SEIBEL, District Judge.
Before the Court are the Motions for Summary Judgment of Defendants Village of Ossining, Village of Ossining Police Department, Police Chief Joseph Burton, Police Officer James Drohan, and John Does 1-10 (the "Ossining Defendants"), (Doc. 52),
As a preliminary matter, the Court's task of determining the undisputed facts in
This case arises from an incident that occurred on October 9, 2008. On that date, Plaintiff, who was approximately twelve weeks pregnant at the time, and her then-boyfriend (now husband) Donte Higgs were at a Dunkin' Donuts in Croton-on-Hudson, New York. (P's 56.1 ¶ 2; Minter Decl. Ex. B.)
At that point, two uniformed police officers (including Defendant Smith) from the Village of Croton-on-Hudson arrived in marked police cars. (Croton 56.1 ¶¶ 8-9.) They asked Plaintiff to exit the vehicle and when she complied, according to Plaintiff, the officers "grabbed [P]laintiff, picked her up by both arms and threw her against the car," then handcuffed her and arrested her and Higgs. (P's 56.1 ¶¶ 10-11.) It was not until after Plaintiff was thrown against the car that she told the Croton-on-Hudson officers that she was pregnant. (Randazzo Decl. Ex. C, at 41-42, 104-05.)
Plaintiff was taken to the Croton-on-Hudson Police Department and alleges that on the way, she began complaining about her stomach hurting. (Croton 56.1 ¶ 12; P's 56.1 ¶ 10.) She was charged with resisting arrest,
Plaintiff claims that the actions of Defendants during the incident in question caused her to have a miscarriage. (AC ¶ 34.)
Plaintiff filed her Complaint in this action on May 10, 2010. (Doc. 1.) By letter dated July 27, 2010, the County of Westchester and County of Westchester Corrections Department — originally Defendants in this action — requested a pre-motion conference in anticipation of filing a motion to dismiss, (Doc. 11.) At the pre-motion conference on September 10, 2010, I granted Plaintiff leave to amend her Complaint and set a briefing schedule for
On July 29, 2011, I granted the County of Westchester and County of Westchester Corrections Department's Motion and dismissed them as Defendants.
Summary judgment is appropriate when "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). "[T]he dispute about a material fact is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the
"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... 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...." Fed.R.Civ.P. 56(c)(1)(A). Where an affidavit is used to support or oppose the motion, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that "a party fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may," among other things, "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(2), (3).
As noted previously, Plaintiff failed to comply with the Local Civil Rule requiring her to respond to Defendants' 56.1 statements. This is inexcusable on the part of a represented Plaintiff, and her counsel is hereby advised that any similar derelictions in the future will result in application of Local Civil Rule 56.1(c) and/or Federal Rule of Civil Procedure 56(e)(2), (3). In the interest of resolving this dispute on the merits, however, and because Plaintiff submitted her own 56.1 statement and the facts of this case are "easily discerned from the ... record," I will overlook this omission and rule on the Motions after conducting an "assiduous review" of the record. Johnson v. UJA Fed'n of N.Y., No. 10-CV-5648, 2012 WL 928213, at *1 (E.D.N.Y. Mar. 19, 2012); see Kirkland v. Cablevision Sys., No. 09-CV-10235, 2011 WL 4908367, at *6 n. 2 (S.D.N.Y. Oct. 14, 2011), Report and Recommendation adopted, 2012 WL 4513499 (S.D.N.Y. Sept. 30, 2012).
The only federal claim Plaintiff asserts against the Ossining Defendants is a claim for excessive force pursuant to the Fourth Amendment. Plaintiff alleges that Drohan and unnamed officers used excessive force against her, and that Joseph Burton, the Ossining police chief, and the Village of Ossining are liable under a failure to train
"The Fourth Amendment prohibits the use of unreasonable and therefore excessive force by a police officer in the course of effecting an arrest." Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir.2010). "A claim that excessive force was used in the course of a seizure is subject to an objective test of reasonableness under the totality of the circumstances, which requires consideration of the specific facts in each case, 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). "Additionally, on an excessive force claim a plaintiff must present sufficient evidence to establish that the alleged use of force is objectively sufficiently serious or harmful enough to be actionable. A de minimis use of force will rarely suffice to state a Constitutional claim." Sachs v. Cantwell, No. 10-CV-1663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept. 4, 2012) (citation and internal quotation marks omitted); see Lemmo v. McKoy, No. 08-CV-4264, 2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011) ("Borrowing from the `objective' component of the Eighth Amendment test for excessiveness and the Supreme Court's observation that `not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment,' the Second Circuit and district courts in the Circuit recognize the concept of `de minimis' injury and, when the injury resulting from alleged excessive force falls into that category, the excessive force claim is dismissed.") (alteration omitted) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
Viewing the facts in the light most favorable to Plaintiff and accepting as true all of her testimony as set forth in her Examination pursuant to Section 50-h of the General Municipal Law of New York, (see Randazzo Decl. Ex. C), I find that Drohan did not use excessive force when he grabbed Plaintiff's arm to try to remove her from the vehicle to arrest her. First, Plaintiff does not dispute that Drohan had probable cause to arrest her pursuant to the outstanding bench warrants, (see Randazzo Decl. Ex. H), and therefore "implicitly concedes that [the arresting officer] was authorized to use some degree of force or the threat thereof to effect th[e] arrest," Jennejahn v. Vill. of Avon, 575 F.Supp.2d 473, 478 (W.D.N.Y.2008); see Chandler v. Clark, No. 09-CV-60, 2009 WL 2916687, at *8 (D.Vt. Sept. 9, 2009). That implicit concession, coupled with Plaintiff's refusal to comply with Drohan's order to stand outside the car with her hands behind her back, (see Randazzo Decl. Ex. C, at 31), and Higgs's apparent threatening of Drohan, (id. at 32), made it objectively reasonable for Drohan to believe that grabbing Plaintiff's arm to remove her from the car was necessary to effect her arrest.
