13‐2697
Simcoe v. Gray
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 TO A SUMMARY
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 Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 27th day of August, two thousand
fourteen.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
Thomas B. Simcoe,
Plaintiff‐Appellant,
v. 13‐2697
Lieutenant Timothy Gray, NTPD, et al.,
Defendants‐Appellees.
_____________________________________
FOR PLAINTIFF‐APPELLANT: Thomas B. Simcoe, pro se, Attica, NY
FOR DEFENDANTS‐APPELLEES: Charles E. Graney, Webster Szanyi LLP,
Buffalo, NY
Appeal from a judgment of the United States District Court for the Western
District of New York (Telesca, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED and REMANDED for further proceedings consistent with this order.
Appellant Thomas Simcoe, proceeding pro se, appeals from the district
court’s grant of summary judgment in favor of the defendants in his 42 U.S.C.
§ 1983 action alleging excessive force and failure to intervene. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
We review orders granting summary judgment de novo. Miller v. Wolpoff &
Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). “Summary judgment is
appropriate only if the moving party shows that there are no genuine issues of
material fact and that the moving party is entitled to judgment as a matter of
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law.” Id. We are required to resolve all ambiguities and draw all inferences in
favor of the nonmovant; the inferences to be drawn from the underlying facts
revealed in materials such as affidavits, exhibits, interrogatory answers, and
depositions must be viewed in the light most favorable to the nonmoving party.
Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999)
(citing Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995)). Summary
judgment is appropriate “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non‐moving party.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Simcoe stated in his affidavit that the defendants yanked on his arms even
though he did not resist arrest, that Officer Gray repeatedly smashed his face into
the ground and stood on his hands after he was handcuffed, and that Officers
Smith and Glass failed to intervene. The defendants, on the other hand, testified
that Simcoe resisted arrest and that the two officers were unable to intervene.
The court granted summary judgment to the defendants, determining that they
were entitled to qualified immunity because, inter alia, their use of force was
objectively reasonable because Simcoe was resisting arrest. The court did not
address Simcoe’s statements that the defendants assaulted him after he was
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handcuffed. Simcoe’s testimony that he did not resist arrest and that he was
assaulted after being handcuffed creates genuine issues of material fact. See Tracy
v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010); Hemphill v. Schott, 141 F.3d 412, 417‐18
(2d Cir. 1998). Viewing the evidence in the light most favorable to Simcoe, a
reasonable factfinder could conclude that the officers’ conduct was objectively
unreasonable.1 Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 124 (2d Cir.
2004); Tracy, 623 F.3d at 98.
Moreover, the district court did not specifically address Simcoe’s third
claim—that Glass and Smith failed to intervene when Gray allegedly used
excessive force against Simcoe. Drawing all inferences in Simcoe’s favor, a
reasonable trier of fact could conclude that Glass and Smith should have
prevented Gray from using excessive force. “It is widely recognized that all law
enforcement officials have an affirmative duty to intervene to protect the
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Simcoe’s violent actions toward his wife and Smith, and any struggle that
occurred before he was tasered, would not render the force used against him
reasonable if a jury found that, after falling to the ground, he was not resisting arrest
and did not pose a danger to the officers. See Hemphill, 141 F.3d at 417 (“[T]o allow
the nature of the crime alone to justify the use of such severe force would thwart a
central purpose of the Fourth Amendment limitations on use of force in making
arrests, which is to preserve determination of guilt and punishment for the judicial
system.”).
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constitutional rights of citizens from infringement by other law enforcement
officers in their presence,” and a police officer is liable for failing to intercede
when excessive force is being used when there was “a realistic opportunity to
intervene to prevent the harm from occurring.” Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994). Thus, there remain disputed issues of fact as to each of the
defendants regarding excessive force, and to Smith and Glass regarding their
failure to intervene.
Appellees acknowledge that Simcoe disputed these facts, but argue that his
“self‐serving” and “implausible” testimony did not create a genuine issue of
material fact. Specifically, they argue that Simcoe’s version of events should not
be credited because: (1) he testified at his criminal trial that he remembered being
handcuffed after he was tasered “and that was about it,” and that he did not
“know what was going on”; (2) he testified that he was “out of his mind” and lost
control that evening and did not regain it; and (3) he did not mention excessive
force in an apology letter he wrote to Smith and the police department. For the
reasons below, we disagree.
While a court should ordinarily not make credibility determinations in
deciding a summary judgment motion, “in the rare circumstance where the
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plaintiff relies almost exclusively on his own testimony, much of which is
contradictory and incomplete, it will be impossible for a district court to
determine whether the jury could reasonably find for the plaintiff, and thus
whether there are any genuine issues of material fact, without making some
assessment of the plaintiff’s account.” Jeffreys v. City of New York, 426 F.3d 549,
554 (2d Cir. 2005) (internal quotation marks and citation omitted). Here,
however, we view Simcoe’s testimony during his criminal trial as more
accurately characterized as “ambiguous, confusing, or . . . incomplete,” rather
than wholly inconsistent with his deposition testimony. See id. at 555 n.2
(internal quotation marks and emphasis omitted); see also Rojas v. Roman Catholic
Diocese of Rochester, 660 F.3d 98, 104‐06 (2d Cir. 2011). Moreover, his testimony at
his criminal trial was not dispositive because it was not necessary to the verdict.
See Hemphill, 141 F.3d at 417. Simcoe’s testimony that he “lost control” that
evening and failed to regain it is likewise more ambiguous than it is inconsistent.
Finally, while Simcoe did not mention excessive force in his apology letter, we do
not view this omission as sufficiently contradictory so as to render his testimony
unreliable. In sum, this is not the type of “extraordinary case” where the facts are
so contradictory as to discredit Simcoe’s testimony at the summary judgment
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stage. See Rojas, 660 F.3d at 106. Accordingly, summary judgment should not
have been granted based on qualified immunity where, as here, there are genuine
disputes of material fact. See Hemphill, 141 F.3d at 418.
Accordingly, the judgment of the district court is VACATED and the
matter is REMANDED for further proceedings consistent with this opinion. All
outstanding motions are hereby DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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