Summary
disregarding a defect in the notice of claim pursuant to § 50–e where there was no bad faith or prejudice
Summary of this case from In the Matter of the Claims of Michael Dayton v. the City of MiddletownOpinion
07 Civ. 10319 (RJS) (KNF).
June 8, 2009
REPORT AND RECOMMENDATION
INTRODUCTION
Angel Perez ("Perez") brings this action as an infant, by his mother and natural guardian, Jeanette Muniz ("Muniz"), pursuant to 42 U.S.C. § 1983 ("§ 1983"), against the City of New York, as well as Police Officer Thomas Serino ("Serino"), Detective Michael O'Keefe ("O'Keefe"), and Lieutenant Kevin Starr ("Starr") (collectively "officer defendants"). The plaintiff sues the officer defendants in their individual and official capacities, and alleges the following claims against them: (1) excessive force, false arrest, unlawful search of his person, and unlawful prolonged post-arrest detention, in violation of his Fourth and Fourteenth Amendment rights; and (2) assault, battery, and false arrest, in violation of New York law. The plaintiff also alleges the City of New York was negligent in hiring, retaining, training and supervising the officer defendants. Before the Court is the defendants' motion for summary judgment, made pursuant to Fed.R.Civ.P. 56. The plaintiff opposes the motion.
BACKGROUND
The following facts are undisputed:On the evening of August 17, 2006, Serino and Starr ("the officers") were in a marked New York City Police Department ("NYPD") vehicle, near the intersection of Irving Avenue and Stanhope Street, in Brooklyn, New York. F.L. "waved down" the officers at this location. Starr determined, by interpreting F.L.'s "communication in broken English and hand gestures," he was a victim of an attempted robbery. F.L. indicated, to the officers, the direction the perpetrator(s) had fled, and accompanied the officers, as they canvassed the area. Approximately five blocks from where F.L. had encountered the officers, and at about four or five minutes after the attempted robbery occurred, F.L. pointed to a group of individuals, and either stated "that's him" or "that's them." Thereafter, at approximately 9:58 p.m., Serino arrested four males, including the plaintiff, at the intersection of Irving Avenue and Bleeker Street, in Brooklyn, New York. At the time of arrest, the plaintiff was fourteen years old. The arresting police officer conducted a pat frisk of Perez, during which Perez alleges the officer "patted [him] down and touched [his] private parts and stuff." During his deposition, Perez was asked to explain what he meant, by stating that the officer had touched his private parts, and Perez responded, "first [the police officer] went down my leg and he kept on going around, and I didn't like that," and that this occurred "over [his] clothes."
F.L. is a pseudonym used to protect the identity of the victim.
After his arrest, the plaintiff was transported to the 83rd police precinct, where, the plaintiff alleges, handcuffs were applied too tightly, creating pain, redness, and swelling to his wrists-symptoms which lasted "several days." The plaintiff contends he was manacled such that one of his arms was handcuffed to a bar above him, causing it to remain elevated for approximately thirteen hours, "with the exception of a short interval of time for the purpose of fingerprinting and photographing." The plaintiff alleges he complained to police officers regarding the manner he was handcuffed, and the length of time he was so handcuffed, to no avail. During the morning of August 18, 2006, O'Keefe became involved in the arrest processing of the plaintiff and other arrestees. However, O'Keefe neither interviewed the plaintiff, nor reviewed the paperwork Serino prepared relating to the plaintiff's arrest, although O'Keefe interviewed an acquaintance of the plaintiff regarding F.L.'s complaint.
In the early afternoon of August 18, 2006, the plaintiff was transported from the 83rd police precinct to Brooklyn Central Booking. At 1:45 p.m., on August 18, 2006, Serino sent the arrest paperwork, via facsimile, to the District Attorney's Office. At approximately 2:45 p.m., on August 18, 2006, the plaintiff was logged into a holding pen at Brooklyn Central Booking; and, at approximately 4:05 p.m., he was logged out of that holding pen and was returned to the 83rd police precinct. The plaintiff was returned to the 83rd police precinct because it was determined that Perez needed to be taken to the New York City Family Court, not to the New York City Criminal Court, due to his age and the nature of the charges lodged against him. However, at the time of this discovery, Family Court was closed, and, thus, Perez was admitted to Bridges Juvenile Center ("BJC"), in Bronx, New York.
