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denying summary judgment where plaintiff alleged excessive force in arrest for obstructing governmental administration
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10 CV 6016 (VB)
01-26-2012
JEANMARIE TRIBIE, Plaintiff, v. KHALID PARWANTA, individually, CHRISTOPHER KORBA, individually, VILLAGE OF SPRING VALLEY, and THE SPRING VALLEY POLICE DEPARTMENT, Defendants.
MEMORANDUM DECISION :
Plaintiff Jeanmarie Tribie brings this civil rights action for false arrest, malicious prosecution, excessive force, conspiracy under 42 U.S.C. § 1985, due process violations, and for various related state law claims.
Pending before the Court is defendants' motion for summary judgment. (Doc. #12.) For the following reasons, the motion is GRANTED as to plaintiff's (1) claims against the Spring Valley Police Department, (2) Monell claim against the Village of Spring Valley, (3) excessive force claims against defendant Khalid Parwanta, (4) malicious prosecution claims, (5) Fifth Amendment due process claim, (6) substantive due process claim, (7) conspiracy claim, and (8) claim for negligent hiring, training, and supervision. As to all other claims, the motion is DENIED.
The Court has subject matter jurisdiction in this matter pursuant to 28 U.S.C. § 1331.
BACKGROUND
The parties have submitted briefs, statements of facts, and declarations with supporting exhibits, which reflect the following factual background.
Plaintiff has lived at 3 Wolfe Drive, in the Village of Spring Valley, for over ten years. Savanna Wilson has been plaintiff's neighbor for that entire period. Ms. Wilson's father, George Wilson, lived with her prior to his death in 2008.
Sometime prior to his death, George Wilson began constructing an extension on his home. As part of the construction, Mr. Wilson removed a portion of an exterior wall that separated his home from plaintiff's home. Mr. Wilson reconstructed the exterior wall, but did not finish fireproofing it before he died.
Savanna Wilson did not immediately finish fireproofing the wall. Plaintiff felt the delay in completing the fireproofing constituted a safety hazard and complained to the Spring Valley Building Department about the delay.
After plaintiff complained to the Building Department, the relationship between plaintiff and Ms. Wilson deteriorated. In May and June 2009, Ms. Wilson swore and threw rocks at plaintiff. Plaintiff called animal control more than five times on Ms. Wilson, whenever Ms. Wilson's dogs would wander onto plaintiff's property.
I. The July 2, 2009, Altercation
On the morning of July 2, 2009, plaintiff left his home to take his girlfriend's son to religious classes and noticed a wet, shredded, newspaper in his driveway. Plaintiff had seen the newspaper in Ms. Wilson's driveway during the previous week. Plaintiff kicked the newspaper towards a storm drain in the street, and drove away to drop off the son.
When he returned home, plaintiff discovered the wet newspaper had been placed on top of his other car, which was parked on the street near his home. The car was also covered in sand. Plaintiff believed Ms. Wilson put the newspaper on his car and believed the sand had come from the pile of construction sand on Ms. Wilson's driveway. Plaintiff called the police to report that Ms. Wilson had placed the sand and newspaper on his car. Plaintiff stood in the driveway with his child waiting for the police to arrive.
Spring Valley Police Officer Khalid Parwanta was dispatched to respond to possible criminal mischief occurring at plaintiff's address. When Officer Parwanta arrived at the scene, plaintiff told the officer his car was covered in wet newspaper and sand. Officer Parwanta believed plaintiff was agitated, which plaintiff denies. Plaintiff explained to Officer Parwanta the tumultuous background between himself and Ms. Wilson, including his complaints about Ms. Wilson's dogs, houseguests, and noise.
According to Officer Parwanta, plaintiff and Ms. Wilson began arguing with each other. He observed plaintiff being combative, acting in a threatening manner, and cursing at Ms. Wilson. Officer Parwanta heard plaintiff call Ms. Wilson a "fucking bitch." Plaintiff denies doing or saying any of these things.
Ms. Wilson admitted to Officer Parwanta that she had placed the sand and newspaper on plaintiff's car. In an attempt to diffuse the situation, Officer Parwanta told plaintiff to move his car close to Ms. Wilson's property, so the car could be hosed off. Plaintiff moved his car in front of Ms. Wilson's driveway and blocked the driveway from access to the street. Plaintiff claims Officer Parwanta directed him to park the car in front of Ms. Wilson's driveway. Officer Parwanta, on the other hand, claims he told plaintiff to park the car in front of Ms. Wilson's property by the curb, so as not to block the driveway.
