Summary
holding that summary judgment was inappropriate on good faith and governmental immunity defense because there were disputed issues of fact as to reasonableness of defendants' conduct
Summary of this case from Zilioli v. City of New YorkOpinion
04 Civ. 8411 (RWS) (MHD).
January 25, 2007
Attorney for Plaintiff, JAMES I. MEYERSON, ESQ., New York, NY.
Attorneys for Defendants, MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, NY, By: Liora Jacobi Of Counsel.
OPINION
Plaintiff Jonathan Bradley ("Bradley") has filed objections to the Report and Recommendations of Magistrate Judge Michael H. Dolinger dated October 19, 2006 (the "Report"). Defendants the City of New York (the "City"), Police Officer Alexis Jusino ("Jusino"), Sergeant Walter Charles ("Charles"), Chief Michael Esposito ("Esposito"), Chief Patrick Dudgeon ("Dudgeon") and Chief Bruce Smolka ("Smolka") (collectively, the "Defendants") have opposed Bradley's objections and have filed their own objections to the Report.
For the reasons set forth below, the objections of Plaintiff are sustained in part and overruled in part, and the objections of Defendants are overruled. Except as noted below, the Report is hereby adopted.
Prior Proceedings
This action was commenced by the filing of Bradley's complaint on October 26, 2004. The complaint asserted federal and state-law claims of false arrest, malicious prosecution, abuse of criminal process, excessive force, unlawful search and custodial questioning, destruction of property and violation of his First Amendment rights to free speech and association.
On October 4, 2005, this matter was referred to Magistrate Judge Dolinger. Bradley filed his motion for summary judgment on February 21, 2006. Defendants opposed the motion and cross-moved for summary judgment on April 12, 2006. Both motions were marked fully submitted on May 19, 2006. On October 19, 2006, Magistrate Judge Dolinger filed the Report, which recommended that Plaintiff's motion be denied in its entirety and that Defendants' motion be denied in part and granted in part. Plaintiff filed objections to the Report on October 30, 2006, in accordance with Rule 72(b), Fed.R.Civ.P. Having received an extension of time from the Court, Defendants filed objections to the Report on November 13, 2006, whereupon both sets of objections were marked fully submitted.
The Facts
The facts are adopted as set forth in the Report, except as noted below. The Standards
Under Rule 72(b), the recommendation of a magistrate judge on a dispositive matter is subject to de novo review by the district judge to whom the case is assigned. Rule 72(b) instructs a district court judge to make a "de novo determination . . . of any portion of the magistrate judge's disposition to which specific written objection has been made. . . ." After conducting its review, the court may then accept, reject, or modify, in whole or in part, the recommendations of the magistrate judge. Fed.R.Civ.P. 72(b).
Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004); see generally 11 James Wm. Moore, et al., Moore's Federal Practice § 56.11 (3d ed. 1997 Supp. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citations omitted). "The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; see also R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248; accord Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus, summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). The non-movant must invoke more than just "metaphysical doubt as to the material facts." Matsushita Elec. Indus., 475 U.S. at 586. In order to defeat a motion for summary judgment, the non-moving party must offer sufficient evidence to enable a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248; Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Plaintiff's Objections to the Report Are Sustained in Part and Overruled in Part
Plaintiff has objected that the Report: (1) improperly denies summary judgment on Plaintiff's false arrest claim against Jusino; (2) incorrectly suggests that, for purposes of Plaintiff's malicious prosecution claim, whether Jusino initiated the criminal court proceeding is a question of fact; (3) fails to recognize Plaintiff's Fourth Amendment claim for destruction of property; (4) fails to recognize Plaintiff's Fourth Amendment excessive force claim against Jusino based upon the fact that Plaintiff was handcuffed while in a detention cell and "under the jurisdiction" of Jusino; and (5) fails to recognize the nature of Plaintiff's Fourth Amendment claim based upon an intrusive and unreasonable search. Plaintiff also suggests that the Report overlooks several important issues of fact.
