THOMAS J. McAVOY, Senior District Judge.
Plaintiff Alexander Marcano ("Plaintiff") commenced this action on January 9, 2012 alleging violations of rights secured by the United States Constitution and New York State law. His claims, which arise in connection with his arrest on January 7, 2011, sound in false arrest, malicious prosecution, malicious abuse of process, excessive force, intentional and negligent infliction of emotional distress, assault and battery, and negligence.
Presently before the Court are Plaintiff's motion for partial summary judgment, dkt. # 50, and Defendants' cross-motion
On a motion for summary judgment the Court must construe the properly disputed facts in the light most favorable to the non-moving party, see Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007), and may grant summary judgment only where "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see O'Hara v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 642 F.3d 110, 116 (2d Cir.2011). When considering cross-motions for summary judgment, the Court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Hotel Employees & Rest. Employees Union, Local 100 of N.Y. v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002) (citation omitted). "[N]either side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it... [and] a district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993).
On January 7, 2011, at approximately 7:50 P.M., the Schenectady Police Department's Special Investigation Unit ("SIU") received a complaint that a black male had brandished a gun at a location on Paige Street. Hudson Dep. p. 23; Savignano Dep., pp. 34, 36. The SIU called in the complaint to the police department. Hudson Dep. p. 28; Savignano Dep., p. 37. The police dispatcher, in turn, instructed "all units" to respond, and indicated that the "perpetrator," a black male with a gun, had jumped over a fence around 501-503 Paige Street and was headed towards Mumford Street. See In-Cruiser Video ("ICV") recordings, Def. Ex. 1. Defendants Savignano and Hudson, both Schenectady police officers, were on duty in the City of Schenectady and responded by driving in their police cruiser to Mumford Street, arriving moments after they received the dispatch. Id.
At the time, it was dark out, it was snowing, the roadways were covered with snow, and there were very few people on the streets. Id., at 007KVY00. Driving down Mumford Street from Strong Street, the officers passed a man shoveling snow on the left side of the street. They asked if he had "just seen a black guy come through here," and received a negative response. Id. Continuing down the street, the officers saw a lone individual (later identified as Plaintiff) walking on the right side of Mumford Street (the side closest to Paige Street) moving toward them and away from the corresponding address on Mumford Street where the suspect had
Hudson and Savignano decided to approach Plaintiff because he matched the dispatcher's description, was one of the few individuals on Mumford Street during the snow storm, was near where the incident allegedly occurred, and was walking away from where the suspect reportedly jumped over the fence to Mumford Street. The officers shined the vehicle's spotlight on Plaintiff, pulled their car to the side of the street adjacent to where Plaintiff was walking, and both officers exited the vehicle.
Hudson and Savignano testified that Plaintiff's unprovoked flight and the fact that he was seen reaching for his waistband, as well as their experience in the field, heightened their suspicion that Plaintiff had been involved in the Paige Street incident and, therefore, could be armed. Savignano Dep., pg. 46; Hudson Dep., pg. 27. Hudson and Savignano pursued Plaintiff across Mumford Street and down a driveway of an adjacent residence. There, the officers lost track of Plaintiff and thought that Plaintiff had gone into a residence at 516 Mumford Street. Hudson went to the back of the residence looking for Plaintiff while Savignano went to the front. Savignano radioed for back-up and, when Hudson spotted Plaintiff running through the yards behind the residences on Mumford and Summit Streets, directed that a perimeter of officers be set around the area to aid in apprehending Plaintiff. PSOF at ¶ 15. Plaintiff continued to flee by running through the backyards and jumping over at least one chain-link fence. DCSOF ¶¶ 24, 27.
Defendants claim that during the chase, Hudson instructed Plaintiff to stop running and to let the officers see his hands; Marcano denies that Hudson gave such an order. The officers further allege that during the chase Plaintiff kept reaching for his waistband, but Plaintiff alleges that he reached for his waistband only when he crossed Mumford Street. Compare DCSOF at ¶ 14; PRDCSOF at ¶ 14. During the chase, Savignano used his radio to communicate with other officers. Savignano communicated Plaintiff's direction of travel, his description, and an indication that Plaintiff was seen reaching for his waistband. DRPSOF ¶ 19.
Hudson chased Plaintiff through several backyards in an attempt to apprehend him, but Plaintiff jumped over a fence and escaped the immediate pursuit. Hudson cut his hand attempting to also jump over the chain-link fence, and the injury later required stitches to close a laceration. DCSOF ¶ 26.
Plaintiff was eventually found hiding beneath a tree under foliage in a vacant yard behind the chain link fence that he had jumped over. See Hudson Dep. pp. 31-35. Defendant Pardi first located Plaintiff, shined his flashlight at Plaintiff, drew his weapon, and said: "Freeze. Don't you fucking move or I'll blow your fucking head off." Pardi Dep. at 30; PSOF at % 23; DRPSOF at ¶ 23. Pardi then took refuge behind a garage so as to ensure his safety if a gun battle ensured. Defendants contend that when Pardi found Plaintiff, Plaintiff was already bleeding from the head.