On August 21, 2006, at approximately 7:00 a.m., the plaintiff was transported from BJC to Brooklyn Family Court. Assistant Corporation Counsel, Courtney Stein ("Stein"), of the New York City Law Department, Family Court Division, Brooklyn Office ("NYCLD"), evaluated the plaintiff's arrest for possible prosecution. Stein conducted interviews-including one with F.L., and another with a "police personnel" witness-relating to the plaintiff's arrest. As a result, NYCLD declined to prosecute the plaintiff, in connection with his August 17, 2006 arrest, and the plaintiff was released into the custody of his mother. Two days later, on August 23, 2006, the plaintiff visited a doctor concerning a medical matter unrelated to his August 17, 2006 arrest. After examining the plaintiff physically, the physician noted the plaintiff was "in no apparent distress."
Before filing his federal-court complaint, Perez filed a "notice of claim" with the City of New York. In that document, the plaintiff identified the "nature" of his claim as: "psychological and emotional trauma[] and . . . injuries resulting from false arrest, false imprisonment, malicious prosecution, violation of civil rights, [and] loss of liberty . . ., resulting from his arrest and imprisonment without any lawful cause and intentional infliction of emotional harm, negligence, and unlawful seizure and false imprisonment." Additionally, in describing the "time when, the place where and the manner in which the claim arose," the plaintiff provided the following information:
On August 17, 2006, at approximately 9:45 p.m. in the vicinity of Bleeker Street and Irving Avenue, County of Kings, State of New York, claimant, Angel Perez, was unlawfully seized and arrested without any lawful cause by a member(s) of the New York Police Department. . . . Claimant was verbally, physically, and mentally abused and unlawfully seized and arrested by the aforementioned police officers. Claimant was wrongfully and unlawfully detained and imprisoned as an adult despite his being a juvenile for approximately four days. In unlawfully seizing, arresting and detaining claimant, and in intentionally inflicting psychological and emotional trauma and injury, in negligently hiring, training, and/or supervising the aforementioned officers, and in all other ways, the City of New York, and/or the NYC Police Department . . . were negligent, careless, and reckless.
The defendants dispute the plaintiff's claims that: (1) while Perez was detained, handcuffs were applied too tightly, causing swelling, redness, and pain to the plaintiff's wrists for several days; (2) the manner in which the plaintiff was handcuffed — with one arm handcuffed so that it was elevated-was improper; (3) the plaintiff complained to officers of "pain caused by the manner and duration of the handcuffs" placed on him; and (4) the search conducted of his person, at the time of arrest, included inappropriate touching.
With regard to the officer-defendants' training, the plaintiff contends Serino never received specific training on how to process juvenile arrests, and Starr received training on processing juvenile arrests, in 1989, but, since that time, Starr has not received additional, or continued, training on this issue. The plaintiff makes no allegations relating to O'Keefe's training in processing juvenile arrests.
DISCUSSION
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911, 118 S. Ct. 2075 (1998); Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law. . . . 'An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis omitted). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor."Id. at 256, 106 S. Ct. at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
The defendants contend they are entitled to summary judgment because: (1) probable cause to arrest and detain the plaintiff existed; (2) Perez failed to state a claim concerning the length of his pre-arraignment confinement; (3) no evidence supporting the plaintiff's excessive force claim exists; (4) the plaintiff was not subjected to an unlawful search at the scene of his arrest; (5) the plaintiff fails to state a claim for deliberate indifference to his medical needs; (6) O'Keefe was not personally involved in Perez's arrest; (7) the individual defendants are entitled to qualified immunity on all claims; (8) Perez cannot establish municipal liability against the City of New York; and (9) the plaintiff's assault and battery claims were not included in the notice of claim Perez filed with the City of New York, and the court should decline to exercise supplemental jurisdiction over those claims.
Section 1983"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law; and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]); Giordano v. City of New York, 274 F.3d 740, 750 (2d Cir. 2001).
A state official sued in his official capacity is not a person within the meaning of § 1983, and, consequently, is not subject to liability for depriving a person of constitutional rights. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304 (1989). Perez has sued the officer defendants in their official and individual capacities. Therefore, a § 1983 claim may be made against these defendants for acts performed in their individual capacities; however, insofar as Perez seeks to sue the officer defendants in their official capacities, such claims cannot be raised under § 1983. Inasmuch as it is uncontested that, at all times relevant to this action, the officer defendants were acting under color of state law, through and for the New York City Police Department, the issue that remains, in relation to the instant motion, is whether the conduct of the defendants, amounts to a deprivation of Perez's constitutional rights.
