Opinion
99 Civ. 11984 (GEL)(HBP)
September 18, 2001
OPINION AND ORDER
In this civil rights action brought pursuant to 42 U.S.C. § 1983, plaintiff Abdoullaye Ba alleges that defendants New York City Police Department ("NYPD"), Officer Sandra Messina and two unidentified police officers (collectively, "defendants") committed federal constitutional violations on October 3, 1998, by falsely arresting him, using excessive force to effect the arrest and, subsequently, maliciously prosecuting him. Following discovery, defendants moved on February 12, 2001, for summary judgment, pursuant to Fed.R.Civ.P. 56(c), on all of the claims asserted in Ba's First Amended Complaint. Ba, who is currently in the custody of the
Ba's original complaint named the State of New York as the sole defendant. By order dated December 13, 1999, then-Chief Judge Thomas P. Griesa dismissed Ba's complaint on the grounds that the state is not a proper defendant to a Section 1983 action, and directed him to file an amended complaint that identified individual defendants who were responsible for the allegedly false arrest, as "John Does" if not by name, and that specified the details of the arrest and what each police officer did or failed to do during and after the arrest. Ba v. The State of New York No. 99 Civ 11984 (TJG), slip op. at 2 (S.D.N.Y. Dec. 13, 1999).
Immigration and Naturalization Service ("INS"), cross-moved on February 20, 2001, for a stay of deportation during the pendency of the instant action. For the reasons that follow, defendants' motion for summary judgment is granted, and Ba's cross-motion for a stay is denied.
BACKGROUND
The following facts, which primarily concern Ba's arrest and subsequent detention on October 3, 1998, are drawn primarily from the affidavits of Ba and Officer Messina, from the defendants' statement of undisputed facts pursuant to Local Rule 56. 1, and from various public records and other documents submitted in support of the motion. Though the parties' accounts of Ba's arrest differ significantly, even if Ba's statements are accepted for purposes of this motion whenever they are sufficiently concrete and specific to contradict the affidavits, documents, and other evidence submitted by defendants, no genuine issues of material fact preclude summary judgment
In opposition to defendants' motion, Ba submitted a document styled an "affidavit," which was neither signed nor notarized, and which contains mostly legal argument and conclusory denials of the proof submitted by defendants in support of the motion. For purposes of this motion, the Court assumes arguendo that Ba's "affidavit" may be considered as evidence pursuant to Rule 56(e).
Ba's Arrest and Detention
During the evening of October 3, Messina was assigned to a motor patrol with her supervisor. Sergeant Theodore Wright, through various neighborhoods within the 32nd precinct in Manhattan, which includes sections of Harlem. (Messina Aff ¶¶ 4-5.) At 7:10 p.m., 911 operators fielded three separate calls from people who, apparently, resided in the area of an apartment building at 127 Edgecome Avenue. (Sohn Decl. Ex C) As evidenced by the following excerpts from a transcript of one of the calls, a caller informed an operator that an African or African-American man was assaulting a victim with a glass bottle in the building's vicinity:
Caller Hello, miss. It's a fight right here in front of my door. Could you please come here? He's about to kill him. Could you please? This is 127 Edgecomb Avenue. (Unclear) It's 127 Edgecomb Avenue. Could you please? . . .
Operator: Did he have weapons or anything?
Caller: Yeah. He was hitting him with a bottle. Look at his face . . . .
Operator: Okay. Ma'am, is he bleeding anywhere?
Caller: Everywhere. On his back, his mouth. .
Operator: Okay. I need a description of the man that's beating him up. Is he black, white, Hispanic; dark skin.
Caller: Yeah, he's black. He's African.
Operator: Okay, what is he wearing?
Caller: Alright. Please. He's got a bottle.
Operator: Alright. Ma'am. The police are enroute to the location.
What is the description of the man that's beating him up?
Caller: He got on black pants. He ain't got no shirt on. He right there. Right there' Right there!
(Sohn Decl. Ex. D.) An operator notified Messina and Wright about the fight at approximately 7:15 p.m.