Hudson then caught up with Plaintiff, slid into him "baseball style," "grabbed [Plaintiff's left] arm as soon as he could," and "tried to attempt to control [Plaintiff] as best that [he could]." Hudson Dep. pp. 35-37. Hudson held Plaintiff against the tree in an effort to prevent him from escaping but, Defendants contend, Plaintiff struggled with Hudson and attempted to pull away. Officers Savignano, Donovan, Semione, Fennell, Ferris, Derkowski and Kent arrived and aided in Plaintiff's apprehension. Defendants contend that Plaintiff refused to comply with verbal commands issued by numerous officers to show them his hands and come out of the bushes, requiring his physical removal.
Plaintiff alleges that while Hudson held his arm, Derkowski and Pardi held their guns on him; Kent struck him several times in the back and ribs; Semione struck him several times in the back; Derkowski struck him with his knee in his thighs and on his peroneal nerve; Derkowski applied a leg lock to him; Hudson, Kent, Ferris, and Semitone each took some part in applying resistant handcuffing to Plaintiff; and Ferris physically dragged Plaintiff to a police vehicle utilizing an "underhook escort" grip. PSOF at ¶ 29(a-l). Defendants admit that Officer Fennell, who was the officer in charge at the scene, was present when two officers were "pointing their weapons at Mr. Marcano," saw an officer kneel on Plaintiff in order to get his arm out from underneath him, and saw an officer utilize "a strike" to get Plaintiff's arm out from under his body. DRPSOF at ¶¶ 31, 34.
Plaintiff alleges that his injuries from his arrest included miscellaneous redness, swelling, and abrasions on his body; a laceration above his right eyebrow requiring three stitches; cuts and bruising to his face, forehead, and head; bruising surrounding his right eye; bruising above and below his left eye; bruising on his nose; a bloody nose; injury to his left elbow; injury to his ribs; injury to his back; and injury to his neck. PSOF at ¶¶ 35-38; see also Plaintiff's Medical Records (Ellis Hospital Records) (Detailing extent of treatment required for Plaintiff's injuries as well as result of numerous scans and x-rays.). Defendants admit that Plaintiff suffered facial abrasions a laceration to his right eyebrow necessitating stitches and that Plaintiff complained of neck and back pain at the emergency room. However, Defendants contend Plaintiff's injuries were not caused by Defendants' actions. DRPSOF at ¶ 38.
Plaintiff was transported to the Schenectady Police Department where police officers photographed his face which revealed multiple abrasions and lacerations. PSOF at ¶¶ 41. Members of the City of Schenectady Police Department then transported Plaintiff to the hospital to receive treatment for his injuries. Id. at ¶ 42.
Before Plaintiff was charged with any crime, Defendant Sheldon received a statement from Sabrina Vega. Ms. Vega attested::
Pl. Ex. K.
Plaintiff argues that the police had "no complaining witness to the underlying incident"
There is some dispute as to what happened to Plaintiff after being treated at the hospital. According to Plaintiff, he was transported to Schenectady County Jail pending prosecution on the criminal charges. PSOF at ¶ 48. However, Plaintiff was on parole at the time and there is no dispute that after his arrest, his parole was revoked pending a hearing based upon his conduct on January 7, 2011. DCSOF, ¶ 43; Pl. Ex. P., 5/6/11 Parole Division Decision. The Parole Division's warrant was lodged on January 10, 2011. Pl. Ex. P, p. 5. At the time of the Parole Division's Decision, the Obstruction of Governmental Administration and the Resisting Arrest charges "remained pending" although the Assault charge "was not prosecuted." Id. Plaintiff testified at his 50-h hearing that the Obstruction of Governmental Administration and the Resisting Arrest charges were "dismissed" on April 7, 2011, 50-h Trans., p. 38, but his attorney requested a Certificate of Disposition from the Schenectady City Court regarding the criminal charges and received a response stating: "
On May 6, 2011, an Administrative Law Judge upheld two of the parole violation charges brought against Plaintiff: (1) Charge 3-"Alexander Marcano violated rule # 8 of the conditions governing his release in that on 1/7/11 at approximately 7:57 PM into the vicinity of 516 Mumford St., Schenectady, NY, he did intentionally attempt to prevent a uniform Schenectady police officer, A.J. Savignano, from questioning him in regards to a person with a firearm call and a directive for Marcano to stop;" and (2) Charge 4-"Alexander Marcano violated rule # 8 of the conditions governing his release in that on 1/7/11 at approximately 7:57 PM in the vicinity of 516 Mumford St., Schenectady, NY, he did threaten the safety and well-being of himself and others by intentionally attempting to prevent a uniform Schenectady police officer, A.J. Savignano, from questioning him in regards to a person with a firearm call and a directive for Marcano to stop." DCSOF, ¶ 45. The Administrative Law Judge remanded Plaintiff for a period of 16 months. PSOF, ¶ 53.