A. Plaintiff's Contention that Summary Judgment Should Be Granted on His False Arrest Claim is Overruled
Plaintiff advances three arguments why summary judgment should be granted in his favor on his false arrest claim. First, he contends that, even assuming the truth of Jusino's deposition testimony regarding the facts surrounding Plaintiff's arrest, there is insufficient evidence to support a finding of probable cause for the custodial arrest. Second, Plaintiff argues that he was in essence subjected to a Terry stop and detention, and that Jusino failed to make the limited investigative inquiry necessary in order to establish probable cause. Last, Plaintiff contends that the differing accounts of the facts in the criminal complaint and Jusino's deposition testimony necessitate a finding of no probable cause.
A defendant police officer who arrests a person without a warrant, as in this case, is not liable for false arrest if the officer had reasonable cause to believe that the individual committed an offense. See Illinois v. Gates, 462 U.S. 213, 241-46 (1983); United States v. Ceballos, 812 F.2d 42, 50 (2d Cir. 1987). The existence of probable cause must be determined on the basis of the totality of the circumstances. Gates, 462 U.S. at 230-32. Probable cause exists "when the 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, 119 (2d Cir. 1995) (quoting O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)).
As noted in the Report, Jusino testified that he saw Plaintiff fall to the ground; that he directed Plaintiff to get up; that, when Plaintiff did not arise, he attempted to assist Plaintiff to his feet; and that Plaintiff deliberately went limp to avoid being lifted from the street and then became rigid and held his arms under his body in an attempt to avoid being handcuffed and arrested. Drawing all inferences in favor of the non-moving party, a trier of fact could find that Jusino had probable cause to arrest Bradley for both disorderly conduct and resisting arrest. Because a trier of fact could find probable cause on the basis of the facts as described above, it is unnecessary to determine whether Jusino undertook the limited investigative inquiry associated with a Terry stop. Having determined that there is probable cause for an arrest, it is not incumbent upon a police officer to rule out possible alternative interpretations of the facts. "The fact that an innocent explanation may be consistent with the facts alleged . . . does not negate probable cause." United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985).
Although Jusino gave differing accounts in the criminal complaint and in his deposition testimony of the circumstances leading up to the arrest of Plaintiff, Magistrate Judge Dolinger correctly found, based upon Devenpeck v. Alford, 543 U.S. 146 (2004), and the "corrected affidavits" doctrine outlined inEscalera v. Lunn, 361 F.3d 737 (2d Cir. 2004), that such factual inconsistencies do not negate a finding of probable cause as a matter of law, but raise an issue of credibility to be determined by the trier of facts. For these reasons, Plaintiff's objection that the Report improperly denied summary judgment on his false arrest claim is overruled.
B. Plaintiff's Objection that Jusino Initiated the Criminal Court Proceeding Is Sustained
Based upon the undisputed evidence that Jusino arrested Plaintiff, issued a Desk Appearance Ticket ("DAT"), and swore out a criminal complaint, the Report notes that a trier of fact could "conclude that Jusino was sufficiently involved in initiating the criminal proceeding against plaintiff" to satisfy the first element of Plaintiff's malicious prosecution claim against Jusino. Plaintiff has objected that, because there is no dispute regarding the relevant facts, whether Jusino initiated the criminal proceeding is a matter of law.
The Second Circuit has repeatedly ruled that the issuance of a Desk Appearance Ticket and the swearing out of a criminal complaint by a police officer are acts that constitute the initiation of criminal proceedings. See, e.g., Ricciuti v. N.Y. City Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997); White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988); Rosario v. Amalgamated Ladies' Garment Cutters' Union, 605 F.2d 1228, 1250 (2d Cir. 1979). Because it is undisputed that Jusino issued a DAT to Bradley and swore out the misdemeanor complaint, the Court finds as a matter of law that Jusino initiated the criminal proceeding against Bradley.
C. Plaintiff's Objection Regarding the Existence of a Fourth Amendment Claim for Destruction of Property Is Overruled
Magistrate Judge Dolinger treated Plaintiff's allegations regarding the destruction of his personal property following his arrest as due-process and state-law claims, and granted summary judgment for Defendants on the due-process claim due to the availability of post-deprivation state-court remedies. (Report at 66-69.) Plaintiff has objected that the Report fails to recognize his destruction of property claim against Jusino under the Fourth Amendment and has further contended that he is entitled to summary judgment on that claim because Jusino observed the destruction of Plaintiff's property and did nothing to stop it.
