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holding that where the jury necessarily found that plaintiff had a gun and shot with the intention of killing the police officer and the court could not "fathom how [plaintiff] could prove his excessive force claim," that collateral estoppel was nonetheless inappropriate because the officer's conduct was not at issue in the criminal trial
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98 Civ. 6275 (RCC) (MHD)
March 20, 2002
Opinion Order
Pro se Plaintiff Roy McNamee ("Plaintiff" or "McNamee") filed this 42 U.S.C. § 1983 action claiming that his constitutional rights were violated by New York City Policy Officer James Taylor's use of excessive force while arresting him on July 27, 1995. Further, McNamee claims that the City failed to properly train Officer Taylor. Defendants City of New York and Officer Taylor (collectively "Defendants") filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(c) and/or 56. In a Report and Recommendation dated May 23, 2001, Magistrate Judge Dolinger recommended that the motion be denied. Defendants filed timely objections to the Report. In July 2001, Plaintiff requested, and received, a one-month extension in which to respond to Defendants' objections. Plaintiff has subsequently failed to offer a response and the Court now reviews Defendants' objections de novo pursuant to Federal Rule of Civil Procedure 72.
I. Background
The parties dispute the circumstances of McNamee's arrest on July 27, 1995. Defendants submit that Officer Taylor was off duty and at home when a female friend called to report that McNamee was bothering her at the pay phone outside Taylor's house. Taylor went to his friend's assistance at the pay phone and asked McNamee if there was a problem. Initially, McNamee walked away, but returned to the phone and Officer Taylor a few moments later. At that time Officer Taylor claims he noticed that McNamee was carrying a gun in a folded towel. He claims he yelled to his neighbors that McNamee had a gun, pulled his own weapon from his waistband and yelled "police" and "drop the gun." As Officer Taylor grabbed his gun, McNamee fired a shot at him. In response, Officer Taylor fired back twice and McNamee took cover behind a parked car, still pointing his gun at Officer Taylor. Officer Taylor claims he took out his shield and yelled at him again, informing McNamee that he was a police officer and commanding him to drop the gun. When McNamee did not drop the gun, Officer Taylor fired two more shots. McNamee finally dropped his gun, Officer Taylor frisked him and a security officer handcuffed McNamee. Taylor Trial Transcript, October 6, 2000 Black Dec. Ex. D at 284-87.
According to Plaintiff's version of events, McNamee was waiting to use the phone but the woman using it was "spiting" him and would not tell him when she would be finished. Instead, she summoned Officer Taylor. When Officer Taylor approached the telephone McNamee states that he checked his beeper for the number he was waiting to dial, at which time Taylor pulled a gun. McNamee claims he started to run and Taylor shot him in the leg. May 31, 2000 McNamee Deposition, October 6, 2000 Black Dec. Ex. E at 23-37. McNamee reportedly experienced soreness and stiffness in the leg for a few months. Id. at 75-76.
A jury subsequently convicted McNamee of attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, reckless endangerment in the first degree and criminal possession of a controlled substance in the fifth degree. As demonstrated by the trial court's instructions, the attempted murder, firearms and reckless endangerment charges stemmed from McNamee's altercation with Officer Taylor. Further, in reaching its verdict the jury had to find that McNamee had fired a shot at Officer Taylor and that he had intended to kill the officer. Jury Charge, May 5, 2000 Black Decl. Ex. C. The Appellate Division, First Department, upheld the conviction in its entirety. People v. McNamee, 699 N.Y.S.2d 21 (1999).
II. Discussion
A. Standard of Review
Magistrate Judge Dolinger recommended denying Defendants' motion for judgment on the pleadings, or alternatively summary judgment, because the jury's finding that McNamee had a gun and fired it intending to kill Officer Taylor was not sufficient to preclude McNamee's excessive force claim on the basis of collateral estoppel. Report at 10. Moreover, the Magistrate found that McNamee had sufficiently plead municipal liability and that whether Officer Taylor was entitled to qualified immunity could not be resolved on summary judgment as questions of fact remained about whether his behavior was objectively reasonable. Report at 19, 22. Defendants object to the Magistrate's recommendation. Pursuant to Federal Rule of Civil Procedure 72(b), this Court must review de novo the portions of the Magistrate's report to which the parties object.
A court reviews a motion for judgment on the pleadings as it does a Rule 12(b)(6) motion to dismiss for failure to state a claim. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999); Nat'l Ass'n of Pharm. Mfrs., Inc. v. Ayerst Labs., 859 F.2d 904, 909 n. 2 (2d Cir. 1988). The court must view all the pleadings and draw all reasonable inferences in favor of the nonmoving party. Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994). The complaint will not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(c).
