JOSEPH F. BIANCO, District Judge.
Pro se plaintiff Keith Pooler ("Pooler" or "plaintiff") brings this action pursuant to 42 U.S.C. § 1983
The County defendants and the Village defendants separately moved for summary judgment. For the reasons set forth below, the Village defendants' motion for summary judgment is granted in part and denied in part. Specifically, the Court denies the Village defendants' motion as it relates to plaintiffs claim against Almanzar and Barnes for use of excessive force when plaintiff was arrested. The Village defendants' motion is granted on all other claims. Additionally, the Court grants the County defendants' motion in its entirety.
The Court has taken the facts set forth below from the parties' affidavits and exhibits, and from the defendants' Rule 56.1 Statement of Facts.
Plaintiff is an inmate serving a definite term of nine years at Southport Correctional Facility, located at Pine City, New York. (County Defs.' 56.1 ¶ 1.) On June 4, 2009, at approximately 2:46 a.m., in front of 58 Main Street, Hempstead, New York, plaintiff approached Jose Alvarez ("Alvarez") and intentionally punched him in the face causing serious pain and injury and
At approximately 1:30 a.m. on June 13, 2009, Alvarez was driving his taxi in front of Main Street, Hempstead, New York when he observed plaintiff. (County Defs.' 56.1 ¶ 5.) Alvarez followed the plaintiff, telephoned the Hempstead Police Department, and remained on the phone with the 911 operator as he followed plaintiff. (Id.) The officers arrived when plaintiff was near the corner of West Columbia Street and Main Street, Hempstead, New York. (Id.) Alvarez identified plaintiff as the person who assaulted and robbed him on June 4, 2009. (Id. ¶ 6.) Officer Almanzar attempted to stop plaintiff and plaintiff fled. (Id. ¶ 7.) Pooler alleges that Almanzar and Barnes, who participated in the Arrest both maced him during the arrest. (See Pl.'s 56.1 ¶ 17; Pl.'s Ex. P.) However, Barnes and Almanzar assert that "[t]he plaintiff was not punched, kicked or assaulted in anyway." (See Village Defs.' Amended 56.1 ¶ 6.)
At approximately 2:26 a.m. on June 13, 2009, plaintiff was charged and processed for the commission of Robbery in the Second Degree under Penal Law § 160.10-2A and, at approximately 7:15 a.m., plaintiff was transferred to the Hempstead Police Department headquarters, located at 1490 Franklin Avenue, Mineola, New York, for additional processing. (County Def.'s 56.1 ¶ 8-9.) On the Police Department "Physical Condition of Defendant Questionnaire," plaintiff indicated that his "back hurt" and that he "fell down" and the desk officer remarks indicate that "Subject Appears fit, request to see doctor for back pain." (Pl.'s Ex. G Physical Condition of Defendant Questionnaire dated June 13, 2009.) Plaintiff alleges that he was dropped on his lower back with handcuffs, which caused severe pain and that, when he requested to see a doctor, he was brought to N.C.M.C. (Pl.'s 56.1 Statement ¶ 8.)
On June 29, 2009, the Grand Jury returned an indictment charging plaintiff with Robbery in the Second Degree, in violation of Section 160.10-2A of the New York State Penal Law, Robbery in the Third Degree in violation of Section 160.05 of the New York Penal Law, and Assault in the Third Degree in violation of Section 120.00-1 of the New York Penal Law. (County Def.'s 56.1 ¶ 10.) On January 20, 2010, plaintiff was found guilty of Robbery in the Second Degree and Assault in the Third Degree after a jury trial. (Id. ¶ 11.)
Plaintiff commenced this action on February 3, 2010 and moved for leave to proceed in forma pauperis. The Court granted plaintiffs motion to proceed in forma pauperis on February 5, 2010. This case was consolidated with plaintiffs case filed under docket number 10-cv-1497 on April 28, 2010, 2010 WL 1816757. On May 21, 2010, plaintiffs case filed under docket number 10-cv-2282 was consolidated with this action.