"A `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). Cases addressing Fourth Amendment destruction of property claims most commonly involve the incidental loss of or damage to property in the course of an arrest or the execution of a search warrant. The Court is aware of no case, and Plaintiff has cited none, discussing a Fourth Amendment claim stemming from a fact pattern similar to that presented here, in which personal property that has been seized pursuant to an arrest is destroyed at some later point in time. Because, in such a case, a seizure of the property has already occurred, the subsequent destruction of that property by the police is more properly addressed as a claim for the deprivation of property under the Due Process Clause of the Fourteenth Amendment. Accordingly, Plaintiff's objection is overruled. D. Plaintiff's Excessive Force Claim Against Jusino Has Been Recognized
Plaintiff has objected that Magistrate Judge Dolinger did not rule with respect to his excessive force claim against Jusino based upon his being kept in handcuffs while in a detention cell. To the contrary, the Report explicitly takes note of Plaintiff's argument that "as a matter of law Jusino had no reasonable basis to cuff him as tightly as he did, or to keep him in handcuffs for four hours, including the time he was in a holding cell," and concludes that "triable disputes preclude summary judgment on this claim." (Report at 50-51.)
E. The Nature of Plaintiff's Intrusive Search Claim Has Been Recognized
Plaintiff has reiterated his contention that although he was not subjected to a full strip search, he was subjected to a search of his person that was excessive and unreasonable under the Fourth Amendment. Neither this Court nor Magistrate Judge Dolinger has overlooked or misinterpreted his allegations in this regard. Magistrate Judge Dolinger correctly stated that searches of pretrial detainees are analyzed under the balancing test set forth in Bell v. Wolfish, 441 U.S. 520, 559 (1979), and concluded that Plaintiff had not demonstrated that the search to which he was subjected, whether it was a strip search or not, was "so invasive or unjustified as to be unreasonable as a matter of law." (Report at 59.) Because there are remaining issues of material fact, Magistrate Judge Dolinger determined that Plaintiff was not entitled to summary judgement on this claim. Having reviewed the issue de novo, this Court hereby adopts that ruling.
F. Plaintiff's Factual Suggestions
Plaintiff has suggested two clarifications to the facts as set forth in the Report. First, Plaintiff notes that non-party witness Ellen Gesmer stated that she heard Charles direct police officers to step over, and then to arrest, the Plaintiff. Second, Plaintiff notes that the depositions of Matthew Schneider and Susan Fountain related to their arrests at a demonstration on February 15, 2003, not the demonstration of March 22, 2003, as stated by Magistrate Judge Dolinger. The Court takes note of the former allegation, and corrects the Report insofar as it misstated the date of the arrests of Schneider and Fountain. Defendants' Objections to the Report Are Overruled
Defendants object that the Report (1) fails to assess whether the evidentiary record supports claims against each individual defendant, and thus absolves Plaintiff of his obligation to come forward with sufficient evidence; (2) improperly ignores selected facts of the case, and, in so doing, creates additional claims for Plaintiff; (3) erroneously denies summary judgment for Defendants on the issue of qualified immunity; (4) improperly denies summary judgment for Defendants on Plaintiff's Monell claim; and (5) improperly fails to assess the Defendants' governmental and good faith immunity defenses to Plaintiff's state-law malicious prosecution and abuse of process claims. For the reasons set forth below, these objections are overruled.
A. Defendants' Objection that the Report Absolves Plaintiff of His Obligation to Come Forward with Sufficient Evidence Is Overruled
Defendants contend that summary judgment should have been granted in their favor on a number of issues due to Plaintiff's alleged failure to make the requisite evidentiary showing. First, Defendants argue that Plaintiff has not alleged, or produced any evidence to support an allegation, that Charles, Smolka, Dudgeon or Esposito were personally involved in the alleged excessive handcuffing of Bradley. The personal involvement of an individual may be established by showing (1) direct participation in the violation, (2) failure to remedy a known wrong, (3) creation of an unconstitutional or illegal practice or custom, (4) gross negligence in managing subordinates who have caused the violation, or (5) failure to act on information indicating that a violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). As Magistrate Judge Dolinger noted, the testimony of Esposito, Smolka and Dudgeon establishes that each was "in some part responsible for supervising the policing of the March 22 demonstration and for the arrests there" and "a trier of fact could find that all three were in relatively close proximity to the events leading to Bradley's arrest." (Report at 78.) Ellen Gesmer has identified Charles as giving orders in the immediate vicinity of the arrest. Magistrate Judge Dolinger correctly concluded that the evidence in the record could permit a finding that any or all of the supervisory defendants were directly involved plaintiff's handcuffing, whether through direction, approval or negligence, and thus denial of summary judgment was appropriate.