Officer Parwanta used the hose to wash the sand and newspaper off plaintiff's car. While the officer was using the hose, Ms. Wilson asked whether plaintiff's car was a 1992 Miata, which plaintiff believed was intended as a sarcastic insult. Plaintiff later admitted the comment was not intended to be offensive, but stated he did not want Ms. Wilson speaking to him at all. Frustrated that he was not getting any "justice," plaintiff told Officer Parwanta that "[h]ad I choked the life out of her, I would be in jail now." Plaintiff also said the next time he would not bother calling the police.
Ms. Wilson became irate, grabbed a baseball bat from her car, and approached plaintiff swinging the bat and hitting the bat on plaintiff's driveway. As Ms. Wilson approached, plaintiff laughed, but when she reached his property he told Officer Parwanta to remove Ms. Wilson from his property. Observing these developments, Officer Parwanta dropped the hose and arrested Ms. Wilson. Officer Parwanta told plaintiff that plaintiff had caused Ms. Wilson to brandish the baseball bat. Plaintiff denies inciting Ms. Wilson or doing anything to warrant being threatened with a bat.
After securing Ms. Wilson, Officer Parwanta radioed for assistance. Police Officer Christopher Korba responded. Officer Parwanta explained the situation to Officer Korba, and together they decided plaintiff was also at fault for the altercation. Plaintiff denies the altercation was his fault, and claims Officer Parwanta told him the whole thing was "unprovoked." The officers told plaintiff he was being arrested, and Officer Korba placed plaintiff under arrest for disorderly conduct and harassment and drove him to police headquarters. Plaintiff claims he was calm during the entire encounter; did not shout at, threaten, or use profanity towards Ms. Wilson; and did not act in any manner that warranted his arrest.
II. Plaintiff's Booking and Second Arrest
Plaintiff was taken to the Spring Valley Police Station where Officer Korba processed him for the disorderly conduct charge. During the processing, which began at 10:06 a.m., plaintiff repeatedly asked why he was being arrested. Officer Parwanta says he overheard plaintiff acting in an agitated and noncompliant manner during processing, despite the fact that Officer Korba had repeatedly told him why he was being arrested. Officer Korba claims plaintiff was intentionally preventing him from completing the booking process because plaintiff would not keep his head steady enough for the required picture to be taken. Plaintiff denies he was uncooperative in any way. Plaintiff admits he was "fidgety" while his picture was being taken, but denies he prevented Officer Korba from taking his picture. Plaintiff's picture was never taken during his processing.
At 10:28 a.m., Officer Korba told plaintiff he was not complying, stopped the booking process, and charged plaintiff with obstruction of governmental administration. Plaintiff claims Officer Korba grabbed him, kicked his ankles, spread his legs, and shoved him into a wall. Officer Korba then walked plaintiff to a holding cell.
Plaintiff claims his chest hurt for an hour or two following this incident and that it was red for a period of time but had no bruising. Plaintiff did not suffer any other injuries aside from his chest soreness and did not seek medical treatment.
III. Plaintiff's Arraignment and Completion of Booking Process
Plaintiff claims Officer Korba made plaintiff remove his pants while he was in the holding cell, and eventually escorted plaintiff to court while plaintiff was wearing only his underwear and a white t-shirt. Officer Parwanta told Assistant District Attorney Eric Holzer what had occurred between plaintiff and Ms. Wilson, but did not tell the ADA to prosecute either party more or less harshly than the other. Officer Parwanta and Ms. Wilson executed affidavits attesting that plaintiff threatened Ms. Wilson and stated "I'm going to fucking choke the living life out of you, I'm going to beat the hell out of you . . . ." Officer Korba executed an affidavit attesting to his version of events that took place while booking plaintiff.
At 12:10 p.m., plaintiff was arraigned on charges of disorderly conduct and obstruction of governmental administration in the Spring Valley Justice Court. The village justice ordered plaintiff's booking process to be completed, and did not set a bail amount. Ms. Wilson was granted an order of protection against plaintiff.