The standard for summary judgment is clear. Summary judgment is appropriate where the parties' submissions demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 5 6(c). The moving party bears the initial burden of proof on such a motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court must view the facts, and all inferences drawn from those facts, in a light most favorable to the non-moving party. Nationwide Life Ins. Co. v. Bankers Leasing Ass'n, 182 F.3d 157, 160 (2d Cir. 1999). If the moving party meets its burden, then the non-movant must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 250 (1986). Mere "metaphysical doubt" is inadequate; sufficient evidence must exist upon which a reasonable jury could return a verdict for the non-moving party. Mtsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
B. Collateral Estoppel
Defendants claim that McNamee's excessive force claim is barred by the doctrine of collateral estoppel. Under New York law, collateral estoppel will only apply if "the issue in question was actually and necessarily decided in a prior proceeding, and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Colon v. Coughlin, 58 F.3d 865, 869 n. 2 (2d Cir. 1995). There are for elements necessary for the doctrine of collateral estoppel to be applicable: 1) the issues of both proceedings must be identical, 2) the relevant issues were actually litigated and decided in the prior proceeding, 3) there must have been a full and fair opportunity for the litigation of the issues in the prior proceeding and 4) the issues were necessary to support a valid and final judgment on the merits. Central Hudson Gas Elec. Co. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995).
While recognizing that a party may be collaterally estopped from asserting a section 1983 claim in federal court, Magistrate Judge Dolinger found that McNamee's claim should not be precluded here. See Allen v. McCurry, 449 U.S. 90, 102 (1980) ("[E]very Court of Appeals that has squarely decided the question has held that collateral estoppel applies when § 1983 plaintiff's attempt to relitigate in federal court issues decided against them in state criminal proceedings."). An excessive force claim depends on the objective reasonableness of the officer's conduct under the circumstances. Graham v. Connor, 490 U.S. 386, 394 (1989). Officer Taylor's actions were not in issue at the state criminal trial. Report at 10 ("Even though McNamee fired a shot at the police officer with the intent to kill him, it is still open for determination whether the police officer's subsequent shooting of McNamee was reasonable under the circumstances."). Accordingly, Judge Dolinger recommended that collateral estoppel not be applied since McNamee's conviction did not foreclose the possibility that Taylor's use of force in response to McNamee was excessive. Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000) ("[The jury's return of a guilty verdict in state court for resisting arrest and/or other offenses such as assault on a police officer does not necessarily preclude a subsequent claim of excessive force in federal court.").
Defendants dispute the Magistrate's finding. Arguing that a conviction for resisting attempted murder is more serious than Sullivan's conviction for resisting arrest and harassing an officer, Defendants claim the Magistrate's reliance on Sullivan v. Gagnier is misplaced. See id. ("Indeed it is worth noting that the crimes of which Sullivan was convicted do not include either violence, or threats, thereof, as essential elements."). Further, Defendants claim the court in Sullivan was stymied by factual disputes that are not present here. Finally, the district court in Sullivan did not have any records from the state court proceedings, while Defendants here have provided the Court with the jury charge and portions of Officer Taylor's trial testimony.
Courts in this Circuit have held that § 1983 plaintiffs convicted of assault against police officers are not precluded from subsequently bringing excessive force claims. See e.g., Allison v. Farrell, No. 97 Civ. 2247 (DAB), 2002 WL 88380 at *56 (S.D.N.Y. Jan. 22, 2002) (finding § 1983 plaintiff's state court guilty plea to assault charges did not estop subsequent excessive force claim against arresting officer);Irrizarry v. Kenny 92 Civ. 1511 (SAS), 1995 WL 678747, at *3 (S.D.N.Y. Nov. 14, 1995) (finding § 1983 plaintiff who had been found guilty of burglary and assault charges after biting a police officer was not collaterally estopped from bringing excessive force claim); Williams v. MacDarmith, No. 86 Civ. 3151 (RWS), 1986 WL 14969, at *2 (S.D.N.Y. Dec. 15, 1986) (holding § 1983 plaintiff's state court guilty plea to assault charges did not preclude excessive force claim against arresting officer). These courts relied, in part, on the fact that the state courts presiding over the criminal cases did not have to consider whether these § 1983 plaintiffs had been subjected to excessive force before or after they had assaulted the officers. See e.g. Irrizarry v. Kenny, 1995 WL 678747, at *3 (noting "[t]he fact that the act to which the police responded was unlawful does not foreclose the possibility that [their] response was also illegal"); Williams v. MacDarmith, 1986 WL 14969, at *2 (S.D.N Y Dec. 15, 1986) (noting it was possible that plaintiff "was beaten excessively after the assault or even before the assault . . .). Although the Report and Recommendation relied on similar reasoning, it engaged in unsubstantiated speculation about what might have happened the night Taylor arrested McNamee. Further, it did not consider that the state court found McNamee guilty of the more serious crime of attempted murder, not just assault. See Green v. Montgomery, 219 F.3d 52, 56 (2d Cir. 2000) (noting, in dicta, that § 1983 Plaintiff "Green does not dispute that a determination that he created a grave risk of death to Montgomery by driving the jeep at him would preclude a finding of excessive use of force on the part of the officers").