Next, Defendants contend that Plaintiff's excessive force claim based upon the use of pepper spray must be dismissed because the state-law assault and battery claim was dismissed and there is no basis for liability under a theory of respondeat superior. As noted above, all of the supervisory Defendants have testified to their responsibility for the policing of the demonstration, and at least one has testified to being aware that pepper spray was being used on the west side of Washington Square Park, in the vicinity of Bradley's arrest. Viewing the evidence in the light most favorable to Plaintiff, a trier of fact could determine that one or more of the supervisory Defendants was personally responsible, whether through approval or negligence, for the exercise of excessive force against Bradley based upon the use of pepper spray.
Lastly, Defendants object that Magistrate Judge Dolinger improperly permitted Plaintiff's unreasonable search claim to go forward despite concluding that Plaintiff could not demonstrate sufficient evidence to support his claim. Defendants misread the Report's conclusions. Magistrate Judge Dolinger correctly applied the summary judgment standard, which requires that "[t]he party seeking summary judgment bear the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law." Rodriguez, 72 F.3d at 1060-61. As the Report concludes, Plaintiff has not established his right to summary judgment as a matter of law. Neither, however, have Defendants carried that burden on their motion for summary judgment. Despite Magistrate Judge Dolinger's admonishment that a movant for summary judgment on this claim should proffer evidence regarding the extent of the intrusion and the security concerns at issue in order to demonstrate reasonableness under the balancing test set forth in Wolfish, 441 U.S. 520, Defendants have failed to demonstrate the absence of a genuine issue of material fact. Accordingly, summary judgment on this issue must be denied.
B. Defendants' Objections to the Report's Findings of Fact Are Overruled
Defendants also object to Judge Dolinger's findings of fact and contend that the Report creates additional claims for Plaintiff that were neither pled nor argued by Plaintiff. Pursuant to this Court's obligation to review each written objection in accordance with Fed.R.Civ.P. 72(b), each objection to the Report's characterization of the facts shall be addressed in turn.
First, Defendants contend that the Report incorrectly states that Plaintiff never took any action to prevent himself from being handcuffed, and ignores Plaintiff's testimony about a number of his actions and responses that may have prevented or delayed his being arrested. Specifically, Defendants wish to call attention to Plaintiff's testimony that after having fallen to the street, he did not ask for assistance in getting up, nor did he get up immediately; that he laid flat on the ground and placed his hands under his chest; that he heard someone tell him to get up; and that he was not on his feet after unidentified persons had attempted to lift him. Again, Defendants misread the Report, which does not assert that Plaintiff took no action in order to prevent his arrest, but merely notes that this is Plaintiff's testimony. Furthermore, the Report lays out in some detail each aspect of Plaintiff's testimony that Defendants contend has been omitted. Accordingly, this objection is without merit.
Defendants also contend that the Report omits portions of Plaintiff's testimony in which he admits having heard police orders to disperse and having chosen to remain in the area despite these orders. As to the first point, the Report directly cites Plaintiff's testimony that police told the assembled crowd that everyone should clear the area. (Report at 7.) As to the second point, Defendants mischaracterize Plaintiff's testimony. At no point did Plaintiff testify that he willfully chose to remain in the area following a police order to disperse. Rather, as Magistrate Judge Dolinger noted, Bradley testified that he attempted to comply with the order but was unable to find a way through the barricades that had been erected by the police. This aspect of Defendants' objection is therefore overruled.
Based on the objections discussed in the previous two paragraphs, Defendants have contended that there was probable cause to arrest Plaintiff based on his failure to obey an order to disperse. Because Plaintiff's failure to obey the order to disperse is a disputed question of fact, summary judgment on this point is inappropriate.