Plaintiff was granted a de novo hearing on the two sustained charges. DCSOF ¶ 46. The Administrative Law Judge concluded at this second parole hearing that Plaintiff had violated the conditions of his parole "when he intentionally fled from Savignano and Police Officer Hudson as they attempted to stop and speak with him," and sustained the Violation of Release Report for Charges 3 and 4. Pl. Ex. R. Plaintiff was again assessed 16 months of incarceration. Id. Plaintiff has appealed the Administrative Law Judge's decisions.
Defendants move to dismiss the official capacity claims against the individual Defendants.
The parties argue over whether Plaintiff asserts cognizable claims under the New York State Constitution, but the Amended Complaint is silent as to any such claim. At most, the Amended Complaint contains headings for each Cause of Action with some indicating that they are brought under "New York State Law." Assuming that these headings can be inferred as alleging New York State constitutional claims, the claims are dismissed because they are also asserted as Section 1983 and/or state common law claims. Krug v. County of Rennselaer, 559 F.Supp.2d 223, 247-28 (N.D.N.Y.2008); see Clayton v. City of Poughkeepsie, 2007 WL 2154196, at *7 (S.D.N.Y. June 21, 2007) ("[V]arious federal courts in this circuit have held that there is no private right of action under the New York State Constitution where... remedies are available under § 1983.") (citations and interior quotation marks omitted); Flores v. City of Mount Vernon, 41 F.Supp.2d 439, 446-47 (S.D.N.Y.1999) ("[N]o private right of action exists for violations of the New York State Constitution where a Plaintiff has alternative damage remedies available.").
Both sides seek summary judgment on the claims that the police unjustifiably stopped Plaintiff, unjustifiably pursued him, and unjustifiably detained him on January 7, 2011. These claims are for "false arrest" under the U.S. Constitution or New York common law. See Am. Compl., pp. 9-10 (Second Cause of Action, brought pursuant to 42 U.S.C. § 1983); p. 13 (Ninth Cause of Action, brought pursuant to "New York State Law"). The elements necessary to prove false arrest under 42 U.S.C. § 1983 are "substantially the same" as the elements for false arrest under New York law, save for the requirement that the constitutional tort be under color of state law. Posr v. Doherty, 944 F.2d 91, 96 (2d Cir.1991) (quoting Raysor v. Port Auth. of New York and New Jersey, 768 F.2d 34, 39-40 (2d Cir.1985)). To establish a claim for false arrest, Plaintiff must show that: (i) he was intentionally confined; (ii) he was conscious of the confinement; (iii) he did not consent to the confinement; and (iv) the confinement was not privileged. Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir.2012); Savino v. City of New York, 331 F.3d 63, 75 (2d Cir.2003); accord Shain v. Ellison, 273 F.3d 56, 67 (2d Cir.2001).
The first issue is whether Plaintiff presents a plausible false arrest claim
The totality of the circumstances do not indicate that Plaintiff was seized within the meaning of the Fourth Amendment when the police first encountered him. Even assuming that a reasonable person would not have felt free to leave when the officers shined their spot light on him, told him to stop, got out of the car, commanded that he show his hands, and even attempted to physically hold him when he and the officers slipped on the ice after Plaintiff began to flee, Plaintiff did not submit to this show of authority. Rather, it is undisputed that Plaintiff successfully fled when the officers first confronted him on Mumford Street. Like the defendant in Baldwin, Plaintiff did not submit to police authority and, therefore, no actionable Fourth Amendment seizure occurred at the initial confrontation. Plaintiff's Section 1983 false arrest claims arising from this interaction are dismissed.
"De Bour delineated four levels of permissible police intrusion, the propriety of each depending upon the circumstances presented. The court noted that various levels of permissible police intrusion must be `reasonably related in scope to the circumstances which rendered its initiation permissible.' If the officers' conduct in this case falls into one of the four levels of permissible police intrusion, plaintiff's confinement was justified." Hall v. City of White Plains, 185 F.Supp.2d 293, 299 (S.D.N.Y.2002) (quoting De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562).
Id. at 299-300.
