NICHOLAS G. GARAUFIS, District Judge.
Pro se Plaintiff Christina A. Selvaggio brings this action against three employees of the New York City Police Department ("NYPD") — Police Officer ("P.O.") Anaida Patterson, P.O. Robin Lestrade, and Sergeant Walsh (collectively, the "Individual Defendants") — and the City of New York (the "City"). Pursuant to 42 U.S.C. § 1983, she asserts claims of false arrest, excessive force, and municipal liability in connection with her April 6, 2012, arrest.
Except as otherwise noted, the following facts are undisputed. Where facts are in dispute, the courts credits Plaintiff's version of the facts.
On December 6, 2011, Plaintiff's husband, Larry Mansour ("Mansour"), filed a domestic incident report against Plaintiff (the "2011 DIR").
On April 2, 2012, Mansour filed a second domestic incident report against Plaintiff (the "2012 DIR"). (Nam Decl., Ex. B (Dkt. 37-2); see also Defs.' 56.1 ¶ 5; Pl.'s 56.1 ¶ 5.) In the 2012 DIR, Mansour reported that Plaintiff accused him of sneaking his "alleged `mistress' into his bedroom, "even though [Plaintiff] has the key to a dead bolt lock which locks both from the inside and the outside and of which I have no control over and in spite of the fact [Plaintiff] has all the screens on all the windows screwed-shut to disallow their being able to be opened ...." (2012 DIR at 3.) The 2012 DIR states that Mansour was "fearful," and that Plaintiff had a history of abusing drugs or alcohol (see id. at 1); however, at his deposition, Mansour testified that he was never asked such questions by the reporting officer. (Mansour Dep. (Dkt. 48-2)
Plaintiff had filed her own DIR against Mansour the previous day, on April 1, 2012 ("Pl.'s DIR"). (Decl. of Christina A. Selvaggio
When Mansour went to the precinct to file the 2012 DIR, Plaintiff followed after him in order to file yet another complaint against Mansour, regarding an incident that had occurred that morning, during which "Mansour was yelling and cursing at my Mother and he tried to bum rush her, as well." (Pl.'s Opp'n at 7.) Plaintiff further alleges that while she and Mansour were at the precinct on April 2, 2012, apparently yelling at each other (see id. at 8), P.O. Plonczynski shouted: "`[S]hut up, shut the `F' up and get a divorce already, stop filing hundreds of complaints.'" (Id. at 8; see also Mansour Dep. at 27:17-28:9 ("Officer [Plonczynski] was screaming at the top of his lungs ... and with a face wrenched with anger. Shut the fuck up. Stop coming in here and filing all these — stop coming in here and filing hundreds of complaints .... I'm tired of all this fuckin' bullshit. This has to fuckin' stop."); Mansour Aff. at 6.) Mansour asserts that Sergeant Walsh also said to him: "`She's a F-k-g psycho. You look like a smart guy, get rid of her. Just move out. Don't pay the mortgage. Let her ... live in the street.'" (Mansour Aff. at 6; see also Mansour Dep. at 29:8-22.) Mansour claims that he responded to Sergeant Walsh's comments by affirming his love for Plaintiff and Plaintiff's right to question him and his loyalty. (See Mansour Aff. at 6.) After they completed filing their respective complaints, Plaintiff and Mansour returned home. (Pl.'s Opp'n at 8.)
Four days later, on April 6, 2012, Defendants Patterson, Walsh, and Lestrade arrived at Plaintiffs residence. (Defs.' 56.1 ¶ 8; Pl.'s 56.1 ¶ 8.) Walsh asked if the officers could enter the home, and Plaintiff and/or Mansour allowed them inside. (See Compl. (Dkt. 1) at 1.) Walsh observed screws in the window screens, a lock on the back door, and a dead bolt lock on the front door; he photographed all three.
