Garcia Ex Rel. Estate of Healy v. Sistarenik

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