According to Messina, the officers immediately proceeded to 127 Edgecome Avenue, where Messina observed two black men, Ba and the apparent victim, Gueye Baye, encircled by a sizeable crowd of observers. (Messina Aff ¶¶ 5-6.) Ba was holding a glass bottle, while Baye bled from numerous facial wounds. Leaving her patrol car, Messina approached the crowd of onlookers and ordered Ba to drop the bottle. He complied, and the bottle shattered on the pavement, preventing the police from obtaining it as evidence. (Id. ¶¶ 7-9.) Baye then informed Messina that Ba had attacked him with the bottle, and Tonya Sykes, a witness to the fight, corroborated Baye's account. (Id. ¶¶ 10-11.) At that point, Messina concluded she had probable cause to believe that a crime had been committed, and she proceeded to handcuff Ba, who initially resisted the arrest. As a result, according to Messina, "a minimum amount of force necessary to effect his arrest was used" (Id. ¶¶ 12-13.)
In an arrest report drafed subsequent to the arrest, Messina noted that Ba had injured Baye "by striking [Baye] in his face with a glass bottle, not recovered." (Sohn Decl. Ex. E.)
Ba testified at his deposition that other officers were present at the time of his arrest, but he was unable to describe or identify them. (Ba Dep. at 37.)
In his mostly conclusory affidavit, Ba denies any involvement in the attack on Baye, alleging among other things that he has "never even seen the alleged victim." (Ba Aff at 1.) He claims that he "was walking down the street and was thrown to the ground by police officers." (Id. at 2.) While conceding that Tonya Sykes informed Messina that she had witnessed the fight, he contends that Sykes lied to Messina about Ba's role, because she "has a personal vendetta against me because I refused to claim her baby as my own." (Id. at 3.) Moreover, although Ba claims that certain unidentified officers "threw" him to the pavement while effecting his arrest, he does not specifically contend that Messina was one of them. (Id. at 3, Ba Dep. at 34, 37, 43.)
At the time of his arraignment following his arrest, however, Ba said of Baye, "Me and him we family". (Sohn Reply Decl., Tr. 1 at 4.)
Subsequent to the arrest, Messina transported Ba to the 32nd precinct, where, pursuant to customary booking procedures, she prepared an arrest report and attempted to fingerprint Ba, who responded, according to Messina, by grabbing her "genital area with his hand and start[ing] to rub his genitals against [her] body." (Messina Aff. ¶¶ 14-15.) To defend herself from Ba's conduct, Messina says,
I ordered [Ba] to stop touching my body [He] continued to grope my genital area. As a result, I removed [Ba] to a cell. Only force necessary to prevent [Ba] from groping my body and to place him in a cell were used.
(id. ¶ 16.) Her account is corroborated by another officer who was present at the time, and who apparently played no role in Ba's arrest. (Kelly Reply Aff.) Ba. however, denies that he groped Messina, and avers that he did nothing more than touch her hand while being fingerprinted. (Ba Aff at 2; Ba Dep. at 42-43.) Ba does not contend that he was injured by the police while being removed to the cell.
Later that evening, the District Attorney's Office, New York County, filed a complaint in the Criminal Court of the City of New York, charging Ba with second-degree assault (for striking Baye with a bottle) and third-degree sexual abuse (for groping Officer Messina). (Sohn Decl. Ex. F.)
Ba's Medical Treatment
At approximately 2:00 am, on October 4, paramedics transported Ba from the precinct to Harlem Hospital "complaining of pain on his both hand [sic]." (Ambulance Call Report, Sohn Decl Ex. G.) Ba has given conflicting accounts of how he was injured. In his affidavit he claims that he "was injured by the police officers who threw me to the ground." (Ba Aff at 3.) Ba testified at his deposition that he told Messina during his booking that his hand hurt and that the fingerprinting process was painful because of his injuries, but (at least in the excerpts provided to the Court) did not claim that he told her how he had sustained the hand wounds. (Ba Dep. at 42-43) A contemporaneously-prepared Ambulance Call Report, which notes that on physical examination Ba was found to have "minor abrasion[s]" on both hands, reveals that Ba complained to the paramedics that he had been "assaulted," but does not record that he said when or by whom (Defs.' Rule 56. 1 Statement ¶ 29; Sohn Decl. Ex. G.) However, medical records from Harlem Hospital's emergency room, where Ba was treated, reveal that Ba told medical personnel both that he had been "assaulted by his friend who poked him" in the left hand with a knife, and that he was "assaulted with [a] bottle," which resulted in a "[m]ild abrasion" to his right hand. (Sohn Decl. Ex. H.) At the time he received treatment for his injuries at Harlem Hospital, Ba did not allege that he was injured as a result of actions taken by Messina or any other employee of the NYPD. (Id.)