Mansour also told Walsh that he did not want Plaintiff to be arrested. (Def. Sgt. Walsh's Resp. & Obj. to Pl.'s Interrogs. (Selvaggio Decl., Ex. 9 (Dkt. 42-9)) at 9 (Obj. & Resp. to Interrog. No. 19); Mansour Aff. ¶ 3.) In his affidavit, Mansour states, "I pleaded with Sergeant Walsh that I did not file a complaint against my wife for false imprisonment because I'm not falsely imprisoned," and "I pleaded with him not to arrest [Plaintiff], because that's not what I reported, or, what I wanted." (Mansour Aff. ¶ 3; see also Mansour Dep. at 34:2-10 ("I said ... I filed a complaint that my wife accused me of adultery. I said my wife was not guilty of false imprisonment. My wife didn't commit a crime. My wife sh[oul]d not be arrested. I do not want her to be arrested. It was my intent to give my version of the story. I said my wife should not be arrested.... I said my wife did nothing at any time without my knowledge and without my approval.").) However, Defendants contend that when Plaintiff was no longer present, Mansour stated that he "was fearful of [P]laintiff and has no way
After Walsh informed her that she was about to be arrested, Plaintiff went upstairs to change her clothing, and she was accompanied by Patterson. In her deposition, Plaintiff testified that Patterson "whispered to me and Larry, ... `I am sorry, it is not me, it is him, it is my boss,' and she is pointing at Thomas [Walsh]." (Selvaggio Dep. at 23:15-18; see also Mansour Aff. ¶ 4; Compl. at 1-2 ("[S]he whispered to Larry and I that it wasn't the State that was doing it, it was her boss Sergeant Walsh, who wants it.").) Patterson told them Plaintiff would "be coming home tonight, because the District Attorney probably won't press charges and send her home, if we get there quickly." (Compl. at 1-2; see also Mansour Aff. ¶ 4.)
Plaintiff was placed under arrest for Unlawful Imprisonment pursuant to New York Penal Law section 135.05. (Defs.' 56.1 ¶ 13; Pl.'s Arrest Report (Nam Decl., Ex. F (Dkt. 37-6)) at 1.) Patterson handcuffed Plaintiff behind her back, placed her in the back seat of the car, and secured the seatbelt; at some point while Plaintiff was in the police car, she unbuckled her own seatbelt. (Defs.' 56.1 ¶¶ 14, 16; Pl.'s 56.1 ¶¶ 14, 16; Compl. at 2.) Plaintiff claims that she was not provided with Miranda warnings at this time; she did not receive them until approximately an hour after she had already arrived at the police station. (Pl.'s 56.1 ¶ 13; Compl. at 2; Pl.'s Opp'n at 11.)
In her opposition memorandum, Plaintiff contends that she experienced "more than pain and red marks. There was scabbing that lasted approximately one week." (Pl.'s Opp'n at 27.) Defendants argue that this is contradicted by Plaintiff's deposition testimony, in which Plaintiff stated that she had "minimal physical injuries," which she identified as "abrasions," and could not recall how long the abrasions lasted.
After being detained at the precinct for several hours, Plaintiff was released without charges. (Defs.' 56.1 ¶ 17; Pl.'s 56.1 ¶ 17.) She drove herself to the hospital that evening. (Defs. 56.1 ¶ 17; Pl.'s 56.1 ¶ 17; Selvaggio Dep. at 54:24-55:3.) Plaintiff states that she went to the hospital because of both "a bad headache and abrasions on both wrists." (Pl.'s 56.1 ¶ 18.) At the hospital, Plaintiff was given medication for a headache — pills, which she testified that ultimately she did not take, due to a heart condition. (Defs.' 56.1 ¶ 17; Pl.'s 56.1 ¶ 17; Selvaggio Dep. at 55:17-21.) Plaintiff received no treatment for her wrist abrasions at the hospital; no MRIs or X-rays were taken of Plaintiff's wrists, and no additional medical treatment (other than the prescribed but untaken pills) was ever required with respect to either Plaintiff's wrist abrasions or headache. (Defs.' 56.1 ¶¶ 19-22; Pl.'s 56.1 ¶¶ 19-22.) Plaintiff also asserts that she suffers from emotional injuries caused by the incident, although she has not received any treatment for psychological or emotional damage. (Selvaggio Dep. at 60:4-6, 15-17.)
