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granting summary judgment dismissing excessive force and failure to intervene claims on the grounds that “mere presence at the site of a melee involving hundreds of people is not evidence of personal involvement ... [w]ithout any evidence linking any of the [d]efendants to the use of force in any way, this [c]ourt cannot allow the charge to go to trial when the [d]efendants are being held personally liable for constitutional violations”
Summary of this case from Piper v. City of ElmiraOpinion
No. 96 Civ. 4606 (RPP) and related Group A-2 cases.
November 17, 2000.
Paul D. Rheingold, Esq., Terrence McCartney, Esq., Rheingold, Valet, Rheingold Shkolnik, P.C., New York, NY., and Ronald L. Kuby, Esq., Daniel M. Perez, Esq., The Law Office of Ronald L. Kuby, New York, NY., Counsel for Plaintiffs.
Norma Kerlin, Esq., Charles Horn, Esq., and Christopher Vitro, Esq., Michael D. Hess, New York, NY., Corporation Counsel for the City of New York.
OPINION
This Opinion rules on in limine summary judgment motions made on June 30, 2000 in nine separate cases, all of which have been grouped together and identified as Group A-2 cases for the purposes of trial. The original action, Universal Calvary Church v. City of New York. 96 Civ. 4606, was commenced as a class action encompassing numerous claims concerning events that occurred on August 20 and 21, 1995, between over two hundred Plaintiffs, all members of the Universal Calvary Church ("UCC"), and Defendants, twenty-two individually named police officers, officials of the City of New York, and a number of unidentified defendants. The parties have completed discovery.
The twenty-two named Defendants are as follows: Chief Louis Anemone ("Anemone"), Officer Charles Barberi ("Barberi), Deputy Chief George Brown ("Brown"), Officer Kevin Brunner ("Brunner"), Chief Wilbur Chapman ("Chapman"), Officer Kevin Craig ("Craig"), Officer Dominick De Lorenzo ("De Lorenzo"), Deputy Inspector Patrick Devlin ("Devlin"), Officer Richard Difede ("Difede"), Officer Chris Lesiewicz ("Lesiewicz"), Deputy Commissioner Jack Maple ("Maple"), Officer Michael Moloney ("Moloney"), Officer Brian O'Connor ("O'Connor"), Officer James O'Hagan ("O'Hagan"), Officer Alex Papagiannis ("Papagiannis"), Sergeant Phillip Parrish ("Parrish"), Officer Patrick Prendergast ("Prendergast"), Sergeant Walter Picht ("Picht"), Officer Eric Single ("Single"), Detective Joanne Toole ("Toole"), Officer John Webber ("Webber"), and Detective Dennis Wiencko ("Wiencko"). For the purposes of this opinion, all of the Defendants' names have been spelled according to the master list dated October 10,2000, which Corporation Counsel provided to the Court.
On January 9, 1998, the Court denied the UCC's motion for class certification and ordered each individual Plaintiff to file individual complaints. After some delay, Plaintiffs' counsel filed individual complaints and, for some individuals, amended complaints, ending on or about December 21, 1999. All the complaints, rather than constituting individualized complaints, by and large, contain the same causes of action and name all the same Defendants as did the proposed class action complaint. Defendants have now moved for summary judgment with respect to each of the complaints filed. Most of the complaints contain some or all of the following claims against various Defendants: 1) excessive force (physical acts and noxious gas) under 42 U.S.C. § 1983, in violation of the Fourth and Fourteenth Amendments; 2) false imprisonment under 42 U.S.C. § 1983, in violation of the Fourth and Fourteenth Amendments; 3) failure to intervene or protect Plaintiffs under 42 U.S.C. § 1983, in violation of the Fourth and Fourteenth Amendments; 4) failure to properly supervise under 42 U.S.C. § 1983, in violation of the Fourth and Fourteenth Amendments; 5) denial of medical treatment under 42 U.S.C. § 1983, in violation of the Fourteenth Amendment; 6) unlawful retaliation under 42 U.S.C. § 1983 for exercise of Plaintiffs right to free exercise of his or her religion, in violation of the First Amendment; 7) municipal liability for policies, customs, and practices causing the aforesaid unconstitutional conduct; 8) assault and battery (physical acts and noxious gas) under state common law; 9) false imprisonment under state common law; 10) intentional infliction of emotional distress under state common law; 11) negligent infliction of emotional distress under state common law; 12) conspiracy under state common law; 13) negligence under state common law; 14) negligence by the City of New York in hiring, screening, retention, supervision, and training under state law; 15) respondeat superior liability against the City for state law violations; and 16) prima facie tort. The liability of the City of New York for state and federal constitutional violations and negligent hiring, screening, retention, supervision, and training has been severed and is not at issue in this trial. (Order dated May 31, 2000.) On July 19, 2000, all Plaintiffs withdrew all of their prima facie tort claims and withdrew all claims as against Brown. (McCartney Decl. ¶¶ 10-11.)
The Defendants have made summary judgment motions for almost every Defendant on almost every claim of every Plaintiff. The individual complaints submitted by the Plaintiffs are, in some and substance, a regurgitation of the initial class claim that was denied. They lack the specificity of claims based on their individual factual situation that was the very reason for denying class certification. The extensive summary judgment motions are, therefore, necessary to get the individual complaints into the proper form for the long scheduled trial.
Upon consent of the parties, the May 31, 2000 Order severed all of the Plaintiffs' Monell and negligent supervision etcetera claims. (May 31, 2000 Order ¶ 1.) As for the Plaintiffs' claims of respondeat superior liability of the City for state law violations, the Court held, "In view of defendants' failure to respond to plaintiffs' letter dated April 13, 2000, defendants are deemed to have stipulated that each individual defendant police officer was acting within the scope of his/her employment and that any verdict against any police officer will permit a judgment to be entered against the City of New York on the theory of respondeat superior." (Id.)