Ba was released from the hospital and returned to police custody shortly after 5:00 a.m. (Id.) Although he was apparently in custody for several months thereafter, his inmate medical record makes no reference to any complaint by Ba about any injury resulting from his arrest at any time after his release from the Harlem Hospital emergency room. (Sohn Decl. Ex. K.)
Subsequent Proceedings
Later on October 4, 1998, Ba was arraigned in the Criminal Court of the City of New York on one count of second-degree assault and one count of third-degree sexual abuse, and bail was set. (Sohn Decl. Ex I.) At that same proceeding, the Criminal Court entered a Temporary Order of Protection, directing Ba, among other things, to "[r]efrain from harassing, intimidating, threatening or otherwise interfering" with Baye. (Sohn Decl. Ex. J.)
The record contains no information about subsequent proceedings in the criminal case until its dismissal. The inmate medical records, however, appear to corroborate that Ba was unable to post bail and remained in custody during the pendency of the charges. (Sohn Decl. Ex K; see also Complaint ¶ IV) On August 2, 1999, nearly ten months after his arrest, the State conceded at a hearing before the Criminal Court that, pursuant to the provisions of N.Y. Crim. Proc. L. § 30.30, it had violated Ba's speedy trial rights. Accordingly, the court dismissed all charges against Ba. (Sohn Decl. Ex. L at 2.) Ba appears to have been immediately re-arrested pursuant to a detainer filed by the INS. (Id. Ex. M.)
The Instant Action
Ba subsequently filed this action In his First Amended Complaint, filed on January 4, 2000, Ba alleges that he was falsely arrested on charges of second-degree assault and third-degree sexual abuse by Messina and two unnamed police officers and, subsequently, maliciously prosecuted on those counts. He also contends that Messina and the other officers used excessive force against him while effecting his arrest, "causing several cuts, bruises, and immense swelling to my hands." (First Am. Compl. IV IV-A.)
Ba also appears to allege in his affidavit that Defendants committed Eighth Amendment violations by denying him "medical attention." (Ba Aff. at 3) However, even if the Court were to grant him leave to amend his First Amended Complaint, the Court finds that the undisputed evidence clearly indicates that Ba was treated effectively and relatively promptly after his complaints of quite minor injuries. Ba's wholly conclusory and off-hand reference to being "denied medical attention" is not sufficient to demonstrate the existence of a genuine issue of material fact as to any Eighth Amendment violation. See, e.g., United States v. Potamkin Cadillac Corp, 689 F.2d 379, 381 (2d Cir. 1982) (per curiam) (noting that a party opposing summary judgment "must bring to the district court's attention some affirmative indication that his version of relevant events is not fanciful.")
DISCUSSION
I. Defendants' Motion For Summary Judgment A. Summary Judgment Standard For Pro Se LitigantsIn any civil action, summary judgment may only be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law" Fed.R.Civ.P. 56(c). The party opposing summary judgment "may not rest upon mere allegations or denials"; rather it must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986). Similarly, a party cannot defeat summary judgment by "offering purely conclusory allegations," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), or by offering evidence in opposition that is merely speculative. See Dister v. Contimental Group. Inc., 859 F.2d 1108, 1116-1117 (2d Cir. 1988).
With regard to actions commenced by pro se litigants, who are generally unfamiliar with basic legal principles and with the often complex procedural requirements associated with motion practice, the Second Circuit has taken steps to ensure that such parties receive adequate notice of what is required to oppose a summary judgment motion successfully. In McPherson v. Coombe. 174 F.3d 276 (2d Cir. 1999), the Court of Appeals noted that a pro se plaintiff will ordinarily, in the absence of some explanation as to the nature of summary judgment proceedings, be at a disadvantage in attempting to oppose experienced counsel. Accordingly, it required district judges or the movants themselves to furnish the following information to the pro se plaintiff:
[A]bsent a clear indication that the pro se litigant understands the nature and consequences of Rule 56 . . . he or she must be so informed by the movant in the notice of motion or, failing that, by the district court. That notice should include a short and plain statement that all assertions of material fact in the movant's affidavits will be taken as true by the district court unless the pro se litigant contradicts those factual assertions in one or more affidavits made on personal knowledge containing facts that would be admissible in evidence or by submitting other materials as provided in Rule 56(e).Id. at 282.