Assuming that the initial police confrontation with Plaintiff reached the third De Bour level by virtue of the fact that the police told Plaintiff to stop, commanded that he show his hands, and grabbed at his foot when they fell with the intent to stop and question him about his involvement in the Paige Street incident, the police had a sufficient justification for their conduct. Officers Savignano and Hudson were responding to a dispatcher's radio transmission concerning a police investigative report of a black male who had brandished a gun
Moreover, once Plaintiff took immediate flight, the officers' reasonable suspicion that Plaintiff was the suspect who had brandished a gun moments earlier on Paige Street was heightened. See Baldwin, 496 F.3d at 220 (holding probable cause existed after a suspect did not comply with orders to show his hands and thereafter fled from police);
For the reasons discussed above, there exists no cognizable Fourth Amendment false arrest claim for the period that the officers pursued Plaintiff because he was not seized during this time. See Hodari D., 499 U.S. at 628, 111 S.Ct. 1547 (Hodari was not seized until he was tackled.); Brendlin v. California, 551 U.S. 249, 262, 127 S.Ct. 2400, 2409, 168 L.Ed.2d 132 (2007) ("a fleeing man is not seized until he is physically overpowered"); County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("Police pursuit in attempting to seize a person does not amount to a `seizure' within
To the extent Plaintiff was "confined" under New York common law while being pursued by the police, the officers' pursuit was privileged. As indicated above, Plaintiff's immediate flight when confronted by the police justifiably raised the officers' initial reasonable suspicion to a higher level. Further, this flight, when combined with Plaintiff's motion of reaching for his waistband as he fled, justifiably raised the officer's reasonable suspicion to believe that Plaintiff was the suspect who had brandished a gun moments earlier. See Hodari D., 499 U.S. at 629, 111 S.Ct. 1547 (grounds for a stop may be based on events that occur after an order to stop is given and disobeyed); see e.g. United States v. Manuel, 64 Fed.Appx. 823, 825-27 (2d Cir.2003) (reasonable suspicion to stop defendant existed where the police had received an anonymous call reporting that men bearing guns had congregated on a particular "high crime" street corner in Buffalo, New York, and police subsequently observed a suspicious bulge in the defendant's pants' pocket indicative of a firearm); United States v. Sanders, 2000 WL 268577, at *1 (2d Cir. Mar. 9, 2000) (reasonable suspicion to stop and frisk an individual found where, inter alia, an officer noted that "[the suspect's] gaze remained fixed over his shoulder at the police checkpoint while he adjusted [an] object in his waistband," and the officer "testified that he knew from his police training and experience that firearms commonly are carried in waistbands.") (citing United States v. Jackson, 175 F.3d 600, 601-02 (8th Cir. 1999), cert. denied, 528 U.S. 828, 120 S.Ct. 80, 145 L.Ed.2d 68 (1999) (looking back at police during flight and clutching something at left side supported finding of reasonable suspicion)); United States v. Grant, 2008 WL 897805, at *4 (E.D.N.Y., March 31, 2008) (police had a reasonable suspicion to stop and pat down defendant when they heard gunshots indicative of criminal activity; police observed defendant acting in a furtive manner shortly after the gunshots; police saw defendant adjust a bulge in his waistband to the right side of his body; the bulge had the outline of a handgun; defendant clutched the bulge; and, upon seeing a police officer, defendant sought to avoid him); see also United States v. Padilla, 548 F.3d 179, 187-88 (2d Cir.2008) (reasonable suspicion existed where defendant acted "ostensibly suspicious" when he and two others walked onto an isolated, dark path at night rather
Plaintiff also argues that he was subjected to an actionable "confinement" during the time that the officers set up a perimeter and surrounded him. The Court disagrees. Assuming, arguendo, that Plaintiff was aware that the officers had surrounded him before he was actually captured, the officers' actions were legally justified for the reasons discussed above. Any false arrest claim for this period is dismissed.
Turning to the actual seizure, the question is whether the police had probable cause to arrest Plaintiff. "[T]he existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether the action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996); see also Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir.2002) ("A § 1983 claim of false arrest based on the Fourth Amendment right to be free from unreasonable seizures may not be maintained if there was probable cause for the arrest."). "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." Devenpeck v. Alford, 543 U.S. 146, 125 S.Ct. 588, 593, 160 L.Ed.2d 537 (2004) (citing Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)). "[P]robable cause to arrest exists when the officers have 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." Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.2013) (citing Weyant, 101 F.3d at 852). As indicated above, police officers may rely upon information gained from other officers in making their probable cause assessment. Zellner, 494 F.3d at 369; Savino, 331 F.3d at 74.
