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holding that plaintiff failed to state a deliberate indifference claim because he received prompt medical treatment within hours after he complained of pain
Summary of this case from Crispin v. RoachOpinion
No. 98 Civ. 6543 (RPP).
October 17, 2000.
Counsel for Plaintiff: Cheda Sheehan By: Amy Marion.
Counsel for Defendants: Michael D. Hess Corporation Counsel for the City of New York By: Michael Citrin.
OPINION AND ORDER
Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all of Plaintiffs claims other than his excessive force claim against Defendant Undercover Officer #12187 (Evan Smelley). Plaintiff filed this civil rights action, pursuant to 42 U.S.C. § 1983, 1985 and 1986, on September 16, 1998, against the City of New York, New York City Police Officer John Vega, and identified New York City Police Officers. On December 16, 1999, Defendants brought a motion seeking summary judgment on Plaintiffs claims as articulated in his First Amended Complaint which named Undercover Officer #12187 as a defendant in place of Police Officer John Vega. By order dated January 27, 2000, the Court denied the motion as to Plaintiffs excessive force claim against Defendant Undercover Officer #12187 (Evan Smelley) and in view of Plaintiffs stated intention not to pursue them, the Court dismissed with prejudice Plaintiffs claims in the First Amended Complaint, subject to Plaintiffs right to move to file an amended complaint and name an additional party and an additional claim by February 10, 2000. On February 10, 2000, Plaintiff filed a Second Amended Complaint.
Plaintiff has agreed to the dismissal with prejudice of his claims in the Second Amended Complaint of false arrest pursuant to 42 U.S.C. § 1983 and conspiracy pursuant to 42 U.S.C. § 1985. (Declaration of Michael Citrin in Support of Reply Memorandum of Law ("Citrin Reply Decl.") ¶ 3; September 19, 2000, Transcript ("Tr.") at 2-3.) At oral argument held on September 19, 2000, Plaintiff clarified that he maintains his conspiracy claim pursuant to 42 U.S.C. § 1983. (Tr. at 3-4.) Additionally, Plaintiff agreed to the dismissal with prejudice of all claims against the City of New York and the Commissioner of the New York City Police Department with prejudice. (Citrin Reply Decl. ¶ 4; Tr. at 4.)
By Order dated September 28, 2000, the Court asked for additional briefing from the parties on Defendants' motion for summary judgment of Plaintiffs conspiracy claim pursuant to 42 U.S.C. § 1983. The issue had not been frilly briefed due to the misunderstanding between counsel regarding Plaintiffs intention to maintain that claim.
Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on all of Plaintiffs remaining claims except his excessive force claim against Defendant Undercover Officer #12187 (hereinafter Evan Smelley). For the following reasons, Defendants' motion is granted.
Background
The Facts Leading to Plaintiff's Arrest
The following facts, taken from Defendants' Local Rule 56.1 statements, are not disputed by Plaintiff.
Local Civil Rule 56.1(c) states that."All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." S.D.N.Y. Civ. R. 56.1(c). Additionally, Local Civil Rule 56.1(d) requires that "Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e)." S.D.N.Y. Civ. R. 56.1(d). Accordingly, the statements of fact in Defendants' 56.1 Statement that Plaintiff does not deny with specific citation[s] to admissible evidence supporting such denials will be deemed admitted for the purposes of this summary judgment motion. See Millus v. D'Angelo, No. 00-7001, 2000 WL 1283747, at *1 (2d Cir. Sept. 12, 2000) (noting that the district court properly granted summary judgment following plaintiffs failure to deny in accordance with Rule 56.1 of the court's local rules defendant's allegations).
