Summary
finding no deliberate indifference when arrestee received medical treatment within four hours of his arrest
Summary of this case from Yancewicz v. FayoOpinion
Case No. 97-CV-1312
March 4, 2003
For the Plaintiff, Kenneth Basnight, Pro Se, Staten Island, N.Y.
For the Defendant Joseph Brand, Commissioner of the Nassau County Police Dep't, and Sheriff of Nassau County, and Nassau County: LORNA B. GOODMAN, ESQ., County Attorney, LIORA M. BEN-SOREK, ESQ. Mineola, New York
For the Remaining Defendants, MICHAEL D. HESS, ESQ., Corporation Counsel of the City of New York, KEVIN R. DANTZLER, ESQ., Assistant Corporation Counsel, New York, New York
MEMORANDUM AND ORDER
Basnight, proceeding pro se, filed a complaint containing 116 claims pursuant to 42 U.S.C. § 1981, 1983, 1985, and 1986, for defendants' alleged violations of his Fourth and Eighth Amendment rights, stemming from events occurring on December 29-30, 1994; each cause of action alleges a violation of state law as well. After providing Basnight with the required Rule 56.2 notice to pro se litigants, the New York City and Nassau County defendants moved for summary judgment on all counts, and Basnight then filed a cross-motion for summary judgment. Except as otherwise noted, the material facts are not in dispute. For the reasons stated below, the Court denies Basnight's motion, and grants defendants' motion on all claims except claims 1, 5 and 7, which allege that defendants Rossi and Miles used excessive and deadly force during their arrest of Basnight.
As would be expected, Basnight's claims are repetitive, and in essence, he raises eight distinct causes of action against the various defendants: (a) false arrest and fabricated probable cause (claims 3, 4, 33); (b) coercion of Basnight's confession (claims 12-14, 24, 32); (c) suggestive line-up (claim 30); (d) malicious prosecution (claims 20, 51, 52, 54); (e) perjury at trial and conspiracy to cover up improper police conduct through "blue wall of silence" (claims 6, 8, 15-19, 21, 23, 25-28, 31, 34, 37, 38, 44-50, 53, 108); (f) deliberate indifference to medical needs (claims 9-12, 22, 29, 35, 36, 101-106); (g) excessive and deadly force by Officers Rossi and Miles (claims 1, 5, 7); and (h) failure to train, improper investigation of improper police conduct, and condoning improper police conduct by superior officers and municipal defendants (claims 39-43, 55-100, 104, 110-116).
DISCUSSION
Probable Cause and False Arrest, Coercion of Confession, Malicious Prosecution, Unfair Line-Up, and Perjury and Conspiracy Claims
Basnight makes a number of claims related to the fairness of his arrest, prosecution, and conviction in state court. He claims that there was no probable cause to conduct a car chase or to arrest him; that he was coerced into signing a confession; that the line-up administered by Officer Khrisce was unduly suggestive; that he was maliciously prosecuted in Queens and Nassau County; and that at trial, several police officers perjured themselves, with the consent of their superior officers, in a conspiracy to cover-up their unconstitutional acts.
None of these claims are actionable under 42 U.S.C. § 1983. In Humphrey v. Heck, the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Humphrey v. Heck, 512 U.S. 477, 486-87 (1994). Humphrey constrains the Court from granting relief on any of these claims, particularly in light of a pre-trial state court decision that permitted Basnight' s trial to proceed after determining that he was arrested upon probable cause and pursued by police officers who had reasonable suspicion, that his line-up was not unduly suggestive, and that he voluntarily waived his Miranda rights and confessed to the crimes charged. See People v. Basnight, Inc., No. 55/95 (Sup.Ct., Queen's Cty. Nov. 17, 1995) (Appelman, J.) (Mapp-Huntley-Wade hearing decision) (Plt. Ex. T); see also Basnight v. Keane, No. 99-CV-5907 (FB), 2001 WL 901139 (E.D.N.Y. July 31, 2001) (denying writ of habeas corpus); People v. Basnight, 683 N.Y.S.2d 900 (2d Dep't 1999) (affirming state court convictions).
Notwithstanding Humphrey, Basnight's claims fail on the merits. False arrest claims actionable under both 42 U.S.C. § 1983 and New York state law are subject to the "complete" defense of the officer's having probable cause for the arrest. See Weyant v. Okst, 101 F.3d 845, 852 (2d. Cir. 1996); see also Hygh v. Jacobs, 961 F.2d 359, 366 (2d. Cir. 1992) (setting forth elements for false arrest claims). Here, the officers had probable cause to arrest Basnight when he became involved in a high-speed chase, fled the scene of the crime, and was involved in a subsequent altercation with a police officer. See Basnight, Inc. No. 55/95, at 7-9 (Mapp-Huntley-Wade decision) (discussing existence of reasonable suspicion to engage in car chase and probable cause to arrest after altercation with police officers).
Basnight's malicious prosecution claim is meritless as well because it lacks a required element of the claim: he cannot show that the underlying proceedings terminated in his favor. See Posr v. Court Officer Shield 201, 180 F.3d 409, 416 (2d Cir. 1999).
