectuating [that] arrest.” Id. In other words, “a lawful arrest” for resisting

arrest “may be accompanied by excessive force,” id., and therefore “the jury’s return of a guilty

verdict in state court for resisting arrest . . . does not necessarily preclude a subsequent claim of

excessive force in federal court.” Id. at 165.

Here, the fact that Tracy was convicted of resisting arrest does not appear to present an

“inherent conflict” with his claim that Freshwater exerted unreasonable force in effecting that arrest

by deploying pepper spray after Tracy had already been handcuffed. Under New York law, an

individual commits the offense of resisting arrest when he “intentionally prevents or attempts to

prevent a police officer or peace officer from effecting an authorized arrest of himself or another

person.” N.Y. Penal Law § 205.30. Accordingly, to convict Tracy, the jury needed only to find that

(1) the defendant intentionally engaged in some conduct by which he either prevented or attempted

to prevent an arrest, and (2) the arrest was lawful in that it was supported by either a warrant or

16
probable cause. See Curry v. City of Syracuse, 316 F.3d 324, 336 (2d Cir. 2003).

While we are not presented with the full record from Tracy’s criminal proceedings and are

thus constrained in our efforts to determine what facts were fairly litigated and necessarily decided

in that action, see Sullivan, 225 F.3d at 166, we see no basis in the record that is before us to

conclude that either the timing of Freshwater’s use of pepper spray or the reasonableness of that use

of force was actually litigated and necessarily decided by the criminal jury. As such, we cannot

conclude on this record that Tracy’s previous conviction bars his remaining excessive force claim.

However, as noted, no party has favored this Court with the full record developed in Tracy’s

criminal proceeding, nor does the issue of estoppel appear to have been directly raised with the

district court. As a result, on remand, Freshwater remains free to present that court with a basis,

consistent with our guidance in Sullivan, for using the criminal conviction to preclude in whole or

in part Tracy’s remaining claim. While, as noted, we express some doubt that Tracy’s criminal jury

was actually asked to necessarily decide the factual and legal issues underlying his remaining

excessive force claim, we do not foreclose the possibility that a careful review of the criminal trial

record would establish otherwise. For example, assertion of a particular affirmative defense or use

of a special verdict form might indeed make clear that a criminal jury necessarily decided factual

and legal issues such as those remaining in this case.

However, given that, on this record, issues of material fact remain in dispute with respect to

Tracy’s pepper spray claim, and notwithstanding Freshwater’s attempted reliance here upon the

doctrine of collateral estoppel, we are compelled to remand for further proceedings on that issue.

17
B. Special Solicitude

We now turn to the district court’s withdrawal of special solicitude. As previously noted,

the magistrate judge recommended, and the district court approved, that the special solicitude

ordinarily afforded to pro se litigants be withheld from Tracy for the remainder of this action on the

ground that Tracy was an experienced litigant. Because it appears that Tracy may not be represented

by counsel on remand, the district court’s withdrawal of special solicitude presumably will continue

to be applicable in further proceedings. Hence, it is necessary for us to consider now whether such

withdrawal was appropriate. We note at the outset of this discussion that it applies only to pro se

litigants in civil actions, as a variety of additional concerns, not addressed here, may be relevant in

the context of criminal proceedings.

It is well established that a court is ordinarily obligated to afford a special solicitude to pro

se litigants. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474-75 (2d Cir. 2006); see also McDonald v. Head Criminal Court Supervisor

Officer, 850 F.2d 121, 124 (2d Cir. 1988) (“[P]ro se litigants may in general deserve more lenient

treatment than those represented by counsel.”). The rationale underlying this rule is that a pro se

litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit

important rights through inadvertence if he is not afforded some degree of protection. See

Triestman, 470 F.3d at 475. Somewhat unsurprisingly, then, district courts within this Circuit have

developed a practice of withdrawing this solicitude if a pro se litigant is deemed to have become

generally experienced in litigation through participation in a large number of previous legal actions.

See Zimmerman v. Burge, No. 06-cv-0176, 2008 WL 850677, at *9-*10 (N.D.N.Y. Mar. 28, 2008)

(collecting cases); Edwards v. Selsky, No. 9:04-cv-1054, 2007 WL 748442, at *2-*3 (N.D.N.Y. Mar.