On May 14, 1997, between 3:45 p.m. and 4:10 p.m., New York City Police ("NYPD") Detective Jimmy Massa, while working undercover near 11th Street and Avenue B in Manhattan, asked Plaintiff if he had any "dope." (Defendants' Local Rule 56.1 Statement ("Def. 56.1") ¶¶ 2-3, 14.) Detective Evan Smelley was acting as an undercover "ghost" for Detective Massa. (Id. ¶ 14.) Plaintiff asked Detective Massa how much heroin he wanted, to which Detective Massa replied two bags. (Id. ¶ 4.) Plaintiff sent his friend, John Vega, to get a brown paper bag which Vega obtained from a store and handed to Plaintiff. (Id. ¶¶ 5-7, 10.) Plaintiff intended to "fool" Detective Massa into believing he was buying heroin for $20. (Id. ¶¶ 8-9.) Plaintiff led Detective Massa east on the north side of 11th Street toward Avenue C, where he placed the paper bag on a car and told Massa to give him the money. (Id. ¶ 12.) After taking the $20 from Detective Massa, Plaintiff ran west on 11th Street. (Id. ¶ 13.)
Detective Smelley, acting as Detective Massa's "ghost," saw Massa indicate that a drug transaction had occurred. (Id. ¶¶ 14, 15.) Detective Smelley saw Plaintiff running toward him on 11th Street and tried to radio to the New York City Police Department field team for assistance in apprehending Plaintiff. (Id. ¶¶ 16-17.) Detective Smelley, believing that his radio was not working, stopped Plaintiff from fleeing by hitting him in the chest with his forearm. (Id. ¶ 18-19.) Plaintiff claims that Smelley tripped him. (Id. ¶ 20.) Plaintiff fell during his apprehension, hitting a portion of the sidewalk where the pavement had "broken pieces." (Id. ¶¶ 21-23.)
Plaintiffs Apprehension by Defendant Officer Smelley
The following facts are taken from the parties' Local Rule 56.1 Statements as supplemented by the evidence submitted, resolving all ambiguities and drawing all inferences in favor of Plaintiff. See Gallo v. Prudential Residential Svcs., 22 F.3d 1219, 1223 (2d Cir. 1994). Facts taken from Defendants' Local Rule 56.1 Statement are not disputed by Plaintiff. When Detective Evan Smelley hit Plaintiff across the chest with his right forearm, he caused Plaintiff to fall on his back on the sidewalk. (Plaintiffs Local Civil 56.1 Statement ("Pl. 56.1 Stmt") ¶ 1.) After Plaintiff fell, he tried to get up and keep running. (Def 56.1 Stmt ¶ 24.) Detective Smelley hit plaintiff with a gun twice on the back of his head causing him to fall to the ground a second time. (Pl. 56.1 Stmt ¶ 2.) Smelley punched Plaintiff three to four times while he was on the ground. (Id. ¶ 3.)
After the New York City Police Department Backup Team Arrived
The NYPD backup field team arrived on the scene and Smelley walked away. (Def 56.1 Stmt ¶ 60.) Defendant Smelley did not speak to the backup team after they arrived. (Declaration of Amy Marion ("Marion Decl."), Exhibit B at 63, lines 1-3.) After the backup team arrived, Plaintiff was handcuffed, arrested and placed in a prisoner van. (Def 56. 1 Stmt. ¶ 27.) About five minutes after Officer Brian Maley handcuffed Plaintiff (Marion Decl., Ex. C at 39-40), Defendant Sergeant Elliot Cuff who was the supervisor of the NYPD field team officers that day (Def. 56.1 Stmt. ¶ 29), showed up at the scene of the apprehension (Marion Decl., Ex. D at 41, lines 7-9).
Plaintiff did not request medical attention at the scene of the arrest or from the individuals driving the prisoner van. (Def 56.1 Stmt. ¶¶ 28, 31.) Plaintiff was taken to the 9th Precinct at approximately 5:40 p.m. the same day. (Id.. ¶ 32.) Plaintiff first complained of pain while at the 9th Precinct. (Id. ¶ 33.) EMS received a call to report to the 9th Precinct at approximately 6:06 p.m. and arrived at the 9th Precinct six minutes later at 6:12 p.m. (Id. ¶ 34-35.) The EMS Technicians noted in their Ambulance Call Report that Plaintiff complained of pain to both elbows and arms and that Plaintiff had a small laceration of 1-2 centimeters on the back of his head which was not bleeding. (Id. ¶ 36.) Plaintiff denied experiencing dizziness, headaches, back or neck pain to the EMS technicians. (Id. ¶ 37.) Plaintiff was taken by EMS to Bellevue Hospital that same night, May 14, 1997, and was discharged seven days later on May 21, 1997. (Id. ¶ 38.) At Bellevue Hospital, Plaintiff was treated for a fractured right metacarpal bone and for injured elbows, specifically a "possible left tibial head fracture of his left elbow." (Id. ¶ 39-40.)