On June 23, 2010, defendant New York State requested a pre-motion conference. A conference was held on July 8, 2010, and plaintiff withdrew his claims as to New York State.
By letters dated October 10, 2011, the County defendants and the Village defendants requested a pre-motion conference in anticipation of their motions for summary judgment. By Order dated October 13, 2011, the Court waived the pre-motion conference requirement and set a briefing schedule. On November 14, 2011, the County defendants filed their motion for summary judgment. The Village defendants
The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(a), a court may only grant a motion for summary judgment if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable
Once the moving party has met its burden, the opposing party "`must do more than simply show that there is some metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (emphasis in original)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "`concrete particulars'" showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly, it is insufficient for a party opposing summary judgment "`merely to assert a conclusion without supplying supporting arguments or facts.'" BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585 F.2d at 33).
To prevail on a claim under Section 1983, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution and its laws; (2) by a person acting under the color of state law. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993).
The County defendants argue that plaintiff cannot establish a Monell claim under Section 1983 against Nassau County based upon any of the alleged constitutional violations because plaintiff fails to allege, or provide evidence of, the personal involvement of supervisory officials, and because plaintiff fails to allege, or provide any purported constitutional violations, resulting from a municipal policy practice and or custom. As set forth below, this Court agrees.
Under Monell v. Department of Social Services of the City of New York, a municipal entity may be held liable under Section 1983 where a plaintiff demonstrates that the constitutional violation complained of was caused by a municipal "policy or custom." 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir.2004). "The policy or custom need not be memorialized in a specific rule or regulation." Kern v. City of Rochester, 93 F.3d 38, 44 (2d Cir.1996) (citing Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870 (2d Cir.1992)). A policy, custom, or practice of the municipal entity may be inferred where "`the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.'" Patterson, 375 F.3d at 226 (quoting Kern, 93 F.3d at 44).
However, a municipal entity may only be held liable where the entity itself commits a wrong; "a municipality cannot be held liable under § 1983 on a respondeat
In this case, plaintiff made no allegations regarding a municipal policy, practice or custom in his complaint. Moreover, in plaintiffs memorandum in opposition to the summary judgment motions, plaintiff has only made conclusory allegations of a municipal policy, practice and/or custom. For example, plaintiff argues that "Nassau County and Hempstead Police Department, has permitted, tolerated and even encouraged a patter[n] and practice of unjustified, unreasonable and illegal abuse and arrest of plaintiff by P.O. Anthony [Almanzar] #1179 and P.O. Karol Barnes #1146 of the County wrongful detention of the plaintiff." (Pl.'s Opp. Br. at 49.) Plaintiff then proceeds to detail the individual acts of Barnes and Almarez on the date of his arrest. (Id.) Thus, plaintiffs conclusory statement of a policy or practice is not sufficient to survive summary judgment.
Accordingly, summary judgment is warranted as to Nassau County.
