Opinion
03 Civ. 6307 (RWS).
August 3, 2006
GINSBERG BROOME Attorneys for Plaintiff New York, NY By: ROBERT MICHAEL GINSBERG, ESQ. Of Counsel.
HON. MICHAEL A. CARDOZO Corporation Counsel of the City of New York Attorneys for Defendants New York, NY, By: RACHEL A. SELIGMAN, ESQ. Assistant Corporation Counsel Of Counsel.
OPINION
Defendants the City of New York (the "City") and Neil H. Spadaro ("Spadaro") (collectively the "Defendants") have filed objections to the Report and Recommendations of Magistrate Judge Michael H. Dolinger dated December 7, 2005 (the "Report"). Plaintiff Connor McEnery ("McEnery") has opposed Defendants' objections and has cross-moved for sanctions against Defendants.
For the reasons set forth below, the objections are overruled in part and sustained in part. Except as noted below, the Report is hereby adopted. Plaintiff's motion for sanctions is denied.
Prior Proceedings
This action was commenced by the filing of McEnery's complaint on August 21, 2003. The complaint asserted claims of false arrest and excessive force under federal law and New York state law. The action, which was originally assigned to the Honorable Harold Baer, was reassigned to this Court on April 26, 2004.
At the completion of discovery, the Defendants moved for summary judgment. This motion was heard and marked fully submitted on September 14, 2005. On October 4, 2005, this motion was referred to Magistrate Judge Dolinger. On December 7, 2005, Magistrate Judge Dolinger filed the Report, which recommended that Defendants' motion for summary judgment be denied in its entirety. On December 28, 2005, Defendants filed objections to the Report in accordance with Fed.R.Civ.P. 72(b). The objections were marked fully submitted on February 9, 2006.
The Facts
The facts are adopted as set forth in the Report, except as noted below. The Standards
The Court also makes the following correction: The Report inadvertently refers to the date upon which Plaintiff was arrested as February 15, 2005. Plaintiff's arrest took place on February 15, 2003.
Under Fed.R.Civ.P. 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. Fed.R.Civ.P. 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, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (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 P56.11 (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, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (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, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (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).
A. Defendants' Objections to the Report and Recommendation are Overruled in Part and Sustained in Part
In their written objections to the Report dated December 29, 2005, the Defendants raise the following objections: (1) the Report incorrectly found that Defendants' Rule 56.1 Statement of Material Facts and other Representations are not borne out by the record as to justify Plaintiff's failure to controvert Defendants' Rule 56.1 Statement; (2) the Report improperly misconstrued the facts of this case and, in so doing, created additional claims for Plaintiff; (3) Plaintiff's testimony demonstrates that there was probable cause for his arrest; (4) the Report's conclusion that that Defendant Spadaro is not entitled to Qualified Immunity as a matter of law is erroneous; (5) the Report's denial of Defendants' motion for summary judgment on Plaintiff's excessive force claim was erroneous; (6) the Report improperly denied Defendants' motion for summary judgment on Plaintiff's Monell claim; and (7) the Report improperly denied Defendants' motion for summary judgment on Plaintiffs state law claims.
1. Defendants' Objections to the Report's Failure to Admit Their Rule 56.1 Statement Are Without Merit
Defendants contend that the Report's conclusion that Defendants' Rule 56.1 statement of material facts was not "borne out by the record" was erroneous. According to Defendants, Plaintiff's failure to controvert Defendants' Rule 56.1 statement without explanation rendered it inappropriate for the Court to "disregard defendants' 56.1 statement" and to engage in its own review of the record. Def. Mem. L. in Supp. at p. 4. Defendants contend that their Rule 56.1 statement should have been deemed admitted pursuant to Local Rule 56.1(c).
Under Local Rule 56.1(b), a party opposing summary judgment must include a statement with numbered paragraphs corresponding to the movant's statement of material facts. Additionally, in accordance with Local Rule 56.1(d), "each statement controverting any statement of material fact [contained therein] must be followed by citation to evidence which would be admissible." Pursuant to Local Rule 56.1(c) "Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party."