When these procedural requirements are complied with, however, as they were here, not every effort by a pro se plaintiff to oppose a summary judgment motion by filing an affidavit will be successful. The Court of Appeals has held, for example, that as is true with regard to motions briefed by experienced counsel, a district court acts well within its province by granting summary judgment when the pro se plaintiff has failed to identify specific defendants involved in the alleged misconduct or otherwise "made wholly conclusory and inconsistent allegations" in an effort to oppose the motion. Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) (per curiam); see also Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d Cir. 1986) ("[A]t some point in a lawsuit even pro se litigants must make clear to the court their claims and the facts that they believe entitle them to specific relief.").
In their notice of motion accompanying their summary judgment papers, defendants informed Ba of his Rule 56 obligations and the consequences of failing to comply with them:
PLEASE TAKE FURTHER NOTICE that, pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, when a motion for summary judgment is made and properly supported, you may not simply rely upon your complaint, but you must respond by affidavits or otherwise provided in that rule, setting forth specific facts showing that there is a genuine issue of fact for trial. Any factual assertions in defendants' papers will be accepted by the United States District Judge as being true, unless you submit affidavits or other documentary evidence contradicting defendants' facts. If you do not so respond, summary judgment, if appropriate, may be entered against you, your case will be dismissed and there will be no trial.
(Defs.' Notice of Motion at 1-2) (emphasis added.) Defendants not only informed Ba of his obligation to supplement his pleadings with affidavits or other admissible evidence, but also noted that his proof must contain specific (i.e., non-conclusory) facts to demonstrate the existence of triable factual issues. Defendants thus fully complied with their obligations under McPherson.
B. The Amenability of the NYPD to Suit
Defendants argue as a threshold proposition that the NYPD is not a juridical entity capable of being sued. (Defs.' Mem. Supp. Summ. J. at 16-17.) It is well established that individual agencies of the City of New York, such as the NYPD cannot be named as defendants in a civil action. See e.g., East Coast Novelty Co. Inc. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992). Nor can the complaint be salvaged by construing it liberally to assert claims against the City of New York itself, because Ba has failed to set forth facts indicating that the city had a policy, practice or custom that was the "`moving force [behind] the constitutional violation.'" Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987) (quoting Monell v. New York City Department of Social Servs., 436 U.S. 658, 694 (1978)). Accordingly, all claims asserted by Ba against the NYPD must be dismissed.
C. False Arrest
Ba claims that defendants violated his rights under the Fourth Amendment (and, presumably under state tort law) by falsely arresting him on charges of assault, for hitting Baye on the head with a glass bottle, and sexual abuse, for fondling Messina while she attempted to fingerprint him. However, "[t]he existence of probable cause to arrest . . . `is a complete defense to an action for false arrest,' whether that action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (quoting Bernard v. United States 25 F.3d 98, 102 (2d Cir. 1994)).
Probable cause clearly existed to effect Ba's initial arrest. Probable cause arises whenever an "arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1998) (internal quotations omitted). Moreover, probable cause can "exist even where it is based upon mistaken information, so long as the arresting officer acted reasonably and in good faith and relied on that information." Dukes v. City of New York, 879 F. Supp. 335, 340 (S.D.N.Y. 1995) (quoting Bernard, 25 F.3d at 102). Here, defendants have proffered a transcript of a 911 call from a person residing in the vicinity of 127 Edgecome Avenue, the site of Ba's fight with Ba. (Sohn Decl. Ex. D.) The caller clearly described to police that an African man was beating a victim over the head with a glass bottle, therefore inflicting serious injury. (Id.) Messina and her partner, having been advised of this call, arrived at the scene where, Messina avers, she witnessed an individual similar to the man described by the anonymous caller, wielding a bottle that apparently had been used in a fight. She then interviewed Baye, who told Messina that he had been attacked by Ba, and Tonya Sykes, an eyewitness to the fight, who corroborated Baye's account. (Messina Aff. ¶¶ 7-1 1.)
Ba contests Defendants' account of the events of October 3. In his affidavit, he denies having participated in the fight, claiming instead that he was simply an innocent bystander:
I was walking down the street and was thrown to the ground by police officers. They charged me with assault. I told the police they are making a mistake; I hadn't committed any crime; I didn't have any weapon.
(Ba Aff at 2.) Ba's affidavit is extremely conclusory and does little more than assert his innocence. Construing Bas assertions liberally, however, his affidavit can be taken as specifically contradicting Messina's testimony about Ba's location and actions at the time of the arrest, and thus raising an issue of fact about whether she observed Ba, who met the 911 caller's description of the assailant, at the scene of the fight, in the act of confronting Baye with a bottle in his hand.