To the extent that the plaintiff also attempts to assert a Monell claim against the Village of Hempstead, that claim also cannot survive summary judgment. The Village defendants do not argue that the Section 1983 claims against the Hempstead Police Department must be dismissed because plaintiff failed to plead a municipal policy, practice or custom that resulted in constitutional violations. However, like the Nassau County Sheriffs Department, the Hempstead Police Department is an "administrative arm" of the Village of Hempstead. See, e.g., Caidor, 2006 WL 839547, at *2, 2006 U.S. Dist. LEXIS 22980, at *6-7. Thus, the Court liberally construes the complaint to be asserted against the Village of Hempstead. However, as discussed supra, plaintiff would need to allege, and have evidence, that his constitutional rights were violated pursuant to a municipal policy, practice or custom in order for a Monell claim against the Village to survive summary judgment. See, Middleton v. U.S., 10-cv-5067 (JFB) (ARL), 2012 WL 394559, at *4 (E.D.N.Y. Feb. 7, 2012) (adopting report and recommendation) ("[T]o the extent plaintiff attempts to state a cause of action under 42 U.S.C. § 1983 against the Village of Hempstead and the Hempstead Police Department, she fails to do so because she has not alleged that her constitutional rights were violated pursuant to a municipal policy, practice, or custom.") Here, as with Nassau County, there are no allegations (or evidence) that support a municipal liability claim against the Village. Accordingly, plaintiffs claims against the Village of Hempstead (including
Plaintiff alleges that defendants violated his rights pursuant to the Fourth Amendment because he was falsely arrested and maliciously prosecuted. Both the Nassau County defendants and the Village defendants argue that, because there was probable cause to arrest Pooler, and because plaintiff was convicted of the underlying crime, plaintiffs false arrest claim must be dismissed. In addition, the defendants argue that plaintiffs malicious prosecution claim is also without merit because plaintiff was convicted of the underlying crime. This Court agrees and finds that the false arrest and malicious prosecution claims cannot survive summary judgment because of his conviction for the underlying offense.
"Claims for false arrest or malicious prosecution, brought under § 1983 to vindicate the Fourth and Fourteenth Amendment right to be free from unreasonable seizures, are `substantially the same' as claims for false arrest or malicious prosecution under state law." Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996) (false arrest) and Conway v. Vill. of Mount Kisco, 750 F.2d 205, 214 (2d Cir.1984) (malicious prosecution)).
To succeed on a malicious prosecution claim under § 1983, a plaintiff must show (1) that the defendant commenced or continued a criminal proceeding against him; (2) that the proceeding was terminated in the plaintiffs favor; (3) that there was no probable cause for the proceeding; and (4) that the proceeding was instituted with malice. Droz v. McCadden, 580 F.3d 106, 109 (2d Cir.2009); Drummond v. Castro, 522 F.Supp.2d 667, 677 (S.D.N.Y.2007). Malicious prosecution claims under § 1983 also require that there "`be a seizure or other `perversion of proper legal procedures' implicating the claimant's personal liberty and privacy interests under the Fourth Amendment.'" Conte v. Cnty. of Nassau, 06-CV-4746 (JFB)(ETB), 2008 U.S. Dist. LEXIS 25694, 2008 WL 905879, at *11 (E.D.N.Y. Mar. 31, 2008) (quoting Washington v. County of Rockland, 373 F.3d 310, 316 (2d Cir.2004)).
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the Supreme Court "confronted the question of whether, given the overlap between § 1983 and the federal habeas corpus statute, a prisoner seeking civil damages may proceed with a § 1983 claim where success on the claim necessarily would implicate the unconstitutionality of the prisoner's conviction or sentence." Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir.1999) (citing Heck, 512 U.S. at 480-90, 114 S.Ct. 2364). The Supreme Court in that case explained:
512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted) (emphasis in original); see also Wilkinson v. Dotson, 544 U.S. 74, 81, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005) ("Heck specifies that a prisoner cannot use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a (not previously invalidated) conviction or sentence." (emphasis in original)). Thus, pursuant to Heck, courts routinely dismiss claims brought under Section 1983 when such claims bear on the validity of an underlying conviction or sentence. See, e.g., Guerrero v. Gates, 442 F.3d 697, 703-04 (9th Cir.2006) (holding that Heck bars plaintiff's § 1983 claims of wrongful arrest, malicious prosecution, and conspiracy); Amaker, 179 F.3d at 51-52 (holding that Heck applies to Section 1983 conspiracy); Perez v. Cuomo, No. 09 Civ. 1109(SLT), 2009 U.S. Dist. LEXIS 33290, 2009 WL 1046137, at *7 (E.D.N.Y. Apr. 20, 2009) ("A § 1983 claim for the violation of the due process right to a fair trial is, in essence, a claim for damages attributable to an unconstitutional conviction.... Since plaintiffs conviction remains valid, plaintiffs claim for violation of his right to a fair trial is not cognizable under § 1983, and must be dismissed as to all defendants[.]" (internal quotation marks and citations omitted)); Younger v. City of N.Y., 480 F.Supp.2d 723, 730 (S.D.N.Y.2007) (holding that plaintiffs claims for false arrest/imprisonment and malicious prosecution were barred by his plea of guilty pursuant to Heck); cf. Jovanovic v. City of N.Y., No. 04 Civ. 8437(PAC), 2006 U.S. Dist. LEXIS 59165, 2006 WL 2411541, at *12 (S.D.N.Y. Aug. 17, 2006) (applying Heck to a Section 1983 claim for denial of the right to a fair trial in the context of a statute of limitations issue).
