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finding plaintiff's testimony that defendant-detective was with the officer who transported plaintiff to the place where plaintiff was interrogated and assaulted was sufficient to survive summary judgment and allow jury to determine that the detective failed to intercede or was personally involved in the alleged constitutional violation
Summary of this case from Jackson v. TelladoOpinion
06 CV 5743 (HB).
June 30, 2010
OPINION ORDER
Plaintiff Rohan Campbell ("Plaintiff" or "Campbell"), appearing pro se, brings suit pursuant to 42 U.S.C. § 1983 against various individual defendants, the New York City Police Department, and the City of New York (collectively "Defendants"), for excessive force, an improper strip search, false arrest, and malicious prosecution. The alleged violation arose out of Plaintiff's arrest and detention in 2004. This action was stayed in December 2008, pending the resolution of Plaintiff's state court appeal of his criminal conviction. The appeal now resolved and Plaintiff's conviction sustained, Defendants now move for summary judgment on a variety of grounds. For the reasons that follow, Defendants' motion is GRANTED as to the false arrest and malicious prosecution claims, and any claims against the City of New York, the New York City Police Department, and Detective Thomas Butterworth. The motion is otherwise DENIED.
I. FACTUAL BACKGROUND
The facts in this decision are drawn from undisputed facts submitted by the parties, and any disputes are noted. Plaintiff did not submit a statement of undisputed facts pursuant to Local Rule 56.1. However, because a pro se plaintiff's pleadings are to be read liberally, the Court will consider his submissions in opposition and will not deem contrary, disputed facts in Defendants' 56.1 Statement to be admitted. See McAllister v. New York City Police Dept., 49 F. Supp. 2d 688, 693 n. 2 (S.D.N.Y., 1999); see also United States v. Pugh, No. 07 Civ. 2456, 2010 WL 2266069, at *3 n. 4 (E.D.N.Y. June 1, 2010) (collecting cases where courts in this district have considered the merits of a pro se plaintiff's claim despite failure to submit a 56.1 statement).
Campbell was arrested on August 10, 2004, on or around East 215th Street, Bronx, New York, based on allegations that Plaintiff approached a couple, displayed a handgun, abducted the woman, and sexually assaulted her. See Defs.' Local Rule 56.1 Stmt. ("Defs.' 56.1") ¶ 1; Cohen Decl., Ex. C (NYPD Omniform System Arrest). Plaintiff claims that on the night of the arrest, he was out with friends, drinking beer and smoking marijuana. Deposition of Rohan Campbell ("Campbell Dep.") 18:4-9. Shortly thereafter, he claims to have discovered a vehicle with keys in the ignition, got inside, and drove off. Campbell says he picked up a woman from the sidewalk whom he vaguely knew, drove around the neighborhood, and eventually parked, smoked more marijuana and listened to music. Campbell Dep. 18:4-9, 19:20-23. At some point thereafter, a police van pulled up behind the car and police officers approached the vehicle. Defs.' 56.1 ¶ 3. According to Campbell, one of the individual defendants, Police Officer Dwayne Ortiz, attempted to get inside the vehicle by breaking the driver-side window. Campbell Dep. at 29:1-18. In response, Plaintiff attempted to drive away, with Officer Ortiz hanging onto the side of the window, and a chase ensued. Defs.' 56.1 ¶¶ 4-5. Campbell collided with a parked car after a short distance, got out of the car, and continued on foot with two to three police officers chasing after him. Defs.' 56.1 ¶¶ 6-7; Campbell Dep. 20:3-8, 32:9-10.
After about a block, the officers caught up to Plaintiff, subdued him, took him to the ground, and handcuffed him. Defs.' 56.1 ¶ 8. Campbell claims that he was assaulted by the police officers that arrested him after the car and foot chase. Defs.' 56.1 ¶ 11. According to Plaintiff, he was tackled from behind, "strangled to the ground," and had his arms twisted to be handcuffed. Campbell Dep. 20:7-9, 32:15, 43:4-11. He claims he was kicked on the ground while surrounded by officers, which hurt his rib cage and back. Campbell Dep. 35:17-18. He cannot specifically identify the officers who actually arrested him, except for one non-defendant, nor which officer or officers allegedly struck him. Defs.' 56.1 ¶ 10; Campbell Dep. 33:1-19, 35:1-6. After the arrest, Plaintiff was placed in a police vehicle by an officer that he cannot identify. Campbell Dep. 35:24-36:3. Other than Officer Ortiz, none of the other individual defendants are alleged to have any involvement in this part of the incident. Defs.' 56.1 ¶ 12. At some point — whether it was during the arrest or at some later point in time is unclear — Campbell sustained a one-inch abrasion to his left elbow. Defs.' 56.1 ¶ 16.