Defendants are correct that Plaintiff failed to submit a statement of material facts as required by Local Rule 56.1(b). However, Plaintiff's counsel's failure to follow this rule does not obligate the district court judge to blindly accept Defendants' Rule 56.1 statement of the facts. Rather, as the Report points out, "it is inappropriate to do so when the movant's Rule 56.1 Statement and other representations as to the facts are not borne out by the record." Report, at 4 n. 3 (citing New York State Teamsters Conf. Pension Retirement Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (citing Holtz v. Rockefeller Co., 258 F.3d 62, 74 (2d Cir. 2001)). As the Second Circuit held in Holtz, "while a court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement." Holtz, 258 F.3d at 73 (citing Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) (internal quotation marks omitted)). Accordingly, the Report was not erroneous in declining to deem admitted the statements of fact contained in Defendants' Rule 56.1 Statement, and this objection to the Report is overruled.
2. 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 requested nor contemplated by Plaintiff. Defendants further accuse Judge Dolinger of misstating and embellishing Plaintiff's testimony and a host of other facts. 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 object to the statement on page five of the Report that Plaintiff and his group were "hoping to proceed to the vicinity of First Avenue, which they heard was to be the site of some speeches." (citing Pl. Dep. at p. 76-77). According to Defendants, Plaintiff never actually used the word "hope," and Judge Dolinger's use of this word embellishes Plaintiff's testimony by suggesting that Plaintiff was dismayed at never having reached First Avenue. This objection is without merit. Although the Report did not quote verbatim Plaintiff's testimony, it is an accurate summary of Plaintiff's testimony and the direction in which Plaintiff proceeded on February 15, 2003. The statement does not connote dismay or disappointment, as Defendants suggest, but rather describes generically the direction in which Plaintiff was walking. Furthermore, even assuming the statement were to suggest feelings of dismay and/or disappointment, such sentiments do nothing to bolster Plaintiff's false arrest claim, as Defendant's contend. As set forth below, a finding of false arrest turns primarily upon the existence or nonexistence of probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). A plaintiff's desires or hopes bears not upon an officer's reasonable belief that the plaintiff was engaged in criminal activity. As such, this objection is without merit and is overruled.
Similarly, Defendants object to the statement in the Report that a "mounted policeman charged at [Plaintiff]." Report, at 6 (citing Exhibit D to Seligman Decl. ("Exhibit D") at pp. 93, 101-04; Exhibit E to Seligman Decl. ("Exhibit E") at p. 19). According to Defendants, this statement is a mischaracterization of Plaintiff's testimony at his 50-h hearing that the "horses charged into the crowd and some of them kicked up . . . and they hit some people in the head and horse came and squished (sic) me, it was between the side rear of the horse that squished (sic) me between a window, a pane of glass, and the horse and I was completely lodged there." (Exhibit E at p. 19). Plaintiff explains in his deposition testimony that the horse to which he above referred was mounted by a police officer. (Exhibit D at pp. 89-94, 104). Plaintiff also specifically recounts that the horses "charged into the crowd," (Id. at pp. 89-90) the crowd of which he was a part, shortly before describing the manner in which he was pinned up against the window by the horse. As such, this objection too is without merit and is hereby overruled.
Defendants also object in passing to the Report's characterization of the pressure of the horse against Plaintiff's body as "intense." The fact that Plaintiff didn't use the word "intense" does not render this language an embellishment of the facts, as Defendants suggest. Plaintiff testified at length as to the pain and shortness of breath that resulted from "getting squished" against the building by the horse. As such, the Report's description of these events as "intense" is in no way inaccurate.
Defendants also complain that the Report inappropriately "undertake[s] a discussion of additional facts that do not pertain to plaintiff." Because, as set forth below, a reasonable jury could conclude that Plaintiff's arrest was not an isolated incident, but was the result of a policy, practice, or custom of the City, the inclusion of facts relating to other arrestees was appropriate. Therefore, this objection is overruled.
Additionally, Defendants contend that the Report's summary of the Plaintiff's experience after being released from police custody "gratuitously adds" the adjectives "eventually" and "finally" to exaggerate the timing of the custody and the events. (Def. Mem. L. in Supp. at pp. 6-7). It is concluded that this argument too is without merit. The Report's use of the words "eventually" and "finally" to convey that the Plaintiff took a bus back to Pennsylvania after spending hours at the Demonstration and in police custody is neither an embellishment nor gratuitous. Rather, it is an accurate illustration of the time that had elapsed. Accordingly this objection is overruled.