In the instant case, plaintiff claims that he was falsely arrested on June 13, 2009. On June 29, 2009, the Grand Jury returned an indictment accusing plaintiff of robbery in the Second Degree, in violation of Section 160.10-2A of the New York State Penal Law, robbery in the Third Degree in violation of Section 160.05 of the New York Penal Law, and Assault in the Third Degree in violation of Section 120.00-1 of the New York Penal Law. (County Def.'s 56.1 ¶ 10.) On January 20, 2010, plaintiff was found guilty of robbery in the Second Degree and assault in the Third Degree after a jury trial. (Id. ¶ 11.) Under the doctrine of Heck, Pooler's criminal convictions bar any claim for false arrest.
Accordingly, plaintiffs claims for false arrest and malicious prosecution cannot survive summary judgment.
Plaintiff also claims that his rights were violated because defendants Barnes and Almanzar used excessive force when arresting him.
Defendants argue that that they are entitled to summary judgment because the evidence demonstrates that excessive force was not used, and that any force used by the officers was objectively reasonable. For the reasons set forth below, the Court concludes that summary judgment in favor of defendants Barnes and Almanzar on the excessive force claim is unwarranted because there are disputed issues of fact, inter alia, as to whether defendants intentionally dropped plaintiff to the ground while handcuffed, thereby causing injury to his back. Moreover, qualified immunity at this stage is unwarranted because, if the officers intentionally dropped plaintiff on his back while handcuffed, qualified immunity would not apply to such conduct.
A police officer's use of force is excessive in violation of the Fourth Amendment, "if it is objectively unreasonable `in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.'" Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.2004) (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). More specifically, "[d]etermining whether the force used to effect a particular seizure is `reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citations and internal quotations omitted).
Physical force is often necessary when effectuating arrests or executing search warrants and, thus, "not every push or shove" is unconstitutionally excessive, "even if it may later seem unnecessary in the peace of a judge's chambers." Maxwell, 380 F.3d at 108 (citation and internal quotation marks omitted). The analysis of an excessive force claim involves an inquiry into the totality of the circumstances, "including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others and whether he is actively resisting arrest." Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir.2000) (citations omitted).
The Court recognizes that there may be certain circumstances where the alleged unconstitutional act and injury are so de minimis that the act cannot rise to a constitutional violation as a matter of law. See, e.g., Vogeler v. Colbath, No. 04-CV-6071 (LMS), 2005 U.S. Dist. LEXIS 44658, at *11, 2005 WL 2482549, at *3-4 (S.D.N.Y. Oct. 6, 2005) (granting summary judgment for defendant where plaintiffs failed to demonstrate that the alleged action by the police officer "was any more than de minimis force exerted during the course of an arrest following the raid of a suspected drug trafficking locale"); Johnson v. Police Officer #17969, No. 99-CV-3964 (NRB), 2000 U.S. Dist. LEXIS 18521, at *5, 2000 WL 1877090, at *2 (S.D.N.Y. Dec. 27, 2000) (dismissing excessive force claim based on admission that plaintiff resisted arrest and only alleged minor injuries). However, a plaintiff need not sustain severe injury to maintain a claim that the use of force was objectively unreasonable under the Fourth Amendment. See Maxwell, 380 F.3d at 108 ("[W]e have permitted a plaintiffs claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, `yanked' her, and threw her up against a car, causing only bruising.") (citing Robison, 821 F.2d at 924-25); see also Hayes v. New York City Police
As noted above, plaintiff's claim of excessive force is based on two allegations: (1) during the course of his arrest, plaintiff was maced by Almanzar and Barnes; and (2) plaintiff was dropped on his lower back with his handcuffs on, causing severe pain.