The general factual section below presents an overview of the case. To the extent that each individual Plaintiff has facts specific to his or her own case, they are outlined separately. Statement of Background Facts
"Voluminous motions, papers, exhibits, and documents have been submitted in this case. This footnote is to explain the various citations used throughout the Opinion. When citing to papers submitted on behalf of all the Plaintiffs, the citation will be to "Pls.' Gen. 56.1 Stmt. ¶ 1" or "Pls.' Mot. in Opp. at 1." When citing to papers for the Defendants, the name of the particular Plaintiff will also be designated, as in "Defs.' Mem. in Supp. Chance at 1" or "Defs.' Reply Mem. Chance at 1."
In referencing the 56.1 statement, the Defendants' Statements are cited when they are admitted by Plaintiffs or not properly denied by Plaintiffs together with reference to evidentiary support. (For example, "Defs.' 56.1 Stmt. Chance ¶ 1" is cited as an admission of the statement if both sides agree.) If the Plaintiff denies a statement in accordance with Rule 56.1, then the citation to the denial is, "Chance's Resp. to Defs.' 56.1 Stmt. ¶ 1." A citation to the Plaintiff's separate 56.1 Statements is "Chance's 56.1 Stmt. ¶ 1." The same is true for citations to exhibits attached to the submitted statements. (For example, "Defs.' 56. 1 Stmt. Chance, Ex. 1, at 1" or "Chance's 56.1 Stmt., Ex. 1, at 1.") It was often necessary to look to the exhibits directly for support because the parties, at times, misstated the evidence in their 56.1 Statements.
Federal Rule of Civil Procedure 56(e) states:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.
Furthermore, the Southern District of New York Local Rule 56.1 states:
(a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
(c) 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.
(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).
In this case, Plaintiffs' papers are woefully short of specific facts and evidence to support their various claims. Despite the clear language of Rule 56 requiring specificity, Plaintiffs rarely offer an exact cite in support of their version of the facts. In a majority of the allegations, rather than citing to a particular paragraph of the Plaintiff's individual 56.1 statements or citing to a particular exhibit, Plaintiffs simply cite to "Plaintiffs' General Rule 56.1 Statement and Exhibits." Given that the General Rule 56.1 Statement is nonspecific and designed to be a general description for all 21 of the Group A Plaintiffs, and given that 116 exhibits are attached to this general statement, a vague cite to all of the exhibits is simply unacceptable. This places an immense burden on the Court to sift through enormous amounts of evidence without any guidance or direction from the Plaintiffs as to what evidence in particular, if any, supports their claims. Furthermore, the inadequacy of citations by the Plaintiffs is a main reason for both the problems in sorting out the disputed facts and the difficulty in deciding the motions. Overall, Plaintiffs have failed to satisfy the requirements of responding to a summary judgment motion as defined by Fed.R.Civ.P. 56 and Local R. 56.1.
In addition, as Defendants point out in their September 13, 2000 Letter from Norma Kerlin ("Kerlin Letter, 9/13/00"), an answer that "Plaintiff can neither admit nor deny this statement based upon the factual record" is not a sufficient response to establish a disputed fact. Local Rule 56.1 clearly states that the moving party's 56.1 statement "will be deemed to be admitted unless controverted," Rule 56.1(c), and requires that such denials be supported by a specific citation to admissible evidence, Rule 56.1(d). As such, any of the Defendants' 56. 1 Statements that Plaintiffs do not specifically deny and support such denial with specific evidence, and any of Plaintiffs' 56.1 Statements not supported by reference to specific evidence, will be deemed admitted for purposes of this summary judgment motion. See Fed.R.Civ.P. 56; Local Civ. R. 56.1; see also Millus v. D'Angelo, 224 F.3d 137, 138 (2d Cir. 2000) (noting that the district court properly "granted summary judgment in favor of defendants following Millus's failure to deny, in accordance with Rule 56.1 of the court's local rules" various allegations of the defendants); Cooper v. Gottlieb, No. 95 Civ. 10543 (JGK), 2000 WL 1277593, at *4 (S.D.N.Y. Sept. 8, 2000) (holding that a denial without evidence to support the denial is "conclusory" and "wholly inadequate under Local Civil Rule 56.1(d)"); 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" in responding to a motion for summary judgment); Aztar Corp. v. N.Y. Entertainment, LLC, 15 F. Supp.2d 252, 254 n.l (E.D.N.Y. 1998) (noting that "Defendants' 56.1 Statement is replete with responses of `lack knowledge or information sufficient to either admit or deny.' Defendants have not created any issues of fact through this artifice."), aff'd 210 F.3d 354 (2d Cir. 2000).
The Plaintiffs in this case are some of a large number of persons who attended an outdoor revival service at the Universal Calvary Church, an evangelical fundamentalist church, on Sutphin Boulevard in Queens County, New York, on August 20, 1995. During the service, a physical altercation arose when a retired police detective named Clifford Warsop tried to enter the church grounds. During the altercation with several church ushers, Warsop's gun was taken, and he was injured.
Warsop is the estranged common law husband of a UCC member, Ms. Angela Pennicooke. (Pls.' Gen. 56.1 Stmt., Ex. 27A, ¶ 3; Defs.' 56.1 Stmt. Bennett, Ex J, ¶ 3.) Warsop attempted to enter the revival to visit his children. (Pls' Gen. 27A, ¶ 3; Defs.' 56.1 Stmt. Bennett, Ex. J, ¶ 2.) Warsop apparently is not and has never been a UCC member. (Pls.' Gen. Ex. 27A, ¶ 3 Defs.' 56.1 Stmt. Bennett, Ex. J, ¶ 3.) He is not a party to this or any other civil lawsuit in connection with the events of August 20-21, 1995.
A member of the congregation called 911 and reported "man with a gun." Defendants Barberi and Difede responded to the 911 call in a police car, called an ambulance for Warsop, retrieved the gun, tried to find out what happened, and called for supervisory assistance. A supervisory sergeant arrived and was denied interview with the church ushers, as the revival meeting was still going on. The sergeant and his supervisor determined that no arrests should be made at that time.