At 12:40 p.m., plaintiff was placed back in a holding cell. At 2:00 p.m., Police Sergeant Russell finished processing plaintiff. Plaintiff requested and was allowed to make a phone call to his girlfriend. Plaintiff claims Officer Korba took the phone away from him, put his hands on plaintiff's chest, squeezed, and left fingernail impressions on plaintiff while walking plaintiff backwards into his cell. The nail impressions did not bleed or result in scars, but were sore for a period of time. Officer Korba does not recall using any force against plaintiff.
IV. Plaintiff's Transfer to Rockland County Jail
A few hours later, plaintiff was told to put his pants and sandals on, and was given his jewelry. Plaintiff was presented to officers from the Clarkstown Police Department, and was told he was being transferred to county jail. Plaintiff thought bail was set at $300.00, but Officers Parwanta and Korba told him that the village justice had remanded him to county jail without bail. Plaintiff asked the Clarkstown police officers why he was being taken to county jail, but they did not know. Plaintiff was transferred to Rockland County Jail on July 2, 2009.
At Rockland County Jail, plaintiff was processed again, placed on suicide watch because he was crying, and kept overnight. Plaintiff spoke with a public defender on Friday, July 3, 2009. Plaintiff was told he would not be released, because he would not be able to see a judge, until the following Monday. However, for reasons unknown to plaintiff, he was released on his own recognizance from jail on July 3 by Justice Howard Gerber of the Clarkstown Town Court.
V. Criminal Proceedings
On December 4, 2009, ADA Holzer dismissed the criminal charges against plaintiff "in the interest of justice" after speaking to the defendants and because plaintiff "started out as the victim in this matter." The order of protection was also lifted on December 4. Plaintiff's car had been impounded on July 2, 2009, because it was blocking Ms. Wilson's driveway. Officer Parwanta later dismissed the ticket, but plaintiff had to pay towing charges.
DISCUSSION
A motion for summary judgment must be granted if the pleadings, discovery materials before the court, and any affidavits show that there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A dispute regarding a material fact is genuine if there is sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. Am. Int'l Grp., Inc. v. London Am. Int'l Corp., 664 F.2d 348, 351 (2d Cir. 1981).
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. If the nonmoving party submits evidence which is "merely colorable," legally sufficient opposition to the motion for summary judgment is not met. Anderson v. Liberty Lobby, 477 U.S. at 24. The mere existence of a scintilla of evidence in support of the nonmoving party's position is insufficient; there must be evidence on which the jury could reasonably find for him. See Dawson v. Cnty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the court resolves all ambiguities and draws all permissible factual inferences in favor of the nonmoving party. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 218 (2d Cir. 2004). If there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
I. Claims Against City of Spring Valley Police Department
Defendants first move for summary judgment on all claims asserted against defendant "Spring Valley Police Department." Under New York law, a municipal police department has no separate legal identity apart from the municipality which created it. Therefore, it cannot be sued. See Howell v. Port Chester Police Station, 2010 WL 930981, at *5 (S.D.N.Y. Mar. 15, 2010); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002). Plaintiff concedes this point. Accordingly, plaintiff's claims against the Spring Valley Police Department are dismissed.
II. Plaintiff's Monell Claim
Defendants also move for summary judgment on plaintiff's claims against the Village of Spring Valley, contending that plaintiff has failed to establish a Monell claim against the village. See Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978). In response, plaintiff has withdrawn his claim against the village. Therefore, defendant Village of Spring Valley is dismissed from this action.
III. Plaintiff's False Arrest Claims
Defendants next move for summary judgment on plaintiff's false arrest claims. Plaintiff was arrested and charged with disorderly conduct, harassment in the second degree, and obstruction of governmental administration in violation of New York Penal Law §§ 240.20(1), 240.26, and 195.05, respectively.
The Fourth Amendment guarantees that an individual shall not be arrested without probable cause. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). The existence of probable cause to arrest constitutes justification and "is a complete defense to an action for false arrest." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). Probable cause "to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime." Weyant, 101 F.3d at 852. A reviewing court must examine "those facts available to the officer at the time of the arrest and immediately before it." Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). The fact that charges are later dismissed does not affect whether there was probable cause at the time of arrest. Davis v. Ventimiglia, 2009 WL 4910047, at *4 (S.D.N.Y. Dec. 21, 2009).