The relevant inquiry is whether "probable cause existed to arrest a defendant" and "it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest." Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006). "A probable cause determination does not require proof beyond a reasonable doubt; it is the mere probability of criminal activity, based on the totality of the circumstances, that satisfies the Fourth Amendment." Hahn v. County of Otsego, 820 F.Supp. 54, 55 (N.D.N.Y.1993), aff'd, 52 F.3d 310
Here, Hudson and Savignano obtained probable cause to arrest Plaintiff for menacing in violation of N.Y. Penal Law § 120.14[1] when: (1) the SIU received a complaint that a black male had brandished a firearm and then jumped over fence heading toward Mumford Street, (2) the SIU communicated the complaint to the police dispatcher; (3) the police dispatcher communicated the complaint, a description of the suspect, the allegation that the suspect had jumped over a fence and was headed to Mumford Street, and directed "all units" to respond; (4) Hudson and Savignano encountered Plaintiff a few moments later walking alone on Mumford Street close to, but moving away from, the location where the suspect had jumped over the fence; (5) Plaintiff roughly matched the description of the suspect in that he was a male with dark skin; (6) Plaintiff immediately fled upon encountering the police; and (7) Plaintiff reached for his waistband while fleeing. Moreover, these facts were communicated to the other officers involved in Plaintiff's arrest by the combination of the radio transmissions from the dispatcher and Savignano. This, in turn, provided sufficient probable cause for Officers Donovan, Semione, Fennell, Ferris, Derkowski, and Pardi to assist in Plaintiff's eventual arrest under the collective knowledge doctrine. Even assuming that Officer Kent was unaware of why he was chasing Plaintiff, see PSOF, ¶ 20; but see DRPSOF ¶ 20, the fact that Plaintiff fled from police by running through various yards, jumped over at least one fence and then hid under vegetation on the property behind the fence, and appeared to have resisted police efforts to take him into custody both on Mumford Street and under the tree where he was hiding, provided Officer Kent, as well as the other officers with sufficient probable cause to arrest Plaintiff for resisting arrest and criminal trespass. See N.Y. Penal Law §§ 205.30;
To the extent that Plaintiff argues that Defendants are liable for false imprisonment in the Schenectady County Jail after he was arrested, Defendants are entitled to summary judgment on that claim. A claim of false arrest covers the time period from arrest through arraignment, after which time the claim becomes one for malicious prosecution. See Wallace v. Kato, 549 U.S. 384, 389-90, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). As indicated, the police had sufficient justification to arrest and charge Plaintiff and, therefore, to confine him pending criminal prosecution. See Fincher v. County of Westchester, 979 F.Supp. 989, 998 (S.D.N.Y.1997) ("Under New York law, the torts of false arrest and false imprisonment are synonymous."). Moreover, the Parole Division lodged a warrant against Plaintiff on January 10, 2011. Even assuming that Plaintiff had not been arraigned by then,
Defendants also move for summary judgment on Plaintiff's malicious prosecution claims. To state a claim for malicious prosecution under either § 1983 or New York law, Plaintiff must establish, inter alia, "termination of the proceeding in [the accused's] favor." Green v. Mattingly, 585 F.3d 97, 104 (2d Cir.2009). Whether termination is deemed favorable to the accused is determined in accordance with applicable state law, here, New York law. Hygh v. Jacobs, 961 F.2d 359, 367 (2d Cir.1992). Proceedings are "terminated in favor of the accused" when their final disposition is such as to indicate the accused is not guilty. DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir.1996). "Where a prosecution did not result in an acquittal, it is generally not deemed to have ended in favor of the accused, for purposes of a malicious prosecution claim, unless its final disposition is such as to indicate the accused's innocence." Fulton v. Robinson, 289 F.3d 188, 196 (2d Cir. 2002). Even a dismissal "in the interest of justice" under New York Criminal Procedure Law § 170.40 "cannot provide the favorable termination required as the basis for a claim of malicious prosecution." Hygh, 961 F.2d at 368 (citing Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984)).
Plaintiff's attorney requested a Certificate of Disposition of the offenses with which Plaintiff was charged on January 7, 2011 and received a letter stating that none existed. DCSOF ¶ 40. Plaintiff contends that this response "is wholly consistent with Mr. Marcano's claim that he was arrested and that the charges filed against him [were] disposed of in his favor" and the record sealed. PRDCSOF, ¶ 40. However, while Plaintiff may be correct that arrest records are sometimes sealed following a favorable disposition of criminal charges against an accused (such as after a dismissal in the interest of justice), Plaintiff has presented no evidence that the dismissal in his case indicated that he was not guilty of the charges. Thus, Plaintiff has failed to present sufficient evidence to establish the "favorable termination" element of his malicious prosecution
To the extent that Plaintiff asserts a malicious prosecution claim in the context of the Parole Division proceeding when he argues that the defendants are responsible for his 16-month Parole Division assessment, the claim is dismissed for lack of a favorable termination.
Defendants also seek summary judgment on Plaintiff's claims for malicious abuse of abuse of process. "In the criminal context, malicious abuse of process is by definition a denial of procedural due process.... Procedural due process forbids the use of legal process for a wrongful purpose." Abreu v. Romero, 2010 WL 4615879, at *8 (S.D.N.Y. Nov. 9, 2010) (citation omitted). To state a claim for malicious abuse of process, Plaintiff must prove Defendant: 1) employed regularly issued legal process to compel performance or forbearance of some act; 2) with intent to do harm without excuse or justification; 3) to obtain a collateral objective outside the legitimate ends of the process. See Devarnne v. City of Schenectady, 2011 WL 219722, at *3 (N.D.N.Y. Jan. 21, 2011) (citing Savino v. City of New York, 331 F.3d 63, 76 (2d Cir.2003)).