Subsequent to his arrest, Campbell was transported to the 47th Precinct. Defs.' 56.1 ¶ 13. At some point, Campbell was brought into an "interrogation room" with Officer Ortiz and Detective Thomas Butterworth. Campbell Dep. 20:12-13. According to Campbell, Ortiz verbally abused him, choked him for a short time, and smacked him in the face. Id. at 20:12-21:4, 37:19-25, 47:11-3. Campbell states that he was never hit by Detective Butterworth. Id. at 48:1-3. After this incident, Plaintiff was brought back to the "holding pen," and after a period of time, Officer Ortiz and another police officer came by and requested Plaintiff's clothing. Id. at 21:9-16. According to Campbell, they took all of his clothing except for a tank top, and left him naked from the waist-down in the holding pen for an extended period of time and in full view of all other individuals similarly detained. Id. at 22:16-23:10. After his clothes were taken, Emergency Medical Services (EMS) came to the precinct and treated Campbell for the abrasion to his elbow; he was not taken to a hospital and there is no indication of treatment for any other injuries. Defs.' 56.1 ¶¶ 16, 19-23. Plaintiff received "scrubs" from the EMS providers, the typically blue garments worn by doctors and other health providers, but Campbell states that it was only a "scrub top" that did not cover up his still-nude lower body. Defs.' 56.1 ¶ 17; Campbell Dep. 21:18-20.
Campbell was at some point taken to another building by Detectives Morales Hale and Claude O'Shea. Campbell Dep. 23:20-24:1. Campbell claims he was escorted out the front of the building and into the public with nothing covering his lower body, and only the tank top and scrub top on his upper body. Id. Campbell was again allegedly interrogated at this new location, this time by Detective O'Shea. According to Plaintiff, he was burned on the hand or left arm by Detective O'Shea with a cigarette, which he claims left two scars on his arm. Id. at 24:7-8, 48:16-18, 49:14-19. Campbell says that he was never struck by Detective Hale. Defs.' 56.1 ¶ 35; Campbell Dep. 51:6-7. At some point after these events, Campbell contacted his mother to bring clothing for him. Campbell Dep. 24:14-25:4.
The precise timing and order of all of the events subsequent to Campbell's arrest are unclear.
Plaintiff was arraigned on August 11, 2004 and was admitted to the custody of the New York Department of Corrections ("DOC"). Defs.' 56.1 ¶¶ 26-27. The DOC medical intake form shows treatment for a left elbow abrasion, but there is no indication of treatment for any other injuries from the alleged beatings or cigarette burns. Defs.' 56.1 ¶¶ 29-34. Campbell claims that he was also given a cream and pain killers for his injuries, and provides medical records from August 22, 2004, which show that he received ibuprofen and an antibiotic ointment for an abrasion to his right elbow. Campbell Dep. 50:4-11; Campbell Affirm. in Opp. to Mot. ("Campbell Affirm."), Ex. 9 (Bellevue Hospital Center medical records). On August 30, 2004, Plaintiff was indicted by a grand jury, and on October 30, 2006, Campbell was convicted by a New York Supreme Court, Bronx County, for a criminal sexual act in the first degree, a Class B felony. Defs.' 56.1 ¶¶ 1, 37-38.
Plaintiff claims that the indication of treatment for his right, rather than left, elbow is an error in the medical records.
