     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




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