"The pursuit of a collateral objective must occur after the process is issued; the mere act of issuing process does not give rise to a claim." Lopez v. City of New York, 901 F.Supp. 684, 691 (S.D.N.Y.1995) (citing PSI Metals v. Firemen's Ins. Co., 839 F.2d 42, 43 (2d Cir.1988)). In other words, Plaintiff "must claim that [Defendants] aimed to achieve a collateral purpose beyond or in addition to his criminal prosecution." Savino, 331 F.3d at 77. "In New York ... wrongful [collateral] purposes have included economic harm, extortion, blackmail, and retribution." Ketchuck v. Boyer, 2011 WL 5080404 at *7 (N.D.N.Y. Oct. 25, 2011); see Abreu, 2010 WL 4615879, at *8; Bd. of Educ. of Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers Ass'n, 38 N.Y.2d 397, 404, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975).
Plaintiff has presented no evidence upon which a reasonable fact finder could conclude that Officers Kent, Hudson or Savignano issued criminal complaints against Plaintiff to obtain a collateral objective outside the legitimate ends of the process. Plaintiff's arguments to the contrary consist of conclusory, nonspecific recitations of the required elements of the claim, and fail to identify any factual support for the proposition that the defendants harbored any ulterior motive in their actions. Furthermore, there is no evidence that Kent, Hudson or Savignano had any involvement in the prosecution of the criminal case against Plaintiff after they issued the criminal complaints. Accordingly, all abuse of process claims are dismissed.
Defendants contend that the § 1983 excessive claims must be dismissed because the officers used no more force than was necessary to execute Plaintiff's lawful arrest. The motion must be denied as it pertains to Defendants Hudson, Pardi, Savignano, Donovan, Semione, Fennell, Ferris, Derkowski and Kent, but granted as to Defendant Sheldon.
Sterlin v. City of New York, 2014 WL 2560595, at *4 (S.D.N.Y. June 06, 2014).
Even though the defendant officers executed a lawful arrest of Plaintiff, it is a disputed question of material fact whether the level and amount of force used was reasonable under the circumstances. Accepting Plaintiff's version of events, he offered no physical threat to the officers or resistance to being arrested, but he was tackled and physically retrained by Hudson; Kent struck him several times in the back and ribs; Semione struck him several times in the back; Derkowski struck him with his knee in his thighs and on his peroneal nerve; Derkowski applied a leg lock to him; Hudson, Kent, Ferris, and Semione each took some part in roughly applying resistant handcuffing to Plaintiff; and Ferris physically dragged Plaintiff to a police vehicle. This is sufficient to establish a prima facie case of constitutionally impermissible excessive force against these officers. See Graham, 490 U.S. at 395, 109 S.Ct. 1865; Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir.2001) (When a court is presented with a summary judgment motion on an excessive force claim, the court must deny the motion when disputed facts exist which are "material to a determination of reasonableness.").
Further, "all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994). For an officer to be held liable, he must have had a realistic opportunity to intervene to prevent the violation from happening. Id. (citing O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir.1988)). "Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise." Id. Inasmuch as Defendants Pardi, Savignano, Donovan, and Fennell were present during Plaintiff's arrest and the alleged
The Court will not apply qualified immunity on the Section 1983 excessive force and failure to intervene claims at this time. Because of the factual disputes concerning the level of force that was used and whether Plaintiff resisted arrest or presented an objectively reasonable threat to the officers' safety, qualified immunity as to the excessive force claims is denied.
Defendants also move for summary judgment on Plaintiff's state law assault and battery claims. "Under New York Law, an `assault' is an intentional placing of another person in fear of imminent harmful or offensive contact." Girden v. Sandals Int'l, 262 F.3d 195, 203 (2d Cir.2001). To recover damages for assault, "there must be proof of physical conduct placing the plaintiff in imminent apprehension of harmful contact." Stanley v. Amalithone Realty, Inc., 31 Misc.3d 995, 1006, 921 N.Y.S.2d 491 (Sup.Ct. N.Y.Cnty.2011) (citing Holtz v. Wildenstein & Co., 261 A.D.2d 336, 336, 693 N.Y.S.2d 516 (1st Dep't 1999)). "[A] battery is an intentional wrongful physical contact with another person without consent," Girden, 262 F.3d at 203, "either personally or by means of an instrumentality." Aberbach v. Biomedical Tissue Servs., Ltd., 48 A.D.3d 716, 718, 854 N.Y.S.2d 143 (2d Dep't 2008).