Plaintiff filed suit in the present action on July 28, 2006. Defs.' 56.1 ¶ 39. Plaintiff alleges false arrest, malicious prosecution, excessive force, and an improper strip search in violation of his constitutional rights. The City of New York and New York Police Department defendants were served on August 24, 2006, Detective Hale was served on November 25, 2007, while Detective O'Shea and Officer Ortiz were served on December 12, 2007. Id. ¶¶ 40, 43-45. Detective Butterworth was never served by Plaintiff. Id. ¶ 46. On September 25, 2008, Defendants filed a motion for summary judgment to dismiss Plaintiff's claims. Specifically, Defendants argue that dismissal is warranted because (1) the individual defendants were not served within 120 days and the statute of limitations now bars claims against them; (2) Plaintiff has failed to establish Monell liability against the City of New York; (3) the New York City Police Department is a not a suable entity; (4) the false arrest, malicious prosecution, and unreasonable search claims are barred by Heck v. Humphrey; and (5) the excessive force and unreasonable search claims must be dismissed as a matter of law. On December 9, 2008, a month prior to the expected trial date, this case was stayed and put on the Court's suspense docket while Plaintiff pursued an appeal of his state conviction. The case was taken off suspense on or around April 13, 2010, after Plaintiff's appeal concluded unsuccessfully. Counsel for Defendants thereafter stated that they would rely on the papers previously filed in support of their summary judgment motion, and Campbell likewise chose not to submit any further substantive pleadings.
Plaintiff submitted a three-page letter to this Court on or around May 26, 2010, six days after the deadline I imposed for any further briefing. The document provides no new facts or allegations to support his case.
II. DISCUSSION
A. Legal StandardA court will not grant a motion for summary judgment pursuant to Rule 56 unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). A material fact is one that will affect the outcome of the suit, and a dispute about a material fact occurs where there is sufficient evidence for a reasonable fact finder to return a verdict for the nonmoving party. See Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006). The Court must construe the evidence in the light most favorable to the nonmoving party, drawing all inferences in that party's favor. Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). "Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment." Id. at 554-55 (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)). However, "[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris, 550 U.S. 372, 380 (2007). Where the party opposing summary judgment is proceeding pro se, the Court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999); see also Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005) (noting that pro se claims should be read liberally "particularly when they allege civil rights violations").
B. Service Statute of Limitations
Defendants argue that this case should be dismissed against all individual defendants because Plaintiff failed to timely serve any of them, and because the statute of limitations has now run on his claims. Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, "[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must dismiss the action without prejudice . . . or order that service be made within a specified time." Fed.R.Civ.P. 4(m); see also Zapata v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007). A district court is required under Rule 4 to grant an extension to the plaintiff if "good cause" is shown. See id. Moreover, district courts have discretion to enlarge the time for service even in the absence of good cause. See Murray v. Pataki, No. 09-1657-pr, 2010 WL 2025613, at *2 (2d Cir. May 24, 2010); Zapata 502 F.3d at 197.
As is frequently the case in actions brought by pro se litigants who are incarcerated and have little access or control over legal resources, the plaintiff here had a difficult time serving the individual defendants. The City of New York and New York Police Department were served shortly after filing, on August 24, 2006. To effectuate service on the individual defendants, this Court issued a Valentin order for the City to assist Plaintiff in locating and effectuating service on the police officers. After seeking an enlargement of time to locate these individuals, Corporation Counsel provided Plaintiff with the addresses for Officer Ortiz, and Detectives O'Shea, and Hale in late October 2006, and again in October 2007; counsel did not provide the address for Detective Butterworth, who was by then retired from the police force, until June 2008. At the same time, Campbell demonstrated a largely good faith effort to comply with the necessary mechanics of service. In September 2006, April 2007, and October 2007, Plaintiff sent letters to this Court where he stated that he had sent the necessary service information, as well as a service fee, to the U.S. Marshall Service. Campbell eventually included documentation of his attempted service, which appeared to show that he had incorrectly sent the service materials to the New York Sheriff's Office, rather than the U.S. Marshall Service. Ultimately, through this Court's ministrations, the Southern District Pro Se Office and Marshall Service were provided the necessary materials, and Detective Hale was served on November 25, 2007 while Officer Ortiz and Detective O'Shea were served on December 12, 2007. To date, Detective Butterworth has not been served with process. While this process took longer than the typical 120 days outlined by Rule 4, the City itself took approximately 90 days to notify Campbell of most of the defendants' service information, and Campbell believed he had properly sent the service materials to the U.S. Marshalls. Regardless, this Court used its discretionary power under Rule 4 to grant further time to complete service, and Campbell ultimately did so for three of the individual defendants. Defendants suffered no significant prejudice from this delay, particularly since this case was stayed and they have now had over two and a half years since they were served to retain counsel and prepare their defense.