Defendant cites Declaration of Michael Citrin, Exhibit E, however, Exhibit E is Defendant Evan Smelley's deposition. Exhibit H, the EMS Ambulance Call Report, supports Defendant's statement of fact. (See Declaration of Michael Citrin dated June 23, 2000, Ex. H.)
John Mele, another officer on the scene at the time of Plaintiffs arrest, spoke at an unidentified time with Defendant Smelley regarding the "incident." (Marion Decl., Ex. D at 37, lines 8-13.) Defendant Smelley told Mele how the Plaintiff got injured "[v]aguely, just during the apprehension." (Id.. Ex. D at 38, lines 17-19.) Defendant Cuff testified that although he could not remember seeing Defendant Smelley on May 17, 1997, he was "quite sure [he] spoke with him and asked him what went on." (Id., Ex. E at 23, lines 10-19.) Defendant Smelley testified that undercover officers are not supposed to apprehend a subject. (Id. Ex. B at 43, line 25, Ex. B at 44, lines 1-3.) Defendant Cuff testified that it is not advised that an undercover officer apprehend a perpetrator. (Id., Ex. E at 42, lines 12-18.)
Discussion
I. Standard for Summary Judgment
The Second Circuit has summarized the standard for granting summary judgment as follows:
First, summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Second, the burden is upon the moving party to demonstrate that no genuine issue respecting any material fact exists. In considering that, third, all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought. Fourth, the moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case. When no rational [fact finder] 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 grant of summary judgment is proper.Gallo, 22 F.3d at 1223-24 (citations omitted).
II. Application of Standard
Defendants move for summary judgment on all of Plaintiffs remaining claims other than his excessive force claim against Defendant Smelley. Plaintiffs remaining claims under contention are (1) excessive force against Defendant Cuff (2) deliberate indifference to Plaintiffs medical needs resulting in delay of medical treatment against Defendants Smelley and Cuff; (3) supervisory liability against Defendant Cuff and (4) conspiracy pursuant to 42 U.S.C. § 1983 against Defendants Smelley and Cuff
1. Excessive Force
Plaintiff claims pursuant to 42 U.S.C. § 1983 excessive force in violation of the Fourth Amendment against Defendant Cuff, charging that Cuff assaulted Plaintiff. (Second Amended Complaint, ¶¶ 12, 17.) "`[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.`"Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (quotingMcKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). Thus, in order to survive the motion for summary judgment on the § 1983 claims, there must be some evidence of the personal involvement of each defendant. Here, Plaintiff testified that the only person who caused Plaintiff harm on May 14, 1997, was Defendant Smelley. (Citrin Decl., Ex. D at 224-25.) Additionally, Defendant Cuff arrived on the scene five minutes after Plaintiff had been handcuffed by the arresting officer. (Marion Decl., Ex. C at 39-40.) Since Plaintiff has not offered evidence that Defendant Cuff had any physical contact or personal involvement with Plaintiff with respect to the alleged assault, Defendant is entitled to summary judgment on Plaintiffs claim of excessive force against Defendant Cuff.
2. Deliberate Indifference to Medical Needs
Plaintiff claims pursuant to 42 U.S.C. § 1983 that Defendants Smelley and Cuff were deliberately indifferent to his medical needs and delayed his treatment. (Second Amended Complaint, ¶¶ 17-20.) The Supreme Court has noted that "`[t]he first inquiry in any § 1983 suit' is `to isolate the precise constitutional violation with which [the defendant] is charged.'" Graham v. Connor, 490 U.S. 386, 394 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)). The Supreme Court has also stated that "the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments . . . are two primary sources of constitutional protection against physically abusive governmental conduct." Graham, 490 U.S. at 394.