With respect to the alleged use of mace, plaintiff states that he was maliciously sprayed with mace by Officer Almanzar in the face, and by Officer Barnes in the back of the head. (See Pl.'s 56.1 ¶¶ 20, 21). The affidavits from the officers do not directly address this allegation. With respect to plaintiff's back injury, plaintiff asserts that "[o]n June 13, 2009, Plaintiff was dropped on his `Lower Back' with hand cuffs on cause severe pain and plaintiff request to see doctor, plaintiff was taken to N.C.M.C." (Pl.'s 56.1 ¶ 8.) Plaintiff contends that this occurred as he was being pulled from the back seat of the car at the police station after his arrest. (Pl.'s Opp. at 33-34.) According to plaintiff, plaintiff was given 800mg of pain killers. (Pl.'s Opp. Br. at 23.) Plaintiff points to his questionnaire as evidence of the injury. (Pl.'s Ex. G, Village Def.'s Ex F.) In response, the Village Defendants argue, in a conclusory fashion, that excessive force was not used and, to the extent force was used, it was reasonable. In support, the Village defendants submit the affidavits of Barnes and Almanzar, in which both acknowledge chasing plaintiff, arresting plaintiff, and transporting him back to the Village of Hempstead Police Department for processing. On the issue of the use of any force, the officers state, "[t]he Plaintiff was not punched, kicked, or assaulted in any way." (Almanzar Affidavit, at ¶ 5; Barnes Affidavit, at ¶ 6.
The Court concludes that, construing the evidence most favorably to plaintiff (as contained in his sworn pleading), there are genuine issues of fact that preclude summary judgment on the excessive force claim against defendants Almanzar and Barnes — namely, whether they used mace on plaintiff without justification, and then dropped him to the ground while handcuffed thereby causing a back injury.
The Court finds the defendants' arguments in favor of summary judgment to be unpersuasive. First, to the extent that the defendants suggest that any force that was used was objectively reasonable because plaintiff refused to stop for the officers and proceeded to run from the defendants (Village Defs.'s Br. at 7), that argument fails because (1) the officers did not fully explain the circumstances surrounding their alleged use of force, and (2) the force with respect to his back injury allegedly occurred after he was handcuffed and arrived at the police station, and thus was unrelated to any flight by plaintiff prior to his arrest. The defendants further argue that "[t]o the extent that any physical contact resulted from the arrest of the Plaintiff, said contact was incidental and not injurious to the Plaintiff." (Id.) However, plaintiffs sworn statement, if credited, and all reasonable inferences are drawn in his
The defendants also argue that on the date of the arrest, the questionnaire indicates that plaintiff "fell down" and does not indicate that the Village defendants used excessive force. (Village Def.'s Reply Br. at 3; Village Def.'s Ex F.) Moreover, the defendants also rely on the plaintiffs pedigree information and photograph which they allege "[c]learly demonstrates that Plaintiff was not injured as a result of his arrest." (Id.; Village Def.'s Ex. I.) As a threshold matter, the Court notes that any injury to plaintiff's back would not be visible in plaintiffs Pedigree Information photograph. In any event, to the extent that the questionnaire or other evidence in the record submitted by defendants may undermine plaintiffs version of the events, these credibility determinations cannot be resolved on summary judgment.