Nevertheless, even discounting, for purposes of summary judgment, any of Messina's own observations, the evidence indisputably available to the arresting officers amply established probable cause for Ba's arrest for assault. Ba does not dispute that both Baye and Sykes identified Ba as Baye's assailant and as the aggressor in the fight. Indeed, he specifically acknowledges Sykes' account of the fight (Ba Aff at 2), arguing only that she concocted the story for reasons of her own, and that the police were therefore "wrong to believe" her (id. at 3).
But the existence of probable cause does not depend on the ultimate accuracy of the information available to the police. Where an officer acts, as Messina did, in reasonable and good faith reliance on information provided by a credible witness at the scene, she has complied with the requirements of the Fourth Amendment. See Bernard, 25 F.3d at 102 (probable cause can exist "even where it is based upon mistaken information, so long as the arresting officer acted reasonably and in good faith and relied on that information") Ba complains that he was "arrested simply on what was said to the police officer." (Ba Aff. at 2) Given that "what was said to the police officer" by an apparently reliable eyewitness was that Ba had committed a serious assault, there is nothing unlawful about that.
Ba also contends that Messina falsely arrested him on charges of sexual abuse. While Ba and Messina provide sharply divergent accounts of the events leading to this charge, the disputed factual issues do not preclude summary judgment. At the time of the alleged offense against Messina, Ba had already been seized and was already in custody Since Ba was charged with assaulting Baye, based on ample and undisputed probable cause, in the same complaint in which he was charged with sexual abuse, he was seized and detained on a charge that the officer clearly had probable cause to bring. Because the deprivation of liberty was supported by probable cause, even if Ba could establish that he was falsely accused of sexual abuse, he did not sustain a constitutional injury in the nature of false arrest.
Consequently, because the officers, at the very least, had probable cause to seize Ba and charge him with assault arising out of his fight with Baye, defendants' motion for summary judgment on his state and federal false arrest claims is granted.
E. Malicious Prosecution
Ba also alleges that defendants maliciously prosecuted him on charges that were ultimately dismissed on speedy trial grounds. However, the institution of a criminal proceeding (as opposed to an arrest and deprivation of liberty) without probable cause does not state a cause of action under § 1983. Albright v. Oliver, 510 U.S. 266 (1994). "Rather, in order to prevail on such a claim under § 1983, the plaintiff must show a violation of his rights under the Fourth Amendment"Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997). As is demonstrated above, Ba's arrest and detention was based on probable cause and fully complied with Fourth Amendment requirements. He therefore has no constitutional claim sounding in malicious prosecution.
A claim for malicious prosecution under the tort law of New York State fares no better. To succeed on such a claim, Ba must prove, among other things, that defendants lacked probable cause for commencing the criminal proceeding against him, and that they prosecuted him for malicious purposes. Murphy, 118 F.3d at 947. The existence of probable cause for the assault charge thus defeats a malicious prosecution action. Ba claims that the sexual abuse charge was totally without merit, and that Officer Messina "lied to get me arrested." (Ba Aff at 3). However unlikely it may seem that a jury would accept Ba's account in the face of the testimony of two police officers, this conflict of testimony would preclude summary judgment for malicious prosecution had the sexual abuse charge been the only basis for Ba's arrest and prosecution. In this case, however, Ba nowhere alleges, and the Court cannot identify, any damage that was occasioned as a result of the addition of this charge. Ba was properly charged, on the basis of ample probable cause, with assault in the second degree, a Class D violent felony offense carrying a maximum potential sentence of seven years. See N.Y.P.L. §§ 120.05(2), 70.00(2)(d), 70.02(1)(c). Ba does not allege, and the record contains no evidence from which it can reasonably be inferred, that the addition of a class B misdemeanor charge affected in any way the amount of his bail or the length or conditions of his confinement. Under these circumstances, he cannot prevail on a malicious prosecution claim. Accordingly, the State's motion for summary judgment on that claim is granted.
F. Excessive Force
Construing Ba's complaint and affidavit liberally, as befits pro se filings, it appears that Ba further contends that defendants used excessive force against him while effecting his arrest. However, in his affidavit and deposition testimony, as in the complaint itself he fails to specify any individual police officers who used excessive force, or to provide any meaningful evidence that the force used was unreasonable.