The Eighth Amendment's prohibition on cruel and unusual punishment prohibits "deliberate indifference to serious medical needs manifested by . . . intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). However, the Eighth Amendment has no application when there has been no formal adjudication of guilt. See City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 244 (1983). The Supreme Court has held that "the Due Process Clause protects a pre-trial detainee from the use of excessive force that amounts to punishment." Graham, 490 U.S. at 395 n. 10. "The rights of one who has not been convicted are protected by the Due Process Clause; and . . . it is plain that an unconvicted detainee's rights are at least as great as those of a convicted prisoner." Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). The Second Circuit has "often applied the Eighth Amendment deliberate indifference test to pre-trial detainees bringing actions under the Due Process Clause of the Fourteenth Amendment." See Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000). Thus the deliberate indifference claims of prisoners arise under the Eighth Amendment, and those of pre-trial detainees arise under the Due Process Clause of either the Fourteenth Amendment or the Fifth Amendment.
The Second Circuit has recently noted that a detainee's claim of deliberate indifference may arise under the Due Process Clause of the Fifth Amendment or under the Due Process Clause of the Fourteenth Amendment. See Cuoco, 222 F.3d at 106 (holding that plaintiffs deliberate indifference claim arose under the Fifth Amendment in a Bivens action, but referring to Weyant, 101 F.3d at 856, as an example of a deliberate indifference claim arising under the Fourteenth Amendment). The Second Circuit also held in Cuoco that analysis of a pre-trial detainee's deliberate indifference claim is the same whether the claim arises under the Due Process Clause of the Fifth Amendment or the Fourteenth Amendment. See Cuoco, 222 F.3d at 106. Both require application of the standard developed under the Eighth Amendment. Id.
Here, Plaintiff was under arrest and in custody at the time of the alleged delay of medical attention, but had not been arraigned or convicted of any crime. Thus Plaintiff was neither a pretrial detainee nor a prisoner, but an arrestee in custody. As an arrestee, Plaintiff is protected from excessive force by the Fourth Amendment's prohibition on unreasonable seizures of the person. Graham, 490 U.S. at 394. Whether Plaintiffs deliberate indifference claim arises under the Fourth Amendment or the Fourteenth Amendment has not been settled. The Eleventh Circuit has held that "[c]laims involving the mistreatment of arrestees or pre-trial detainees in custody are governed by the Fourteenth Amendment's Due Process Clause. . . ." Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) (noting that "decisional law involving prison inmates applies equally to cases involving arrestees or pre-trial detainees"). However, there is no Second Circuit precedent holding that the "deliberate indifference" standard developed under the Eighth Amendment and applied to pre-trial detainees under the Due Process Clause also applies to arrestees like Plaintiff. See Smith v. Metro North Commuter Railroad, No. 98 Civ. 2528 (RWS), 2000 WL 1449865 at *8 (S.D.N.Y. Sept. 29, 2000) (noting that "there is no binding precedent holding that Farmer's "deliberate indifference" standard applies to arrestees. ."). As the district court noted in Smith v. Metro North, Plaintiffs status here is analogous to that of a pre-trial detainee: "like a pre-trial detainee, he encountered the police and had not yet been afforded the procedural protections of adjudication." Id. (holding that "Farmer's `deliberate indifference' test may be applied to [arrestees] under the due process clause of the Fourteenth Amendment"). Since Plaintiffs status as an arrestee is similar to that of a pre-trial detainee, the test developed under the Eighth Amendment and applied to pre-trial detainees under the Due Process Clause will be employed here with respect to Plaintiffs deliberate indifference claim.
"The deliberate indifference standard embodies both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, `sufficiently serious,' [and] [s]econd, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (applying the standard under the Eighth Amendment to prisoner plaintiff) (citations omitted). For the first prong, a sufficiently serious medical need "contemplates `a condition of urgency, one that may produce death, degeneration, or extreme pain.'"Id. (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). To meet the second prong, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). The subjective element of deliberate indifference "entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. at 835.
