12-1733
E.C. v. County of Suffolk
                             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.

       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 14th day of March, two thousand thirteen.

PRESENT: GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
         SUSAN L. CARNEY,
                       Circuit Judges.

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E.C., an infant under the age of 18 years by his Mother and
Natural Guardian, R.C., R.C., individually,
                                   Plaintiffs - Appellants,

                            v.                                         No. 12-1733-cv

COUNTY OF SUFFOLK, THE SUFFOLK COUNTY POLICE
DEPARTMENT, ANDREW FIORILLO, Police Officer,

                                     Defendants - Cross-Defendants - Appellees,

HUNTINGTON UNION FREE SCHOOL DISTRICT,
MARY STOKKERS, DAVID ZIMMERMAN,

                                     Defendants - Cross-Claimants - Appellees.*

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          *
       The Clerk of the Court is respectfully directed to amend the official caption to
conform with the above.
FOR APPELLANTS:              DANIEL MELUCCI, Melucci Firm, P.C., Garden City, New
                             York.

FOR APPELLEES:               ARLENE S. ZWILLING, Assistant County Attorney, for Paul
                             J. Margiotta, Acting Suffolk County Attorney, Hauppage,
                             New York, for Defendants - Cross-Defendants - Appellees
                             Suffolk County, The Suffolk County Police Department, and
                             Andrew Fiorillo.

                             KELLY A. REAPE, Guercio & Guercio, LLP, Farmingdale,
                             New York, for Defendants - Cross-Claimants - Appellees
                             Huntington Union Free School District, Mary Stokkers, and
                             David Zimmerman.


       Appeal from the United States District Court for the Eastern District of New York

(Thomas C. Platt, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Plaintiff-appellant E.C. through his mother and natural guardian R.C. appeals an

award of summary judgment in favor of Huntington Union Free School District, Huntington

Intermediate School, Mary Stokkers and David Zimmerman (“District Defendants”) and

County of Suffolk, Suffolk County Police Department, and Police Officer Andrew Fiorillo

(“County Defendants”). Plaintiffs commenced this action asserting several causes of action

against the defendants in a complaint, which was amended five months later. Claim One

alleged that the defendants violated E.C.’s civil rights in various ways giving rise to a cause

of action under 42 U.S.C. § 1983. Claims Two through Five asserted state-law causes of

action for intentional and negligent infliction of severe emotional distress, false arrest and

imprisonment, and assault and battery. The United States District Court for the Eastern


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District of New York granted the defendants’ motions for summary judgment and dismissed

the federal claims on the merits. The court also dismissed plaintiffs’ New York state law

claims without prejudice.1 We assume the parties’ familiarity with the underlying facts and

the procedural history of the case, which we reference only as necessary to explain our

decision.

       We review an order granting summary judgment de novo and ask whether the district

court properly concluded that there were no genuine disputes as to any material fact and that

the moving party was entitled to judgment as a matter of law. Miller v. Wolpoff &

Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). “In determining whether there are

genuine issues of material fact, we are required to resolve all ambiguities and draw all

permissible factual inferences in favor of the party against whom summary judgment is

sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks

omitted). However, “conclusory statements or mere allegations [are] not sufficient to defeat

a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

       Having conducted an independent review of the record in light of these principles, we

affirm the district court’s grant of summary judgment in favor of the defendants for



       1
         The defendants contend that the state causes of action should have been dismissed
with prejudice. We decline to consider these arguments, as neither party filed a cross-appeal
from the district court’s order. See, e.g., Burgo v. Gen. Dynamics Corp., 122 F.3d 140, 145
(2d Cir. 1997) (“[A]bsent a cross-appeal,” a party may not “attack the decree with a view
either to enlarging his own rights thereunder or of lessening the rights of his adversary,
whether what he seeks is to correct an error or to supplement the decree with respect to a
matter not dealt with below.” (internal quotation marks omitted)).

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substantially the same reasons stated by the district court in its thorough opinion. EC v.

County of Suffolk, 882 F. Supp. 2d 323 (E.D.N.Y. 2012).

       At bottom, resolution of most of these claims turns on a determination of whether the

seizure of E.C. was reasonable – that is, justified at its inception and reasonable in scope.

See New Jersey v. T.L.O., 469 U.S. 325, 341 (1985). E.C., an eleven-year old, who was at

least five feet tall and weighed 156 pounds, suffers from a very severe form of a metabolic

disorder called Very Long Chain Acyl-CoA Dehydrogenase Deficiency (“VCLAD”) and

from mental disabilities. He was restrained after the following series of events:

              (a) EC began throwing pebbles, then rocks, while on the playground,
              which his aide told him to put down; (b) when told by his physical
              education teacher to stop throwing the rocks, EC became agitated and
              defiant; (c) teacher’s assistant Zimmerman took the rock from EC, at
              which time he became upset and began yelling and running; (d) school
              security guard Wilson testified that when she told EC he could not
              throw rocks he became very agitated; (e) when security guard Burns
              approached EC, he assumed a boxing stance and began running around
              in an attempt to make physical contact; (f) Wilson held EC’s right arm
              down at his side by holding his right wrist with both of her hands while
              [Burns] held EC’s left arm down; (g) EC screamed and tried to run,
              pulling the guards along with him; (h) when Wilson and Burns let go
              of EC, he tried to swing at bystanders so they again held his arms; [i]
              the guards sat EC down in a sandy area by dropping down in a seated
              position while holding him; (j) EC continued thrashing around as
              testified to by newcomers to the scene, Principal Stokkers and EC’s
              teacher, Valente; and (k) EC tried to bang his head and continued
              thrashing when defendant Officer Fiorillo arrived and relieved Wilson,
              then Burns.

EC, 882 F. Supp. 2d at 346.

       On these facts, which are not the subject of genuine dispute, the minimal amount of

force that was used to seize E.C. for his safety and the safety of those around him was, as a


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matter of law, reasonable under the circumstances then existing and apparent. Although the

reasonableness inquiry is usually a fact-intensive one that is often best left for a jury, see,

e.g., Calamia v. City of New York, 879 F.2d 1025, 1035 (2d Cir. 1989), plaintiffs have

pointed to no genuine dispute as to a material fact to justify reversing the grant of summary

judgment in this case.

         We have reviewed the remainder of plaintiffs’ arguments and find them to be without

merit.

         For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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