In sum, defendants Barnes and Almanzar have failed to meet their burden and demonstrate that there is no genuine dispute as to any material facts on the excessive force claim, and that they are entitled to judgment as a matter of law. Therefore, the Court denies summary judgment on this ground.
The Village defendants' qualified immunity argument focuses exclusively on the false arrest claim, not on the excessive force claim. See Village Defs.' Br. at 8-9 ("In the case at bar, the eyewitness who identified the Plaintiff was the victim of the robbery. Clearly, based upon the victim's identification of the Plaintiff[,] the Village Defendants had probable cause to arrest plaintiff. Based upon the above, the Village Defendants are entitled to qualified immunity."). However, in an abundance of caution, the Court treats the qualified immunity argument as also applying to the excessive force claim and concludes that there are genuine issues of material fact as to the excessive force claim that preclude summary judgment on qualified immunity grounds.
According to the Second Circuit, government actors may be shielded from liability for civil damages if their "conduct did not violate plaintiff's clearly established rights, or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Mandell v. Cnty. of Suffolk, 316 F.3d 368, 385 (2d Cir.2003); see also Fielding v. Tollaksen, 257 Fed. Appx. 400, 401 (2d Cir.2007) (explaining that government officers "are protected by qualified immunity if their actions do not violate clearly established law, or it was objectively reasonable for them to believe that their actions did not violate the law."). "A right is clearly established when the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.... The unlawfulness must be apparent." Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir.1998) (quotation marks omitted).
As the Second Circuit has also noted, "[t]his doctrine is said to be justified in part by the risk that the `fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.'" McClellan v. Smith, 439 F.3d 137, 147 (2d Cir.2006) (quoting Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999)). Thus, qualified immunity is not merely a defense, but is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Accordingly, courts should determine the availability of qualified immunity "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
With respect to the summary judgment stage in particular, the Second Circuit has held that courts should cloak defendants with qualified immunity at this juncture "only `if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right.'" Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir.2003) (quoting Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir.1996)); see also Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir.1994) ("Though [qualified] immunity ordinarily should be decided by the court, that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required." (citations and quotation marks omitted)); Stancuna v. Sherman, 563 F.Supp.2d 349, 356 (D.Conn.2008) ("Here, the court finds that summary judgment on qualified immunity grounds is inappropriate. As the Second Circuit has held, [w]hen a motion for summary judgment is made in the context of a qualified immunity defense, the question of whether the factual disputes are material is even more critical. As noted above, there are issues of material fact in this case that this court may not decide. These issues of fact are critical to determining whether [the defendant] was operating under a reasonable belief as to what kind of search he was permitted to conduct." (citation and quotation marks omitted)).
Here, the Court examines qualified immunity with respect to plaintiffs surviving 42 U.S.C. § 1983 claim of excessive force. The Court concludes that defendants Barnes and Almanzar have failed to set forth undisputed evidence that establishes that they are entitled to qualified immunity; rather there are disputed issues of fact in this case that must be resolved in order to determine whether
First, it is axiomatic that the right that plaintiff asserts — namely plaintiffs right under the Fourth Amendment to be free from excessive force — is clearly established. See Maxwell, 380 F.3d at 108.
Second, there are genuine issues of material fact that preclude the Court from determining as a matter of law that this clearly established right was not violated. The critical question is whether it was objectively reasonable for defendants Barnes and Almanzar to believe that they were not committing such a violation. However, as discussed above, there is a factual dispute as to whether defendants intentionally dropped plaintiff to the ground while he was handcuffed, thereby causing injury, as well as whether they gratuitously maced plaintiff. Given that disputed factual issue, the Court declines to so conclude as a matter of law that it was objectively reasonable for defendants to believe they were not violating plaintiffs rights. For example, if plaintiffs version of the facts is accepted and all reasonable inferences are drawn in his favor, it would not have been objectively reasonable for defendants to gratuitously mace plaintiff without justification, and drop him to the ground while handcuffed.