At her deposition, Plaintiff testified that she named the City as a Defendant in this lawsuit "[b]ecause they employ [the Individual Defendants] and they are responsible for their actions." (Selvaggio Dep. at 70:21-22.) In her Rule 56.1 Statement, Plaintiff contends that she "is suing the City of New York because they failed to properly train and supervise Sergeant Walsh, Officer Patterson and Officer Lestrade." (Pl.'s 56.1 ¶ 23.)
In discovery, Defendants produced a list containing all Internal Affairs Bureau ("IAB") and Civilian Complaint Review Board ("CCRB") substantiated and unsubstantiated allegations made against the Individual Defendants related to false arrest, false statements, and dishonesty for the ten-year period ending April 6, 2012. (See Defs.' Reply (Dkt. 44) at 14; Individual Defs.' IAB and CCRB Records ("Discip. Records") (Selvaggio Decl., Ex. 8 (Dkt. 42-8)).) Apart from those apparently filed by Plaintiff related to her April 6, 2012, arrest, three such allegations were made against Walsh during that time period: (1) an open IAB allegation of an off-duty arrest from August 30, 2004; (2) a substantiated IAB allegation of "Memobook Incomp/improp" that occurred April 7, 2011; and (3) a CCRB allegation of "other misconduct" that occurred on April 7, 2011. (Discip. Records at 2-6.) Two allegations were lodged against Lestrade: (1) an open IAB allegation of a July 18, 2006, disputed arrest; and (2) an open IAB allegation of "Investigate Incomp/Improp" from February 5, 2010. (Id. at 11-13.) There were no allegations made against Patterson during that time period aside from those apparently filed by Plaintiff. (See id. at 7-10.)
Plaintiff filed her Complaint against P.O. Lestrade, P.O. Patterson, Sergeant Walsh,
Defendants sought permission to file a motion for summary judgment. (Mot. for Pre-Mot. Conf. (Dkt. 24).) With leave of court, Defendants filed their fully briefed motion on July 23, 2014. (Mot. for Summ. J. (Dkt. 34).) Plaintiff opposed the motion. (See Pl.'s Opp'n.)
Summary judgment must be granted when "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(c). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material fact exists if "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In evaluating a motion for summary judgment, the court "is required to construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in its favor." Trammell v. Keane, 338 F.3d 155, 161 (2d Cir.2003); see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
The moving party bears the initial burden to show an absence of genuine factual dispute. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment will be granted if the opposing party then "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the opposing party must do more than demonstrate "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, and may not rely on
Defendants argue that Plaintiff's false arrest claim must be dismissed because probable cause for her arrest existed as a matter of law; and that, in the alternative, the Individual Defendants are entitled to qualified immunity as to Plaintiff's false arrest claim. As explained below, the court cannot agree on the current record. Accordingly, Defendants' motion for summary judgment is DENIED as to Plaintiffs claim of false arrest.
Plaintiff argues that the 2011 DIR should be excluded from evidence because the police report from her arrest indicates that she was arrested pursuant to the 2012 DIR, and it does not mention the 2011 DIR. (See Pl.'s 56.1 ¶ 1; Selvaggio Decl. ¶¶ 3, 8; Pl.'s Opp'n at 4; Mot. in Limine (Pl.'s Ex. 5 (Dkt. 42-5)); see also Pl.'s Arrest Report (Nam Decl., Ex. F (Dkt. 37-6)) at 1.) In his interrogatory responses, Sergeant Walsh stated that he went to Plaintiff's residence on April 6, 2012, to follow up on the 2012 DIR. (Def. Sgt. Walsh's Resp. & Obj. to Pl.'s Interrogs. at 5 (Obj. & Resp. to Interrog. No. 9).) Plaintiff argues, therefore, that the 2011 DIR could not have contributed to providing probable cause for her arrest. (Pl.'s 56.1 ¶ 1.) She appears to claim that it is inadmissible because it is irrelevant. Cf. Fed.R.Evid. 402 (relevant evidence is generally admissible).