Defendants' also argue that claims against the individual defendants must be dismissed because the statute of limitations had run when service was finally accomplished. The statute of limitations in New York for a § 1983 action is three year, and begins to run when the plaintiff knows or has reason to know of the alleged injury. See Lynch v. Suffolk County Police Dept., Inc., 348 Fed. Appx. 672, 674 (2d Cir. 2009) (quoting Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002)); Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990). The statutory time is tolled when the complaint is filed, and for the duration of Rule 4's 120-day service period. See Zapata, 502 F.3d at 194, n. 4 (citing Frasca v. United States, 921 F.2d 450, 453 (2d Cir. 1990)). The arrest at the heart of this action occurred on August 10, 2004, and the individuals were not served until November and December 2007. Defendants claim that, since Campbell took longer than 120 days to serve the individual defendants, claims against the individual defendants are barred.
However, Campbell was given the opportunity to serve the parties rather than dismiss the case, and thus the claims are not time-barred. See Zapata, 502 F.3d at 194, n. 4 ("if the plaintiff's action is dismissed for a failure to serve within 120 days, the governing statute of limitations again becomes applicable, and the plaintiff must refile prior to its termination.") (internal quotations omitted, emphasis added); see also Ocasio v. Fashion Institute of Technology, 86 F. Supp. 2d 371, 376 (S.D.N.Y. 2000). Indeed, avoiding a dismissal without prejudice under Rule 4 because it would create a statute of limitations issue is one way that a district court may extend the service time absent good cause. As the Second Circuit held in Zapata, "[w]here, as here, good cause is lacking, but the dismissal without prejudice in combination with the statute of limitations would result in a dismissal with prejudice, we will not find an abuse of discretion in the procedure used by the district court, so long as there are sufficient indications on the record that the district court weighed the impact that a dismissal or extension would have on the parties." 502 F.3d at 197. Campbell was granted extensions of time to effect service, completed service on Officer Ortiz, Detective Hale, and Detective O'Shea, and the impact of dismissal would be far greater on Campbell than the impact that late notice of this lawsuit had on these individual defendants.
Unlike the three individual defendants that were ultimately served, Campbell's claims against the lone unserved defendant, Detective Butterworth, must be dismissed. Plaintiff was made aware Butterworth's address in June 2008 and yet never provided adequate service of process. Given the length of time that has passed, and the significant assistance already provided to Plaintiff by both this Court and counsel for Defendants, there is no justification to further extend the service period some four years after the case was filed. Detective Butterworth would be far more prejudiced than Campbell by this service, and claims against him are dismissed without prejudice, pursuant to Rule 4(m), and likely barred by the statute of limitations.
C. Section 1983 Claims
Defendants next argue that each of Plaintiff's § 1983 claims fails as a matter of law. Section 1983 provides relief for a plaintiff deprived of "rights, privileges, or immunities secured by the Constitution and its laws." 42 U.S.C. § 1983. The statute is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred by the Constitution and federal statutes. See Fredericks v. City of New York, No. 07 Civ. 3659 (LAK) (JCF), 2008 WL 506326, at *3 (S.D.N.Y. Feb. 25, 2008) (quoting Baker v. McCollan, 443 U.S. 137, 145 n. 3 (1979)). To state a claim under § 1983, a plaintiff must allege (1) the challenged conduct was attributable to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed by the U.S. Constitution. See Smart v. City of New York, No. 08 Civ. 2203 (HB), 2009 WL 862281, at *3 (S.D.N.Y. Apr. 1, 2009) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)).
1. False Arrest and Malicious Prosecution
Plaintiff's claims of false arrest and malicious prosecution must be dismissed because he was convicted of a crime he was arrested for, and that conviction was upheld on appeal. In Heck v. Humphrey, the Supreme Court held that
"in order to recover damages for . . . 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 determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983."512 U.S. 477, 486-87 (1994) (emphasis in original). Claims for both false arrest and malicious prosecution both call into question the validity of a conviction, because false arrest requires a lack of probable cause and malicious prosecution requires probable cause and a termination of the proceedings in the defendant's favor. See, e.g., Smart, 2009 WL 862281, at *4 (citing Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) and Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003)). Courts in this circuit routinely dismiss these claims where the plaintiff's conviction has not been overturned or otherwise invalidated. See, e.g., Lynch v. Suffolk County Police Dept., Inc., 348 Fed. Appx. 672, 674 (2d Cir. 2009); Vallen v. Connelly, 36 Fed. Appx. 29, 31 (2d Cir. 2002) ("To be sure, if a person were validly convicted of the crime for which he was arrested, he would be barred from bringing a claim for false arrest because one element of such a claim is the absence of probable cause . . . and a valid conviction establishes the existence of probable cause."); Younger v. City of New York, 480 F. Supp. 2d 723, 730 (S.D.N.Y. 2007) (dismissing false arrest and malicious prosecution claims on summary judgment on Heck grounds). Here, Plaintiff was convicted for a criminal sexual act in the first degree, and the conviction was upheld on appeal. As such, the false arrest and malicious prosecution claims must be dismissed.
2. Unreasonable Strip Search
Though he treats it as a violation of his "right to privacy," construed broadly Plaintiff brings a claim for an unreasonable strip search in violation of his Fourth Amendment rights. Defendants first argue that, like the false arrest and malicious prosecution claims, this claim is also barred by Heck v. Humphrey. In Heck, however, the Supreme Court specifically noted that "a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery . . . and especially harmless error . . . such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful." Heck, 512 U.S. at 487 n. 7 (emphasis in original). Defendants in this action do nothing more than assert in conclusory fashion that a finding that the search was unreasonable would undermine his conviction. There is no factual support provided — for example that the clothing taken in the search was the sole evidence for his conviction or even used at all at Campbell's trial — to indicate that finding the strip search unreasonable would imply the conviction was unlawful. With no facts before the Court to suggest that Campbell's conviction would be undermined by his unreasonable search claim, it will not be barred by the Heck decision.
The Heck court also stated that "in order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury . . . which, we hold today, does not encompass the "injury" of being convicted and imprisoned (until his conviction has been overturned)." 512 U.S. at 487 n. 7. Damages are typically a factual question, and Campbell has provided sufficient evidence, in particular through his deposition testimony about the emotional toll of the forced nudity, that a rational juror could conclude that he was injured by this alleged treatment in a way other than his conviction and imprisonment.
A strip search is a term "used generally to describe any inspection of the naked body." Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009) (citing N.G. v. Connecticut, 382 F.3d 225, 228 n. 4 (2d Cir. 2003)). The Supreme Court has determined that courts should apply a "test of reasonableness" for pretrial detainees like Campbell that challenge the propriety of a strip search, which balances "the need for the particular search against the invasion of personal rights that the search entails." See Bell v. Wolfish, 441 U.S. 520, 558-59 (1979); Murcia v. County of Orange, 226 F. Supp. 2d 489, 498 (S.D.N.Y. 2002). Specifically, "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell, 441 U.S. at 559; Moore v. Hearle, 639 F. Supp. 2d 352, 357 (S.D.N.Y. 2009).
Campbell's claim focuses primarily on the place in which the search was conducted. As described in detail, supra, Campbell testified in his deposition that Officer Ortiz and another officer made him remove all of his clothing, save a tank top and eventually a "scrub" top provided by EMS, and left him completely naked from the waste down in both the holding pen with other detainees and while in transit between buildings. As a result, he claims he has suffered serious mental distress that has led to depression and anxiety. Defendants' argue that this testimony is insufficient as a matter of law, and that there is no indication that he was left naked for an unreasonable amount of time. But they do not provide any explanation as to why the search was reasonable or, perhaps more importantly, why it was necessary to be conducted in the first place and why the defendant was left in a state of nudity in view of others. Though there may have been some forensic need for the clothing, given the suspicion of rape and sexual assault, Campbell's largely-unchallenged sworn deposition testimony is sufficient to raise a material factual dispute to allow a jury to determine whether the scope, manner, and place of the search was reasonable, particularly since a strip search "is by its very nature a highly intrusive invasion, and, as such, requires particular justification." Moore, 639 F. Supp. 2d at 357 (quoting Wilson v. Aquino, 233 Fed. Appx. 73 (2d Cir. 2007)). In an analogous situation in the Eastern District, a plaintiff testified at his deposition that he was arrested while sitting in his car for smoking marijuana, and that the arresting police officers pulled his pants and underwear down in view of the public to search for further hidden drugs. See Jean-Laurent v. Hennessy, No. 05 Civ. 1155 (JFB) (LB), 2008 WL 3049875, at *2-4 (E.D.N.Y. Aug. 1, 2008). There, the court likewise determined on summary judgment that the plaintiff's testimony was itself sufficient to create a material issue of fact for a jury determination. Id. at *14. Similarly, if Campbell's version of events is credited, a reasonable juror could conclude he was subjected to an unreasonable strip search. See also Moore, 639 F. Supp. 2d at 357 ("reasonable jurors could find that the officers acted unreasonably by conducting the search in an overly intrusive manner and in an improper location when they requested Moore to pull down his pants, spread his buttocks, and jump in a public area where observers and pedestrians could see his exposed lower body"); Campbell v. Fernandez, 54 F. Supp. 2d 195, 198 (S.D.N.Y. 1999) (reasonableness of strip search in public store "must be decided by a jury").
3. Excessive Force
Plaintiff also claims that the police used excessive force against him at the time of arrest, by kicking, punching, and tackling him to the ground, and again later when they interrogated him at the police station, where he claims he was choked, slapped in the face, and burned with a lit cigarette. "All claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment 'reasonableness' standard." Rincon v. City of New York, No. 03 Civ. 8276 (LAP), 2005 WL 646080, at *4 (S.D.N.Y. Mar. 21, 2005) (quoting Graham v. Conner, 490 U.S. 386, 395 (1989)); see also Smart, 2009 WL 862281, at *7 (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)). This encompasses both Campbell's claims of excessive force upon arrest and later at the police station, because "the Fourth Amendment standard probably should be applied at least to the period prior to the time when the person arrested is arraigned or formally charged, and remains in the custody (sole or joint) of the arresting officer." Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989); see also Perez v. City of New York, No. 07 Civ. 10319 (RJS) (KNF), 2009 WL 1616374, at *7 (S.D.N.Y. June 8, 2009). "[F]orce is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable 'in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.'" Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham, 490 U.S. at 397). This analysis must entail consideration of the totality of circumstances faced by officers on the scene, and it must be objectively sufficiently serious or harmful enough to be actionable. See Rincon, 2005 WL 646080, at *4 (quoting Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) and United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999)). "The force used by the officer must be reasonably related to the nature of the resistance and the force used, threatened, or reasonably perceived to be threatened, against the officer." Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). "Not every push or shove" is excessive force, Graham, 490 U.S. at 397, and a court may grant summary judgment where the force used was de minimis. See Yang Feng Zhao v. City of New York, 656 F. Supp. 2d 375, 391 (S.D.N.Y. 2009).
Although the factual record is relatively weak, Campbell has raised a genuine issue of material fact as to whether or not the forced used against him was excessive. Plaintiff's testimony as to the alleged blows sustained when he was laying on the ground during his arrest and, more significantly, his testimony about being slapped and burnt with a cigarette while detained at the police station are sufficient to let a jury to decide whether or not these incidents actually occurred and, if so, whether the police used unreasonable force. See Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003) ("Although Scott's evidence may be thin, his own sworn statement is adequate to counter summary judgment in this case and must be weighed by a trier of fact."). That there is at best limited medical evidence in the record to corroborate his story is insufficient to dismiss his excessive force claim as a matter of law. See Smith v. Fields, No. 95 Civ. 8374 (DAB), 2002 WL 342620, at *6 (S.D.N.Y. Mar., 4, 2002) ("Although the apparent lack of any indication in the medical records suggesting that Plaintiff was in fact slapped and kicked about the head casts some doubt on his claim, it is for the fact finder to determine the veracity of the Plaintiff's account and whether his allegations, even if standing alone, amount to excessive force."). Contrary to Defendants' argument, the minimal evidence of injury does not render his claim de minimis and ripe for dismissal. It is the force used, not the injuries caused, which must be determined to be de minimis as a matter of law. See Yang Feng Zhao, 656 F. Supp. 2d at 391. The alleged force used on Campbell when he was being interrogated at the police station, slapping and cigarette burns, in particular cannot conceivably be deemed a de minimis use of force if it in fact occurred. See id. (Determining that no "quantum of physical injury is required," and no force justified, in an "interrogation of an unresisting previously-arrested individual.").
Defendants also argue that Plaintiff's claim must be dismissed because he failed to show any personal involvement by the various individual defendants. A § 1983 claim against an individual defendant requires some personal involvement, which is typically a question of fact. See Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986); Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474 (S.D.N.Y. 2003). "A police officer is personally involved in the use of excessive force if he either: (1) directly participates in an assault; or (2) was present during the assault, yet failed to intercede on behalf of the victim even though he has a reasonable opportunity to do so." Rossi, 275 F. Supp. 2d at 474 (citing Ricciuti v. New York City Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997)). Relatedly, a supervisory official is personally involved if he "(1) directly participated in the violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation." Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Smart, 2009 WL 862281, at *11. Here, Campbell's testimony is sufficient to raise a material factual dispute over the involvement of each of the remaining individual defendants. Detective O'Shea allegedly directly participated because Plaintiff testified that he is the individual who actually burned him with a cigarette. Officer Ortiz was involved in both the arrest where Campbell claims he was punched and kicked, and it was he who allegedly slapped Plaintiff at the police station. Either action is sufficient to raise a factual question as to whether Ortiz directly participated in an unreasonable use of force or failed to intercede when other officers did so. Ortiz, as noted above, is also the officer that allegedly took Campbell's clothes and left him naked from the waist down in the holding pen. Finally, Detective Hale's involvement is the most tenuous, as Plaintiff only testified that Hale transported him with O'Shea to a second building where O'Shea interrogated and burned him. Although admittedly a thin factual reed, the testimony is sufficient to allow a jury to determine whether or not Hale either failed to intercede when O'Shea allegedly burned Campbell or was personally involved in some other fashion. See Smart, 2009 WL 862281, at * 11 (desk sergeants may be personally involved by failing to remedy violations once they learned of them). While Plaintiff may not have brought a particularly strong case, his sworn testimony about his treatment by these officers is mostly uncontradicted and sufficient to raise triable issues of fact for a jury.
D. Monell Liability
Defendant also brings suit against the City of New York. To establish the liability of a municipality, like New York City, a "plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy." Ricciuti, 941 F.2d 119, 122 (2d Cir. 1991) (citing, inter alia, Monell v. Department of Social Services, 436 U.S. 658, 690 (1978)); see also Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). Here, Campbell provides no evidence whatsoever of a custom or policy that led to any of the alleged constitutional violations, nor any evidence that the City failed to properly train the individual defendant police officers. "A single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." Ricciuti, 941 F.2d at 123; see also Okin v. Village of Cornwall-On-Hudson Police Dept., 577 F.3d 415, 440-41 (2d Cir. 2009) (For failure to train claim, "[t]he plaintiff must offer evidence to support the conclusion that the training program was inadequate, not that a particular officer may be unsatisfactorily trained or that an otherwise sound program has occasionally been negligently administered, and that a hypothetically well-trained officer would have avoided the constitutional violation.") (internal citations and quotations omitted). Claims against the City of New York must be dismissed.
E. New York City Police Department Liability
Campbell also brings suit against the New York City Police Department. However, as courts in this district have previously explained, the New York City Police Department is not a suable entity. See, e.g., East Coast Novelty Co., Inc. v. City of New York, 781 F. Supp. 999, 1010 (S.D.N.Y. 1992); Fredericks, 2008 WL 506326, at *6. As such, Plaintiff's claims against the Police Department are dismissed.
III. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in part and DENIED in part. Claims against Detective Butterworth, the City of New York, and the New York Police Department, as well as claims for false arrest and malicious prosecution, are dismissed. Claims against Detective O'Shea, Detective Hale, and Officer Ortiz for excessive force and an unreasonable strip search remain. Per the notification recently sent to both parties, the trial for this matter is scheduled to begin on August 10, 2010 at 9:30 AM.
The Clerk of the Court is instructed to close the relevant motions and remove them from my docket.