Barberi accompanied Warsop in the ambulance to the Mary Immaculate Hospital and then returned to his precinct. He was ordered to give a report of the incident to detectives for investigation. He did that, and Defendants Detectives Toole and Wiencko were assigned to the case. They went with Barberi to the hospital where Toole conducted an interview of Warsop. Warsop was discharged from the hospital and expressed a desire to identify the persons he said had participated in the attack on him. He had twenty-three stitches around one of his eyes.
Toole, Wiencko, Barberi, and Warsop went back to the church. It was approximately 11:20 p.m., and the revival meeting had just ended. The detectives' car went around the block, and Warsop identified Nedley Walters, a plaintiff in a related case, as the person who had headbutted him, and Horace Gordon, a plaintiff in a related case, as the man who had taken his gun.
Detectives Toole and Wiencko approached Gordon, and an altercation occurred. When they attempted to arrest Gordon, a large number of persons from the congregation came to his assistance, and another altercation occurred. The officers made radio calls for assistance, and many police arrived. Also, a police mobilization alert was announced, and several church members who are plaintiffs in related cases were arrested. During the altercation, blows were struck, mace or pepper spray was used, and several Plaintiffs were injured. More police arrived, and the members of the congregation ran back into the church grounds, which were fenced and had a gate that was closed. During this time, mace was used by the police around the gate. A helicopter hovered overhead.
Thereafter, Defendants Anemone, Maple, Chapman, and Devlin from the New York City Police Department arrived, and the pastor of the church had several talks with one or more of the police executives. The pastor and police executives finally reached an agreement that remaining members of the congregation and the police force could leave. They left around 4 to 5 a.m. on August 21, 1995.
Because of the similar legal claims made by each of the nine Plaintiffs, this opinion will outline the testimony relating to each Plaintiffs claims. It will then explain the grounds for granting Defendants' motion for summary judgment as to certain claims brought by all the Plaintiffs and proceed to individual decisions with respect to each Plaintiffs remaining claims.
Summary of Each Plaintiff's Testimony
Garfield Chance
In his deposition, Plaintiff Garfield Chance testified that he arrived at the UCC revival service around 8 p.m. on August 20, 1995. (Chance's 56.1 Stmt., Ex. 1, at 44.) He was stationed at the gate during the ceremony, which was attended by 400-500 people. (Id. at 48.) About fifteen minutes after the revival service ended, Chance heard a female church member screaming, and he noticed a commotion at the corner of Ferndale Avenue and Sutphin Boulevard. (Id. at 60.) He went to the corner, where the church fence ended, and he saw officers wrestling with someone. (Id.) Chance recognized the person wrestling with the police as Horace Gordon, a member of the UCC. (Id. at 61.) According to Chance, the officers were attempting to arrest Gordon, and Chance and other onlookers from the church approached the arresting officers in an attempt to discover why Gordon was being arrested. (Id.) "They had him, you know, in a neck lock and all kinds of stuff. He was asking them why they were doing this and they kept telling him you're under arrest and he was trying to find out for what. And they were telling us to get back, but we stood there trying to find out what's going on. And then the officer, the big officer said a couple of words and then the next thing there were cops coming from everywhere." (Id.) Chance later identified "the big officer" as Defendant Barberi. (Id. at 103.)
According to Chance, police officers with nightsticks clutched in their hands came running toward the crowd. (Id. at 74.) A black officer hit Chance with a nightstick, causing Chance to fall a few feet from where the police officers were wrestling with Gordon. (Id.) This occurred approximately twenty to thirty feet from the corner of Sutphin Boulevard and Ferndale Avenue. (Defs.' 56. 1 Stmt. Chance, Ex. B, at 75.) Chance testified that he did not fall flat on the ground but that he may have tripped over the officers' feet and fallen halfway. He characterized what occurred as being "knocked to the ground sort of." (Id. at 61.)
Plaintiff Vince Hook has testified that Garfield Chance helped him pick up Horace Gordon and Cornelius Caliz. (Defs.' 56.1 Stmt. Chance, Ex. C, at 78.)
After the fall, Chance decided to run back to the church, but the big officer, who was later identified as Defendant Barberi, sprayed him with mace in the eyes at close range. (Id. at 62.) Chance returned to the back of the church and washed his face. (Id.) After a period of time, Chance went to the back gate on Glassboro Avenue and heard a young officer tell the pastor that he "[w]ouldn't let anyone get out." (Id.) Chance also observed Barberi at this gate and said to him, "[Y]ou are the one that maced me," to which Barberi replied, "[Y]es. . . where's your guts now." (Id. at 63.) Chance also observed officers spraying mace through the Sutphin Boulevard fence while the gate was closed. (Id. at 85.) Chance heard no racial or religious derogatory comments. (Id. at 88.)
At no time did Chance did tell any of the police officers that he needed medical attention. (Chance's 56.1 Stmt., Ex. 1, at 91.) Around 5 a.m., Chance left the church grounds to go to the ambulance, where he received treatment for his eyes. (Id. at 64-65.) At this time, he observed the arrest of a young man across the street from the ambulance. (Defs.' 56.1 Stmt. Chance, Ex. B, at 65.) Chance also sought medical treatment at Queens General Hospital shortly after the incident. (Chance's 56.1 Stmt., Ex. 1, at 93.) He was later examined by doctors at the Greater Metropolitan Medical Services and diagnosed with post-traumatic headaches. (Chance 56. 1 Stmt., Ex. 3.)
Merle Pierre Holder
Plaintiff Merle Pierre Holder arrived at the UCC around 7 p.m. on August 20, 1995. (Holder's 56.1 Stmt., Ex. 1, at 28.) Her children, Cheryl, 37, and Andre, 34, and grandchildren were also members of the church and in attendance that night. (Defs.' 56. 1 Stmt. Holder, Ex. B, at 13.) Holder testified that, after the revival service, she was outside the Sutphin Boulevard gate, talking to her daughter, when she was hit with a nightstick by a tall, white police officer. (Holder's 56.1 Stmt., Ex. 1, at 41-43.) She testified that this officer was Defendant Barberi. (Id. at 42.) Barberi hit her on the right shoulder, left knee, and left hip. Holder also observed Woodrow Campbell get hit by an officer. (Id. at 43.)