False Arrest
A § 1983 claim for false arrest rests on an individual's Fourth Amendment right to be "free from unreasonable seizures, including arrest without probable cause," and is "substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). To state a claim for false arrest, under New York law, a plaintiff must prove that: "(1) the defendant intended to confine [him], (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003).
Regardless of whether the first three prongs are satisfied, the claim for false arrest will fail where a defendant establishes probable cause existed, as the existence of probable cause is a complete defense to an action for false arrest. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) (citing Zanghi v. Inc. Vill. of Old Brookville, 752 F.2d 42, 45 [2d Cir. 1985]). A defendant police officer who arrests a person without a warrant is not liable for false arrest if the officer had probable cause to believe that the individual committed an offense. See Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir. 1995). "Probable cause to arrest exists when the authorities have 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." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). "[I]t is well-established that a law enforcement official has probable cause to arrest if he received his information from some person, normally the putative victim or eyewitness, who it seems reasonable to believe is telling the truth." Miloslavsky v. AES Engineering Society, Inc., 808 F. Supp. 351, 355 (S.D.N.Y. 1992). "The veracity of citizen complaints who are the victims of the very crime they report to the police is assumed." Id.
Within minutes of the robbery attempted on F.L., F.L.: (1) encountered Serino and Starr; (2) indicated, to the officers, the direction in which he believed the individual(s) who had attempted to rob him had fled; (3) accompanied the officers as they canvassed the area; and (4) observed a group of individuals and stated, to the officers, "that's him" or "that's them." The parties agree that, while searching the area for the perpetrator(s), F.L. pointed to a group of individuals, indicating that one or more members of this group were involved in the attempted robbery. The plaintiff maintains probable cause for his arrest did not exist, because the officer defendants relied upon Perez's "broken English" and did not speak with Perez in Spanish, to ascertain whether the individuals the officers seized were involved in the attempted robbery. However, it has been found that, an arresting officer had probable cause to arrest when he observed "the 'gestur[ing]' of a witness," who pointed to the petitioner to indicate he was "a possible perpetrator," and "read [the witness's] lips," and believed the witness to have said "[t]hat one, that one, that one." Joyner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *2-3, *5, 1999 U.S. Dist. LEXIS 12318, at *5, *9, *14 (S.D.N.Y. Aug. 12, 1999). Therefore, viewing the facts in favor of the plaintiff, the complainant's gesturing towards Perez, so as to implicate Perez in the attempted robbery, and F.L.'s utterance of either "that's him" or "that's them," provided the officers with probable cause to arrest Perez. As a result, granting the defendants' motion for summary judgment, in relation to Perez's false arrest claims, under state and federal law, is reasonable and appropriate. See e.g., People v. Largo, 282 A.D.2d 548, 549, 722 N.Y.S.2d 809, 810-11 (App.Div. 2d Dep't 2001) (finding that "probable cause to arrest the defendant arose once the complainant identified him"); leave to appeal denied, 96 N.Y.2d 903, 730 N.Y.S.2d 801 (2001).
Unlawful Search
"When an arrest is made, it is reasonable for the arresting officer to search the person arrested[.]" Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969); see also Hernandez v. City of New York, No. 00 Civ. 9507, 2004 WL 2624675, at *8, 2004 U.S. Dist. LEXIS 23365, at *24 (S.D.N.Y. Nov. 18, 2004) ("[i]t is axiomatic that pursuant to a lawful arrest, an officer can search a defendant regardless of whether a search warrant has been obtained").
A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. . . . in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment.Illinois v. Lafayette, 462 U.S. 640, 645, 103 S. Ct. 2605, 2609 (1983) (internal quotations, emphasis and citations omitted). As the court has already reasoned that probable cause existed for the plaintiff's arrest, granting the defendants' motion for summary judgment, as it relates to the plaintiff's unlawful search claim, appears warranted, since the search was incident to an arrest based upon probable cause. Id.
