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finding no constitutional violation based on excessive force claim where defendant testified that he did not request medical attention after his arrest and that he had pain but no specific, identifiable injury
Summary of this case from MacLeod v. Town of BrattleboroOpinion
00 Civ. 9507 (RWS).
November 18, 2004
STEPHEN SANTUCCI, ESQ., Attorney for Plaintiff, Staten Island, NY.
HONORABLE MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, Attorneys for Defendants, New York, NY, By: RACHEL A. SELIGMAN, Assistant Corporation Counsel Of Counsel.
OPINION
The City of New York (the "City"), Police Officer Raul Rosario ("Rosario") and Police Officer Paul D. Fernandez ("Fernandez") (collectively the "Defendants") have moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment dismissing the complaint of plaintiff Nicasio Hernandez ("Hernandez"), who proceeded pro se prior to November 4, 2002. For the reasons set forth below, the motion is granted.
Prior Proceedings
On December 14, 2000, Hernandez filed his complaint pro se alleging: (1) federal civil rights violations pursuant to 42 U.S.C. §§ 1983, 1985 and 1986 (Compl. ¶ 31); (2) state law claims of assault, battery, abuse of process, unlawful arrest, and intentional infliction of emotional distress (Compl. ¶ 35); and (3) state civil rights violations. (Id.). The issue was joined, discovery had, and the instant motion, including Local Rule 56.2 Notice to Pro Se Litigants Opposing a Motion for Summary Judgment, was marked fully submitted on May 19, 2004. Hernandez, proceeding pro se, filed no opposition to this motion. On November 4, 2004, a notice of appearance by attorney Stephen Santucci on behalf of Hernandez was entered.
The Facts
The following facts are drawn from the Defendants' unopposed Local Rule 56.1 statement, plaintiff's deposition testimony and the other documents in the record:
1. Plaintiff stated that on January 13, 2000, he boarded a Lexington Avenue Local subway train (a "6 train") at the Spring Street station in Manhattan. (November 12, 2003 Deposition of Nicasio Hernandez, Seligman Decl. Ex. B ("Hernandez Dep") at 30.)
During his November 12, 2003 deposition, Hernandez initially testified that he boarded an Eighth Avenue Local train (a "C train") at Spring Street in Manhattan. (Hernandez Dep. at 27). However, Hernandez' subsequent deposition testimony clarified that he boarded a 6 train at Spring Street. It should be noted that there are at least two MTA New York City Subway stations on Spring Street. The C train stops at the station at Spring Street and 6th Avenue, and the 6 train stops at the station at Spring Street and Lafayette Street.
2. Plaintiff stated that while the train was traveling between 125th Street and 138th Street, he switched subway cars so that he would be closer to the steps when he reached his final destination. (Id. at 27, 32.)
3. Plaintiff stated that he switched from one subway car to another while the train was moving. (Id. at 30).
4. Plaintiff stated that prior to exiting the moving car, he read and understood a sign stating that passengers are not permitted to move between cars while the train is in motion. (Id. at 47-48.)
5. Plaintiff stated that he understood the sign even though it was not written in Spanish. (Id. at 47.)
6. Plaintiff stated that prior to January 13, 2000, he had changed subway cars while the train was moving on many occasions. (Id. at 46.)
7. Plaintiff stated that on January 13, 2000, Rosario and Fernandez observed him changing subway cars while the train was moving. (Id. at 33; see also January 13, 2000 Transit Adjudication Bureau Summons, Seligman Aff. Ex. A.)
8. Plaintiff stated that upon seeing him change cars, Rosario and Fernandez approached him. (Hernandez Dep. at p. 33.)
9. Plaintiff stated that when Rosario and Fernandez approached, he was holding onto a pole in the subway car and that he would not let go of this pole. (Id. at 31, 34.)
10. Plaintiff stated that during the time that he was holding the pole, Rosario and Fernandez grabbed him and then hit him with closed fists twice on each shoulder. (Id. at 40.)
11. Plaintiff stated that when the train reached the Cypress Avenue Station, Rosario and Fernandez forcibly removed him from the car. (Id. at 33-35.)
12. Plaintiff stated that on a platform of the Cypress Avenue station, Rosario and Fernandez pushed him face-first against a wall and put their guns to his head and back. (Id. at 35)
13. Plaintiff stated that while Rosario and Fernandez had their guns against him, they patted him down and checked his pockets. (Id. at 38.)
14. Plaintiff stated that Rosario and Fernandez subsequently issued him a summons for Unsafe Riding. (Id. at 35, 45; see also Seligman Aff. Ex. A.)
15. Plaintiff stated that after receiving the summons, he waited alone on the platform at the station for another 6 train to arrive. (Hernandez Dep. at 48-49.)
16. Plaintiff stated that approximately twenty minutes later, he boarded another 6 train. (Id. at 48.)
17. Plaintiff indicated that he was detained at the Cypress Avenue Station for a total of 3-5 hours on January 13, 2000. (Id. at 48.)
18. Plaintiff stated that he was not placed in handcuffs at any time on January 13, 2000. (Id. at 49.)
19. Plaintiff stated that he did not request medical attention on January 13, 2000. (Id.)
20. Plaintiff stated that on January 13, 2000, he did not at any time indicate to Rosario or Fernandez that he was hurt or injured. (Id. at 49-50.)
21. Plaintiff stated that at some time after January 13, 2000, he developed pain in his shoulders. (Id. at 50.)
22. Plaintiff stated that he did not recall when he first sought medical treatment for the alleged injuries he suffered as a result of the January 13, 2000 incident or the name of the doctor that he saw. (Id.)
23. Plaintiff stated that he subsequently paid the summons that he was issued on January 13, 2000. (Id. at 54-55; see also Seligman Aff. Ex. C.)
Discussion
1. Legal Standard
Under Rule 56(c), Fed.R.Civ.P., summary judgment is warranted when, in viewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 251 (1986).
A motion for summary judgment requires the party with the burden of proof at trial to "make a showing sufficient to establish the existence of an element essential to that party's case . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the "record taken as a whole could not lead a rational trier of fact to find for the moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Accordingly, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997 (quoting Fed.R.Civ.P. 56(c)).
2. Federal Constitutional ViolationsA. Alleged Violations
Hernandez has alleged that he was seized, searched, arrested, and subjected to excessive force in violation of the Fourth Amendment as applied to the states by the Fourteenth Amendment.See Mapp v. Ohio, 367 U.S. 643, 655 (1961). Based on these alleged constitutional violations, Hernandez has asserted claims for monetary damages pursuant to 42 U.S.C. §§ 1983, 1985 and 1986.
Hernandez has asserted claims pursuant to § 1983, which imposes liability for acts taken under color of state law which deprive a plaintiff of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The Supreme Court has interpreted this statute as imposing liability "only for conduct which `subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and its laws."Rizzo v. Goode, 423 U.S. 362, 370 (1976) (citation omitted). Thus, in order to prevail on a section 1983 claim, the plaintiff must prove that the defendant: (1) acted, (2) under color of state law, (3) in a manner which deprived the plaintiff's constitutional rights. See, e.g., Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992), aff'd, 979 F.2d 845 (2d Cir. 1992). ii. 42 U.S.C. § 1985
Hernandez alleges that the Defendants conspired to violate his civil rights. As such, he has alleged violations of 42 U.S.C. § 1985(3), which provides a cause of action where:
two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . if one or more persons . . . do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is . . . deprived of having and exercising any right or privilege of a citizen of the United States. . . .42 U.S.C. § 1985(3).
To state a claim for conspiracy to violate an individual's constitutional rights, a plaintiff must show: (1) a conspiracy (2) for the purpose of depriving a person of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. Smith v. Metro North Commuter R.R., No. 98 Civ. 2528 (RWS), 2000 WL 1449865, at *6 (S.D.N.Y. Sept. 29, 2000) (citing Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)).
iii. 42 U.S.C. § 1986
Hernandez has also asserted a claim pursuant to § 1986, which "provides a cause of action against anyone who `having knowledge that any of the wrongs conspired to be done and mentioned in section 1985 are about to be committed and having power to prevent or aid, neglects to do so.'" Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (quotingKatz v. Morgenthau, 709 F. Supp. 1219, 1236 (S.D.N.Y. 1989),aff'd in part and rev'd in part on other grounds, 892 F.2d 20 (2d Cir. 1989)). Thus, a § 1986 claim can only proceed if there is a valid § 1985 claim. See id. (citing Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir. 1978)).
B. The City Is Not Liable
Hernandez' § 1983 claims against the City are dismissed.
i. No § 1983 Liability
In order to hold the City liable as a "person" within the meaning of 42 U.S.C. § 1983, Hernandez must establish that the City was at fault for the injury he suffered, see Oklahoma City v. Tuttle, 471 U.S. 808, 810 (1985); Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978), in that the violation of his constitutional rights resulted from a municipal policy, custom or practice. See Monell, 436 U.S. at 694; Vann v. New York, 72 F.3d 1040, 1049 (2d Cir. 1995). 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. Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion); Walker v. 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 Canton v. Harris, 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). "[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." DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). "The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby, make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur, 475 U.S. at 479 (emphasis in original).
Hernandez has demonstrated no basis for the imposition ofMonell liability. First, he has offered no evidence to show that the alleged civil rights violations were committed pursuant to a formal policy endorsed by the City. Second, he has offered no evidence to show that City policymakers took any action that caused the alleged rights violations to occur. Third, he has offered no evidence to show that the alleged rights violations were committed pursuant to a consistent and widespread practice. Fourth, he has offered no evidence to show that City policymakers, through a failure of adequate training or supervision, were deliberately indifferent to rights violations committed by police officers like Fernandez and Rosario. Therefore, any § 1983 claims asserted against the City are dismissed in their entirety.
ii. No § 1985 Liability
To hold the City liable pursuant to § 1985(3), Hernandez must show that the alleged constitutional violations that he suffered were the result of a City policy, custom, or practice. Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir. 1979). Since plaintiff has failed to present any evidence that the alleged violations that he suffered were the result of a municipal policy, custom, or practice, his § 1985(3) claim against the City is dismissed. iii. No § 1986 Liability
"[A] § 1986 claim must be predicated upon a valid § 1985 claim." Mian, 7 F.3d at 1088. Since Hernandez has failed to satisfy his burden of production with respect to the § 1985 claim against the City, his § 1986 claim against the City must also be dismissed.
C. The § 1983 Claims Against Rosario and Fernandez are Dismissed i. The False Arrest and Unlawful Seizure Claims Are Dismissed
Hernandez has asserted a § 1983 claims against Fernandez and Rosario on the theory that his arrest and attendant detention at the Cypress Avenue Station violated the Fourth Amendment. The Second Circuit has held that the elements of a § 1983 false arrest claim are substantially similar to the elements of a false arrest claim under New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). "Under New York law, a plaintiff claiming false arrest must show, inter alia, that the defendant intentionally confined him without his consent and without justification." Id. In an action for false arrest, whether brought under § 1983 or New York state law, "the existence of probable cause . . . constitutes justification and `is a complete defense to [the] action. . . .'" Id. (quoting Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994)).
a. Hernandez' Payment of the Transit Fine Does Not Bar his § 1983 Action Against Fernandez and Rosario
The Second Circuit has stated that a conviction is conclusive evidence that a given arrest was made with probable cause unless the conviction is reversed on appeal. Id. Since a guilty plea is the equivalent of a conviction, Sadler v. U.S., 531 F.2d 83, 85-86 (2d Cir. 1976), a guilty plea will also bar a § 1983 false arrest claim. See, e.g., Osuch v. Gregory, 303 F. Supp. 2d 189, 195 (D. Conn. 2004); Almonte v. Florio, No. 02 Civ. 6722 (SAS), 2004 WL 60306 at *5 (S.D.N.Y. Jan. 13, 2004);Papeskov v. Brown, No. 97 Civ. 5351 (SS), 1998 WL 299892 at *5 (S.D.N.Y. June 8, 1998).
The Supreme Court has held that to recover damages for false arrest, a § 1983 plaintiff must prove that the conviction had been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 487 (1994).
The Defendants argue that Hernandez' payment of a $75 fine to the New York City Transit Adjudication Bureau, Seligman Dec. Ex. C, is equivalent to a guilty plea, and that such payment therefore bars his § 1983 false arrest claim. This argument is undercut by the text of § 1050.10 of the New York City Transit Rules of Conduct (the "Rules of Conduct"), which states that fines imposed by the Transit Adjudication Bureau are civil penalties, and that the imposition of such penalties is an alternative to criminal prosecution. Defendants have failed to cite any authority for the proposition that payment of a civil penalty is equivalent to a guilty plea in a criminal prosecution. Moreover, the opinion of the Sadler court militates against any such proposition. In Sadler, the Second Circuit stated:
§ 1050.10 provides, in pertinent part, that:
any person committing one or more violations of [the New York City Transit Rules of Conduct] shall be subject to either:
(a) criminal prosecution in the criminal court of the City of New York, which court may impose a fine not to exceed $25 or a term of imprisonment for not longer than 10 days, or both; or
(b) civil penalties imposed by the transit adjudication bureau in an amount not to exceed $100 per violation (exclusive of interest or costs assessed thereon).21 NYCRR § 1050.10 (emphasis added).
Before accepting a guilty plea the district court must of course satisfy itself that the defendant is offering the plea voluntarily and that he is competent to understand the nature of the charge, his constitutional rights, and the scope of the penalty provided by law. [Citations omitted]. Since a guilty plea is the equivalent of a conviction and involves the defendant's waiver of precious constitutional rights, [citation omitted], the district courts have been instructed to exercise the "utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." [Citation omitted]. Sadler, 531 F.3d at 85-86. The Defendants have failed to demonstrate that the payment of the fine was attended by equivalent solemnities insuring that Hernandez was aware of the rights and protections that he was allegedly waiving. Based on the foregoing, Hernandez' payment of a civil penalty to the Adjudication Bureau will not be deemed equivalent to a guilty plea and will not bar his § 1983 false arrest claim.b. The Record Establishes that Rosario and Fernandez had Probable Cause to Arrest Hernandez
Hernandez' deposition testimony demonstrates that Rosario and Fernandez had probable cause to arrest Hernandez for passing between subway cars while the train was in motion. 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) (quotingO'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993)).
§ 1050.9(d) of the Rules of Conduct provides, in pertinent part, that no person may ride on the "platform between subway cars or any other area outside any subway car. . . ." 21 NYCRR § 1050.9(d).
Hernandez has admitted (1) that he passed between subway cars while the train was in motion on the night in question, and (2) that Rosario and Fernandez observed him while he engaged in this conduct. See Hernandez Dep. at 30-33. These admissions provide uncontested proof that Rosario and Fernandez had probable cause to arrest him. Therefore, Hernandez' false arrest claim is dismissed.
c. Hernandez Has Failed to Show that the Detention in the Cypress Avenue Station Was Unreasonable
Hernandez has also alleged a § 1983 violation based on the theory that he was detained at the Cypress Avenue Station in violation of the Fourth Amendment. As discussed above, this detention, which apparently lasted 3-5 hours (Hernandez Dep. at 48), attended an arrest that was based on probable cause. Based on these facts, the alleged detention is analogous to the detention of an arrestee pending the commencement of a probable cause hearing. Under such circumstances, a criminal defendant can generally be held for up to 48 hours without implicating the Fourth Amendment. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). For detentions of less than 48 hours, the § 1983 plaintiff has the burden of showing that the detention was unreasonable. Id. at 57. Since Hernandez has failed to make any such showing of unreasonableness, his unlawful seizure claim must be dismissed.
ii. The Excessive Force Claim Is Dismissed
Hernandez also claims, pursuant to § 1983, that Rosario and Fernandez used excessive force against him in violation of the Fourth Amendment. The Second Circuit has stated that a "[p]olice officers' application of force 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. New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989). The Second Circuit has stated:
Not every push or shove by a state officer constitutes a violation of substantive due process. Whether the constitutional line has been crossed depends on "such factors as [1] the need for the application of force, [2] the relationship between the need and the amount of force that was used, [3] the extent of injury inflicted, and [4] whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm."Robison v. Via, 821 F.2d 913, 923 (2d Cir. 1987) (quotingJohnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
These factors are evaluated from the perspective of a reasonably objective officer in the circumstances at the time of the incident and it is plaintiff's burden to prove that the officer acted unreasonably. See, e.g., Roundtree v. New York, 778 F. Supp. 614, 621-22 (E.D.N.Y. 1991) (citing Graham, 490 U.S. at 397).
Hernandez has failed to carry this burden. In light of the circumstances confronting them, Fernandez and Rosario appeared to have used a reasonable amount of force against Hernandez, who admits that he physically resisted the officers' efforts to seize him. Hernandez testified that he "grabbed onto the pole," that he "wouldn't let go of the pole," and "once the train stopped that is when they grabbed me by force." (Hernandez Dep. at 31, 34.) Hernandez' allegation that he was pushed against a wall in the Cypress Avenue Station does not change this analysis.
The severity of plaintiff's injuries is also relevant to the consideration of whether the force used was reasonable. Here, Hernandez testified at his deposition that "they grabbed me from behind and they [threw him] out of the train . . . one grabbed me the other one held a door and helped him." (Id. at 34.) Although Hernandez testified that he was "hit two times in the shoulder and two time on the other shoulder," he later testified that he "wasn't hurt." Indeed, he testified that he had pain but no specific identifiable injury. (Id. at 50.) Furthermore, Hernandez testified (1) that he did not request medical attention on January 13, 2000 (id. at 49), (2) that he could not remember the approximate date on which he first visited a doctor for treatment of his alleged injuries (id. at 50), and (3) that he could not definitively state that he sought treatment for such alleged injuries within one year of his arrest. (Id.). Accordingly, the alleged use of force during the arrest of Hernandez does not rise to the level of a constitutional violation, Graham, 490 U.S. at 397, and his claim for excessive force is dismissed.
Furthermore, although Hernandez alleged in the complaint that the conduct of Rosario and Fernandez was motivated by animus toward people from the Dominican Republic (Compl. ¶ 17), he has not provided any evidence to create a triable issue of fact as to whether Rosario or Fernandez were motivated to use force against him by some improper motive.
Hernandez also alleged that he was held at gunpoint by Rosario and Fernandez. The mere fact that the officers allegedly brandished their weapons does not change the foregoing analysis. Even assuming the accuracy of plaintiff's allegations concerning the officer's use of their pistols, such use, without more, does not sustain a claim for excessive force. See e.g., Aderonmu v. Heavey, 00 CV 9232 (AGS), 2001 U.S. Dist. LEXIS 640 at *10 (S.D.N.Y. 2001) (holding that interrogation at gunpoint does not amount to use of excessive force).
Rather, to succeed on a § 1983 claim of excessive force, Hernandez must demonstrate that the use of force was unreasonable and that he suffered injury as a result. Based on the facts alleged, Hernandez has failed to make this showing.
iii. The Unlawful Search Claim Is Dismissed
Hernandez' § 1983 claim is based, in part, on the allegation that during the course of his arrest at the Cypress Avenue Station, Rosario and Fernandez searched his pockets and his wallet in violation of the Fourth Amendment. (Compl. ¶ 8.) This search was conducted pursuant to a lawful arrest. It is axiomatic that pursuant to a lawful arrest, an officer can search a defendant regardless of whether a search warrant has been obtained. Chimel v. California, 395 U.S. 752, 762-763 (U.S. 1969). ("When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons. . . . In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person. . . .") Courts of this district have interpreted Chimel to permit the search of a defendant's wallet pursuant to a lawful arrest. See, e.g., United States v. Vaneenwyk, 206 F. Supp. 2d 423, 426 (S.D.N.Y. 2002). Based onChimel, the search of Hernandez at the Cypress Avenue Station was permissible. Therefore, the unlawful search claim is dismissed. D. The §§ 1985 and 1986 Claims Against Rosario and Fernandez Are Dismissed
As discussed above, Hernandez must offer proof of the following elements in order to create triable issues of fact as to whether Rosario and Fernandez conspired to violate his constitutional rights: (1) a conspiracy (2) for the purpose of depriving a person of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. Smith v. Metro North Commuter R.R., 2000 WL 1449865, at *6. Since Hernandez has failed to provide any proof of the existence of an alleged conspiracy, the § 1985 claims against Rosario and Fernandez is dismissed. Finally, for the reason set forth above, the § 1986 claims against Rosario and Fernandez are also dismissed.
It is not clear whether, pursuant to the intracorporate conspiracy doctrine, concerted conduct by Rosario and Fernandez could constitute a conspiracy to violate Hernandez' constitutional rights. See, e.g., Girard v. 94th Street Fifth Ave. Corp., 530 F. 2d 66, 70-72 (2d Cir. 1976).
E. Rosario And Fernandez Have Qualified Immunity
Rosario and Fernandez have argued that they have qualified immunity with respect to the claims asserted by Hernandez. Qualified immunity is a doctrine aimed at "protect[ing] government officials from suits seeking to impose personal liability for money damages based on unsettled rights or on conduct that was not objectively unreasonable." Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). This doctrine is "an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (2001) (quotingMitchell v. Forsyth, 472 U.S. 511, 526 (1985)). However, the immunity is "effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526. Therefore it is necessary that "qualified immunity questions should be resolved at the `earliest possible stage of litigation,'" to satisfy the goal of the doctrine. Saucier, 533 U.S. at 201 (quoting Hunter v. Bryant, 502 U.S. 244, 227 (1991)).
The question of qualified immunity is independent from the merits of the underlying action and must be examined independent of underlying false arrest and excessive force claims. See id. at 206; see also Washington Square Post No. 1212 v. Maduro, 907 F.2d 1288, 1292 (2d Cir. 1990) (citing Mitchell, 472 U.S. at 527-28)).
Even where reasonable, competent officials could disagree as to whether the conduct at issue would violate clearly established rights, the qualified immunity defense is available. Malley v. Briggs, 475 U.S. 335, 341 (1986); Cartier v. Lussier, 955 F.2d 841, 846 (2d Cir. 1992). It "`protects all but the plainly incompetent or those who knowingly violate the law.'" Saucier, 533 U.S. at 202 (quoting Malley, 475 U.S. at 341).
As stated by the Saucier court, the first step in the qualified immunity analysis is to determine whether, on the facts alleged, the official's conduct violated a constitutional right.Id. at 200. The next step is to determine whether "the right was `clearly established'" at the time of the alleged incident.Id. The "clearly established" inquiry requires that "if the law did not put the offic[ial] on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id. at 202.
The "relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.
It cannot be said, based on the evidence presented, that it would have been clear to a reasonable officer under similar circumstances that the conduct at issue — i.e., the arrest, the detention pursuant to that arrest, the search, and the use of force — was unlawful. See, e.g., Thomas v. County of Putnam, 262 F. Supp. 2d 241, 247 (S.D.N.Y. 2003). Therefore, Rosario and Fernandez are entitled to qualified immunity in this action. F. The State Law Claims Against City Defendants Are Dismissed
Hernandez does not have any viable federal claims against the Defendants. "In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well."Marcus v. ATT Corp., 138 F.3d 46, 57 (2d Cir. 1998); see also Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994) (noting that "it is axiomatic that a court should decline to exercise jurisdiction over state-law claims when it dismisses the federal claims . . ."); Bernstein v. Misk, 948 F. Supp. 228, 243 (E.D.N.Y. 1997). Therefore, the state law claims are dismissed.
Conclusion
For the foregoing reasons, summary judgment is granted in favor of the Defendants as to all of plaintiff's causes of action. However, in Defendants moving papers, they failed to specifically address the following claims: (1) the § 1983 illegal search claims, (2) the § 1985 claims, and (3) the § 1986 claim. To obviate any concerns over whether plaintiff, who proceeded pro se for the purposes of this motion, had notice of the nature and consequences of Defendants' motion, leave is hereby granted to the plaintiff to submit within twenty (20) days of entry of this opinion any factual materials that create genuine issues of material fact as to those claims not addressed in Defendants' motion papers. In the event that such materials are submitted, the Defendants must respond, if at all, within ten (10) days.
It is so ordered.