Defendants argue that the "details portion of the NYPD Arrest Forms does not always contain an all-inclusive summary." (Defs.' Reply at 2 n. 2 (citing Def. Sgt. Walsh's Resp. & Obj. to Pl.'s Interrogs. at 3-4 (Obj. & Resp. to Interrog. No. 4)).) As Defendants also note, the 2011 DIR indicates that Sergeant Walsh signed off on the report on December 13, 2011 (see 2011 DIR at 2), and Sergeant Walsh stated in his interrogatory responses that "upon information and belief, he personally reviewed and signed off" on the 2011 DIR (Def. Sgt. Walsh's Resp. & Obj. to Pl.'s Interrogs. at 2 (Obj. & Resp. to Interrog. No. 1)). Defendants contend, therefore, that "one of the facts confronting Sergeant Walsh at the time of [P]laintiff's arrest for false imprisonment" was the 2011 DIR. (Defs.' Reply at 2 n. 2.)
Although the standard for probable cause is an objective one, and does not depend upon an officer's subjective motivations, Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 85 (2d Cir.2002) (Sotomayor, J.), the facts purportedly providing probable cause must be known to the officer or officers at the time of the arrest. See Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) ("Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest."); id. at 153, 125 S.Ct. 588 ("Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause."). Given Walsh's interrogatory response that he went to Plaintiff's residence on April 6, 2012, to follow up on the 2012 DIR, and the passage of time between the date that Defendant Sergeant Walsh apparently reviewed
Plaintiff's § 1983 false arrest claim stems from the Fourth Amendment right to be free from unreasonable searches and seizures, which includes the right to be free from arrest absent probable cause.
Probable cause exists when, based on the totality of the circumstances, the arresting officer has "knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Id.; see also Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.2004). Determining whether probable cause exists requires an objective assessment of the facts known to the officer at the time of arrest.
In their motion papers, Defendants first argue that the 2011 and 2012 DIRs, even without more, created probable cause for the officers to conclude that Plaintiff had unlawfully imprisoned Mansour. (See Defs.' Mem. at 7-8.) Under New York Penal Law, "a person is guilty of unlawful imprisonment in the second degree when he restrains another person." N.Y. Penal. L. § 135.05.
Id. § 135.00(1). Accordingly, even if Plaintiff had substantially interfered with Mansour's liberty by intentionally confining him in their home, Plaintiff would not be guilty of unlawful imprisonment if Mansour had voluntarily assented to the confinement, as this would have negated the lack-of-consent element of the offense.
Defendants are correct that under certain circumstances, the DIRs would have provided a reasonable basis to conclude that the complainant had been confined without consent. In the 2011 DIR, Mansour alleged: "[Plaintiff] has our window screens bolted shut and a special lock on our front [and] back door that you can lock with a key [and] you cannot open without a key. I do NOT have a key. [Plaintiff] often goes out & locks me in ...." (2011 DIR at 3.) Similarly, the 2012 DIR alleged: "[Plaintiff] has the key to a dead bolt lock which locks both from the inside and the outside and of which I have no control over, and ... [Plaintiff] has all the screens on all the windows screwed-shut ...." (2012 DIR at 3.) If the officers' relevant knowledge had consisted solely of these allegations, Mansour's statements would have been sufficient to warrant a reasonable officer in the belief that Plaintiff had intentionally confined him to their home and that he had not consented thereto.
However, the officers also knew of an ongoing conflict between Plaintiff and Mansour,
As noted, the police officers knew that Plaintiff and Mansour's relationship was frequently hostile. Walsh had headed the Domestic Violence Unit since November 2011 (see Def. Sgt. Walsh's Resp. & Obj. to Pl.'s Interrogs. at 5 (Obj. & Resp. to Interrog. No. 7)); Plaintiff had previously filed several reports against Mansour (see Selvaggio Dep. 36:13-15; Pl.'s Opp'n at 8); the Domestic Violence Unit had visited the home three or four times (see Selvaggio Dep. at 39:19-20); and Walsh had been present at the precinct on April 2, 2012, when Plaintiff and Mansour each filed additional complaints (see id. at 31:14-16), and when P.O. Plonczynski lost patience with them for filing "hundreds of complaints" and suggested that they "get a divorce already." See supra pages 59-61. Accordingly, they had reason to doubt Mansour's motivations for filing the two DIRs and to question his truthfulness. Moreover, the officers should have doubted the veracity of any statements implying that Mansour was unable to leave his home, given that Mansour had freely done so each time he filed a DIR at the precinct. Under the totality of the circumstances, the DIRs alone did not establish probable cause; further investigation was required.
