The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Defendant Nazareno Nepi's Motion for Summary Judgment.*fn1 For the reasons set forth below, the Motion will be granted as to Plaintiff's claims under federal law, and the Court will decline to exercise supplemental jurisdiction over the remaining state law claims.*fn2
Plaintiff Samuel Lassoff was gambling at Bally's casino on the night of November 1, 2002, and into the morning of November 2, 2002, when he had a physical confrontation with another gambler, Brian Taylor,*fn3 at the poker table where they both were playing.
According to Lassoff, Taylor, without warning, and without provocation, abruptly lunged across the poker table, grabbed Lassoff by the throat, and ripped his T-shirt in the process. According to witness statements taken by Bally's Security personnel shortly after the incident, Lassoff called Taylor a "bitch," prompting Taylor to grab Lassoff. Michael Chaplan, a casino patron, reported,
During the course of the hand, [Lassoff] called [Taylor] a 'bitch' without any prior provocation on the part of [Taylor]. [Taylor] then came across the table grabbing [Lassoff] by the shirt with both hands near the neck area. He ripped his shirt while doing this but at no time tried to strike or even shake [Lassoff]. He just grabbed his shirt forcefully. [Taylor] said 'who are you calling a bitch[?]' as he did this. [Lassoff] replied 'It's OK calm down. I'm just drunk. I'm drunk.'
Similarly, Marisol Gomez, the poker dealer, stated, I was dealing one hand and two players were talking [to] each other about the game. Then one of them was drunk and told to [sic] the other player that he is a bitch. And the player got so mad and grad [sic] the other player and broke his T-shirt. Then I called the floor person and he called the security guards and they take them outside.
Taylor also gave a statement, explaining, On Sat. morning Nov. 2, 02 about 3 a.m. I, Brian Taylor, was sitting at a poker table when another player across the table from me didn't really seem to be interested in the game was having a ongoing conversation with his girlfriend. It was his turn to pay the bet the player called the bet but hadn't put in his money. I said to the player its $5.00 dollars to you. He seemed to ignore me and the dealer and everybody else at the table. I pointed to the money on the table and said put in your 5.00 at that he grabbed me by my wrist and I stood up and he reached over and grabbed my shirt and called me a bitch. I got my shirt torned [sic] and he was still running his mouth and using a lot of foul language. I reached out to him to sit him down and he pulled away and his shirt got ripped. This guy was intoxicated loud.
(Id.). Lassoff did not give a statement to Bally's security that night. However, he continually denies that he was intoxicated.*fn4 He also denies that he called Taylor a "bitch," or touched Taylor in any way.
Bally's security personnel arrived at the poker table and both Lassoff and Taylor were escorted to the fourth floor of the casino to make complaints against each other. Lassoff testified that he voluntarily went with security for the purpose of making a complaint, and believed that he was free to leave if he decided against making a complaint. (Lassoff Dep. p. 148-49).
Upon arrival at the fourth floor offices,*fn5 around 3 a.m., Taylor was placed in a holding cell, while Lassoff took a seat in the security office across the hall. Defendant Nepi first spoke with Taylor, then entered the room where Lassoff was waiting to sign a complaint. Lassoff and Nepi provide two different accounts of what happened next.
According to Lassoff, at first Nepi and Bally's Security personnel, Dori Diaz, were with him in the office. Then, at some point Detective Nepi instructed basically everyone out of the room, and it was just myself and Detective Nepi. And then Detective Nepi was seated and I was seated. My tush was in a seat. I was silent and Detective Nepi, after asking me a series of questions regarding the events that transpired, basically said, 'Do you want to file a complaint?'
He basically said, 'Are you going to file a complaint?'
I said, 'Yes,' you know, 'I'm going to go file a complaint and I want a new T-shirt if you'll get me one.'
And he's like, 'Do you really want to do that?' And I said, 'Yes, I really want to do that.'
And he kind of got really angry. He said, 'Are you sure?'
And then I was just kind of sitting there, and he just-- he gets silent. He doesn't make any instruction to me. I'm just sitting there silent. At that point I know I'm in trouble. I am in serious trouble. The door is shut. It's just myself and Detective Nepi. There is no one else present. This door-- I'm a hundred percent sure it is shut, and everyone-- there may be people outside the door I mean, I saw people that were in the room leave, but it's just me and Detective Nepi. And Detective Nepi gets up, walks over towards me. And at this point I'm not moving, I'm sitting down, I am not doing anything. And he just grabs me by my kind of shoulder area and just picks me up and then kind of like hits me in the back and it forces me against the wall. And the wall that I'm describing that he puts my head into is the-- if you're sitting in the chair, the door is on the left. So he puts me against that wall and then he takes-- I guess he's got my arms behind my back. He grabs me [sic] arms and puts them behind my back and tries to rip them up my-- to the back of my neck. I'm screaming in pain. . . . At this point I'm actually saying--probably saying 'I'm sorry' constantly to him. 'I'm sorry. I'm sorry. What are you doing? I don't want to file charges. Whatever. I'm sorry. What do you want to hear?'
And he just starts ripping-- I'm like, 'You're break [sic] my your [sic] arm, you're going to break my arm.'
And he just keeps ripping them up. And he takes the handcuffs and he cuffs them in his hand and he cranks them up and a [sic] rips the cuffs up my hands, and I started to bleed. And he also-- during the scuffle with Detective Nepi, my finger was bleeding, and I was pretty banged up. I mean, I had gotten hit in the back and my arms were brought almost up to the back of the neck. It was much worse of an attack than what happened at the table. I mean, I was already traumatized once and now I'm there again, traumatized again.
(Lassoff Dep. p. 162-64). Lassoff claims "the actual assault by Detective Nepi lasted approximately a minute." (Id. at p. 195)
Lassoff also testified that before Nepi "attacked" him, Nepi "interrogated" him without reading him his Miranda rights, and denied Lassoff the assistance of his fiancé, who is a licensed attorney.*fn6
Nepi testified that Dori Diaz and other Bally's security personnel were in the office when Lassoff was restrained and handcuffed. (Nepi Dep. 96-97). Nepi admits that "I grabbed [Lassoff] by [his] arm and put handcuffs on [him] when I pushed [him] up against a wall or filing cabinet, whatever was in the office there where I handcuffed [him.]" (Id. at 94). Explaining why he decided to restrain and handcuff Lassoff, Nepi stated,
I was the only police officer in the room when [Lassoff was] handcuffed. And the threat that [he] posed is that [he was] constantly out of [his] chair, flailing [his] arms around stating [his] side of the story, and [he] became too close to my personal space.
And when someone's intoxicated to the state in which [he] was intoxicated, and starts flailing their arms around, I don't know if there's a possibility that I could be struck or someone else could be struck. So that's why [he was] handcuffed.
[He was] restrained for [his] own safety, for my safety, for the safety of the peoples [sic] in that room.
Nepi further testified that Lassoff "never" asked for an attorney, nor did Lassoff inform him that Lassoff's fiance was an attorney. (Id. at 25). Nepi's official report states that he read Lassoff his Miranda rights before asking him any questions in the security office. (Rudow Decl. Ex. L).
Dori Diaz's testimony is similar to Nepi's. She stated that she was present when Nepi handcuffed Lassoff and that Lassoff's demeanor was that of a "belligerent drunk" who "was verbally abusive to everyone." (Diaz Dep. p. 16, 9). Describing the events just prior to Nepi handcuffing Lassoff, Diaz testified, Detective ...