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6, 2007) (same). We have occasionally endorsed some limited forms of this practice, see, e.g.,

Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir. 1994) (denying a pro se plaintiff an opportunity to

replead on the ground that he was “an extremely litigious inmate who [wa]s quite familiar with the

legal system and with pleading requirements”), and have recently suggested that it may be

appropriate “to charge a pro se litigant with knowledge of, and therefore withdraw special status in

relation to, particular requirements [of the legal system] with which he is familiar as a result of his

extensive prior experience in the courts.” Sledge v. Kooi, 564 F.3d 105, 109 (2d Cir. 2009). At the

same time, however, we have also recently expressed, albeit in dicta, our concern that the general

withdrawal of solicitude may impose unreasonable burdens on pro se litigants in some

circumstances. See id.

The solicitude afforded to pro se litigants takes a variety of forms. It most often consists of

liberal construction of pleadings, motion papers, and appellate briefs. See Erickson v. Pardus, 551

U.S. 89, 94 (2007) (per curiam); In re Sims, 534 F.3d 117, 133 (2d Cir. 2008); Bertin v. United

States, 478 F.3d 489, 491 (2d Cir. 2007). It is not, however, limited to this specific procedural

setting. Rather, it also embraces relaxation of the limitations on the amendment of pleadings, see

Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980) (“A pro se plaintiff . . . should be afforded an

opportunity fairly freely to amend his complaint.”), leniency in the enforcement of other procedural

rules, see LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (“[P]ro se plaintiffs

should be granted special leniency regarding procedural matters.”); Enron Oil Co. v. Diakuhara, 10

F.3d 90, 96 (2d Cir. 1993) (“A party appearing without counsel is afforded extra leeway in meeting

the procedural rules governing litigation . . . .”); Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)

(indicating that, although the right of self-representation does not exempt a pro se litigant from

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compliance with procedural rules, it “should not be impaired by harsh application of technical

rules”), and deliberate, continuing efforts to ensure that a pro se litigant understands what is required

of him, see Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994) (“Recognizing that the [plaintiffs] were acting

pro se, the district court should have afforded them special solicitude before granting the

[defendant’s] motion for summary judgment. It had an obligation to make certain that the [plaintiffs]

were aware of and understood the consequences to them of their failure to comply with the Local

Rules.” (internal citation omitted)); Enron Oil Corp., 10 F.3d at 96 (“[T]rial judges must make some

effort to protect a party [proceeding pro se] from waiving a right to be heard because of his or her

lack of legal knowledge.”).

The scope of the solicitude afforded may vary depending on the procedural context and the

demands placed by that context upon the inexperienced litigant. For example, in light of the

particular difficulties presented by a motion for summary judgment, this Court has previously

indicated that a district court errs by failing to advise a pro se litigant of the nature of such a motion

and the consequences of failing to respond to it properly, unless the opposing party has already

provided the pro se litigant with such notice or it is otherwise clear from the record that the pro se

litigant understands the nature of the motion. See McPherson v. Coombe, 174 F.3d 276, 280-81 (2d

Cir. 1999).

In addition, the appropriate degree of special solicitude is not identical with regard to all pro

se litigants. We have sometimes suggested that a court should be particularly solicitous of pro se

litigants who assert civil rights claims, see Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003), and

litigants who are incarcerated also receive certain special solicitude, see Houston v. Lack, 487 U.S.

266, 270-72 (1988) (indicating that a pro se inmate’s submission is deemed filed with the

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appropriate federal court as of the date it is given to prison officials); Giles v. Kearney, 571 F.3d

318, 326 (3d Cir. 2009) (noting that the personal affidavit of an inmate proceeding pro se will often

be granted more than ordinary significance in light of his substantial difficulty in generating record

evidence beyond his own affidavit). Alternatively, as noted above, the degree of solicitude may be

lessened where the particular pro se litigant is experienced in litigation and familiar with the

procedural setting presented. See Davidson, 32 F.3d at 31. The ultimate extension of this reasoning

is that a lawyer representing himself ordinarily receives no such solicitude at all. See Holtz v.

Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001); see also Andrews v. Columbia Gas

Transmission Corp., 544 F.3d 618, 633 (6th Cir. 2008) (indicating that a district court does not err

by refusing to afford special solicitude to a practicing lawyer who is proceeding pro se); Godlove

v. Bamberger, Foreman, Oswald, & Hahn, 903 F.2d 1145, 1148 (7th Cir. 1990) (“Ordinarily, we

treat the efforts of pro se applicants gently, but a pro se lawyer is entitled to no special

consideration.”).