After she was hit, Holder fell down and was pinned to her daughter's car, which was parked on Sutphin Boulevard. (Defs.' 56.1 Stmt. Holder, Ex. B, at 44-47.) During this time, Holder observed people panicking and rushing toward the gate, and the police were attempting to stop people from entering the gate. (Id. at 44-45.) Holder managed to crawl to the gate on her knees and get inside. (Id. at 45-46.) Approximately ten minutes elapsed from the time Holder was pinned against the car until the time she crawled inside the gate. (Id. at 47.) Once inside the gate, Holder observed many church members close the gate, and she proceeded inside to the tent area. (Id. at 45-46.)
Holder also testified that, after the gate was closed and she was near the fence, a tall officer sprayed her with pepper spray. (Id. at 52.) She felt the effects of the pepper spray that night and for many days after. (Id. at 51-53.) Holder maintains that she could not leave the church compound during the night. "[W]e were not allowed to go — nobody was allowed to come out or come in the gate. (Id. at 54.)
Holder is currently under the care of several doctors for cardiac care, hypertension, and orthopedic care at the HIP Center, 25 Schermerhorn St., Brooklyn. (Id. at 5). She claims that the incident has left her with weakness in the right shoulder, weakness in her knee, and weakness in her hips. (Id. at 57.) As a result, Holder claims that she cannot do many simple tasks, such as holding a baby or combing her hair, and this has led to her inability to remain employed. (Id.)
Franka Kerr
Plaintiff Franka Kerr arrived at the UCC around 6:45 p.m. on August 20, 1995. (Kerr's 56.1 Stmt., Ex. 1, at 48.) After the service, Kerr left the church and walked on Sutphin Boulevard toward the corner of Ferndale Avenue to Nedley Walters' car. (Id. at 74-81.) At Nedley Walters' car, she received a cake from Walters and began walking back to the church. (Defs.' 56.1 Stmt. Kerr, Ex. B., at 76-77.) At this point, Kerr observed an altercation between Gordon and two police officers, and she began running toward the church. (Id. at 77.) Kerr notes that she saw Horace Gordon as she was walking toward Nedley Walters' car. (Id.) According to Kerr, "two cops scrambled Horace Gordon and pushed him against a fence" as he was running from the police. (Id. at 77-78.) She describes the officers as being two white, male police officers who were in uniform. (Id. at 78-79, 88.) Kerr also heard Gordon scream, but she did not hear the police say anything. (Id. at 79.)
During the altercation with Gordon, one or both of the two officers pushed Kerr, causing her to fall. (Kerr's 56.1 Stmt., Ex. 1, at 87-88.) Kerr was pushed on the right side of her body on the shoulder while she was facing Horace Gordon and the fence. (Id. at 87-88.) Her left side hit the ground after the push. (Defs.' 56.1 Stmt. Kerr, Ex. B, at 93.) Kerr was close to Gordon when she fell, and she saw other church members around her. (Id. at 97.) After the fall, Kerr lifted herself up and ran back into the church grounds. (Id. at 97-98.) Once inside, she found her children, and they all went into the church building. (Id. at 99-100.)
At some point during the evening, Kerr stood at the Sutphin Boulevard gate and observed the pastor speaking with the police. (Id. at 105-07.) She also observed police dogs in this area. (Id. at 109-10.) Kerr also testified that she could not exit the gate to go home. (Id. at 103.) Kerr finally went home at 5:30 am. (Id. at 108.)
In addition to being pushed, Kerr claims she felt the burning effects of a substance on her face but did not see anyone spray anything. (Id. at 113-14.) Kerr does not make a claim that she was denied medical treatment. (Id. at 115.) Her children had no injuries and did not require any medical attention. (Id. at 115-16.) Kerr suffers from back pain and nightmares, both of which she attributes to the incident. (Id. at 116-21.) Plaintiff provides no medical diagnosis or cause of her lower back pain.
Morgan Stephen
Plaintiff Morgan Stephen arrived at the UCC around 7 p.m. on August 20, 1995. (Stephen's 56.1 Stmt., Ex. 1, at 23.) He was there to attend church services, and he sat on the pulpit with Reverend Peter and the pastor from 7:30 p.m. to 10:45 p.m. (Id. at 25.) After the service, Stephen observed a big commotion at the corner of Ferndale Avenue and Sutphin Boulevard and heard a man screaming. (Defs.' 56.1 Stmt. Stephen, Ex. B, at 45.) People were gravitating toward the commotion at the corner, and Stephen was fifteen to twenty feet away from the corner when he saw officers "beating on" parishioner Horace Gordon, who was against the door of a parked on Sutphin Boulevard. (Id. at 46.) According to Stephen, there were more than two officers present at the corner, and the officers had holsters, badges, and riot sticks. (Id. at 47.) Stephen saw Gordon get struck many times (Id. at 47-48), and he also saw other people get hit (id. at 48).
While he was at the corner, an officer hit Stephen on the "shoulder back" from either the back or the side. (Id. at 48.) He believes he was struck with a riot stick. (Id. at 49.) Stephen could not identify who hit him except to say that it was a police officer who was not in uniform. (Id. at 48.) Stephen immediately felt pain, and it continued through the next day. (Id. at 49.)
Stephen testified that after he was struck, he went into the church and called the pastor on the telephone. He estimates the time was between 11:15 and 11:30 p.m. (Id. at 42.) When he returned to the Sutphin gate, a medium build white police officer said to Stephen "[Y]ou black son of a bitch, we're going to get you tonight." (Id. at 61.) While he was behind the fence on church property, an officer sprayed Stephen in the face with pepper spray. (Id. at 51.) He describes the spraying officer as a heavy set police officer. (Id. at 51, 56-57). Later while Stephen was at the fence, an officer said, "[L]et's see what your God is going to do for you tonight." (Id. at 62.) Stephen finally left the church at 4:45 am. (Id. at 64.) He remembers that some people had gone to the five or six ambulances earlier, about 4 a.m. (id. at 63), and at least one ambulance was present at 11:45-12:00 p.m. (id. at 64).
Stephen did not seek medical treatment at the ambulances that night, but he did go to a private doctor on Queens Boulevard the next day or so. (Id. at 49-50.) Stephen has had nightmares and sexual problems since the incident. (Id. at 69.) He offers a diagnosis of post traumatic stress syndrome and post traumatic headaches. (Stephen's 56.1 Stmt., Ex. 3, at 2.)
Oral Theobalds
Plaintiff Oral Theobalds arrived at the church to attend the revival at approximately 6:30 p.m. on August 20, 1995. (Theobalds' 56. 1 Stmt., Ex. 1, at 33.) After the service ended, Theobalds was walking to his car when he heard someone across the street screaming. (Id. at 48.) According to Theobalds, "That's when I went over to see what was happening and that's when I saw what was going on, that the police officers were beating this young man and the girl and I — what I did — I went closer to see what was happening. I saw they were beating up — I thought — I think it was Horace Gordon and the girl. As I get closer that's when I was attacked." (Id.) Theobalds describes the officer who attacked him as "short, about 5'5". (Id. at 55.) The officer hit him on the left shoulder with a nightstick, and then Theobalds fell to the ground, slashing his left knee. (Id.)
After he fell to the ground, Theobalds "scrambled" up and ran to the church gate while the officer who hit him chased him. (Defs.' 56.1 Stmt. Theobalds, Ex. B, at 56.) After church members closed the gate, Theobalds observed officers banging on the gate and spraying pepper spray through the fence. (Id. at 62-63.) Theobald himself was not pepper sprayed (id.), and he withdraws this claim (Theobalds' Resp. to Defs.' 56.1 Stmt. ¶ 14).
Theobalds did not hear the pastor or anyone else tell church members not to leave the church that night, and he maintains "Nobody could have left the church whether the pastor said so or not." ((Defs.' 56.1 Stmt. Theobalds, Ex. B, at 71.) Theobalds and his family finally left the church at noon on August 21, 1995. (Id.) He explains that they did not leave earlier because he heard that the police intended to arrest men from the church, and he did not want to be arrested. (Id. at 74.)
Theobalds saw ambulances outside the church but did not ask for medical help. (Id.) He also states that he does not know of anyone who was denied medical attention that night. (Id.) Four days after the incident, Plaintiff saw a private doctor. (Id. at 72.) He claims shoulder and knee pain as a result of the incident but did not suffer any permanent injuries. (Id. at 75-76.)
Karen Wilson
Plaintiff Karen Wilson arrived at the UCC around 7:20 p.m. on August 20, 1995. (Wilson's 56.1 Stmt., Ex. 1, at 22.) After the service ended, between 10:5 5 and 11:05 p.m.1 Wilson and her mother walked across the street to the Sutphin Boulevard bus stop. (Id. at 33.) Wilson noticed an unmarked police car approach the corner of Sutphin Boulevard and Ferndale Avenue and saw three police officers — one female and two males — jump out of the car. (Id. at 33-34.) The female officer put her hands on Horace Gordon's throat while the two male officers held his hands behind his back, and then they wrestled Gordon to the ground. (Id.) Wilson walked back across the street and stood about seven to ten yards away from where the officers were wrestling with Gordon. (Id.) Wilson observed the male officers beating Gordon with a nightstick, punching him, and kicking him as the female officer was standing by and also kicking Gordon. (Id. at 45.) Wilson claims she observed Gordon being handcuffed before the beating began. (Id.) Wilson also observed Jerry Bloomfield, Keno Reefer, and Cornelius Caliz in the area. (Defs.' 56.1 Stmt. Wilson, Ex. B, at 50.)
Wilson did not see anyone other than Gordon get arrested. (Id. at 51.) She saw seventyfive to eighty other officers arrive at the scene fifteen minutes after she first observed the officers beating Gordon. (Id. at 52.) Wilson then entered the church building and stayed there for fifteen minutes, at which point she went back outside near the gate area. (Id. at 53-54.) At this point the fence was closed and locked. (Id. at 54.). Although Wilson did not see police officers spray pepper spray, she felt the effects of pepper spray in the air and, therefore, only stayed outside for three to five minutes. (Id. at 55-57.) The pepper spray caused blurring in her eyes, and the effects lasted for several hours. (Id. at 57.) Wilson also heard an officer say, "[H]ere's another soul for Satan." (Id.)
Wilson maintains that she was falsely imprisoned because she "was held hostage against my own will." (Id. at 56.) Although she admits that an officer never told her that she was not free to leave, she explains that people did not feel safe to leave. (Id. at 56-69.) Wilson testified that the pastor indicated to the parishioners that it was in their best interest to stay together. (Id. at 59.) "Since we were surrounded by 75 to 80 police officers and also helicopters, he was concerned about our safety. So he instructed everyone just to say [sic] together until the situation was resolved." (Id. at 60.)
Wilson did not ask any of the officers for medical attention and did not seek help from the ambulances, but she did go to her doctor within days of the incident. (Id. at 58.) In addition to the damages for false imprisonment and noxious gas, Wilson is claiming financial loss and emotional instability as a result of the incident. (Id. at 55-56.) Specifically, Wilson claims that the incident left her without the ability to "function properly," which caused her to lose her job ten days after the incident and remain unemployed for a year, go into debt, lose a relationship, suffer problems with her eating and sleeping habits, and become isolated from family and friends. (Id.)
Kenrick Young
Plaintiff Kenrick Young, son of Michael and Neneita Young, attended the revival services at the UCC on August 20, 1995. After the church services ended, K. Young saw someone "being grabbed" at the corner of Sutphin Boulevard and Ferndale Avenue, and he approached the corner. (Defs.' 56.1 Stmt. K. Young, Ex. B, at 26.) At the corner, K. Young saw more than one white, male, uniformed police officer choking a church member with a baton. (Id. at 26-28.) After observing the choking, K. Young returned to the church. (Id. at 28-29.) K. Young heard unidentified police officers screaming, "Niggers, we're gonna get you niggers and you're gonna die tonight." (Id. at 29.) He did not see anyone videotaping, taking photographs, or throwing objects. (Id. at 30.) In addition to observing officers choke a church member on the corner of Sutphin and Ferndale, K. Young saw police beating another church member on the street and sidewalk. (Id. at 30-31.) He claims that "[m]ore than a hundred, two hundred police" were involved in the general incident. (Id. at 31-32.)
While K. Young was outside the church, he was also sprayed with mace by a police officer, after which he ran inside the church. (Id. at 32.) As a result of being sprayed, K. Young suffered blurry vision, headaches, and burning of the eyes. (Id. at 33, 38, 40.)
K. Young visited Jamaica Hospital Emergency Room shortly after the incident. (Id. at 41.) He was also examined by Greater Metropolitan Medical Services in 1996 and diagnosed as suffering from post-traumatic stress disorder, persistent conjunctival irritation, cervical sprain, and lumbosacral strain. (K. Young's 56.1 Stmt., Ex. 3.) He still suffers from blurry vision as a result of the noxious gas. (K. Young's 56.1 Stmt., Ex. 2, at 39.) K. Young has experienced mental distress, including nightmares, flashbacks, and a fear of the police, all of which he attributes to the incident. (Id.)
Michael Young
Plaintiff Michael Young, husband of Neneita and father of Kenrick, arrived at the UCC around 7 p.m. on August 20, 1995. (M. Young's 56.1 Stmt., Ex. 1, at 32.) After the church service ended, M. Young was at the Sutphin Boulevard gate, heading home with his family, when he heard someone shout, "[T]hey are beating Horace," and he ran to see what was happening. (Defs.' 56.1 Stmt. M. Young, Ex. B, at 38.) M. Young saw two men beating Horace Gordon. (Id. at 40.) According to M. Young, both men were white and in plain clothes, and one man was very tall. M. Young asked the two men, "[W]hat are you doing," and one of the two men sprayed him, causing his eyes to burn. (Id. at 41.) Jerry Bloomfield was present at the corner with M. Young. (Id. at 40.)
After being sprayed, M. Young went back to the church and washed his eyes and face at a water fountain. (Id. at 41-42.) He stayed inside the church for approximately one half an hour, but later he went outside of the church to see what was going on. (Id. at 43.) M. Young could not go outside of the gated area, however, because there were police there (id.) and "They said no one leaving there" (Id. at 46). According to M. Young, he tried to exit through both gates, but the police were surrounding the entire church grounds. (Id. at 46.) M. Young also heard police officers say, "We're gonna kill you. We're gonna kill you fuckin' niggers tonight" and "Where's your God? Call up on your God." (Id. at 44.)
M. Young finally left the church premises around 6 a.m. on August 21. (Id. at 46.) He did not seek medical assistance that evening or the next day, but he did seek medical attention from his family doctor sometime shortly after the incident. (Id. at 58-60.) As a result of the incident, M. Young has a scar on his head and blurry eyes. He also claims that his physical behavior towards his wife is "still not the way it should be." (M. Young's 56. 1 Stmt., Ex. 1, at 64, 86.) M. Young still experiences burning in his eyes, has flashbacks, and has problems sleeping. (Id.)
Neneita Young
Plaintiff Neneita Young, wife of Michael and mother of Kenrick and others, arrived at the UCC around 6:45 p.m. on August 20, 1995. (N. Young's 56.1 Stmt., Ex. 1, at 40.) After the service, N. Young and her family gathered under the tent and proceeded to the gate to go home, when she heard a lady screaming that one of the members of the church was being beaten by the police. (Id. at 54.) N. Young walked over towards Ferndale Avenue and saw Horace Gordon lying on the sidewalk close to the fence, screaming while the police were beating him. (Id. at 54-58.) She observed more than two and maybe more than five police officers beating Gordon, and she observed a police car across the street. (Id. at 58.) According to N. Young, all of the officers were in uniform, were male, and were white. (Id. at 58-59.)
When N. Young was approximately eight to ten feet away from Gordon, an officer pushed her back in the stomach with his nightstick (id. at 59), after which she ran back to the church (id. at 60). N. Young later identified this "tall officer" as Defendant Barberi. (Id. at 116-17.) She lost her shoe when this officer pushed her. (Defs.' 56.1 Stmt. N. Young, Ex. B, at 85.) N. Young maintains that this same tall officer also participated in beating Gordon. "He was also beating Horace and as soon as I got there I was right beside him and that's when I turn around and told me to move back and he use his nightstick to push me this way and I run back to the church (indicating)." (Id. at 61.) At some point, N. Young also heard Barberi say, "[Y]ou fuckin' niggers, you are gonna die tonight." (Id. at 117.)
On her way back to the gate, N. Young observed someone who she believes was Oniel Thompson being beaten on the sidewalk near the fence by officers identified only as white men in uniforms. (Id. at 64-65.) They were beating him with nightsticks and kicking him. (Id.)
After N. Young ran back to the church, she told the other members that the police were beating a church member outside. (Id. at 61.) At this point, the cops were trying to force the Sutphin Boulevard gate open, and N. Young and some other women from the church push the gate closed and padlocked it. (Id. at 68-69.) After the gate was closed and padlocked, Defendant Barberi sprayed something through the Sutphin fence that burned her face and neck. (N. Young's 56.1 Stmt., Ex. 1, 85.)
N. Young later observed the pastor talking to a police officer in a white shirt and saw that they went into a room in the church. (Defs.' 56.1 Stmt. N. Young, Ex. B, at 79-80.) Someone inside the church said that the church members needed medical attention, and when N. Young went outside, she saw more than two ambulances on 109th Street. (Id. at 82.) Although she observed ambulances, N. Young testified that she and the other members could not get to them to receive treatment because, "We couldn't get out of the church. The cops they were all standing, you know, they were still out there blocking the gate." (Id. at 83.) Although N. Young did not hear any officers say that she could not go outside the gate, she heard that the cops said they could not leave. (Id.) N. Young finally left around 3:30 or 4 a.m. and went to an ambulance parked on 109th Street. (Id. at 84-85.)
As a result of the incident, N. Young received a prescription from Dr. Worrell for her headaches and dizziness. (N. Young's 56.1 Stmt., Ex. 1, at 101). She was diagnosed by doctors at Greater Metropolitan Medical Services on July 5, 1996 as having post traumatic headaches. Due to her pregnancy of five months, however, no further diagnostic studies were ordered. (N. Young's 56.1 Stmt., Ex. 3.)
General Discussion
In many cases, the Defendants' motions for summary judgment dismissing the Section 1983 claims by the nine Plaintiffs in this Group A-2 are granted for failure of the Plaintiffs to identify, either during discovery or by opposing affidavits, any individual Defendant as having caused a deprivation of the rights that a particular Plaintiff claims were violated. See Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) ("Because Section 1983 imposes liability only upon those who actually cause a deprivation of rights, `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under Section 1983.'" (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal quotations and citations omitted))).
With the exception of the false imprisonment claims, the claims of the nine Plaintiffs are based on the actions of Defendants which occurred during the arrest of Horace Gordon or very soon thereafter. During this time period, however, Plaintiffs have failed to present any evidence that: (1) any supervisory Defendant was present and was in a position to supervise an offending police officer; (2) any Defendant had knowledge that adverse action was being taken against a Plaintiff and had an opportunity to intervene and protect a Plaintiff; (3) any Plaintiff requested medical treatment of a Defendant and was denied treatment; or (4) any Defendant retaliated against a Plaintiff because of the Plaintiffs exercise of his or her religious beliefs. Accordingly, summary judgment is granted as to all Defendants on all of the Plaintiffs' Section 1983 claims of failure to supervise, failure to intervene or protect, denial of medical treatment, and unlawful retaliation for First Amendment conduct. For a more extended discussion of the legal authority for granting summary judgment on these claims, the parties are referred to the Court's opinion regarding Defendants' summary judgment motions as to the A-1 Group dated October 13, 2000. Universal Calvary Church v. City of New York. 96 Civ. 4606 and related Group A-1 cases (RPP), 2000 WL 1538019 (S.D.N.Y. Oct. 17, 2000).
With respect to the Section 1983 and common law claims of false imprisonment, the Plaintiffs have presented no evidence that the Glassboro Avenue gate was closed until Inspector Devlin assigned a squad of police officers to the Glassboro Avenue side of the church after he had been told that persons were leaving the church grounds by use of the side gate on Glassboro Avenue. (Pls.' Gen. 56.1 Stmt., Ex. 10, at 87.) At that time, Devlin had assumed command and had directed that the officers be formed into squads. (Id. at 55, 80.) The police officers and sergeants named as Defendants were under Devlin's control, following what appeared to be a lawful order, and therefore do not have personal liability to the nine Plaintiffs for any positions around the gates or perimeter of the church fence that they took pursuant to his commands. See Bilida v. McCleod 211 F.3d 166, 174 (1st Cir. 2000) ("Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists."); Varrone v. Bilotti, 123 F.3d 75, 81 (2d Cir. 1997) ("Since the four subordinate officers were merely carrying out Malone's instruction and that of their immediate superior when they ordered the strip search, they were entitled to [qualified] immunity.") Accordingly, these Plaintiffs' Section 1983 and common law false imprisonment claims are dismissed against all Defendants other than Anemone, Maple, Chapman, and Devlin. Plaintiffs present no evidence that they were imprisoned until such time as Devlin's squad took position at the Glassboro Avenue gate and did not allow anyone to leave by the gate. Summary judgment is denied on the 1983 and common law false imprisonment claims as to Defendants Anemone, Maple, Chapman, and Devlin because Plaintiffs offer evidence that each of these Defendants were present and in command during the time Plaintiffs claim they were imprisoned.
Common Law Claims
Conspiracy
Summary judgment is granted on all of the claims of all Plaintiffs that Defendants "conspired together and maliciously and willfully entered into a scheme to deprive plaintiff. . . of [his or her] rights, liberty, well being and to commit the above-alleged unlawful actions." (Chance Compl. ¶ 143.) Plaintiffs have offered no proof that the acts of Defendants flowed from a common scheme or plan, nor have they offered any other evidence to support a claim of conspiracy. See Schlotthauer v. Sanders 545 N.Y.S.2d 196, 197 (2d Dep't 1989). In addition, Plaintiffs' Memorandum of Law does not respond to Defendants' motions to dismiss the conspiracy claims, and Plaintiffs' General 56.1 Statement in response to Defendants' motions contains no evidence to support conspiracy. Plaintiffs simply cite to all their General 56.1 Statement and exhibits in the entirety without providing any specific evidence or guidance for the Court. (Pls.' Responses to Defs.' 56.1 Stmt.) Accordingly, the Defendants' motion for summary judgment on the conspiracy claim is granted for all Defendants on all Plaintiffs' claims.