Next, Defendants contend that, having omitting portions of Jusino's testimony about the sergeant who ordered him to arrest Bradley, and having placed too great an emphasis on the "speculative opinion" of Ellen Gesmer, the Report improperly denies summary judgment for Charles on Plaintiff's false arrest claim. The Court acknowledges that the description given by Jusino of the sergeant who ordered Bradley's arrest does not match Charles's physical description. Nevertheless, such testimony does nothing more than raise a triable issue of fact as to the involvement of Charles in ordering the arrest of Plaintiff. In light of Gesmer's testimony that Charles was giving orders in the immediate vicinity of Plaintiff's arrest, and viewing the evidence in favor of the non-moving party, Defendants have failed to carry their burden of demonstrating the absence of any issues of material fact, and summary judgment thus is inappropriate.
Regarding Plaintiff's claims that his arrest, interrogation and prosecution violated the First Amendment, Defendants argue that the Report improperly denies summary judgment and ignores the absence of specific evidence of a retaliatory motive. In general, to prevail on a First Amendment retaliation claim, Plaintiff must show that "(1) he has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of his First Amendment right." Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). To prove retaliatory prosecution, Plaintiff must demonstrate that the prosecution was not supported by probable cause, Hartman v. Moore, 126 S. Ct. 1695 (2006), but need not show a chilling effect. Yuan v. Rivera, 48 F. Supp. 2d 335, 351 n. 6 (S.D.N.Y. 1999).
Defendants argue that in order to avoid summary judgment against him, Plaintiff had to show "conclusive proof" of a retaliatory motive. Defendants misinterpret the standard for summary judgment. Conclusive proof — in other words, the absence of issues of material fact — is what is required to obtain summary judgment; all that is required to withstand an opposing party's motion for summary judgment is that one raise an issue of material fact. As the Report correctly notes, there are issues of material fact regarding the existence of probable cause for Plaintiff's arrest and prosecution and the Defendants' motivation for same. Accordingly, summary judgment on this claim is not appropriate, and Defendants' objection is overruled.
Defendants also contend that the deposition testimony of Susan Fountain and Matthew Schneider, taken in separate actions, is not relevant to the question whether the City could be liable on aMonell claim for unlawful interrogation. Because their testimony, involving police interrogation of demonstrators arrested within five weeks of Bradley's arrest, could help to establish that the City had a policy and practice of such interrogation, it is relevant to Plaintiff's First Amendment claims, and Defendants' objection is overruled.
C. The Objection that Defendants Are Entitled to Qualified Immunity Is Overruled
Defendants also object to Judge Dolinger's denial of Defendants' motion for summary judgment on the issue of whether Defendants are entitled to qualified immunity as a matter of law. Defendants argue that even assuming, arguendo, that there was no probable cause to support Plaintiff's arrest for Disorderly Conduct, Obstruction or Resisting Arrest, they still are entitled to qualified immunity as a matter of law on the grounds that: (1) Defendants did not "violate clearly established constitutional rights of which a reasonable person should have known," Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); and (2) "arguable" probable cause for Plaintiff's arrest existed. For the reasons set forth below, it is concluded that on the issue of Defendants' entitlement to qualified immunity, summary judgment is not appropriate. Therefore, this objection to the Report is overruled.
The doctrine of qualified immunity shields government officials from suits for damages arising from performance of their discretionary functions when, applying an objective standard, "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. The threshold inquiry in considering an assertion of qualified immunity is whether a "constitutional right would have been violated were the allegations established." Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004);Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir. 2003). If such a violation could be made out on a favorable view of the parties' submissions, then the government official seeking to establish qualified immunity may do so in one of two ways.
First, government officials "are immune from liability if their conduct does not violate `clearly established' statutory or constitutional rights the existence of which a reasonable person would have known." Moore, 371 F.3d at 114 (citing Harlow, 457 U.S. at 818; Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001)). "In other words, the unlawfulness of the officials' actions must be apparent to support a viable claim." Id. (citing, Townes v City of New York, 176 F.3d 138, 144 (2d Cir. 1999)). This determination "must be undertaken in light of the specific context of the case, not as a broad general proposition. . . ." Saucier, 533 U.S. at 201. In resolving whether a right is clearly established, only Supreme Court and Second Circuit precedent existing at the time of the alleged violation is relevant. See Moore, 371 F.3d at 114.