Defendants note that they did conduct such an investigation. And they argue, alternatively, that the evidence obtained upon the officers' visit to Plaintiff and Mansour's residence on April 6, 2012, corroborated the information contained in the DIRs and established probable cause for Plaintiff's arrest. (See Defs.' Mem. at 9.) Specifically, the officers observed the screwed-in windows and the two locks, including a dead bolt (see Defs.' 56.1 ¶¶ 9-10, 12; Evid. Photos), and Plaintiff admitted to Officer Walsh that Mansour did not have a key to the locks (Defs.' 56.1 ¶ 11; Pl.'s 56.1 ¶ 11; Compl. at 2). This additional information did buttress Mansour's DIRs, and momentarily provided the officers with a reasonable basis to conclude that the information contained therein was truthful. However, the court still cannot
Accepting as true Plaintiff's disputed evidence, Plaintiff and Mansour both informed the officers prior to the arrest that Mansour did not have a key because he did not want a key, and that the door was locked only when everyone in the residence went "out." (See Mansour Dep. at 48:10-13 (Mansour told Walsh that "I told my wife I don't want a copy of the key. I don't need a copy of the key. We lock I when we go out and I don't need it."); id. at 32:2-10 ("I said my wife did nothing at any time without my knowledge and without my approval."); Compl. at 2 (stating that Plaintiff explained to Walsh that Mansour did not have a key "only because he don't want one and I only lock it when we all go out").) It is not the court's role to assess the credibility of this testimony; a jury could find that Mansour and Plaintiff made these statements. And with these statements, the probable cause created by the DIRs' corroboration would have dissipated, as Plaintiffs and Mansour's explanations not only rebutted the lack-of-consent element of the offense, but also indicated that Mansour was not confined in the home at all. See Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir.2003) ("[U]nder some circumstances, a police officer's awareness of the facts supporting a defense can eliminate probable cause."); see also Lowth, 82 F.3d at 571 (in context of malicious prosecution claim, noting that probable cause may "dissipate" where the "groundless nature of the charges [is] made apparent by the discovery of some intervening fact" (citing Callan v. State, 73 N.Y.2d 731, 535 N.Y.S.2d 590, 532 N.E.2d 96 (1988))).
Certainly, where there is conflicting testimony from two witnesses, or from the victim and the accused, the police may choose to rely on either of the statements. See, e.g., Wieder v. City of New York, 569 Fed.Appx. 28, 29 (2d Cir.2014) (summary order) (finding probable cause where an officer was confronted with different stories from alleged victim and arrestee). Here, however, the accused mid the victim did not give conflicting accounts. While Defendants correctly assert that an officer with a reasonable basis for believing that
Were Mansour's DIRs and the officers' observations at the residence the only evidence known to the Defendants at the time of Plaintiff's arrest, Plaintiff's protest that she was innocent and that Mansour did not have a key only because he did not want one would not have sufficed to defeat probable cause; the officers would have had no obligation to investigate the veracity of Plaintiff's statements. However, when Mansour, the purported victim, made statements controverting the elements of the false imprisonment offense, any probable cause that previously existed dissipated. Moreover, many of Mansour's April 6, 2012, statements do not unambiguously conflict with the DIRs, and may be understood as expanding on or clarifying the DIRs and providing the officers with added information.