Because McNamee may not relitigate the issues necessary to the jury's verdict, that he had a gun and shot it with the intention of killing Officer Taylor, the Court cannot fathom how he could prove his excessive force claim. Hemphill v. Schott, 141 F.3d 412, 416 (2d Cir. 1998) (noting that even where collateral estoppel does not preclude a claim, § 1983 plaintiff may not relitigate facts found by jury in previous criminal case). The fact remains, however, that Officer Taylor's conduct after McNamee's single shot was not in issue. When the Eleventh Circuit was confronted with the same question it concluded that collateral estoppel should not prevent a § 1983 claim. Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir. 2001). As here, in Willingham, the § 1983 plaintiff had been convicted of attempted murder based on her scuffle with the defendant police officers. An officer shot the plaintiff after she allegedly assaulted one of them with a knife. As here, the parties in Willingham disputed the details surrounding the plaintiff's arrest. Id. at 1182-83. The defendant police officers claimed plaintiff had attacked the officers with knives and bottles, while plaintiff insisted she threw one knife at a police dog, never had a second knife with which she allegedly tried to attack an officer and never threw glass at a second officer. Id. at 1182. In holding that collateral estoppel would not preclude the plaintiff's subsequent § 1983 claim, the Eleventh Circuit concluded that "whether the Officer Defendants' acts were reasonable under the circumstances was not necessarily determined by the criminal trial jury." Id. at 1183. The court went on to find, however, that the defendant officers were protected by qualified immunity. Id. at 1187.
The Court notes that Florida's rule of collateral estoppel is similar to New York's. For collateral estoppel to apply, the issues in the two proceedings must be identical and the issue in question must have been "fully litigated and determined in a contest which result[ed] in a final decision of a court of competent jurisdiction." Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla. 1977). As in New York, mutuality of parties is not required for criminal judgments. Starr Tyme, Inc. v. Cohen, 659 So.2d 1064, 1067 (Fla. 1995).
In the present case, the state court instructed the jury to determine McNamee's actions and whether he possessed a gun and attempted to kill Officer Taylor on July 27, 1995. The state court did not ask the jury to consider Officer Taylor's behavior. Jury Charge, May 5, 2000 Black Decl. Ex. C. Accordingly, because the issue presently before this Court — the reasonableness of Officer Taylor's actions — and the issues previously before the state court in McNamee's criminal case — whether McNamee attempted to kill Officer Taylor — are not identical, the Court does not rely solely on collateral estoppel to dismiss Plaintiff's claim.
C. Qualified Immunity
In rejecting Officer Taylor's qualified immunity defense, Magistrate Dolinger questioned whether it had been properly raised since Defendants first raised it in their reply brief. Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (refusing to consider plaintiff's argument as it had only be raised in the reply brief). Even if it had been properly raised, the Magistrate found that triable issues of fact regarding the reasonableness of Officer Taylor's actions existed. Report at 20-23. Defendants object. First, Defendants claim Officer Taylor raised the defense in his answer. James Taylor Answer at ¶ 10. Second, Defendants argue that such immunity should be recognized even if reasonably competent officials could disagree as to whether Officer Taylor acted reasonably. Malley v. Briggs, 475 U.S. 335, 341 (1986).
The Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). However, normally courts do not consider arguments raised for the first time in a reply brief which afford no opportunity for response from the opposing party. See Strom v. Goldman, Sachs Co., 202 F.3d 138, 142 (2d Cir. 1999). Here, the Court granted McNamee and extended opportunity to file a response to Defendants' objections to the Report and Recommendation. Plaintiff has failed to file a response or otherwise communicate with the Court for nearly six months. In light of the fact that Plaintiff has not responded and is collaterally estopped from arguing that he did not have a gun the night he was arrested, the Court will consider Officer Taylor's qualified immunity defense.