Second, government officials are entitled to immunity "if they can establish that it was objectively reasonable for them to believe their actions were lawful at the time." Moore, 371 F.3d at 114 (citing Cerrone, 246 F.3d at 199); see also Robinson, 821 F.2d at 921 ("Even if the contours of the plaintiff's federal rights and the official's permissible actions were clearly delineated at the time of the acts complained of, the defendant may enjoy qualified immunity if it was objectively reasonable for him to believe that his acts did not violate those rights."). Objective reasonableness is established if "the only conclusion a reasonable jury could reach is that reasonable officers would disagree on the constitutionality" of the official's actions.Cerrone, 246 F.3d at 203. Government officials will enjoy immunity from liability "`as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.'" Moore, 371 F.3d at 114-15 (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).
Although factual disputes concerning the events underlying a constitutional claim will not necessarily preclude a finding of qualified immunity, see, e.g., Washington Square Post No. 1212 Am. Legion v. Maduro, 907 F.2d 1288, 1292 (2d Cir. 1990) (emphasizing that "the question of qualified immunity is separate from the merits of the underlying action" and construing the facts on a motion for summary judgment in the non-movant's favor in reaching a determination on qualified immunity), where "there are facts in dispute that are material to a determination of reasonableness, summary judgment on qualified immunity grounds is not appropriate." McKelvie v. Cooper, 190 F.3d 58, 63 (2d Cir 1999); see also Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002) ("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" to an excessive force claim) (quoting Kerman, 261 F.3d at 239); Kerman, 261 F.3d at 240 ("`Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness.'") (quoting Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)); Oliveira v. Mayer, 23 F.3d 642, 649 (2d Cir. 1994) (Though immunity "ordinarily should be decided by the court, that is true only in those cases where the facts concerning the availability of the defense are undisputed; otherwise, jury consideration is normally required.") (internal quotation marks and citations omitted).
Defendants' first contention — that Defendants' are entitled to qualified immunity on Plaintiff's false arrest claim because Plaintiff's clearly established constitutional rights were not violated — is without merit. Defendants argue that Defendants could not have known that their conduct in arresting Plaintiff was clearly unlawful on the grounds that the arrest was justified by the circumstances, including the need to maintain order, Plaintiff's failure to disperse after a police order to do so, and Plaintiff's physical actions while on the ground, which Defendants contend "reasonably constitute civil disobedience." (Defs.' Mem. At 16.) However, as discussed above, the factual circumstances surrounding Plaintiff's arrest are in dispute and are material to a determination of the reasonableness of Defendants' actions. Accordingly, Defendants' contentions do not demonstrate that they are entitled to qualified immunity on Plaintiff's false arrest claim.
Defendants' second contention, that Defendants' possessed "arguable" probable cause to arrest Plaintiff, is equally unavailing. As Defendants point out, arguable probable cause exists when "a reasonable police officer in the same circumstances and possessing the same knowledge as the officer in question could have reasonably believed that probable cause existed in light of well established law." Cerrone, 246 F.3d at 202-03.
As set forth above, there is a triable issue of fact with respect to whether probable cause existed to arrest Plaintiff. Furthermore, based on the record before this Court, Defendants have not demonstrated that a reasonable officer in the same circumstances would have believed that probable cause existed. Drawing all inferences in favor of Plaintiff and assuming Plaintiff's allegations to be true, it cannot be said that a reasonable officer would have believed probable cause to arrest Plaintiff existed. Accordingly, this objection to the Report is overruled.
Defendants also contend that they are entitled to qualified immunity on Plaintiff's First Amendment retaliation claim because Plaintiff has "failed to articulate a viable legal theory to support this claim." (Defs.' Mem. at 18.) Because, as set forth above, Plaintiff has met his burden in resisting Defendants' summary judgment motion on this issue, and because there is no question that, if proven, the retaliatory arrest, prosecution or interrogation of Plaintiff would be a clear violation of his constitutional rights, this objection is overruled.
Likewise, Defendants' contentions that they are entitled to qualified immunity on Plaintiff's claims of abuse of process, unlawful custodial interrogation and unlawful search fall short. These contentions rely on miscontruing the Report's conclusion that Plaintiff has not demonstrated that he is entitled to summary judgment as a holding that Plaintiff has not offered sufficient proof to withstand Defendants' summary judgment motion. For reasons stated above, this argument misreads the summary judgment standard and the evidentiary record before the Court, and these objections are overruled. D. Defendants' Ojection that the Report Improperly Denied Their Motion for Summary Judgment on Plaintiff's Claim for Municipal Liability
Defendants also object to the Report's denial of their motion for summary judgment on Plaintiff's municipal liability claim. Defendants contend that the Report improperly found that Plaintiff had sufficiently pled a claim for municipal liability and that Plaintiff intended to pursue such a claim.