In the plaintiff's memorandum of law in opposition to the summary judgment motion, he states that, when the search of his person was conducted, the police officer "inappropriately touched Mr. Perez's genital area." However, the plaintiff does not appear to raise a cause of action based upon this allegation in the second amended complaint, nor does the plaintiff make citation to any case law, in his memorandum of law, in support of this allegation. In any event, even considering the merits of this claim, it appears that no genuine issue of material fact is presented. The "relevant inquiry" for a claim that one was touched inappropriately in the course of a pat frisk is "whether [the police officers'] actions [r]an afoul of the Fourth Amendment." Garcia v. New York State Police Investigator Aguiar, 138 F. Supp. 2d 298, 303 (N.D.N.Y. 2001). In Garcia, the court found that the search of the plaintiff was reasonable and did not violate the Fourth Amendment when the plaintiff's "own deposition testimony reveal[ed] that [the police officer] conducted a pat frisk that consisted of patting down one leg, moving up [the plaintiff's] leg across her crotch and down the other leg, placing the side of his little finger down the middle of her breasts, checking under each breast, and then patting [the] [p]laintiff's rear pants pockets." Id. at 304. When Perez was asked, during his deposition, to describe what he meant when he stated the police officer conducting the search of his person touched his private parts, Perez answered the officer "went down my leg and he kept going around, and I didn't like that." This description of the pat frisk performed on the plaintiff does not suggest inappropriate touching occurred, and it mirrors, in part, the description of the pat frisk performed on the plaintiff inGarcia, which was found to be a reasonable search. The plaintiff's claim of inappropriate touching during the pat frisk of his person does not appear to present a genuine issue of material fact and granting summary judgment on this claim is appropriate.
Prolonged Post-Arrest Detention
"[I]t is well established that the Fourth Amendment governs the procedures applied during some period following an arrest."Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005). The Fourth Amendment requires that States "provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." Gerstein v. Pugh, 420 U.S. 103, 125, 95 S. Ct. 854, 868-69 (1975). "[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement ofGerstein." County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670 (1991). "Where an arrested individual does not receive a probable cause determination within 48 hours,. . . . the arrested individual does not bear the burden of proving an unreasonable delay." Id. at 57, 111 S. Ct. at 1670.
[Instead], the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that in a particular case it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends.Id.
The plaintiff was arrested at approximately 9:58 p.m., on Thursday, August 17, 2006, and a determination not to prosecute him was not made until Monday, August 21, 2006. In the interim, Perez was not presented before a judicial officer. As a consequence, Perez did not receive a probable cause determination, despite being held in custody for more than 48 hours. Therefore, "the burden shifts to the government to demonstrate a bona fide emergency or other extraordinary circumstance" existed. Id. The defendants do not allege that a bona fide emergency prevented a probable cause determination, rather, they contend the officer defendants were "prepared to present [the] plaintiff for arraignment about 19 hours after his arrest"; however, due to the closure of Family Court for the weekend, the plaintiff could not be arraigned until Monday, August 21, 2006." The defendants misapprehend that it is the time between an arrest and a probable cause determination-not the time between an arrest and the time of defendants' preparedness for presenting an arrestee for arraignment-that is the relevant period to consider in determining whether there was unreasonable delay. See Gerstein, 420 U.S. at 125, 95 S. Ct. at 868-89; see also County of Riverside, id. at 56, 111 S. Ct. at 1670. Additionally, an "intervening weekend" does not constitute an "extraordinary circumstance." See id., at 57, 111 S. Ct. at 1670. In the circumstance of the instant case, the Court finds that the defendants have not met their burden; therefore, no basis exists for granting summary judgment on this claim, as it appears a genuine issue of material fact is in dispute respecting whether the delay in providing the plaintiff a post-arrest probable cause determination violated the plaintiff's constitutional rights.
Excessive Force
"In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force."Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870 (1989). An excessive force claim may arise under the Fourth, Eighth or Fourteenth Amendments. Id. at 386, 394-95, 109 S. Ct. at 1866, 1871. The Supreme Court has
not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and [declined to] answer that question [in Graham]. It is clear, however, that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment. . . .Id. at 395 n. 10, 109 S. Ct. at 1871 n. 10. After Graham, neither the Supreme Court, nor the courts within this Circuit, have resolved whether the Fourth or Fourteenth Amendment applies to an arrestee's challenge to the length or condition of his or her post-arrest, pre-arraignment detention. See e.g. Turkmen v. Ashcroft, No. 02 CV 2307, 2006 WL 1662663, at *40, 2006 U.S. Dist. LEXIS 39170, at *126-27 (E.D.N.Y. June 14, 2006) (noting that, in the context of a claim that the plaintiffs' continued post-arrest detention violated the Fourth Amendment, "the Supreme Court has 'left open' the question whether the Fourth Amendment applies to post-arrest detention").