In sum, relevant precedent indicates that, while a pro se litigant should ordinarily be afforded

a substantial degree of solicitude, the exact degree thereof will depend upon a variety of factors,

including, but not necessarily limited to, the specific procedural context and relevant characteristics

of the particular litigant. In some circumstances, such as when a particular pro se litigant is familiar

with the procedural setting as a result of prior experience such that “it is appropriate to charge [him]

with knowledge of . . . particular requirements,” Sledge, 564 F.3d at 109, it falls well within a district

court’s discretion to lessen the solicitude that would normally be afforded. Given the wide range

of circumstances confronting district courts, we do not purport to establish an exhaustive list of the

relevant considerations as to when and to what degree departure from the usual rule of special

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solicitude is appropriate. We believe instead that district courts should exercise their discretion in

such cases, subject to review for its abuse, to determine based on the totality of the relevant

circumstances when the ordinary approach is not appropriate and what degree of solicitude, if any,

should be afforded.

It remains for us to determine here whether the district court’s complete withdrawal of the

ordinary solicitude from Tracy for the remainder of this action, primarily on the basis of Tracy’s

experience with the legal system, constituted a proper exercise of discretion. As suggested above,

a pro se litigant’s experience with and knowledge of both the legal system in general and the

particular procedural context at issue are certainly factors that a court should consider when

determining the degree of solicitude to afford that litigant. Moreover, it is certainly possible that

a pro se litigant may be sufficiently experienced as to justify a court affording him only minimal

solicitude and, at least under certain circumstances, a litigant’s experience and knowledge may even

justify complete withdrawal of solicitude for the entirety of an action, see Godlove, 903 F.2d at 1148

(denying special solicitude to pro se practicing attorney); cf. Sledge, 564 F.3d at 109 (suggesting that

general withdrawal may be appropriate where there has been “a strong showing that a pro se litigant

has acquired adequate experience more generally, so as to render special solicitude unnecessary and

potentially inappropriate”).

In the circumstances here, however, we are unwilling to endorse the general withdrawal of

such solicitude for the entirety of the action on the basis of Tracy’s repeated earlier participation in

only some aspects of litigation. As noted earlier, the underlying justification for the solicitude

ordinarily granted to pro se litigants is that it is necessary to prevent such parties, who generally lack

legal training and experience, from inadvertently forfeiting important rights. See Triestman, 470

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F.3d at 475. This rationale is undermined where there are substantial indications that a litigant is

fully aware of the requirements of the stage of litigation at issue. Such may very well be the case

where a litigant has previously participated in that stage of litigation, particularly if he has done so

repeatedly and has demonstrated competence in doing so. But the inference that a repeat litigant

must be fully aware of the requirements of all stages of litigation merely as a result of frequent

participation in legal actions is dramatically more attenuated, see Sledge, 564 F.3d at 109-10 (noting

the difficulty in making this inference), particularly in light of the tendency of pro se actions to be

dismissed early in the litigation process, see Jonathan D. Rosenbloom, Exploring Methods to

Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern

District of New York, 30 Fordham Urb. L.J. 305, 335-38 (2002) (noting that a large majority of pro

se actions are dismissed either sua sponte or pursuant to motions to dismiss or for summary

judgment).

Tracy’s previous participation in ten federal and state actions does not on its own justify a

complete withdrawal of solicitude for the entirety of this action, including any trial that may ensue.

His voluminous motion practice, even if coupled with some degree of demonstrated competence in

prior filings, is insufficient to cure this deficiency. We note that it may well have been appropriate

to withdraw Tracy’s special status in relation to the requirements of opposing a motion for summary

judgment. The magistrate judge properly observed that Tracy’s papers in this action have been

“exceptionally good . . . [and] accompanied by affidavits, exhibits[,] and memoranda of law.”

Report & Recommendation at 13. We agree, moreover, that “permitting experienced pro se litigants

to retain their special status (despite their litigation experience)” could in some circumstances “tilt

the scales of justice unfairly in [their] favor . . . and against [their] opponents.” Id. at 9. At the same

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time, however, the showing here was not sufficient to justify a full withdrawal of special status with

regard to all aspects of this litigation. Accordingly, we vacate the decision of the district court to

the extent that it denied Tracy the special solicitude ordinary afforded to pro se litigants for the

remainder of the action. Our decision, however, should not be read as prohibiting the district court

on remand from limiting or even withdrawing solicitude with regard to particular matters, as

appropriate, based on Tracy’s substantial litigation experience.

CONCLUSION

We have considered all of Tracy’s remaining contentions on this appeal and have found them

to be without merit. Pursuant to the reasoning described herein, we conclude that Tracy has

established a genuine issue of material fact with regard to his claim that Officer Freshwater used

excessive force when he sprayed Tracy with pepper spray. In addition, we hold that the district

court erred when it adopted the magistrate judge’s recommendation that Tracy be deprived of the

solicitude ordinarily granted to pro se litigants for the remainder of this action. For these reasons,

the judgment of the district court is VACATED and the case is REMANDED for further

proceedings consistent with this opinion.

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