Here, Plaintiffs evidence does not support a claim of deliberate indifference against either Defendant Smelley or Defendant Cuff First, assuming that Plaintiff had sufficiently serious medical need, Plaintiff has not demonstrated that either defendant's subjective state of mind was deliberate indifference as articulated in Farmer v. Brennan. Id. Plaintiff does not point to evidence to support that either defendant knew the facts from which he could draw the inference that Plaintiff required medical attention or that either defendant actually drew that inference. See id. at 837. Plaintiff offers no evidence that his need for medical attention was apparent. When Plaintiff was treated, the EMS Technicians noted in their Ambulance Call Report that Plaintiffs 1-2 centimeter laceration on the back of his head was not bleeding. (Def. 56.1 Stmt ¶ 36.) Plaintiffs other injuries were to his hand and elbows. These were internal injuries, specifically a fractured metacarpal bone and injured elbows. (Id. ¶ 39-40.) There is no evidence either in Plaintiffs testimony or any document from which it can be inferred that Plaintiff had suffered serious visible injury, nor has Plaintiff offered any opposing affidavits to that effect.
Further, Plaintiff did not make his need for medical treatment known. Plaintiff did not request medical attention at the scene of the arrest or from the individuals driving the prisoner van. (Id. ¶ 28, 31.) Plaintiff first complained of pain while at the 9th Precinct. (Id. ¶ 33.) See Owens v. Colburn, 860 F. Supp. 966, 974-75 (N.D.N.Y. 1994) (noting that "it is impossible to respond to invisible injury without notice"). Thus Plaintiff points to no evidence that either defendant would have known that Plaintiff needed medical attention just by looking at him.
Plaintiff asserts that Defendant Smelley was aware of the injuries inflicted on the plaintiff. (Pl's 56.1 Stmt ¶ 4.) Plaintiff cites no support for this claim. Although there is evidence that Smelley was aware that he used force during his apprehension of Plaintiff, which Plaintiff claims and Defendant denies included hitting him on the back of his head with a gun (Pl. 56.1 Stmt ¶ 2), Plaintiff does not point to evidence that Defendant Smelley was aware that Plaintiff suffered serious harm as a result of Smelley's use of force and required medical attention as a result of the apprehension. Plaintiff further claims that Defendant Smelley disregarded the risk to Plaintiffs health by failing to inform an officer on the scene that the Plaintiff was in need of medical attention. (Id.) However, since Plaintiff has not shown that Defendant Smelley was aware of Plaintiffs need for medical care, Defendant Smelley could not have had the requisite state of mind underFarmer v. Brennan to show deliberate indifference to Plaintiffs medical needs. See Farmer v. Brennan, 511 U.S. at 837.
Plaintiff cites no support for this allegation. Under Local Civil Rule 56.1(d) "Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56 e)." S.D.N.Y. Civ. R. 56.1(d); see Wenzhou Wanli Food Co. Ltd. v. Hop Chong Trading Co. Inc., No. 98 Civ. 5045 (JFK), 2000 WL 964944; at *3 (S.D.N.Y. July 11, 2000) (noting that "[u]nsupported allegations will not suffice to create a material issue of fact" (citing Goenaga v. March of Dimes Birth Defect Fdn., 51 F.3d 14, 18 (2d Cir. 1995))).
Plaintiff cites to evidence that does not support this proposition. The testimonial evidence shows that (1) Defendant Smelley did not remember talking to any members of the backup team (Marion Decl. Ex. B at 63, lines 1-3); (2) that John Mele, another officer on the scene, spoke at an unidentified time with Defendant Smelley regarding the "incident," (id, Ex. D at 37, lines 8-13); and (3) that Defendant Smelley told Mele how the Plaintiff got injured "[v]aguely, just during the apprehension" (id. Ex D at 38, lines 17-19). It is unclear when Defendant Smelley told Mele how Plaintiff got injured, and Smelley testified that he did not speak to the backup team after they arrived. See id. Ex B at 63, lines 1-3. There is no evidence presented that either Mele or Smelley believed Plaintiff to be seriously injured.
Plaintiff similarly asserts that Defendant Sergeant Cuff never sought medical attention for Plaintiff, even though the need for medical attention was obvious and Cuff was informed that force was used during Plaintiffs apprehension. (Pl's 56.1 Stmt ¶ 5.) However, there is no evidence submitted to show that Cuff saw Plaintiff at the scene of the apprehension or arrest. Plaintiff did not identify Defendant Cuff as present at the scene. (Citrin Decl., Ex. D at 156-57.) Indeed, there is evidence that Defendant Cuff arrived at the scene late, about five minutes after Plaintiff was handcuffed and arrested. (Marion Decl., Ex. C at 39-40.) After he was handcuffed and arrested, Plaintiff was placed in the prisoner van. (Id. at 40.) Even if Defendant Cuff had seen Plaintiff, however, the evidence does not support a finding that Cuff would have known Plaintiff required medical attention since Plaintiff was not visibly bleeding and his injuries to his elbows and hand were internal. (See Def. 56.1 Stmt ¶¶ 36, 39-40.) Thus the evidence does not support Plaintiffs contention that his injuries were obvious. Similarly, although Defendant Cuff may have been informed at an uncertain point in time that Defendant Smelley had used force to apprehend Plaintiff, the evidence does not show that when Cuff was on the scene, shortly after Plaintiffs arrest, Cuff had the facts before him to draw the inference that Plaintiff had serious injuries requiring medical attention.
Plaintiff cites evidence not contained in Plaintiffs papers for this proposition. During the argument held on September 19, 2000, additional evidence was read into the record. (September 19, 2000, Transcript at 18-19.) The evidence read into the record shows that Supervisor Elliot Cuff testified that he knew at some point in time that Defendant Smelley had to use force to apprehend Plaintiff (Id.) The testimonial evidence cited to support this proposition is that Elliot Cuff was "quite sure [he] spoke with [Defendant Smelley] and asked him what went on," (Marion Decl., Ex. E at 23, lines 10-19); and that Cuff learned that Plaintiff was taken to the hospital after he complained of injury. Plaintiff also cites to Plaintiffs hospital discharge record and an expert's opinion as to the nature and extent of his injuries. (Marion Decl. Ex. I, K.) This evidence does not support Plaintiffs claim that Plaintiffs need for medical attention was obvious to Cuff on the afternoon of May 14, 1997.
Most importantly, Plaintiff fails to state a constitutional claim because he received medical treatment promptly after he complained of pain. See Rivera v. State of New York, No. 96 Civ. 7697 (RWS), 1999 WL 13240 (S.D.N.Y. Jan. 12, 1999) (holding that detainee failed to state a constitutional claim when he was brought to [a] medical clinic less than one hour after his injury was reported and brought to the hospital less than two hours after the medical clinic referred him there). Here, Plaintiff was taken to the 9th Precinct at approximately 5:40 p.m where he first complained of pain. (Def. 56.1 Stmt ¶¶ 32-33.) EMS received a call to report to the 9th Precinct at approximately 6:06 p.m. and arrived at the 9th Precinct six minutes later at 6:12 p.m. (Id. ¶ 34-35.) The EMS technicians arrived with Plaintiff at Bellevue Hospital at 7:25 p.m. (Citrin Decl. Ex. H.) Thus Plaintiff received medical treatment from EMS within thirty-five minutes of reporting that he was in pain and was brought to Bellevue Hospital within an hour and forty-five minutes of complaining of pain. This does not constitute a significant delay in medical treatment rising to the level of constitutional injury.
The evidence submitted does not support Plaintiffs claim that Defendants Cuff or Smelley exhibited deliberate indifference to Plaintiffs medical needs or that Plaintiffs medical treatment was delayed. Thus Defendant is entitled to summary judgment on Plaintiffs claim of deliberate indifference to his medical needs against Defendant Smelley and Defendant Cuff.
3. Supervisory Liability
Plaintiff claims supervisory liability pursuant to 42 U.S.C. § 1983 against Defendant Cuff. (Second Amended Complaint, ¶ 28.) To prevail on a claim of supervisory liability, it must be shown that the supervisor: (1) participated directly in the constitutional deprivation; (2) after learning of the violation through a report or appeal failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred; or (4) was grossly negligent in maintaining subordinates who caused the deprivation. See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). Finally, supervisory liability may be found' for (5) demonstrating "gross negligence"or "deliberate indifference" by "failing to act on information indicating that unconstitutional practices are taking place." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citations omitted).
Here, Plaintiff points to no evidence that Defendant Cuff participated directly in the alleged constitutional violation of Defendant's Smelley's alleged use of excessive force in apprehending Plaintiff. Nor was evidence submitted that Cuff created a policy or custom under which unconstitutional practices occurred. Similarly, no evidence was submitted that Cuff was grossly negligent in maintaining Defendant Smelley, who allegedly caused Plaintiffs deprivation. Nor was evidence submitted that Cuff demonstrated gross negligence or deliberate indifference by failing to act on information indicating that unconstitutional practices were taking place. Thus the issue turns on whether, after learning of an alleged violation through a report or appeal, Defendant Cuff failed to remedy the wrong. See id.
Plaintiff argues that Defendant Cuff incurs supervisory liability because he failed to remedy the misconduct of Defendant Smelley even though Cuff admitted that Defendant Smelley's conduct was not appropriate. (Pl. 56.1 Stmt ¶ 8.) Plaintiff claims that Defendant Cuff failed to remedy (1) Defendant Smelley's alleged use of excessive force and (2) Defendant Smelley's alleged deliberate indifference to Plaintiffs medical needs and delay in medical treatment. (Second Amended Complaint, ¶ 28-29.)
To incur supervisory liability, a supervisor must be notified of a constitutional violation by report or appeal. See Williams, 781 F.2d at 323-24. Plaintiff does not offer evidence that there was a report or appeal to Defendant Cuff about Defendant Smelley's alleged constitutional violation or the alleged delay in medical treatment to Plaintiff. In support of his claim, Plaintiff cites evidence that Detective Cuff testified that he spoke with Defendant Smelley about "what went on" during the apprehension. (Marion Decl., Ex. E at 23, lines 10-13.) Plaintiff presents no evidence that this conversation took place at a time when Cuff could have remedied Smelley's alleged use of excessive force or the alleged delay in medical treatment. Thus Plaintiff points to no facts that show that Defendant Cuff knew or had reason to know at the time of the event of the alleged constitutional violations. Even assuming that Defendant Cuff knew Defendant Smelley had used force in apprehending Plaintiff, Plaintiff does not point to any evidence that Defendant Cuff knew of the degree of force used by Smelley or the extent of Plaintiffs injury. Moreover, since Plaintiff has failed to show there was an unconstitutional delay in medical treatment to Plaintiff, Plaintiff's claim of supervisory liability against Defendant Cuff on that basis cannot be sustained.
Additionally, Plaintiffs reliance on a claimed admission of Defendant Cuff that Smelley's conduct was not appropriate is misplaced. Defendant Cuff did not testify that Smelley's conduct was inappropriate. He testified, as did Smelley, that it is not "advisable" for an undercover officer to arrest someone because it compromises the officer's cover. (Marion Decl., Ex. B at 43-44, Ex. E at 42.) Defendant Cuff did not admit any constitutional violation against Plaintiff. Supervisory liability cannot be based on failure to remedy misconduct that plainly does not rise to a constitutional level. Thus Defendant is entitled to summary judgment on Plaintiffs claim of supervisory liability against Defendant Cuff.
4. Conspiracy Under 42 U.S.C. § 1983
Plaintiff claims conspiracy under 42 U.S.C. § 1983 against Defendant Smelley and Defendant Cuff. (Second Amended Complaint, ¶ 23.) "To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). "[C]onclusory allegations of a § 1983 conspiracy are insufficient."Id.. (quoting Dwares v. City of New York, 985 F.2d 94, 99-100 (2d Cir. 1993).) Since "such `conspiracies are by their very nature secretive operations,' [they] may have to be proven by circumstantial, rather than direct, evidence." Id. (quoting Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994)).
Here, Plaintiff has not pointed to any evidence, circumstantial or direct, that Defendants Smelley and Cuff made an agreement to act in concert to inflict an unconstitutional injury on Plaintiff Consequently, Defendant is entitled to summary judgment on Plaintiffs claim of conspiracy pursuant to 42 U.S.C. § 1983.
Conclusion
For all the foregoing reasons, Defendants' motion for summary judgment on all of Plaintiffs claims other than his excessive force claim against Defendant Evan Smelley is granted.
IT IS SO ORDERED.