To hold a municipal entity liable under § 1983 for the unconstitutional acts of its employees, a plaintiff must plead and prove that his constitutional rights were violated, that the alleged actions by the employees were the result of an official policy, custom, or practice of the municipal defendant, and that the policy, custom, or practice caused the plaintiff's alleged injuries. City of Canton v. Harris, 489 U.S. 378, 385 (1989);Monell v. N.Y. City Dep't of Social Servs., 436 U.S. 658, 690-95 (1978); McDonald v. Bd. of Educ., 2003 U.S. Dist. LEXIS 13338, *8 (S.D.N.Y. July 31, 2003). Proof of a single incident of unconstitutional activity is insufficient to demonstrate the existence of a policy. City of Oklahoma v. Tuttle, 471 U.S. 808, 821, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985).
A plaintiff may satisfy the "policy, custom or practice" requirement in one of four ways. See Moray v. City of Yonkers, 924 F. Supp. 8, 12 (S.D.N.Y. 1996). The plaintiff may allege the existence of: (1) a formal policy officially endorsed by the municipality, see Monell, 436 U.S. at 690; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question, see Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion); Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992); (3) a practice so consistent and widespread that it constitutes a custom or usage sufficient to impute constructive knowledge of the practice to policymaking officials,see Monell, 436 U.S. at 690-91; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees. See City of Canton, 489 U.S. 378, 388 (1989). There must also be a causal link between the policy, custom, or practice and the alleged injury in order to find liability against a municipality. See Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). "Actions by an individual with final decision-making authority in a municipality constitute official policy for purposes of a § 1983 claim." Anthony v. City of New York, 339 F.3d 129, 139 (2d Cir. 2003) (citing Pembaur, 475 U.S. at 483-84). "The individual must `be responsible for establishing final government policy' in order for municipal liability to attach." Id.
With respect to the sufficiency of Plaintiff's municipal liability claim, it is determined that, drawing all inferences in favor of the Plaintiff, the Report correctly determined that a reasonable jury could conclude that Plaintiff's arrest, prosecution and interrogation were not isolated incidents "in which an individual officer acted beyond his authority, and that instead [they] involved conduct by the police that was directed by, approved of, or acquiesced in by final policy-makers in the Police Department." (Report at 92-93.)
E. Defendants' Objection that the Report Failed to Assess the Governmental and Good Faith Immunity Defenses
Lastly, Defendants contend that Plaintiff's remaining state-law claims of malicious prosecution and abuse of process against the individual defendants must be dismissed on the grounds of good faith immunity. New York good faith immunity provides that a government employee is immune from suit "for those government actions requiring expert judgment or the exercise of discretion . . . when the action involves the conscious exercise of a judicial or quasi-judicial nature."Arteaga v. State, 532 N.Y.S.2d 57, 58-59 (1988). Whether the discretionary action receives absolute or qualified immunity turns on whether "the actor's position entails making decisions of a judicial nature." Id. at 59. In contrast, where a government employee performs duties ministerial or clerical in nature, no immunity attaches. Mon v. City of New York, 574 N.Y.S.2d 529, 531-32 (1991). With respect to police officers, it has been held that the good faith immunity defense is a qualified immunity, to which the individual Defendants "would not be [entitled if] they undertook the prosecution of plaintiff unreasonably or in bad faith." Davis v. City of New York, 373 F. Supp. 2d 322, 339 (S.D.N.Y. 2005). Similarly, "governmental immunity does not attach to every action of an official having discretionary duties but only to those involving an exercise of that discretion." Mon, 574 N.Y.S.2d at 532. Because there are disputed issues of fact regarding the reasonableness of Defendants' actions and whether those actions were taken in bad faith, summary judgment is inappropriate on this issue. Conclusion
Except to the extent noted above, the objections of Defendants and Plaintiff to the Report are overruled and the Report of Judge Dolinger is hereby adopted in its entirety.
It is so ordered.