"To succeed on an assault or battery claim in the law enforcement context, a plaintiff must demonstrate that defendants' conduct `was not reasonable within the meaning of the New York statute concerning justification for law enforcement's use of force in the course of performing their duties.'" Cuellar v. Love, 2014 WL 1486458, at *13 (S.D.N.Y. April 11, 2014) (quoting Torres-Cuesta v. Berberich, 511 Fed.Appx. 89, 91 (2d Cir. 2013) in turn quoting Nimely v. City of New York, 414 F.3d 381, 391 (2d Cir. 2005)); see Kavazanjian v. Rice, 2008 WL 5340988 at *6-7 (E.D.N.Y. Dec. 22, 2008).
Plaintiff's claims for common law assault arising from the officers' actions in telling Plaintiff to stop, pointing their guns at him, and telling him not to move (including Defendant Pardi's statement not to
Plaintiff's claims for common law battery arising from Hudson and Savignano's initial attempt to stop Plaintiff on Mumford Street, including trying to grab hold of him when they all slipped on the ice, must also be dismissed. Because the officers had a legal justification to stop and detain Plaintiff, no actionable battery occurred by this action.
Turning to the actual arrest, the claims for common law battery against Defendants Hudson, Semione, Ferris, Derkowski, and Kent survive Defendants' motion for summary judgment. For the reasons discussed above with regard to the Section 1983 excessive force claims, there are questions of fact whether the actions taken by Hudson, Semione, Ferris, Derkowski, and Kent were reasonable under the circumstances. Further, neither side has addressed whether a cognizable state law claim of failure to intervene could exist against Pardi, Savignano, Donovan, or Fennell. Therefore, the Court declines to rule on the issue. Nonetheless, Plaintiff has provided no factual allegations from which a reasonable fact finder could conclude that Defendant Sheldon committed a battery upon Plaintiff or is liable for failing to intervene and, therefore, any such claims are dismissed.
Defendants move for summary judgment on Plaintiff's claims for intentional and negligent infliction of emotional distress. Under New York law, a claim for intentional infliction of emotional distress has four elements: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993); accord Capellupo v. Nassau Health Care Corp., 97 A.D.3d 619, 623, 948 N.Y.S.2d 362 (2d Dep't 2012). Further, "[a] cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by a defendant `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993) (quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)); see De Ratafia v. County of Columbia, 2013 WL 5423871, at *11 (N.D.N.Y. Sept. 26, 2013) (citing Tartaro v. Allstate Indem. Co., 56 A.D.3d 758, 759, 868 N.Y.S.2d 281 (2nd Dep't 2008); Chime v. Sicuranza, 221 A.D.2d 401, 403, 633 N.Y.S.2d 536 (2nd Dep't 1995); Burrell v. Int'l Assn. of Firefighters, 216 A.D.2d 346, 628 N.Y.S.2d 355, 356 (2nd Dep't 1995)). Determining whether the alleged conduct is sufficiently outrageous to be actionable is a question of
Even viewing the facts in the light most favorable to Plaintiff, nothing any of the Defendants did arose to the level of conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency as to be regarded as atrocious and utterly intolerable in a civilized community. Accordingly, Defendants' motion must be granted on the claims for intentional and negligent infliction of emotional distress.
Defendants also move to dismiss Plaintiff's § 1983 Failure to Adequately Train and Supervise claims against the City of Schenectady. See Am. Compl., ¶¶ 82-86. It is well settled that a municipality cannot be held liable under § 1983 solely on a theory of respondeat superior. Monell, 436 U.S. at 692, 98 S.Ct. 2018. "Because municipalities may not be held vicariously liable for the actions of their employees, a claim against a municipality must be premised on the theory that it maintained a policy, practice, or custom that caused the plaintiff's constitutional injury." Cuellar, 2014 WL 1486458, at *9 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). Courts in this Circuit apply a two prong test for § 1983 claims brought against a municipality. Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985) (citation omitted). First, the plaintiff must "prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer." Id. (emphasis added) (citation omitted). Second, the plaintiff must establish a "`direct causal link between [the] municipal policy or custom and the alleged constitutional deprivation.'" Hayes v. Cnty. of Sullivan, 853 F.Supp.2d 400, 439 (S.D.N.Y.2012) (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
To satisfy the first requirement, a plaintiff must prove the existence of either:
Cuellar, 2014 WL 1486458, at *10 (quoting Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996)) (internal citations and quotation marks omitted).
"[W]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." Connick v. Thompson, ___ U.S. ___, ___, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011). "A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train." Id. (internal quotation marks and citation omitted).