Next Defendants object to the following statement contained in the Report: "Plaintiff reported to the Criminal Court some months later, as required by the summons, and acquiesced in the suggestion of a Legal Aid attorney that he accept an Adjournment in Contemplation of Dismissal [(an 'ACD')]." Report, at 8. Defendants object to this statement for two reasons. First, they contend that the Plaintiff did not testify that he acquiesced in accepting the ACD. Second, Defendants argue that Plaintiff's court appearance took place approximately one month — on March 10th or 15th of 2003 — not "some months" after his February 15, 2003 arrest.
With respect to Defendants' first contention, it is true that Plaintiff did not testify specifically that he "acquiesced" in accepting the ACD. In the absence of a malicious prosecution claim, the Court fails to see how the use of the word "acquiesce" or this objection would prove relevant to this case. However, it is concluded that because Plaintiff maintained his innocence at the time he appeared in Court and continues to challenge the existence of probable cause to arrest him, the use of the word acquiesce is not a mischaracterization of the facts.
Similarly, with respect to Defendants contention that the time period between the arrest and the Court appearance was inaccurately portrayed, it is unclear how this could prove relevant to Plaintiff's claims or to Defendants' defenses. Nevertheless, Defendants' objection to the characterization of the time period as "some months" is hereby sustained, and it is concluded that Plaintiff reported to the Criminal Court approximately one month following the date of his arrest.
Finally, Defendants object to the Report's assertion that Defendants mischaracterized Plaintiff's testimony regarding whether Plaintiff was on the street so as to justify his arrest. Defendants maintain that the Court has mischaracterized Plaintiff's testimony from his 50-h hearing and his deposition and has disregarded Plaintiff's admissions that he was in the street at the time of his arrest. Having reviewed Plaintiff's testimony at his 50-h hearing and at his deposition, it is concluded that the Report's conclusion that Plaintiff has maintained throughout this litigation that "he remained on the sidewalk" is accurate. As set forth in the Report, see Report, at 17, Plaintiff's use of the words "in the street" in response to Defendants' counsel's questions does not constitute an admission, but rather, as set forth below, was Plaintiff "parroting the language used by the questioner." Id. Plaintiff's testimony that the officers "said that we weren't allowed on the street and that we weren't allowed to continue walking," (Exhibit E to Seligman Decl. at pp. 13-14), also does not constitute an admission that Plaintiff was in the street as opposed to on the sidewalk at the time of his arrest. Indeed, the fact that Defendants interpretation of Plaintiff's testimony so significantly differs from that of the Plaintiff and that of Judge Dolinger illustrates that there is an issue of material fact surrounding where Plaintiff was walking at the time of his arrest that cannot be resolved on a motion for summary judgment. Drawing all inferences in favor of the non-moving party, summary judgment is not appropriate. Accordingly, Defendants' objection that the Report inaccurately concluded that Defendants did not establish that Plaintiff was in the street at the time of his arrest is overruled.
3. Defendants' Contention that Plaintiff's Testimony Demonstrates That There was Probable Cause For His Arrest is Overruled
Defendants also object to the Report's denial of summary judgment on Plaintiff's false arrest claim. Defendants contend that Plaintiff's testimony demonstrates that there is no issue of material fact as to whether there was probable cause to arrest him and that they therefore are entitled to summary judgment on Plaintiff's false arrest claim.
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 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, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (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)).
Defendants contend, as they did in their motion for summary judgment before Judge Dolinger, that issues of material fact with respect to the issue of probable cause do not exist because Plaintiff admitted that he was in the street prior to his arrest on 53rd Street. However, as the Report illustrates and as discussed above, Defendants characterization of the circumstances surrounding the arrest is not supported by the record. Rather, the Report extensively reviews Plaintiff's testimony from the 50-h hearing to demonstrate that the word street was not used synonymously with roadway. See Report, at 15-18. A reasonable juror could conclude that the word street was used generally to identify 53rd Street. As such, Defendant's characterization of Plaintiff's testimony as an admission that he was in the street betrays Plaintiff's repeated testimony that he was walking on the sidewalk as opposed to the roadway of 53rd Street at the time that he was arrested.