The Second Circuit, post-Graham, has opined that "the Fourth Amendment standard probably should be applied at least to the period prior to the time when the person arrested is arraigned or formally charged, and remains in the custody (sole or joint) of the arresting officer." Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989). The Ninth and Tenth Circuits were similarly "persuaded" that the Fourth Amendment governs claims relating to the "treatment of an arrestee detained without a warrant up until the time such arrestee is released or found to be legally in custody based upon probable cause for [the] arrest." Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1043 (9th Cir. 1996);Austin v. Hamilton, 945 F.2d 1155, 1160 (10th Cir. 1991) (finding that "courts apply a fourth amendment standard to assess the constitutionality of prolonged warrantless post-arrest custody, requiring release or a judicial determination of probable cause," and that, "[w]hile this authority is not conclusive on the issue under review, which concerns the condition rather than the length or legality of such custody, we consider it persuasive in the absence of other guiding principles"). The Supreme Court has warned that, when an excessive force claim arises in the course of an arrest or seizure of a person, the Fourth Amendment "provides as explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, [and] that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Graham, 490 U.S. at 395, 109 S. Ct. at 1871. Accordingly, the Court finds that the plaintiff's excessive force claim should be analyzed under the Fourth Amendment.
"Determining whether the force used to effect a particular seizure is reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396, 109 S. Ct. at 1871 (internal quotations and citations omitted). "[T]he 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S. Ct. at 1872.
The extent of injury to the plaintiff, due to the manner in which he was handcuffed, is disputed by the parties. At the most, the plaintiff alleges that, for thirteen hours, while he was being held in custody at the 83rd police precinct, his left arm "was handcuffed to the bench below him and his right arm was handcuffed to a pole on the wall over his shoulder," and his handcuffs were fastened too tightly, causing swelling, redness and pain to his wrists "for several days."
"The reasonableness of the handcuffing of an arrestee must be determined in light of the minimal amount of force necessary to maintain custody of [the arrestee]." Esmont v. City of New York, 371 F. Supp. 2d 202, 215 (E.D.N.Y. 2005). "[I]n evaluating the reasonableness of handcuffing, a Court is to consider evidence that: 1) the handcuffs were unreasonably tight; 2) the defendants ignored the arrestee's pleas that the handcuffs were too tight; and 3) the degree of injury to the wrists." Id.
Viewing the evidence in the light most favorable to Perez, and drawing all reasonable inferences in the plaintiff's favor, see L.B. Foster Co., 138 F.3d at 87, the issue of whether it was objectively reasonable to handcuff the plaintiff, for thirteen hours, with one of his arms kept in an elevated position, is an issue best decided by a jury, see Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999) (in considering whether police conduct constituted excessive force, the jury was assigned the "unique task . . . [of] determin[ing] the amount of force used, the injuries suffered and the objective reasonableness of the officer's conduct"). In addition, since the parties dispute: (1) whether the handcuffs were unreasonably tight; (2) whether Perez complained to police officers that his handcuffs were too tight; and (3) the degree of injury to Perez's wrist, it cannot be said that no genuine issue of material fact exists concerning the level of force used against Perez. See Esmont, 371 F. Supp. 2d at 215. Therefore, granting summary judgment, in relation to the plaintiff's excessive force claim, would be inappropriate.