Basnight's conclusory allegations of constitutional violations with respect to his coercion, unfair line-up, perjury and conspiracy claims are unsupported by any factual material submitted by him. See D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (mere conclusory allegations or speculation are not enough to survive summary judgment, even when plaintiff is pro se; he must offer some "hard evidence" to show that "its version of the events is not wholly fanciful.").
Deliberate Indifference to Medical Needs Claims
Deliberate indifference to a detainee's serious medical needs is actionable under § 1983 if the plaintiff can prove that his inadequate medical care was more than merely negligent. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Youngberg v. Romeo, 457 U.S. 307, 323 (1982); Estelle v. Gamble, 429 U.S. 97, 105 (1976); Bryant v. Maffaucci, 923 F.2d 979, 983 (2d. Cir. 1991). He must show that he sustained definitive and considerable harm because of the neglect, and that the delay or indifference amounted to a "substantial departure form accepted professional judgment, practice or standards." Youngberg, 457 U.S. at 323; see also Bryant, 923 F.2d at 983.
Basnight received medical attention, including six stitches to his head, and although Basnight claims that his nose was broken and should have been X-rayed, the nurse's failure to order the test was at most negligence and does not rise to the level of a constitutional violation. Moreover, Basnight cannot support this claim on the basis of delay of treatment, because the facts show that he was treated within four hours of his arrest, and was even offered medical attention at the crime scene.
Excessive Force Claim
The parties submit radically different versions of the events surrounding this claim. Basnight testified in his deposition that Officers Rossi and Miles used excessive force in restraining him because, without provocation, they placed him in a choke-hold, threw him to the ground, and shot at him. See Defs.' Not. of Mot., Ex. A. Defendants claim that after a chase, when Officer Rossi attempted to handcuff Basnight, Basnight reached for the officer's gun and put it to the officer's temple. Officer Rossi shouted for help, and in an ensuing struggle, the gun discharged. See Plt. Ex. A, B1. Officers Rossi and Miles then forcefully restrained Basnight.
Basnight's version of events, if true, is legally sufficient to be actionable under the Fourth Amendment, as well as the New York State Constitution, because the officer's unprovoked actions could not be considered reasonable. See Graham v. Connor, 490 U.S. 386, 395, 396 (1989) (plaintiff can state an actionable Fourth Amendment violation under § 1983 for allegations that police officer used excessive or deadly force by showing that officer's use of force was unreasonable under the circumstances); Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996) ("The right to be free of excessive force is clearly established."); see also, e.g., Curry v. City of Syracuse, 316 F.3d 324, 333 (2d Cir. 2003) (plaintiff, who struck a police officer, could prevail on excessive force claim if he could show that officer "used more force than was necessary to subdue him").
Defendants present the affirmative defense of qualified immunity on behalf of Officers Rossi and Miles — but only with respect to dismissal of the false arrest claims, not with respect to the excessive force claims. See Wilson v. Layne, 526 U.S. 603, 604 (1999) ("Government officials performing discretionary functions generally are granted a qualified immunity and are shielded 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."). Even if defendants had argued qualified immunity as a defense to the excessive force claim in their motion, it would fail. Use of excessive force during an arrest violates a clearly established constitutional right, see Graham, 490 U.S. at 395, and there is a disputed issue of fact in this case about whether defendants' actions were "`objectively reasonable' in light of the circumstances." Curry, 316 F.3d at 3341; Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2003) ("Where the circumstances are in dispute, and contrasting accounts present factual issues as to the degree of force actually employed and its reasonableness, a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity.") (internal quotations omitted).
Basnight's related claims against Sergeant Evans, Officer Rossi and Miles's superior officer, as well as those against the New York City Police Department ("NYPD") and the New York Department of Corrections ("NYDOC") that there was a policy or practice permitting Officers Rossi and Miles to attack Basnight with excessive force must fail because, while he submits academic literature containing examples of other police departments' misconduct, Basnight offers no proof of such practice by these defendants. See Monnell v. Dept. of Social Servs., 436 U.S. 658, 690-91 (1978); see also D'Amico, 132 F.3d at 149 (conclusory allegations cannot survive motion for summary judgement). Thus, Basnight's claims against these defendants are based solely on the theory of respondiat superior, which is not actionable under § 1983. See Monnell, 436 U.S. at 694. Moreover, the NYPD and NYDOC are non-suable entities. See Loyanyaak v. Cogdell, 955 F. Supp. 172, 174 (E.D.N.Y. 1996) (NYDOC non-suable entity); Wilson v. City of New York, 800 F. Supp. 1098, 1101 (E.D.N.Y. 1992) (NYPD non-suable entity).
CONCLUSION
Defendants' motion for summary judgment is granted on all claims except claims 1, 5 and 7 relating to excessive and deadly force by Officers Rossi and Miles during their chase and apprehension of Basnight on December 29, 1994. Basnight' s motion for summary judgment is denied.