Moreover, the undisputed facts indicate that Drohan's use of force was de minimis and therefore not actionable. There are no allegations that Drohan hurt Plaintiff in any way besides scratching her, (id. at 32), and that scratch is not alleged to have been even remotely painful or serious. Indeed, Plaintiff reported on a medical form the next day that she had not been injured recently. (Minter Decl. Ex. B.) Accordingly, I find that the force used by Drohan was de minimis and not "`objectively sufficiently serious or harmful,'" Jennejahn, 575 F.Supp.2d at 478 (quoting United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999)), to be actionable, see Lemmo, 2011 WL 843974, at *5 ("Injuries held to be de minimis for purposes of defeating excessive force claims include short-term pain,
Finally, because there are no allegations that anyone else from Ossining touched Plaintiff or witnessed Drohan's use of force, this claim is also dismissed as to any John Does.
Because Plaintiff's claim of excessive force fails, so too does her claim alleging that the force used was authorized by the Village of Ossining's policies and procedures or caused by its failure to supervise or train its employees. See Jennejahn, 575 F.Supp.2d at 481. Accordingly, summary judgment is granted as to all of Plaintiff's federal claims against the Ossining Defendants.
Plaintiff has not opposed the Croton Defendants' assertion of qualified immunity and on that ground alone, the claims against Smith are properly dismissed.
An arrest is justified or privileged if it is based on probable cause. LaFontaine v. City of N.Y., No. 08-CV-1555, 2009 WL 3335362, at *5 (S.D.N.Y. Oct. 14, 2009); see Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir.1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause."). Probable cause exists when an 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.'" Jocks, 316 F.3d at 135 (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996)); accord Dunaway v. New York, 442 U.S. 200, 208 n. 9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The focus is not on the arresting officer's certitude, but rather on the likelihood of criminal activity. See Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); LaFontaine, 2009 WL 3335362, at *5. "[P]robable cause is evaluated under an objective standard." Michaels, 2011 WL 570125, at *5 (internal quotation marks omitted), under which "courts look to the information available to the law enforcement officer at the time of the arrest and consider the `totality of the circumstances,'" id. (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)); accord Gates, 462 U.S. at 230-31, 103 S.Ct. 2317. The basis for probable cause can be information about the commission of a crime received from another person, Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000); LaFontaine, 2009 WL 3335362, at *5, and once a law enforcement officer "has a reasonable basis for believing there is probable cause" to arrest a suspect, "he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest," Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir.1997); see Krause v. Bennett, 887 F.2d 362, 372 (2d Cir.1989) (law enforcement officers are tasked with "apprehend[ing] those suspected of wrongdoing" — not engaging in "a weighing of the evidence").
Finally, because probable cause is evaluated under an objective standard, it need not be "predicated upon the offense invoked by the arresting officer, or even upon an offense `closely related' to the offense invoked by the arresting officer," and "the `subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.'" Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir.2006) (quoting Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004)). The focus is simply on "the validity of the arrest, and not on the validity of each charge." Id. at 154 (emphasis in original). Thus, as long as the Defendant officers
Plaintiff's false arrest claim fails for several reasons. First, probable cause existed for Plaintiff's arrest by virtue of the bench warrants. That the Croton-on-Hudson officers ultimately charged Plaintiff with resisting arrest is irrelevant. Second, it appears that the Croton-on-Hudson officers also had probable cause to arrest Plaintiff for resisting arrest. There is no dispute that Drohan attempted to arrest Plaintiff but that Plaintiff resisted by getting back in the vehicle and refusing to comply with his orders. Drohan called for back-up, and according to Plaintiff, the Croton-on-Hudson officers arrived on the scene during the midst of Drohan's struggle with Plaintiff; they therefore would have witnessed the events that would easily give rise to probable cause for resisting arrest. (See Randazzo Decl. Ex. C, at 38.)