Plaintiff asserts that "as a result of the City of Schenectady's improper and inadequate training of its officers Plaintiff suffered injuries. This failure constituted a policy and custom of the City of Schenectady." See Am. Compl., ¶ 86. However, beyond this conclusory statement that his injuries resulted from the City of Schenectady's failure to adequately train, Plaintiff presents no evidentiary support for this proposition. "The mere allegation that the municipality failed to train its employees properly is insufficient to establish a municipal custom or policy." Neighbour v. Covert, 68 F.3d 1508, 1512 (2d Cir.1995), cert. denied, 516 U.S. 1174, 116 S.Ct. 1267, 134 L.Ed.2d 214 (1996) (citing Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993)); see also Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989) ("Only where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants can such a shortcoming be properly thought of as a city `policy or custom' that is actionable under § 1983."). Indeed, Plaintiff has neither provided evidence of a particular omission in the City of Schenectady's training program that would cause City employees to violate citizens' constitutional rights by the use of excessive force, nor a pattern of similar constitutional violations such to demonstrate deliberate indifference for purposes of failure to train. Thus, Defendants' motion is granted with respect to the inadequate training theory of Monell liability.
Cuellar, 2014 WL 1486458, at *11.
Plaintiff has provided insufficient evidence from which a reasonable fact finder could conclude that City of Schenectady officials "deliberately ignored an obvious need for supervision" of its officers, that its officers were "wont to violate the constitutional rights of arrestees," or that circumstances existed from which "the need for better supervision to protect against constitutional violations was obvious." Plaintiff's conclusory allegations are insufficient to defeat summary judgement, and he has failed to present facts to support the existence of a policy, custom, or practice of inadequately supervising police officers. Accordingly, Defendants' motion is granted with respect to the inadequate supervision theory of Monell liability.
Plaintiff's Twelfth, Thirteenth and Fourteenth Causes of Action assert state law claims against the City of Schenectady. See Am. Compl., ¶¶ 111-123. Defendants move for summary judgment on each claim.
The Twelfth Cause of Action asserts a respondeat superior claim "for harm resulting to the Plaintiff as a result of the acts of its employees." Am. Compl. ¶ 114. Although a municipality cannot be held vicariously liable on a section 1983 claim, under New York state law, a municipality may be held vicariously liable on state law claims asserted against individual officers under a theory of respondeat superior. See Linson v. City of New York, 98 A.D.3d 1002, 1003, 951 N.Y.S.2d 167 (2d Dep't 2012); Eckardt v. City of White Plains, 87 A.D.3d 1049, 1051, 930 N.Y.S.2d 22 (2d Dep't 2011). This includes claims against a municipality for the actions of its officers in committing assault and battery. Woods v. Town of Cheektowaga, 2012 WL 5288767, at *7 (W.D.N.Y. Oct. 23, 2012). Because there are viable battery claims against some of the individual officers, Defendants' motion relative to the Twelfth Cause of Action is denied.
Plaintiff's Thirteenth Cause of Action asserts that the City of Schenectady is liable under a theory of negligent hiring and retention because it "failed to adequately investigate the background of the individual Defendants and knew or reasonably should have known that these individual defendants were unfit for the type of job responsibilities and duties which they were hired and retained to perform." Am. Compl. ¶ 117. "In New York, an employer may be held liable for negligent hiring or retention where one of its employees caused injures to a third party `when the employer has either hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm.'" Cuellar, 2014 WL 1486458, at *12 (quoting Borden v. Capital Dist. Transp. Auth., 307 A.D.2d 1059, 1061, 763 N.Y.S.2d 860 (3d Dep't 2003)). However, the record is devoid of evidence demonstrating any of the defendants' propensity for behavior antithetical to serving as a
The Fourteenth Cause of Action asserts a claim for negligent training and supervision. A municipality may be held liable for negligently training or supervising its law enforcement officers. Barr v. Cnty. of Albany, 50 N.Y.2d 247, 257, 428 N.Y.S.2d 665, 406 N.E.2d 481 (1980). However, Plaintiff offers no evidence that the City of Schenectady's training program or supervision of its officers were deficient, or that the City was in some way negligent. Plaintiff's conclusory allegations do not create genuine issues of material fact, see Barr, 50 N.Y.2d at 258, 428 N.Y.S.2d 665, 406 N.E.2d 481, and, therefore, summary judgment is appropriate dismissing the Fourteenth Cause of Action.
For the reasons discussed above, Plaintiff's motion for partial summary judgment [Dkt. # 50] is
While Plaintiff first asserts that he was being chased and then asserts that he fled, this is simply a matter of semantics. Plaintiff was approaching the officers at the time they existed their vehicle, so he must necessarily have been moving away from, i.e., fleeing from, the officers in order for them to have "chased" him.
51 N.Y.2d at 270-71, 434 N.Y.S.2d 144, 414 N.E.2d 645 (citations omitted).
51 N.Y.2d at 271, 434 N.Y.S.2d 144, 414 N.E.2d 645 (citation omitted).
907 F.2d at 272.
Baldwin, 496 F.3d at 220 (quoting United States v. Muhammad, 463 F.3d 115, 123 (2d Cir.2006)).