At the complaint stage, of course, Ba could not have been expected to identify particular officers by name, and then-Chief Judge Griesa's order did not require him to do so, allowing him to designate the officers as "John Does." See note 1 above. Nevertheless, that order appropriately required Ba to identify the officers who supposedly violated his constitutional rights by describing what particular officers did and did not do during the arrest that he contends constituted excessive force. Instead, Ba has simply alleged that "At the time of my arrest, the officers threw me to the ground, thereby causing several cuts, bruises, and immense swelling to my hands. (Complaint, ¶ IV-A.) His affidavit uses similar language. (Ba Aff at 3; "the police officers . . . threw me to the ground.") Similarly for Ba's deposition: he was unable to say how many officers were involved ("too many . . . I don't remember exactly"), or to describe any of them, even to the extent of knowing whether any of them were male or female. (Ba Dep. at 37, 42.) More specifically, Ba disclaimed any knowledge of whether Messina — the only named defendant, whom Ba claimed to remember from the fingerprinting — was involved in any use of force at the scene of the arrest. (Id. at 42-43) Apart from an indication that someone "stepped on" him during the struggle (id. at 37), the portions of the deposition that have been made part of the record provide no more detail than the complaint itself.
A plaintiff who proceeds pro se, is a non-native speaker of English, and must litigate from within the custody of the INS faces formidable obstacles. Nevertheless, the Court offers substantial services to pro se litigants, and materials to guide them through the discovery process. After having been afforded an opportunity to take discovery, and having been clearly advised by Judge Griesa's order of the kind of information within his own knowledge that is necessary to present his case, Ba still can offer no testimony or other evidence that would single out any identifiable officer as having committed any act that could be considered to be excessive.
Ba asserts that at the time of the arrest, his English was "very poor." (Ba Aff. at 3.) He acknowledges that it has since "improved" (Id.), and his communications with the Court have been clear and articulate.
On the evidence of record, then, no reasonable jury would be able to find for Ba on his excessive force claim against any individual defendant. In Graham v. Connor, 490 U.S. 399 (1989), the Supreme Court held that the Fourth Amendment, the source of constitutionally-based excessive force claims, requires that such claims are to be evaluated according to a "reasonableness" standard, pursuant to which a lower court must pay "careful attention to the facts and circumstances of each particular case, 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. at 396. Here, even putting aside the arresting officer's claims that she observed Ba holding a broken glass bottle that reportedly had been used against Baye, and that Ba resisted arrest, the undisputed evidence unquestionably shows that the officers had probable cause to believe that Ba had perpetrated a violent assault. Even accepting arguendo his assertion that he was walking away from the scene without a visible weapon at the time of his arrest, the information available to the officers justified the use of some force in apprehending Ba, and he admits he is unable to identify any officer who engaged in any particular act that went beyond minimal force. Moreover, the available evidence, including reports of Ba's own statements to medical personnel at the time, strongly suggests both that Ba's injuries were minimal, and that whatever minor abrasions he did suffer were not the result of his arrest. (See Sohn Decl. Ex. H.) While serious physical injury is not required in order to establish a claim of unreasonable force, the absence of any but the most minor injuries here at a minimum provides no support for Ba's claim that the officers exceeded whatever force was reasonably necessary to effect an arrest.
Thus, plaintiff has specifically disclaimed having any evidence of misconduct by the only individual defendant that he has identified and served, and presents no substantial evidence of excessive force by any unknown officer that would justify any further discovery. Under these circumstances, no reasonable jury could return a verdict against any individual defendant, and summary judgment for the defendants on the excessive force claim is therefore warranted.
II. Ba's Motion to Stay His DeDortation
Ba has also moved the Court to stay his deportation during the pendency of this action. Without considering whether the Court even has the authority to stay a deportation proceeding pending an alien's civil action for monetary damages unrelated to any INS activity, given the Court's summary disposition of the action in Defendants' favor, Ba's motion is moot, and is therefore denied.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment on all of the claims asserted in Ba's First Amended Complaint is granted. Ba's cross-motion for a stay of deportation is denied. The Clerk of Court is respectfully directed to dismiss the above-captioned action with prejudice.
Because Ba labeled his response to defendants' motion for summary judgment as a "Motion Against Summary Judgment," the Clerk of Court has apparently docketed it as a pending motion. Consequently, the Court directs that this "motion" shall be removed from the motions list.