Plaintiff's claim fails as a matter of law for yet another reason: she pleaded guilty to disorderly conduct to resolve the charge of resisting arrest. (See Randazzo Decl. Ex. G.) See Maietta v. Artuz, 84 F.3d 100, 102 n. 1 (2d Cir.1996) (plaintiff cannot challenge validity of arrest under Section 1983 after guilty plea); Masetta v. Town of Irondequoit, No. 06-CV-6143, 2010 WL 4823684, at *4 (W.D.N.Y. Nov. 29, 2010) (dismissing plaintiff's false arrest claim where plaintiff was arrested for resisting arrest and pleaded guilty to disorderly conduct because guilty plea established probable cause as matter of law); Sealey v. Fishkin, No. 96-CV-6303, 1998 WL 1021470, at *4 (E.D.N.Y. Dec. 2, 1998) (plea of guilty to lesser offense of disorderly conduct forecloses false arrest claim pursuant to Section 1983 because "[b]y pleading guilty to disorderly conduct, plaintiff necessarily acknowledged that [s]he was engaged in some unlawful activity for which the police could properly take [her] into custody"). Accordingly, Plaintiff's false arrest claim is dismissed.
Plaintiff claims that Defendant "Smith used excessive force against her when he and another officer grabbed Plaintiff's arms, picked her up, and threw her against the car. (Randazzo Decl. Ex. C, at 39-40.) Even if Plaintiff had not abandoned this claim by failing to oppose Smith's assertion of qualified immunity, Smith would plainly be entitled to qualified immunity.
"The doctrine of qualified immunity shields public officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir.2006) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Munafo v. Metro. Transp. Auth., 285 F.3d 201, 210 (2d Cir.2002) (alterations, citations, and internal quotation marks omitted). Thus, qualified immunity provides protection to police officers faced with an excessive force claim unless the officers (1) "violated a constitutional right (2) that was clearly established at the time of the alleged violation." Hodge v. City of Long Beach, 425 Fed.Appx. 33, 34 (2d Cir.2011) (internal quotation marks omitted).
Putting aside for a moment Plaintiff's allegations that Smith's conduct caused her to have a miscarriage, it appears that Smith's actions were objectively legally reasonable. Smith had probable cause to arrest Plaintiff, such that the use of some force was reasonable. Furthermore, given the Supreme Court's adage that not every push or shove constitutes excessive force, see Graham, 490 U.S. at 396, 109 S.Ct. 1865, the case law holding more extreme uses of force to be de minimis, see Phelps, 577 F.Supp.2d at 661-62, and the fact that Plaintiff sustained no injuries apart from her alleged miscarriage, it appears that the use of force here was not "`objectively sufficiently serious or harmful enough' to be actionable," Rincon v. City of N.Y., No. 03-CV-8276, 2005 WL 646080, at *4-5 (S.D.N.Y. Mar. 21, 2005) (quoting Walsh, 194 F.3d at 50) (where officers threw plaintiff to the ground and plaintiff claimed stitches in her leg split open causing her to bleed, force used was de minimis). Smith's actions — controlling an arrestee, who moments earlier had been resisting, by throwing her against a car to handcuff her — are not so clearly prohibited as to take him beyond the protections of qualified immunity. Accordingly, as applied to a nonpregnant woman, Smith's conduct would be shielded by qualified immunity.
The question, therefore (had Plaintiff not abandoned her claim), is whether Smith's actions were not objectively reasonable, because Plaintiff was pregnant. The answer is no, because by Plaintiff's account, Smith did not know she was pregnant at the time he threw her against the car. (See Randazzo Decl. Ex. C, at 41-42, 104-05.) Therefore, at the time that Smith effectuated Plaintiff's arrest, (id. at 104), he apparently did not know he was pushing a pregnant woman, and therefore cannot be said to have acted unreasonably in using the minimal amount of force he employed. Moreover, assuming that a reasonable officer ought to calibrate his use of force, when arresting a young woman, to account for the possibility of pregnancy, forcibly putting an arrestee against a car after she refused to comply with one officer and her companion tried to forcibly shake that officer from the car, is not inconsistent with that obligation. Indeed, the record is bereft of evidence that the officer's conduct injured or could have injured Plaintiff or her unborn child.
Finally, Plaintiff's claim against the Village of Croton-on-Hudson
Having dismissed all of Plaintiff's federal causes of action, I decline to exercise supplemental jurisdiction over Plaintiff's remaining state-law claims. See 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.2006).
For the reasons stated above, Defendants' Motions for Summary Judgment are GRANTED. Plaintiff's federal claims are dismissed with prejudice, and her state-law claims are dismissed without prejudice. The Clerk of Court is respectfully directed to terminate the pending Motions, (Docs. 52, 58), and close the case.