In this case, there are two very different versions of what happened on the morning of July 2, 2009. Plaintiff claims he called the police because Ms. Wilson had strewn a shredded, wet, newspaper and sand all over his car. After Officer Parwanta arrived, plaintiff claims he remained calm when his baseball bat-wielding neighbor threatened him and did not shout, threaten, or curse at Ms. Wilson. Officer Parwanta, however, states otherwise: plaintiff repeatedly threatened Ms. Wilson and incited her to grab the bat.
The Court cannot accept one account over the other because the Court cannot make credibility determinations on summary judgment. United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994). Therefore, summary judgment is denied as to plaintiff's false arrest claim arising from his arrest for disorderly conduct and harassment.
The parties also have divergent accounts of what happened during plaintiff's booking process. Plaintiff states he repeatedly asked Officer Korba what he was being arrested for and was fidgety while Officer Korba was attempting to take his picture. But plaintiff claims he was otherwise cooperative with Officer Korba, provided Officer Korba with his pedigree information, and did not prevent Officer Korba from taking his picture. Officer Korba claims plaintiff intentionally prevented him from completing the booking process by not keeping his head steady enough for the required picture to be taken.
As defendants correctly point out, a plaintiff does not have a claim for false arrest "if, at the time of his arrest and prosecution, he is already in custody on other charges, because there is no deprivation of liberty interests." Parker v. City of New York, 2008 WL 110904, at *9 (S.D.N.Y. Jan. 7, 2008). However, "[t]his is not [the] case where the prisoner's period of incarceration was lengthened as a result of new charges brought against him while he was in custody." Id.
Here, plaintiff claims that because of the obstruction of governmental administration charge, and Officer Korba's misrepresentations that plaintiff refused to be processed, plaintiff was not released after his arraignment but instead was remanded without bail and sent to the Rockland County Jail. Under this theory, plaintiff's period of incarceration was lengthened by a day, to July 3, 2009, as a result of his arrest for obstructing the booking process. Again, the Court cannot accept Officer Korba's account over plaintiff's, and therefore denies summary judgment as to the false arrest claim arising from plaintiff's arrest for obstructing governmental administration. See Allen v. City of New York, 480 F. Supp. 2d 689, 717 (S.D.N.Y. 2007) (plaintiff alleged a sufficient deprivation of liberty by alleging post-arraignment incarceration as a result of charges brought against him while in custody).
IV. Plaintiff's Excessive Force Claims
Defendants move for summary judgment on plaintiff's excessive force claims. If excessive force was allegedly used before arraignment, Fourth Amendment standards govern. Sloane v. Kraus, 2010 WL 3489397, at *10 (S.D.N.Y. Sept. 3, 2010). If the alleged violation occurs after arraignment but before conviction, then the Fourteenth Amendment applies. Lemmo v. McKoy, 2011 WL 843974, at *4 (E.D.N.Y. Mar. 8, 2011).
To determine whether police officers have used excessive force under the Fourth Amendment, the Court considers whether the force was reasonable in light of the circumstances and facts there and then confronting the police officers. The Court's assessment may include the following factors: the severity of the crime at issue; whether the suspect posed an immediate threat to the officers or others; and whether the suspect was resisting arrest or attempting flight to evade arrest. Graham v. Connor, 490 U.S. 386, 396 (1988). These factors should be considered without regard to the officers' underlying intent or motive. Papineau v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006). Furthermore, "[t]he calculus of reasonableness must embody 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." Graham, 490 U.S. at 396-97. The reasonableness of the force used should be assessed "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396.
To allege a pre-trial excessive force claim under the Fourteenth Amendment, a plaintiff must satisfy both a subjective and an objective test. See United States v. Walsh, 194 F.3d 37, 49-50 (2d Cir. 1999). The subjective requirement is satisfied if the defendant has a "sufficiently culpable state of mind . . . shown by actions characterized by 'wantonness.'" Id. It must also be shown that the deprivation alleged is objectively sufficiently serious or harmful enough. Id. at 50.
There is no genuine issue of material fact as to whether excessive force, or any force at all, was used by defendants during plaintiff's initial arrest on July 2. Plaintiff admitted no force was used during that arrest.
Plaintiff alleges an excessive force claim against Officer Korba - but not Officer Parwanta - for incidents occurring during his pre-arraignment and post-arraignment incarceration. Plaintiff alleges Officer Korba kicked him and shoved him against a wall during his arrest for obstructing government administration, and grabbed his chest and shoved him into his cell, leaving fingernail marks in his skin, after he made a post-arraignment call to his girlfriend.