Defendants further argue that even if probable cause to arrest did not exist, the Individual Defendants are entitled to qualified immunity on Plaintiff's false arrest claim. Qualified immunity protects government officials from civil damages liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In the case of a false arrest claim, even in the absence of probable cause, an arresting
Even applying this more permissive test, the court is not convinced on the factual record that the officers had arguable probable cause to arrest. In his affidavit and deposition testimony, Mansour claims that he explained to the officers at the time of Plaintiff's arrest that he did not have a key to the dead bolt lock by choice; that the lock and screwed-in windows were intended to keep bugs and intruders away; that the front door was locked only when he and Plaintiff were both out; and that Plaintiff "did nothing at any time without [his] knowledge and [his] approval." (Mansour Dep. at 34:2-10, 47:18-25, 48:10-13.) As explained above, these statements would have negated two required elements of the false imprisonment offense. Taken together with the knowledge that Mansour had freely visited the police precinct on at least two occasions, no objectively reasonable officer could have believed that there was probable cause to arrest Plaintiff. See Ward v. City of New York, No. 08-CV-7380 (RJH), 2010 WL 3629536, at *2 n. 4 (S.D.N.Y. Sept. 17, 2010) (finding qualified immunity not available as a defense where the victim gave equivocal statements and no other reliable evidence pointed toward a violation); Araujo v. City of New York, No. 08-CV-3715 (KAM)(JMA), 2010 WL 1049583, at *6 (E.D.N.Y. Mar. 10, 2010) (finding no arguable probable cause where police obtained no evidence to corroborate the testimony of a seven-year-old child about events that had occurred over three years earlier); cf. Richards v. City of New York, 433 F.Supp.2d 404, 420 (S.D.N.Y. 2006) (granting summary judgment on qualified immunity grounds despite the fact that the witness retracted the statement implicating the arrestee, due to overwhelming additional evidence that officers had gathered in their investigation). Given Mansour's statements, Plaintiff's
The denial of summary judgment on Plaintiff's false arrest claim does not prevent the court from finding that summary judgment is appropriate on her excessive force claim. See Mesa v. City of New York, No. 09-CV-10464 (JPO), 2013 WL 31002, at *21-22, *31-32 (S.D.N.Y. Jan. 3, 2013) (citing Jones v. Parmley, 465 F.3d 46, 62 (2d Cir.2006)); McCart v. Vill. of Mount Morris, No. 09-CV-6472 (MAT), 2011 WL 3421505, at *11-12 (W.D.N.Y. Aug. 4, 2011) (same). "[E]ven where there is no probable cause for arrest, and thus a viable claim for false arrest or imprisonment, the force used by the officers still could constitute objectively reasonable restraint." Mesa, 2013 WL 31002, at *31. While summary judgment on Plaintiff's false arrest claim is not warranted in this case, her excessive force claim cannot survive summary judgment. Defendants' motion for summary judgment is GRANTED on Plaintiff's claim of excessive force.
A claim that law enforcement officers used excessive force in the course of an arrest is analyzed under the Fourth Amendment reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Under this standard, the determinative question is whether the officers' actions were "`objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. Reasonableness is judged "from the perspective of a reasonable officer on the scene," and "`[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Id. at 396, 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). The court considers the totality of the circumstances, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. (citing Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)).
Plaintiffs excessive force claim is based on tight handcuffing.
"The injury requirement is `particularly important,'" Usavage v. Port Auth. of N.Y. and N.J., 932 F.Supp.2d 575, 592 (S.D.N.Y.2013) (quoting Sachs v. Cantwell, No. 10-CV-1663 (JPO), 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012)), because in order "`to be effective, handcuffs must be tight enough to prevent the arrestee's hands from slipping out.'" Abdul-Rahman v. City of New York, No. 10-CV-2778 (ILG), 2012 WL 1077762, at *7 (E.D.N.Y. Mar. 30, 2012) (quoting Esmont v. City of New York, 371 F.Supp.2d 202, 214 (E.D.N.Y.2005)). "[T]here is a consensus among courts in this circuit that tight handcuffing does not constitute excessive force unless it causes some injury beyond temporary discomfort." Id. (internal quotation marks and citation omitted). "These injuries need not be `severe or permanent,' but must be more than merely `de minimis.'" Usavage, 932 F.Supp.2d at 592 (quoting Vogeler v. Colbath, No. 04-CV-6071 (LMS), 2005 WL 2482549, at *9 (S.D.N.Y. Oct. 6, 2005); Washpon v. Parr, 561 F.Supp.2d 394, 407 (S.D.N.Y.2008)). "The most common injuries found to satisfy the injury requirement in handcuff cases are scarring and nerve damage." Id. (collecting cases).