In any event, the conflicting interpretations of Plaintiff's testimony illustrate that there are indeed issues of material fact surrounding whether or not Defendant Spadaro had probable cause to arrest Plaintiff. Drawing all inferences in favor of the non-moving party, it cannot be said that Defendants have demonstrated that there is no issue of fact surrounding Plaintiff's false arrest claim. Accordingly, Defendants' objections to the Report's denial of summary judgment on Plaintiff's false arrest claim are overruled.
4. Defendants' Objection that Defendant Spadaro is 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 Defendant Spadaro is entitled to qualified immunity as a matter of law. Defendants argue that even assuming arguendo that Spadaro lacked probable cause to order Plaintiff's arrest for Disorderly Conduct, he still is entitled to qualified immunity as a matter of law on the grounds that: (1) Spadaro did not "violate clearly established constitutional rights of which a reasonable person should have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (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 Spadaro's entitlement to qualified immunity, summary judgment is not appropriate. Therefore, this objection to the Report and Recommendation 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, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (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 (quotingAnderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (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" addressing 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 Spadaro is entitled to qualified immunity because Plaintiff's clearly established constitutional rights were not violated — is without merit. Defendants conflate the first and second prong of the qualified immunity inquiry (as well as the issue of probable cause, discussed above) by arguing that Spadaro could not have known that his conduct was clearly unlawful since "the record is clear that defendant Spadaro was attempting to open up the flow of traffic on Second Avenue [and] it is clear that plaintiff was instructed by the police that he wasn't allowed on the street." Def. Mem. L. in Supp. at 13. The first inquiry addresses not whether an officer could reasonably have known that he was violating a clearly established right, but rather whether there is a clearly established right to be free from arrest without probable cause. The arguments put forth by Defendants purportedly to support this contention, i.e., the factual circumstances surrounding Spadaro's conduct and Plaintiff's arrest, relate to the existence of probable cause and to the reasonableness of Spadaro's actions, both of which are the subject of the reasonableness prong of the immunity defense. Accordingly, Defendants' contentions do not demonstrate that Defendant Spadaro is entitled to qualified immunity on the grounds that he did not violate a clearly established constitutional right.
Defendants' second contention is that in order to be entitled to qualified immunity, Spadaro need only have possessed "arguable" probable cause to arrest plaintiff. 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.
5. Defendants' Objection That They Are Entitled to Summary Judgment on Plaintiff's Excessive Force Claim is Overruled
Defendants also object to the Report's denial of summary judgment on Plaintiff's claim that Defendant Spadaro subjected him to excessive force in violation of his Fourth Amendment rights. In support of this objection, Defendants argue that because Plaintiff's injuries were de minimus, the amount of force to which he was subjected cannot constitute a Fourth Amendment violation as a matter of law. Additionally, Defendants argue that Plaintiff has failed to submit evidence demonstrating that Defendant Spadaro was connected to the alleged use of force against Plaintiff.
Claims of excessive force in the course of an arrest are analyzed under the Fourth Amendment standard of reasonableness. For such claims to rise to the level of constitutional violations cognizable pursuant to § 1983, the plaintiff must show that the force use was "objectively unreasonable" under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 393-94, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). Whether an officer's actions were objectively reasonable depends on a fact-intensive inquiry considering the totality of the circumstances of the particular case, including the severity of the crime being investigated, whether the suspect poses an immediate threat to the safety of the officer or others, and whether the suspect is actively resisting arrest or attempting to flee. Id. at 396-97.
Defendants' first objection to the denial of summary judgment on Plaintiff's excessive force claim is that Defendant Spadaro cannot be held liable for an alleged use of force for which he was never specifically implicated. Defendants argue that Spadaro cannot be held liable for the alleged use of force against Plaintiff because, according to them, Plaintiff does not allege that Defendant Spadaro used any force against him or that Spadaro was responsible for any use of force against him. Specifically, the Defendants object to footnote 14 of the Report, which determined that "Spadaro has testified in a manner that took responsibility for plaintiff's arrest, and his rank and role on the scene could justify a trier of fact in concluding that he was responsible for the manner in which the arrests were carried out." See Report at 29 (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Defendants are correct that Plaintiff has not presented evidence establishing that Spadaro himself applied the force of which Plaintiff complains. However, Spadaro is identified in the Summons issued to Plaintiff at the time of his arrest. As such, a trier of fact could conclude that it was Spadaro who applied or was responsible for the application of the alleged force applied against Plaintiff during the course of the arrest.