Analyzed under either Fourth or Fourteenth Amendment standards, as defendants again correctly point out, when the injury resulting from alleged excessive force is de minimis, the excessive force claim is typically dismissed. See, e.g., Smith v. City of New York, 2010 WL 3397683, *10 (S.D.N.Y. Aug. 27, 2010); Lemmo v. McKoy, 2011 WL 843974, at *4 ("Injuries held to be de minimis for purposes of defeating excessive force claims include short-term pain, swelling, and bruising.").
"On the other hand, courts have allowed plaintiffs to recover, even though the injury caused was not permanent or severe, where the force used was excessive." Lemmo v. McKoy, 2011 WL 843974, at *6; Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) ("While [plaintiff] did not seek medical treatment for her injuries, and this fact may ultimately weigh against her in the minds of the jury in assessing whether the force used was excessive, this failure is not fatal to her claim. If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe."); United States v. Walsh, 194 F.3d at 50 (objective prong of the Fourteenth Amendment standard may be satisfied in the excessive force context even if the victim does not suffer serious or significant injury); see also Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) ("[W]e have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car, causing only bruising.").
This case is a close call. Plaintiff's injuries, if any, may have been the incidental bruises that often occur in the ordinary course of an arrest or controlling an inmate. However, at the least, the parties posit two very different accounts of what occurred during plaintiff's pre-arraignment and post-arraignment incarceration in the village police station, and whether Officer Korba's use of force was reasonable at all. Resolving doubt in favor of plaintiff, the Court reluctantly finds that a jury should resolve whether the officer's actions amounted to excessive force.
V. Plaintiff's Malicious Prosecution Claim
Defendants move for summary judgment on plaintiff's malicious prosecution claim primarily on the ground that the criminal proceedings were not terminated in plaintiff's favor. A claim for malicious prosecution is analyzed pursuant to New York law. See Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989). Under New York law, a plaintiff suing for malicious prosecution must establish: (1) the initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) lack of probable cause by the officer for commencing the proceeding; and (4) actual malice as a motivation for defendants' actions. Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995). A claim for malicious prosecution may be maintained against a police officer even when the prosecutor is not named as a defendant. See Cook v. Sheldon, 41 F.3d 73, 79 (2d Cir. 1994).
According to the Second Circuit, a dismissal "in the interest of justice" under New York Criminal Procedure Law § 170.40 cannot provide the favorable termination required as the basis for a claim of malicious prosecution. Lynch v. Suffolk Cnty. Police Dep't, Inc., 348 Fed. App'x 672, 674 (2d Cir. 2009).
The Second Circuit set forth this proposition in Hygh v. Jacobs, 961 F.2d 359 (2d Cir. 1992). Plaintiff argues that after Hygh the New York Court of Appeals held there is no "per se rule that a dismissal in the interest of justice can never constitute a favorable termination. Rather, . . . the question is whether, under the circumstances of each case, the disposition was inconsistent with the innocence of the accused." Cantalino v. Danner, 729 N.Y.S.2d 405, 409 (2001). However, Lynch was decided eight years after Cantalino, is good law, and is binding on this Court.
Here, plaintiff's criminal charges were dismissed in the "interests of justice." Therefore, the Court grants defendants' motion for summary judgment on plaintiff's malicious prosecution claim.
VI. Plaintiff's Due Process Claims
"Due process of law is secured against invasion by the federal Government by the Fifth Amendment and is safeguarded against State action in identical words by the Fourteenth." Hickey v. City of New York, 2004 WL 2724079, at *15 (S.D.N.Y. Nov. 29, 2004) (quoting Betts v. Brady, 316 U.S. 455, 462 (1942)). Plaintiff concedes he is not asserting a Fifth Amendment claim. Defendants move for summary judgment on plaintiff's Fourteenth Amendment substantive and procedural due process claims.
A. Plaintiff's Substantive Due Process Claims
Plaintiff's substantive due process claims appear to be wholly predicated on his false arrest and malicious prosecution claims. These claims are properly evaluated under the Fourth Amendment and should not be analyzed as Fourteenth Amendment substantive due process claims. See Caracciola v. City of New York, 1999 WL 144481, at *4 (S.D.N.Y. Mar. 17, 1999) (citing Albright v. Oliver, 510 U.S. 266 (1994)). Therefore, plaintiff's Fourteenth Amendment substantive due process claims are dismissed.