While Plaintiff's testimony is sufficient to raise a question of fact as to the first two prongs of the test — she alleges that the handcuffs were too tight, and that she repeatedly asked the officers to loosen them, to no avail — the record does not support the existence of an injury sufficient in degree to survive summary judgment. Plaintiff testified that her injury was "minimal," that she could not remember how long the abrasions to her wrists lasted, and that she received no medical treatment for them. (Selvaggio Dep. at 53:24, 54:14-18, 55:24-25.) In her opposition memorandum, Plaintiff contends that she experienced "scabbing that lasted approximately one week." (Pl.'s Opp'n at 27.)
In the court's view, "abrasions" and "scabbing" are interchangeable injuries, and under either formulation, the temporary, admittedly "minimal" abrasions or scabs that Plaintiff reports — for which medical treatment was found unnecessary — do not rise to the level of injury that courts in this circuit have held to satisfy the injury requirement. Cf. Morgan, 2014 WL 3407714, at *1-2, *5-6 (denying summary judgment where plaintiff, whose hands were completely numbed while handcuffed, was provided pain medication and given diagnosis of contusions and pinched nerve or nerve damage, and submitted supporting medical records); Usavage, 932 F.Supp.2d at 596-97 (denying
With no additional allegations of force beyond the handcuffing,
Alternatively, the Individual Defendants are entitled to qualified immunity on Plaintiff's excessive force claim. "[I]n the context of excessive force, the Fourth Amendment reasonableness inquiry tends to converge with the qualified immunity reasonableness inquiry." Wang, 2012 WL 119591, at *11 (citing Cowan v. Breen, 352 F.3d 756, 764 & n. 7 (2d Cir.2003)). Defendants did not violate any "clearly established rights" in handcuffing Plaintiff, Soares, 8 F.3d at 922, and due to the de minimis nature of Plaintiff's injury, "officers of reasonable competence could disagree," at the very least, whether the degree of tightness was reasonable, Lennon, 66 F.3d at 420. See Richardson v. Providence, No. 09-CV-4647 (ARR)(LB), 2011 WL 3701887, at *7 (E.D.N.Y. Aug. 20, 2011) ("In light of the court's conclusion that [the defendant] did not use excessive force against plaintiff, the court necessarily also holds that he is entitled to qualified immunity with respect to this conduct.").
In her Rule 56.1 Statement, Plaintiff asserts that she "is suing the City of New York because they failed to properly train and supervise Sergeant Walsh, Officer Patterson and Officer Lestrade." (Pl.'s 56.1 ¶ 23.) In her opposition memorandum, Plaintiff contends that the City is liable for her alleged false arrest because it "failed to make sure [Walsh, Patterson, and Lestrade] received continuous training." (Pl.'s Opp'n at 32.) Defendants argue
A municipality may be held liable under 42 U.S.C. § 1983 only if the constitutional violation at issue results from the municipality's official policy. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Such a policy may be (1) an express policy, (2) "a widespread practice that, although not authorized by written law or express municipal policy, is `so permanent and well settled as to constitute a "custom or usage" with the force of law,'" City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)), or (3) a decision by a person with "final policymaking authority," see Praprotnik, 485 U.S. at 123, 108 S.Ct. 915; Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). A municipality's failure to train employees can give rise to Monell liability, as can a municipality's failure to monitor or supervise employees. However, under either of these theories, Plaintiff's Monell claim cannot survive summary judgment; accordingly, summary judgment on Plaintiff's Monell claim is GRANTED.
Plaintiff's first theory of Monell liability is a failure to train. "[A] local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy" only if the failure to train "amount[s] to `deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.'" Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (second alteration in original) (quoting Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). Deliberate indifference is a "stringent standard of fault," which requires "`proof that a municipal actor disregarded a known or obvious consequence'" of the particular failure in training. Id. at 1360 (quoting Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). "A pattern of similar constitutional violations by untrained employees is `ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Id. (quoting Bryan Cnty., 520 U.S. at 409, 117 S.Ct. 1382); see also King v. City of New York, Nos. 12-CV-2344 (NGG)(RER), 13-CV-0037 (NGG)(RER), 2014 WL 4954621, at *12 (E.D.N.Y. Sept. 30, 2014) ("[A] single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." (internal quotation marks and citation omitted)). The Supreme Court has cautioned that a "municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Connick, 131 S.Ct. at 1359.
Upon review of the entire record submitted on this motion, there is no evidence to support Plaintiff's failure-to-train claim with respect to her alleged false arrest.
Plaintiff's conclusory allegations cannot even survive a motion to dismiss, let alone summary judgment. See King, 2014 WL 4954621, at *34 (dismissing Monell claim because "`the simple recitation that there was a failure to train municipal employees does not suffice to allege that a municipal custom or policy caused the plaintiff's injury'" (quoting Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993))); Lozada v. City of New York, No. 12-CV-0038 (ILG)(JMA), 2013 WL 3934998, at *7 (E.D.N.Y. July 29, 2013) (dismissing Monell claim as conclusory where plaintiff failed to "provide any facts that would allow the court to infer what city policies, practices, or customs contributed to or caused the deficiency" (internal quotation marks and citation omitted)).
2. Failure to Supervise
Plaintiff also raises a failure-to-supervise claim against the City. As with her failure-to-discipline theory, Plaintiff's failure-to-supervise theory requires her to establish that the City acted with deliberate indifference. See Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 127-28 (2d Cir.2004); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.1995). "To prove such deliberate indifference, the plaintiff must show that the need for more or better supervision to protect against constitutional violations was obvious." Vann, 72 F.3d at 1049. "An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents." Id.; see also Amnesty Am., 361 F.3d at 128 (holding that failure-to-supervise liability requires that the City "had notice of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was `obvious,' and the policymaker's failure to investigate or rectify the situation evidences deliberate indifference, rather than mere negligence or bureaucratic inaction").
Plaintiff submitted the three Individual Defendants' CCRB and LAB disciplinary records in opposition to Defendants' motion (see generally Discip.
Moreover, even if these five varied allegations over the course of a ten-year-period were sufficient to put the City on notice of a constitutional problem, Plaintiff has failed to come forward with evidence to suggest that the City did not meaningfully investigate the allegations; indeed, she has "presented no evidence as to the municipality's response to any prior incident of misconduct."
For the reasons set forth above, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART. With regard to Plaintiff's false arrest claim, summary judgment is GRANTED in favor of the City of New York, and DENIED for the three Individual Defendants. With regard to Plaintiff's excessive force claim, summary judgment is GRANTED in favor of all Defendants. The Clerk of Court is respectfully directed to dismiss the City of New York from the case.
SO ORDERED.
To the extent Plaintiff contends that the photographs are inadmissible pursuant to the exclusionary rule, the court disagrees — there is no indication of an illegal search in any of Plaintiff's filings. It appears that Plaintiff voluntarily permitted Defendants to enter the home. After entering the home, the officers were entitled to photograph objects in their plain view, and they were also permitted to photograph evidence they viewed from outside the residence, such as the window screens. See Wilson v. Supt., Attica Corr. Facility, No. 00-CV-0767 (NAM)(GLS), 2003 WL 22765351, at *8 (N.D.N.Y. Nov. 24, 2003) (report and recommendation) (holding that "photographs taken of items outside [defendant's] apartment that were in plain view of the officer" were properly admitted), adopted, Order, 00-CV-0767 (NAM)(GS) (N.D.N.Y. Feb. 4, 2004), ECF No. 28: cf. United States v. Espinoza, 641 F.2d 153, 167 (4th Cir.1981) ("[The law enforcement agent] did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent `seizing' those views themselves as evidence."). Thus, the photographs are admissible as relevant evidence. See Fed. R.Evid. 401 ("Evidence is relevant if: (a) it has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."); Fed.R.Evid. 402 (providing that relevant evidence is generally admissible).