In short, there are disputed factual issues as to the defendants' conduct relevant to the determination of whether it was objectively reasonable for defendants to believe their alleged acts were lawful, and those factual issues preclude summary judgment on qualified immunity grounds. See, e.g., Tarver v. City of Edna, 410 F.3d 745, 754 (5th Cir.2005) (denying qualified immunity on excessive force claim relating to alleged slamming of police car door on plaintiffs foot and head, and noting that "under [plaintiffs] version of events it is not clear as a matter of law that [the police officer] acted reasonably in slamming the doors on [plaintiff]. At a minimum, determining whether [the police officer's] conduct was objectively reasonable requires factfinding and credibility assessments; dismissal is thus inappropriate at the summary judgment stage.") (quotations and citations omitted); see also Ference v. Twp. of Hamilton, 538 F.Supp.2d 785, 812 (D.N.J.2008) (denying qualified immunity on excessive force claim where plaintiff alleged that officer twisted arrestee's arm and slammed his head into a door while escorting him across police station lobby, and concluding: "This is not an allegation of an accidental bump or bruise inflicted in the course of effecting an arrest and, further, if Plaintiffs allegations are true, [the police officer's] actions were not truly taken in the course of effecting Plaintiffs arrest. Rather, running Plaintiff into the door and twisting his arms constituted a separate, independent course of conduct, serving no purpose other than to inflict discomfort and pain. This is not the hazy border between excessive and acceptable force." (quotations and citations omitted)); Johnson v. City of New York, No. 05-CV-2357 (SHS), 2006 WL 2354815, at *5 (S.D.N.Y. Aug. 14, 2006) ("[I]t could not be objectively reasonable for [the officer] to have believed that the use of gratuitous force beyond what is necessary to subdue an individual during a search is allowed under the law."); Atkins v. Cnty. of Orange, 372 F.Supp.2d 377, 402 (S.D.N.Y. 2005) ("In the case at bar, there is an issue of fact surrounding the circumstances of the alleged excessive force. [Plaintiff] maintains that he was purposely slammed into walls by the COs on the way to the mental health unit, while defendants maintain that if [plaintiffs] body did bump into
Accordingly, summary judgment on qualified immunity grounds is unwarranted as to the excessive force claims against defendants Barnes and Almanzar.
For the foregoing reasons, the Court denies the Village defendants' motion for summary judgment with respect to the plaintiff's excessive force claim against Almanzar and Barnes. The Court grants the Village defendants' motion for summary judgment with respect to all other claims. In addition, the Court grants the County defendants' motion for summary judgment in its entirety.
SO ORDERED.
In re NYSE Specialists Securities Litigation, 503 F.3d 89, 95-96 (2d Cir.2007). Under federal law, prosecutors enjoy absolute immunity from liability in suits seeking monetary damages for acts carried out in their prosecutorial capacities, i.e., those acts "intimately associated with the judicial phase of the criminal process," Imbler, 424 U.S. at 430, 96 S.Ct. 984, see also Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir.2001), but not for "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate." Imbler, 424 U.S. at 430-31, 96 S.Ct. 984. Absolute prosecutorial immunity applies, inter alia, when a prosecutor prepares to initiate and pursues a prosecution, see, e.g., Kent v. Cardone, 404 Fed.Appx. 540, 542-43 (2d Cir.2011); Peay v. Ajello, 470 F.3d 65, 68 (2d Cir.2006), or engages in administrative duties that are directly connected with the conduct of a trial, Van de Kamp v. Goldstein, 555 U.S. 335, 342-43, 129 S.Ct. 855, 861-62, 172 L.Ed.2d 706 (2009). Here, the challenged actions of DA Rice fall squarely within the scope of her prosecutorial capacities. Accordingly, plaintiff's claims against DA Rice are barred by absolute prosecutorial immunity. Thus, summary judgment must be granted in favor of DA Rice on this ground as well.