Defendants also challenge Plaintiff's excessive force claim for Plaintiff's alleged failure to present evidence demonstrating that he was subjected to force that could be deemed objectively unreasonable. According to Defendants, because Plaintiff's alleged injuries were de minimus, he has not adequately alleged a violation of his Fourth Amendment rights. While Defendants are correct that "a de minimus use of force rarely will suffice to state a Constitutional claim," it is important to note that the Fourth Amendment standard does not set forth a benchmark delineating the amount of force or the severity of injury that amounts to excessive force. Rather, as set forth above, whether or not the force used in the course of an arrest rises to the level of a Fourth Amendment violation depends upon what was objectively reasonable under the totality of the circumstances. Graham, 490 U.S. at 393-94. As such, a reasonable jury plainly could conclude that it was objectively unreasonable to subject Plaintiff to the force to which he has testified. Additionally, as discussed in the Report, see Report at 28, Plaintiff has provided sufficient evidence of pain and bruising to demonstrate that Defendants inflicted more than minimal harm. Therefore, Defendants' objection to Judge Dolinger's denial of summary judgment on Plaintiff's excessive force claim is hereby overruled.
6. 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, Ohio v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989); Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); McDonald v. Board of Education, 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, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (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 v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (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.
Defendants first argue that Plaintiff did not affirmatively argue that he had a municipal liability claim, and that, as such, it was inappropriate for the Court to "manufacture" one on his behalf. Def. Mem. L. in Supp. at p. 18. In addition, Defendants argue that the evidence adduced in support of Plaintiff's municipal liability claim is insufficient.
With respect to Defendants first objection, it cannot be said that Plaintiff did not intend to plead a claim for municipal liability. As the Report points out, the plain language of the complaint states that "[t]he violation of plaintiff's civil rights is part of a pattern of rights violations that occurred under the direction and auspices of the Police Department of the defendant City of New York." Report at 30 (citing Compl. at ¶¶ 8-11). Having reviewed Plaintiff's complaint and Defendants' objections, it is determined that Judge Dolinger correctly concluded that this short and plain allegation is all that Fed.R.Civ.P. 8(a) requires. See, e.g., Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163 (1993). Defendants have cited no authority, and the Court is aware of none, to support their contention that it was inappropriate for Judge Dolinger to deny their motion for summary judgment in the absence of affirmative arguments from Plaintiff.
With respect to the sufficiency of Plaintiff's municipal liability claim, it is determined that the Report correctly concluded that a reasonable jury could conclude that a municipal policy, practice, or custom was the "moving force of the constitutional violation[s]." Based upon the systematic manner in which the policing took place the day of the Demonstration, and drawing all inferences in favor of the Plaintiff, a jury could conclude that the violations to which Plaintiff was subjected were not the result of an isolated incident, but were, as discussed by Judge Dolinger, "pursuant to the authorization, or at least with the acquiescence, of the highest command officials in the [Police] Department." Report, at 35.
Accordingly Defendant's objection to the Report's denial of summary judgment on Plaintiff's claim of municipal liability is hereby overruled.
7. Defendants' Objection that the Report Improperly Denied Summary Judgment on Plaintiff's State Law Claims is Overruled
Defendants argue that in the absence of any surviving federal claims, the Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims. Because it is concluded that there are issues of material fact surrounding Plaintiff's federal law claims such that Defendants are not entitled to summary judgment, this argument is without merit. The Court will continue to exercise supplemental jurisdiction over Plaintiff's state law claims.
B. Plaintiff's Renewed Request for Sanctions is Denied
In Plaintiff's opposition to Defendants' objections to the Report, Plaintiff moves for sanctions, costs, and disbursements. It is unclear whether Plaintiff intended to object to the Report's denial of his motion for sanctions or to make a new motion for sanctions. Under either set of circumstances, the motion is denied. Viewed as an objection to the Report filed pursuant to Fed.R.Civ.P. 72, it is concluded that the motion for sanctions is untimely. See Fed.R.Civ.P. 72 (requiring objections be filed within ten days of the issuance of a Report and Recommendation). To the extent that Plaintiff requests that this Court impose sanctions upon Defendants for their conduct following the issuance of the Report, this Court sees no basis for the imposition of sanctions. Therefore, Plaintiff's motion is denied.
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.