Plaintiff's due process claims also sound in excessive force. As set forth above, these claims are properly evaluated under both Fourth and Fourteenth Amendment standards.
B. Plaintiff's Procedural Due Process Claims
To sustain a Section 1983 claim based on an alleged violation of due process, a plaintiff must show that (1) he possesses a liberty or property interest protected by the Constitution or federal statutes and (2) he was deprived of that liberty or property interest without due process. Ciambriello v. County of Nassau, 292 F.3d 307, 313 (2d Cir. 2002). "Due process requires probable cause for an arrest, and when police officers acting in bad faith make an arrest without probable cause, the person arrested has suffered a deprivation of liberty without due process of law." United States v. McDermott, 918 F.2d 319, 325 (2d Cir. 1990).
As stated above, the question of whether probable cause existed to justify plaintiff's arrests is one for the jury.
Defendants argue that plaintiff cannot make out a Section 1983 claim when there exists an adequate state post-deprivation procedure to remedy a deprivation of plaintiff's liberty. Here, defendants claim plaintiff was afforded an adequate post-deprivation remedy by virtue of his criminal proceedings. However, plaintiff claims defendants provided the state prosecutor with false information causing him to be incarcerated for an extended period of time. Specifically, plaintiff claims Officer Parwanta executed an affidavit falsely stating that he observed plaintiff using abusive and obscene language, and threatening Ms. Wilson. Plaintiff also claims Officer Korba executed an affidavit falsely stating that plaintiff would not provide pedigree information and refused to be photographed during the booking process.
The Fourteenth Amendment prohibits government officers from fabricating evidence post-arrest, and the Second Circuit has clearly established that the harm caused by such conduct is redressable through a Section 1983 action for damages. Zahrey v. Coffey, 221 F.3d 342, 348-49 (2d Cir. 2000). Accordingly, because plaintiff's prosecution was based on facts and documents provided by Officers Parwanta and Korba and a question of fact exists as to whether either defendant had probable cause to arrest plaintiff, defendants' motion for summary judgment dismissing plaintiff's procedural due process claims is denied.
Although the Supreme Court held a similar cause of action, involving fabrication of evidence and bribery of witnesses, fell under the Fourth Amendment, see Albright v. Oliver, 510 U.S. at 274-75, the Second Circuit has characterized this right as a procedural due process violation. As the Supreme Court noted, the Albright plaintiff did not assert a claim for procedural due process. Albright v. Oliver, 510 U.S. at 271. "Because evidence fabrication serves to both improperly charge and/or arrest a plaintiff as well as unfairly try him, the Coffey violation, in its essence, involves aspects of both the Fourth Amendment and procedural due process." See Zahrey v. City of New York, 2009 WL 1024261, at *8 (S.D.N.Y. Apr. 15, 2009). --------
VII. Plaintiff's Conspiracy Claim
Plaintiff alleges that Officers Parwanta and Korba conspired to violate plaintiff's constitutional rights. In order to maintain such an action under 42 U.S.C. § 1985, a plaintiff "must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003). "A meeting of the minds is difficult to directly prove and may be inferred from circumstantial evidence." Zahrey v. City of New York, 2009 WL 1024261, at *11. "However, 'innuendo, unrelated incidents and conclusory allegations, without any factual basis' are insufficient to support a conspiracy claim." Id. Here, plaintiff provides no evidence, absent the fact that the defendants worked together and spoke with each other prior to plaintiff's initial arrest, that such an agreement existed.
Furthermore, it is well established that when individual defendants are all employees of an institutional defendant, a claim of conspiracy will not stand. Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498, 514 (S.D.N.Y. 2003) (citing Nat'l Cong. for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 168-69 (S.D.N.Y.1999) (dismissing plaintiffs' conspiracy claim when all of the alleged co-conspirators, except for the mayor, were members of the New York City Police Department)). Here, both individual defendants are members of the Spring Valley Police Department.
Thus, defendants' motion for summary judgment dismissing plaintiff's claim that defendants conspired to violate his civil rights is granted.