Deliberate Indifference
"'Deliberate indifference' claims under § 1983 are grounded in the due process clause of the Fourteenth Amendment." Id. at 218. "[W]hile the Supreme Court has not precisely limned the duties of a custodial official under the Due Process Clause to provide needed medical treatment to a pretrial detainee, it is plain that an unconvicted detainee's rights are at least as great as those of a convicted prisoner." Weyant, 101 F.3d at 856. The Second Circuit Court of Appeals "has applied the Eighth Amendment test for adequate medical care to a pre-trial detainee's right to the same." Myrie v. Calvo/Calvoba, 591 F. Supp. 2d 620, 625 (S.D.N.Y. 2008) (citing Cuoco v. Moritsugu, 222 F.3d 99, 106 [2d Cir. 2000]). "A custodian of a non-convicted detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of deliberate indifference to the medical need." Esmont, 371 F. Supp. 2d at 218. In this context, deliberate indifference may be shown "by evidence that the official acted with reckless disregard for the substantial risk posed by the detainee's serious medical condition." Weyant, 101 F.3d at 856. While a plaintiff must show "something more than mere negligence . . . proof of intent is not required." Id. (internal quotations and citations omitted). "[T]he deliberate indifference standard embodies both an objective and a subjective prong:" (1) objectively, the alleged deprivation must be "sufficiently serious," such that a "condition of urgency [exists], one that may produce death, degeneration, or extreme pain"; and (2) subjectively, "the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
"Although the use of excessively tight handcuffs can constitute a violation of the Eighth Amendment. . . . it appears highly unlikely that . . . pain in [the plaintiff's] wrists and pain, numbness and swelling in his foot and ankle, would be considered sufficiently serious[, in the absence of evidence the plaintiff suffered any lasting injury from the restraints,] to rise to the level of an Eighth Amendment violation." Warren v. Purcell, No. 03 Civ. 8736, 2004 WL 1970642, at *8, 2004 U.S. Dist. LEXIS 17792, at *26 (S.D.N.Y. Sept. 3, 2004) (citing Davidson v. Flynn, 32 F.3d 27, 29, 30-31 [2d Cir. 1994] [finding a claim that handcuffs, leg irons, and a waist chain that were applied too tightly, causing permanent injury to the plaintiff, satisfied the objective component of the plaintiff's deliberate indifference claim]). In Davidson, the plaintiff alleged that corrections officers "placed the handcuffs and leg irons and waist chain on [him] so tight as to cut into [his] flesh and reduce circulation and cause swelling. [His] right ankle now has a scar and numbness in the area. [His] wrists were numb for several months afterwards. The tight chain also hurt [his] spine, as the chain and padlock pressed into it." Davidson, 32 F.3d at 29. The Second Circuit Court of Appeals found the plaintiff's complaint, inDavidson, "plainly alleges both the objective and subjective components of a cause of action for an Eighth Amendment violation: the handcuffs were allegedly placed on the plaintiff 'too tight[ly],' leading to serious and permanent physical injury (the objective component), and such excessive force was applied to the plaintiff wantonly and maliciously . . . (the subjective component)." Id. at 30.
Perez alleges he was kept in an "awkward and painful position" with his right arm raised above his head, for approximately thirteen hours, "with the exception of a short interval of time for the purpose of fingerprinting and photographing." The plaintiff alleges this manner of handcuffing resulted in pain, swelling and reddening about his wrists. However, the plaintiff concedes that, "two days after his release, [he] visited a doctor concerning a medical problem unrelated to his August 17, 2006 arrest," and, upon receiving a physical examination, "the physician noted that plaintiff was 'in no apparent distress.'" Viewing these facts in the light most favorable to Perez, and drawing all reasonable inferences in the plaintiff's favor, Perez has not identified a "serious medical condition" that posed a "substantial risk" to him while he was detained, nor has he alleged any facts that show the defendants denied treatment to him. Esmont, 371 F. Supp. 2d at 218. The case at bar is distinguishable from Davidson, as Perez does not allege he experienced any "serious and permanent physical injury," resulting from his handcuffs being applied too tightly, and a medical examination of the plaintiff, performed two days after his release, revealed he was "in no apparent distress." At the most, the plaintiff alleged the pain he felt in his wrists lasted "for several days." Therefore, the Court finds that the plaintiff's allegations do not state a claim of deliberate indifference; accordingly, summary judgment for the defendants is warranted on this claim.
Personal Involvement of O'Keefe in the Plaintiff's Arrest
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (internal quotations and citations omitted). Inasmuch as the Court has determined, with respect to Perez's false arrest claim, that probable cause existed for the arrest, analysis of O'Keefe's involvement, if any, in the arrest, is unnecessary.
Qualified Immunity
The doctrine of qualified immunity shields government officials from civil actions for damages for discretionary acts performed in the course of their duties "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). In determining whether qualified immunity bars a suit against government officials, the court must consider: (1) whether the facts demonstrate that a constitutional right was violated; and (2) whether the officials' actions violated a right that was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). "Because the two-step Saucier procedure is often, but not always, advantageous, the judges of the district courts . . . are in the best position to determine the order of decisionmaking [that] will best facilitate the fair and efficient disposition of each case." Pearson v. Callahan, ___ U.S. ___, 129 S. Ct. 808, 821 (2009). "[A] right is clearly established if (1) the law is defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant [would] have understood from the existing law that [his] conduct was unlawful." Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004) (internal quotations and citations omitted). "Qualified immunity is an affirmative defense [and] the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time." Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997).
As set forth above, the plaintiff made sufficient allegations that: (1) his alleged prolonged detention may have violated his Fourth Amendment rights; and (2) the alleged excessive force used against him, by the manner and duration of his handcuffing, may have violated his Fourth Amendment rights. However, the defendants failed to meet their burden of demonstrating that their conduct, as to these claims, did not: (i) violate the plaintiff's clearly established rights; or (ii) consist of actions a reasonable officer would have known were violative of clearly established law. Accordingly, the doctrine of qualified immunity does not shield the officer defendants from suit on the plaintiff's prolonged detention or excessive force claims.
Municipal Liability
The plaintiff alleges the City of New York should be held liable for the alleged constitutional violations caused by the individual defendants because its official policies and customs caused the denial of Perez's constitutional rights. A municipality is deemed a person for the purpose of a § 1983 claim. See Vives v. City of New York, 524 F.3d 346, 350 (2d Cir. 2008). Therefore, a § 1983 claim may be made against a municipality, like the City of New York, for a policy(ies) it has adopted and employed that violates a plaintiff's constitutional right(s). See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978).
"[A] city can be liable under § 1983 for inadequate training of its employees . . . only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204 (1989). In order to establish a municipality's failure to train or supervise its employees constitutes deliberate indifference, it must be shown that: (1) "a policymaker knows to a moral certainty that her employees will confront a given situation"; (2) "the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation"; and (3) "the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007) (internal citations and quotations omitted). However, where a city has a training program for its police personnel, a plaintiff, such as Perez, must also "identify a specific deficiency in the city's training program and establish that that deficiency is 'closely related to the ultimate injury,' such that it 'actually caused' the constitutional deprivation." Amnesty America v. Town of West Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (quoting Canton, 489 U.S. at 391, 109 S. Ct. at 1206).
The plaintiff alleges that, at the time of his arrest, the City of New York did not have a "uniform or consistent NYPD training policy in th[e] area [of juvenile arrests]." The plaintiff states that Serino never received specific training on how to process juvenile arrests, and Starr did not receive training about processing juveniles after 1989; the plaintiff makes no allegations about O'Keefe's training. With regard to the training received by Starr, the plaintiff does not identify "a specific deficiency" in relation to the training he received, but rather, suggests he should have received "additional or continuing training" on processing juvenile arrests. To the extent Starr's lack of continued training constitutes a deficiency, the plaintiff has not shown that it is "'closely related to the ultimate injury,' such that it 'actually caused' the constitutional deprivation." Amnesty America, 361 F.3d at 129 (quoting Canton, 489 U.S. at 391, 109 S. Ct. at 1206). With regard to Serino, although the plaintiff alleges Serino did not receive training relating to processing juvenile arrests, the plaintiff does not show this alleged deficiency was "'closely related to the ultimate injury,' such that it 'actually caused' the constitutional deprivation." Id. Since the plaintiff has failed to "identify a specific deficiency in the city's training program and establish that that deficiency is 'closely related to the ultimate injury,'" granting the defendants' motion for summary judgment, as it relates to the City of New York, is reasonable and appropriate. Amnesty America, 361 F.3d at 129 (quoting Canton, 489 U.S. at 391, 109 S. Ct. at 1206).
State Law Claims
Federal courts entertaining state-law claims must apply the applicable state notice-of-claim statute. See Felder v. Casey, 487 U.S. 131, 151, 108 S. Ct. 2302, 2313-14 (1988). "Under New York law, a notice of claim is a condition precedent to bringing personal injury actions against municipal corporations." Hardy v. New York City Health Hospitals Corp., 164 F.3d 789, 793 (2d Cir. 1999). "A 'municipal corporation' includes a county, city, town, village and school district." New York Gen. Const. Law § 66(2). Under New York law, a notice of claim must set forth, inter alia, (1) "the nature of the claim"; (2) "the time when, the place where and the manner in which the claim arose"; and (3) the "injuries claimed to have been sustained." New York Gen. Municip. Law § 50-e(2). "The test for sufficiency of a notice of claim is whether it includes enough information to enable the municipality to investigate the claim adequately." Keating v. Gaffney, 182 F. Supp. 2d 278, 292-93 (E.D.N.Y. 2001); see also Brown v. City of New York, 95 N.Y.2d 389, 393-94, 718 N.Y.S.2d 4, 6 (2000). "'A theory of liability not mentioned in the notice of claim generally may not be asserted in a subsequent lawsuit.'" Keating, id. at 293 (quoting Lieber v. Village of Spring Valley, 40 F. Supp. 2d 525, 530 (S.D.N.Y. 1999); see also Monmasterio v. New York City Housing Authority, 39 A.D.3d 354, 356, 833 N.Y.S.2d 498-99 (App. Div. 1st Dep't 2007) (finding that, when a plaintiff does not include a theory of liability in a notice of claim, he or she is "not free subsequently to interject a new, distinct theory of liability without leave of court").
The plaintiff's notice of claim does not assert claims of assault or battery. The notice of claim states Perez was "verbally, physically, and mentally abused and unlawfully seized and arrested by . . . police officers"; however, the notice of claim makes no mention of handcuffing, or any physical injury experienced by the plaintiff, such as pain, swelling and/or redness to his wrists. The notice of claim also does not note the "time when, the place where and the manner in which" the plaintiff was handcuffed. Since the notice of claim mentions neither assault, battery, nor handcuffing, on its face, it fails to state "enough information to enable the municipality to investigate the claim[s] [of assault and battery] adequately."Keating, 182 F. Supp. 2d at 292.
However, New York Gen. Municip. Law § 50-e(6) provides that:
At any time after the service of a notice of claim . . ., a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section . . ., may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby.
Viewing the "evidence in the light most favorable to the party against whom summary judgment is sought," and "draw[ing] all reasonable inferences in his favor," L. B. Foster Co., 138 F.3d at 87 (citation omitted), nothing in the record indicates the plaintiff's failure to specify fully the nature and location of his assault and battery claims was the product of bad faith. In addition, although the defendants allege "that plaintiff's notice of claim was defective, [they] fail[] to put forth any facts establishing that [they were] prejudiced by the defect." Hill v. City of New York, No. 03 CV 1283, 2005 WL 3591719, at *11, 2005 U.S. Dist. LEXIS 38926, at *34 (E.D.N.Y. Dec. 30, 2005); see also Sciolto v. New York City Transit Authority, 288 A.D.2d 144, 144-45, 734 N.Y.S.2d 9, 10 (App.Div. 1st Dep't 2001) (finding the plaintiffs could raise a derivative claim not asserted in their original notice of claim, since the derivative claim was "inadvertently omitted from the original notice," and the defendant "suffered no prejudice, since it received actual notice of the claim in plaintiffs' complaint"). The defect in the plaintiff's notice of claim may be disregarded, pursuant to New York Gen. Municip. Law § 50-e(6), as the defendants have not shown prejudice, and no indication of bad faith on the part of the plaintiff exists. Since summary judgment for the defendants on the plaintiff's Fourth Amendment false arrest and excessive force claims is not warranted, the defendants' contention that the court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims, because no federal claims will survive summary judgment, is without merit.
IV. RECOMMENDATION
For the reasons set forth above, I recommend the defendants' motion for summary judgment, pursuant to Fed.R.Civ.P. 56, Docket Entry No. 32, be granted with respect to the plaintiff's claims of: (1) false arrest; (2) unlawful search; and (3) deliberate indifference. In addition, the motion for summary judgment should be granted with respect to all claims alleged against the City of New York, and all claims alleged against the officer defendants in their official capacities. I recommend further that the court deny the defendants' motion with respect to the plaintiff's claims of: (a) prolonged detention; (b) excessive force; (c) assault; and (d) battery, as against the officer defendants in their individual capacities.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Sullivan, 500 Pearl Street, Room 615, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Sullivan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).