"A police officer is entitled to qualified immunity from liability . . . if either (1) his 'conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,' . . . or (2) it was 'objectively reasonable' for him to believe that his actions were lawful at the time of the challenged act."Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001) (internal citations omitted). The Supreme Court recently outlined the analysis of a qualified immunity defense. First the court must determine if, in the light most favorable to the plaintiff, "the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 121 S.Ct. 2151, 2156 (2001). The Fourth Amendment makes clear that the use of force is prohibited if it is excessive in light of objective standards of reasonableness. Graham v. Connor, 490 U.S. 386, 394 (1989) (citingTennessee v. Gamer, 471 U.S. 1 (1985)). However, when analyzing a qualified immunity defense, "[t]he relevant, dispositive inquiry. . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 121 S.Ct. at 2156 (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)).
In measuring "reasonableness," the Court must consider the crime committed, its severity, the threat of danger to the officer and society and whether the suspect was resisting or attempting to evade arrest.Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). Moreover, the Court must make "allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation."Id. at 397. Even if a police officer's actions were unreasonable, however, "[q]ualified immunity . . . protects officers from the sometimes "hazy border between excessive and acceptable force.'" Saucier v. Katz, 531 U.S. 991, 121 S.Ct. at 2158 (internal citations omitted). "The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct." Id. at 2158. If the officer's mistake is reasonable, the immunity defense is appropriate. Id.
Here, Defendants claim that McNamee pulled a gun and fired a shot at Officer Taylor when Taylor arrived at the pay phone. Taylor shot back several times until McNamee surrendered. Taylor Trial Transcript, Oct. 6, 2000 Black Dec., Ex. D at 284-87. McNamee, however, claims that he did not have a gun, that he was taking his beeper out of his pocket when Officer Taylor arrived on the scene and Taylor shot him. McNamee Dep., Oct. 6, 2000 Black Dec. Ex. E at 24, 32-33. He does not dispute any other facts.
The jury in the criminal trial had to find that McNamee "extended his arm and pointed a gun at James Taylor" with the intent to attempt to kill him. Jury Instructions, May 5, 2000 Black Decl. Ex. C at 687. The jury also necessarily concluded that McNamee possessed a loaded .25 caliber semiautomatic pistol with the intent to use it unlawfully against Officer Taylor. Id. at 698. Accordingly, McNamee cannot relitigate the issue of whether he had a gun and whether he intended to shoot Officer Taylor.Hemphill v. Schott, 141 F.3d 412, 416 (2d Cir. 1998). As a jury has found McNamee engaged in a very serious crime that posed a credible threat of danger to Officer Taylor, thus the Court finds that it was reasonable for Officer Taylor to believe, mistakenly or not, that his use of force was legal under the circumstances. Accordingly, Officer Taylor is afforded the protection of qualified immunity and Plaintiff's claims against him are dismissed.
D. Municipal Liability
Municipalities do not enjoy immunity from suit, however, they cannot be held liable unless a municipal policy or custom caused the constitutional injury. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 166 (1993). The Magistrate Judge found that McNamee had offered a sufficient allegation of municipal liability in that he claims the City does not properly train its police officers. Report at 19. Defendants object and argue that Plaintiff failed to state a claim pursuant to Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978).
To prove municipal liability, Plaintiff must demonstrate that the alleged constitutional deprivation resulted from a municipal policy or custom and that there is a causal connection between the policy and the deprivation. Dominguez v. Beame, 603 F.2d 337, 341 (2d Cir. 1979); "The mere assertion . . . that a municipality has . . . a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference." Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993).
"[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 v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); see also Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."). An official policy may also be inferred from circumstantial proof, "such as evidence that the municipality so failed to train its employees as to display deliberate indifference to the constitutional rights of those within its jurisdiction, . . . or evidence that the municipality had notice of but repeatedly failed to make any meaningful investigation into charges . . . ." Ricciuti v. N.Y.C. Transit Auth., 942 F.2d at 123 (internal citation omitted). The Second Circuit has outlined three requirements for municipal liability based on failure to supervise or train. "First, the plaintiff must show that a [municipal] policymaker knows 'to a moral certainty' that her employees will confront a given situation. . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training and supervision will make less difficult or that there is a history of employees mishandling the situation. . . . Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights."Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (internal citations omitted).
Discovery is complete in this matter. Report at I. While Plaintiff may have adequately plead a municipal liability claim, he has not suggested any facts or provided any evidence — direct or circumstantial — from which a jury could surmise that a municipal policy caused his injury. Babi-Ali v. City of New York, 979 F. Supp. 268, 273 (S.D.N.Y. 1997) (citing Covington v. City of New York, 916 F. Supp. 282, 287 (S.D.N.Y. 1996)). Accordingly, his claim against the City is dismissed.
III. Conclusion
For the reasons explained above, Plaintiff's claims are dismissed and the Clerk of the Court is ordered to close the case.
So ordered.