VIII. Plaintiff's State Law Claims
Plaintiff asserts false arrest, malicious prosecution, and assault and battery claims under New York law. The elements of false arrest and malicious prosecution under Section 1983 are substantially the same as the elements under New York law and, therefore, the analysis of the state and the federal claims is identical. Boyd v. City of New York, 336 F.3d 72, 75 (2d Cir. 2003). As stated above, there is an issue of fact for the jury as to whether probable cause existed for either of plaintiff's arrests and plaintiff cannot prove the favorable termination required as the basis for a claim of malicious prosecution. Therefore, summary judgment is denied as to plaintiff's state law false arrest claim and granted as to his state law malicious prosecution claim.
Plaintiff's assault and battery claims are analogous to his excessive force claims and are evaluated by the same standards. Posr v. Doherty, 944 F.2d 91, 95 (2d Cir. 1991); Cosby v. City of White Plains, 2007 WL 853203, at *6 (S.D.N.Y. Feb. 9, 2007). Since the Court determined a question of fact existed for the jury as to whether Officer Korba's actions amounted to excessive force, summary judgment is denied as to plaintiff's state law assault and battery claim against Officer Korba. Plaintiff asserts no excessive force claim against Officer Parwanta, nor could he, and therefore summary judgment is granted on his assault and battery claims against Officer Parwanta.
As for plaintiff's claim of negligent hiring, training, and supervision, in a federal court state notice-of-claim statutes apply to state-law claims. Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999). "Under New York law, a notice of claim is a mandatory precondition to bringing a tort claim against a municipality or any of its officers, agents or employees." Hyde v. Arresting Officer Caputo, 2001 WL 521699, at *4 (E.D.N.Y. May 11, 2001) (citing N.Y. Gen. Mun. Law § 50-e). Plaintiff's notice of claim makes no mention of any claim regarding negligent hiring, training, or supervision. Therefore, defendants are granted summary judgment dismissing this claim. See Bryant v. City of New York, 590 N.Y.S.2d 913, 914 (App. Div. 1992) ("Due to the plaintiffs' failure to set forth in their notice of claim any allegations concerning negligent hiring, training, or supervision on the part of the municipal defendants, these causes of action were properly dismissed.").
IX. Qualified Immunity
Defendants argue they are entitled to qualified immunity. "Whether a defendant officer's conduct was objectively reasonable is a mixed question of law and fact." Manganiello v. City of New York, 612 F.3d 149, 164 (2d Cir. 2010). Qualified immunity shields government officials whose 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 (1982). The scope of qualified immunity is broad, and it protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). A qualified immunity defense is established where "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998).
The doctrine of qualified immunity recognizes that "reasonable mistakes can be made as to the legal constraints on particular . . . conduct." Saucier v. Katz, 533 U.S. 194, 205 (2001). Qualified immunity applies if an officer's mistake as to what the law requires is reasonable. Id. It does not apply if, on an objective basis, it is obvious that no reasonably competent officer would have taken the actions of the alleged violation. Malley v. Briggs, 475 U.S. at 341.
The Court cannot conclude that Officers Parwanta and Korba are protected by qualified immunity because disputed issues of fact prevent the Court from evaluating whether their actions were objectively reasonable. The right not to be arrested without probable cause, to be free from excessive force, and not to be deprived of liberty based on misleading evidence were clearly established rights prior to plaintiff's arrests. Based on the record currently before the Court, it is not clear whose account of what occurred on July 2, 2009, should be considered more credible. If plaintiff's version of the facts is correct, and he did nothing to warrant arrest or any use of force, then no reasonably competent officer would have arrested or used force on him. Therefore, defendants are not entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment (Doc. #12) is GRANTED as to plaintiff's (1) claims against the Spring Valley Police Department, (2) Monell claim against the Village of Spring Valley, (3) excessive force claims against defendant Khalid Parwanta, (4) malicious prosecution claims, (5) Fifth Amendment due process claim, (6) substantive due process claim, (7) conspiracy claim, and (8) claim for negligent hiring, training, and supervision. The motion is DENIED as to plaintiff's false arrest claims, excessive force claims against defendant Christopher Korba, procedural due process claim, and state law false arrest and assault and battery claims.
The Clerk is instructed to terminate the motion (Doc. #12) and terminate the Spring Valley Police Department and the Village of Spring Valley as defendants in this matter.
Counsel are directed to attend a final pretrial conference on February 14, 2012, at 11:30 a.m.
The parties are directed to submit a joint pretrial order in accordance with the Court's Individual Practices by no later than February 28, 2012. Dated: January 26, 2012
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge