Summary
holding that “where there is a factual dispute about the circumstances surrounding arrest and the degree of force used, the second circuit requires a jury determination of the reasonableness of that force.”
Summary of this case from Sharnick v. D'ArchangeloOpinion
02 Civ. 4824 (JSM)
September 5, 2003
Michael Handwerker Hankin, Handwerker Mazel, New York, N.Y.
Sharon L. McCarthy, Assistant United States Attorney, New York, N.Y.
OPINION and ORDER
Plaintiff brings this action against the City of New York, and individual police officers asserting various civil rights claims under 42 U.S.C. § 1983.
The complaint alleges that on December 19, 1999, at approximately 9:00 p.m., Plaintiff, Philburn Henry, along with his friends Benjamin Brown and Anwar Cargill stopped at 3326 Gunther Avenue to visit a friend. Deposition of Philburn Henry ("Henry Dep."), Jon Norinsberg Decl. Ex. A at 91-92. Henry alleges that he was injured at the scene when, upon exiting the premises, he was grabbed by Officer Eberhart and slammed down onto the concrete, knocking out a front tooth and chipping another. Henry Dep. at 41-42. Plaintiff also alleges that the officers planted false evidence on him and then charged him with stealing that property.
Police arrived at Gunther Avenue in response to a 911 call in which the caller said there was a "possible struggle" at the location. Sprint Record, Decl. of Jon Norinsberg Ex. D. Henry claims that he left the apartment after hearing the officers knock on the door. Henry Dep. at 112.
Plaintiff now brings this action alleging false arrest, malicious prosecution, malicious abuse of process, and denial of his constitutional right to a fair trial in violation of his First, Fourth, Fifth, Eighth and Fourteenth Amendment rights and in violation of 42 U.S.C. § 1983. Currently before the Court is Defendants' motion for summary judgment. The motion with respect to the City of New York is granted in its entirety. Defendants Eberhart and Roettger's motion is granted in part and denied in part.
DISCUSSION
I. City of New York
In order to establish a claim against the City of New York under 42 U.S.C. § 1983, Plaintiff must establish that an identifiable municipal policy, practice or custom is responsible for the constitutional violation. Monell v. Dep't of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037 (1978). Plaintiff has failed to establish a policy, practice or custom and, in fact, has only alleged a single incident and thus does not meet the requirements necessary to maintain any of his claim against the City. City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436 (1985). Therefore, Plaintiff's claims against the City are dismissed.
II. False Arrest
Plaintiff's claims are also against the officers who arrested him. Plaintiff claims that the officers had no probable cause for his arrest. A police officer who makes an arrest without a warrant is not liable for false arrest if the officer had reasonable cause to believe that the plaintiff committed an offense, Illinois v. Gates, 462 U.S. 213, 241-46, 103 S.Ct. 2317, 2333-36 (1983). Probable cause is determined based on the totality of the circumstances. Gates, 462 U.S. at 230-32, 103 S.Ct. 2328-29. In this case, given the circumstances surrounding the response to the 911 call, police had probable cause to arrest Plaintiff. Police were called to the scene because of a possible struggle at the address. Plaintiff has not disputed police testimony that once they arrived at the scene, the officers were directed to the back apartment by an upstairs home-dweller, thus providing further evidence of possible criminal activity. (Testimony of Officer Eberhart, Paul Villanueva Decl. Ex. C at 9.) The totality of these circumstances provided probable cause for the officers' investigation and arrest.
The officers testified, and Plaintiff does not dispute, that the officers saw David Tomlinson with hands bound and a pillowcase on his head. Henry Dep. at 152. Whether this occurred before or after Plaintiff was thrown to the ground is a disputed fact. Even assuming the officers saw Tomlinson after Plaintiff was on the ground, the arriving officers' actions were justified. The officers have a right to detain citizens, pending an investigation of possible criminal activity. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879 (1968). In this case, they had cause to arrest Plaintiff once they saw and spoke to Tomlinson.
III. Excessive Force
Plaintiff also alleges, however, that the officers used excessive force in making the arrest. A claim for use of excessive force under § 1983 may be established if the force used was excessive or unreasonable in light of the circumstances. Graham v. Connor, 490 U.S. 386, 395-96, 109 S.Ct. 1865, 1871 (1989). According to Plaintiff's version of events, he was in an apartment and upon learning that the police were outside, he voluntarily exited 3326 Gunther Avenue with two other men. When leaving, he was thrown to the ground by police officers and handcuffed with his arms behind his back. Plaintiff states that only after he had been thrown to the ground did Mr. Tomlinson, with a pillowcase on his head, come into the officer's view.
A determination of whether the force exerted is reasonable is made in light of the totality of the circumstances, regardless of the defendant's underlying intent or motive. Ricketts v. City of Hartford, 74 F.3d 1397, 1411 (2d Cir. 1996). To determine whether the actions are reasonable, the fact finder must pay careful attention to the facts of the 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 [the suspects are] actively resisting arrest or attempting to evade arrest by flight.Graham, 490 U.S. at 396, 109 S.Ct. at 1872.
The officers have not testified that Plaintiff was evading arrest or that they believed he was carrying a weapon. The law is clear, however, that the court must "consider the perspective of the officer at the time of the arrest, taking into account the fact that the officer may have been required to make a split-second decision." Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (citing Graham, 490 U.S. at 397, 109 S.Ct. at 1872).
Although this Court believes that the trier of fact will not find the force used in this case was excessive, when there is a factual dispute about the circumstances surrounding the arrest and the degree of force used, the Second Circuit requires a jury determination on the reasonableness of that force. See Kerman v. City of New York, 261 F.3d 229, 239-40 (2d Cir. 2001)("Summary judgment on qualified immunity grounds is not appropriate when there are fats in dispute that are material to a determination of reasonableness."); Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999);Calamia v. City of New York, 879 F.2d 1025, 1036 (2d Cir. 1989). See also Welch v. City of New York, 1997 WL 436382, at *6 (S.D.N.Y. Aug. 4, 1997).
Because there is a dispute in this action about when the bound victim was seen by police and there is no assertion that Henry was armed or trying to resist arrest, there remains a factual question whether the force used was reasonable. See Breen, 169 F.3d at 153; Miller v. Lovett, 879 F.2d 1066, 1069-70 (2d Cir. 1989).
Defendants argue that the officers' actions are protected by qualified immunity. While it is important to resolve the immunity issue as early in the litigation as possible, Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001), it is premature to determine immunity when Plaintiff alleges he was thrown to the ground when voluntarily exiting an apartment, had no weapons and was not attempting to flee.
"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."Curry v. City of Syracuse, 316 F.3d 324, 334 (2d Cir. 2003) (quotingMickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002)). Therefore, Defendants' motion for summary judgment with respect to the excessive force claim is denied.
IV. Malicious Prosecution and Malicious Abuse of Process
In order to establish a malicious prosecution claim, plaintiff must establish that the defendant initiated prosecution without probable cause, that the proceeding terminated in plaintiff's favor and that the defendants acted with actual malice. Fernandez v. DeLeno, 71 F. Supp.2d 224, 228 (S.D.N.Y. 1999). In this case, Defendants Eberhart and Roettger's motion must be denied because there is a triable issue as to the basis for the prosecution. While the appearance and testimony of Tomlinson may have provided reasonable grounds for making the arrest, there is a factual dispute as to whether Defendants planted evidence on Plaintiff and falsely pursued the prosecution, demonstrating malice.
Plaintiff has provided more than simply an allegation that evidence was planted on him. Officer Roettger testified in his deposition that he found a watch, a bracelet and a ring in Plaintiff's pocket. Deposition of William Roettger, Villanueva Decl. Ex. D at 52-53. At trial, Plaintiff offered into evidence a pre-arrest picture of himself wearing the jewelry that was allegedly removed from his pocket during the search. Villanueva Decl. Ex. M. Defendants' argument that they had probable cause for the arrest is unavailing with respect to the malicious prosecution claim. "No arrest, no matter how lawful or objectively reasonable, gives an arresting officer or his fellow officers license to deliberately manufacture false evidence against an arrestee." Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). "Where a party is responsible for providing false information or manufactured evidence that influences a decision whether to prosecute, he may be held liable for malicious prosecution." Chimurenga v. City of New York, 45 F. Supp.2d 337, 343 (2d Cir. 1999) (citing Babi-Ali v. City of New York, 979 F. Supp. 268, 276 (S.D.N.Y. 1997).
Defendants argue that Plaintiff is collaterally estopped from arguing that evidence was falsely planted on him. Under New York law, plaintiff is collaterally estopped from relitigating the issue when 1) the issue was necessarily decided in a prior action and is decisive to the present action; and 2) there was a full and fair opportunity to contest the decision that is being asserted as controlling. S.T. Grand, Inc. v. City of New York, 38 A.D.2d 467, 32 N.Y.2d 300, 300 (1st Dept. 1972). See Wallace v. Roche, 921 F. Supp. 946, 951 (E.D.N.Y. 1996); Anderson v. City of New York, 611 F. Supp. 481, 486 (S.D.N.Y. 1985). The opinion resulting from the Mapp/Huntley/Wade hearing held during the state proceedings addresses only whether the officer's had probable cause for the search and did not represent a litigation about whether the evidence was planted. East Coast Novelty Co., Inc. v. City of N.Y., 781 F. Supp. 999, 1005 (S.D.N.Y. 1992) (discussing narrow limits of issue preclusion in § 1983 actions).
Plaintiff also claims malicious abuse of process. Malicious prosecution and malicious abuse of process are similar and both are actionable under § 1983. Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). To establish an abuse of process claim, Plaintiff must show the following elements:
(1) regularly issued process compelling the performance or forbearance of some prescribed act, (2) the person activating the process must have been motivated to do harm without economic or social excuse or justification, and (3) the person activating the process must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of process.Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994).
The factual dispute regarding the planting of evidence precludes granting summary judgment on the malicious abuse of process claim.
V. Denied Fair Trial
Defendants' motion with respect to the denial of a fair trial must also be denied.
When a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors, he violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983.Ricciuti, 124 F.3d at 130. Defendants argue no such cause of action is available because Plaintiff was acquitted at trial. However, while there is no constitutional right to be free from having evidence fabricated against an individual, the offense rises to a constitutional violation if one is deprived of his liberty because of the fabrication. See Zahrey v, Coffey, 221 F.3d 342, 348 (2d Cir. 2000). In this case, it is a question of fact whether Plaintiff's deprivation of liberty (his incarceration between his arrest and his release) was caused by the fabrication of evidence. Zahrey, 221 F.3d at 348.
If Plaintiff's deprivation of liberty was a result of the planted evidence, this was a clearly defined constitutional right at the time of Plaintiff's arrest, and qualified immunity is not available to the officers. See Zahrey, 221 F.3d at 355.
CONCLUSION
For the reasons stated above, summary judgment is granted in its entirety with respect to the City of New York. Summary judgment is granted with respect to the claim of false arrest against the remaining Defendants. Factual disputes preclude summary judgment on the remaining claims.
SO ORDERED.