Intentional Infliction of Emotional Distress
To maintain a claim for intentional infliction of emotional distress, a plaintiff must show: (1) extreme and outrageous conduct; (2) with the intent to cause, or with reckless disregard of the substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996) (citingHowell v. New York Post Co., 596 N.Y.S.2d 350, 353 (1993)). The standard is very high, and the law requires that the conduct be "so outrageous., and so extreme. . . as to go beyond all possible bounds of decency." Id. (quoting Murphy v. Am. Home Prods. Corp., 461 N.Y.S.2d 232, 236 (1983) (internal quotations omitted)). Under the circumstances here, Plaintiffs' claims for intentional infliction of emotional distress are subsumed under their excessive force, assault and battery, and unlawful imprisonment claims. See id. at 790, 791-92 (acknowledging that traditional torts may encompass claims for emotional distress); Anatsui v. Food Emporium, No. 99 Civ. 1337 (JGK), 2000 WL 1239068, at *7-*8 (S.D.N.Y. Sept. 1, 2000) (holding that derogatory comments and termination are "insufficient to constitute intentional infliction of emotional distress under New York law" (citations omitted)); Muhlrad v. Mitchell, No. 96 Civ. 3568 (DLC), 1997 WL 182614, at *8 (S.D.N.Y. Apr. 14, 1997) (holding that allegations were insufficient to satisfy the element of outrageous conduct and noting "the New York Court of Appeals has never upheld a claim for intentional infliction of emotional distress"); Fischer v. Maloney, 43 N.Y.2d 553, 558-59 (1978) ("Indeed, it may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability."). The nine Plaintiffs' emotional distress resulting from the circumstances of the use of excessive physical force or noxious gas against them by assault or battery or their false imprisonment will be elements the jury may take into account in awarding any damages on those other claims. Accordingly, summary judgment is granted for all Defendants on all Plaintiffs' claim of intentional infliction of emotional distress.
No Plaintiff presents evidence of what might be deemed intentional outrageous conduct against him or her. To the extent that any Defendants' actions support a claim for intentional infliction of emotional distress, they are covered under Plaintiffs' other claims. Plaintiffs will be able to present any evidence of emotional distress as a result of this event as damages incurred in connection with their other claims. The emotional damages many of the Plaintiffs claim include post traumatic stress disorders, post traumatic headaches, sexual difficulties, flashbacks, and fear of the police.
Claims of Negligent Infliction of Emotional Distress and Negligence
Summary judgment is granted on all Plaintiffs' claims for negligent infliction of emotional distress and for negligence against all Defendants because each Plaintiffs testimony does not bespeak of negligence but of intentional conduct. Under New York State law, once intentional conduct causing physical injury has been established, the actor is liable for assault and battery and not negligence, even when physical injuries have been inflicted inadvertently. See United Nat'l Ins. Co. v. Tunnel, Inc. 988 F.2d 351, 353 (2d Cir. 1993) (recognizing "the mutual exclusivity of negligence and battery"); Pravda v. City of Albany 956 F. Supp. 174, 183, n. 9 (N.D.N.Y. 1997) (holding plaintiff cannot proceed with an assault and battery claim and a negligence claim based on the same facts); Mazzaferro v. Albany Motel Enter., Inc., 515 N.Y.S.2d 631, 632-33 (3d Dep't 1987) ("New York has adopted the prevailing modern view that, once intentional offensive contact has been established, the actor is liable for assault and not negligence, even when the physical injuries may have been inflicted inadvertently."). Furthermore, each Plaintiff has failed to identify for the Court any evidence against any Defendant suggesting either a bystander or a direct duty theory of negligent infliction of emotional distress as is required under New York law. See Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996). As for the claims of negligence against supervisors, none of the nine Plaintiffs has offered specific evidence that any of the individual supervisors were present or aware of the adverse actions of police officers that Plaintiffs allege were taken against them. Furthermore, the cause of action for negligent supervision has been severed and is not an issue in this trial. (May 31, 2000 Order.) Summary judgment is granted for all Defendants on these claims.
Defendants' Remaining Summary Judgment Motions
Garfield Chance
Garfield Chance makes no Section 1983 excessive force claim or common law assault and battery claim based on the use of physical force. (Chance Compl.)
Chance has provided evidence that Defendant Barberi sprayed him with pepper spray, but he has not provided any evidence that he was sprayed or suffered from exposure to pepper spray by any other Defendant. Accordingly, Defendants' motion for summary judgment on Chance's Section 1983 and common law assault and battery claims based on the use of noxious gas are denied against Defendant Barberi, but Defendants' motion for summary judgment dismissing those claims against Defendants Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, Parrish, Anemone, Maple, Chapman, and Devlin are granted.
Defendants' motion for summary judgment on Chance's Section 1983 and common law false imprisonment claims are denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to Defendants Picht, Parrish, Prendergast, Toole, Wiencko, Barberi, Difede, Webber, Moloney, Craig, Single, O'Connor, O'Hagan, Lesiewicz, De Lorenzo, Brunner, and Papagiannis for the reasons stated, supra.
In all other respects, Defendants' motion for summary judgment is granted.
Merle Pierre Holder
Defendants' motion for summary judgment dismissing Merle Pierre Holder's Section 1983 excessive physical force and common law assault and battery claims against Defendant Barberi is denied. Plaintiff Holder has testified that Defendant Barberi hit her on her right shoulder, left knee, and hip. (Holder's 56.1 Stmt., Ex. 1, at 42-43.) This testimony identifies sufficient evidence of physical force to present a factual question for a jury on the amount of physical force used and its necessity. Therefore, the summary judgment motions on the 1983 and common law claims based on physical acts are denied as to Barberi. In view of this testimony by Holder, her claims of excessive force and assault and battery by physical force against the other Defendants are dismissed because she offers no evidence that any one other than Barberi struck her.
Defendants' motion for summary judgment dismissing Holder's Section 1983 claim of excessive force by use of pepper spray is granted because Plaintiff has failed to identify a Defendant who was personally involved in the use of pepper spray. See Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).
Defendant's motion for summary judgment dismissing Holder's common law assault and battery by pepper spray claim is granted as to Defendants Barberi, Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, Parrish, Anemone, Maple, Chapman, and Devlin because she does not identify any of these Defendants as the single police office who pepper sprayed her. Holder's claim will continue against an unidentified police officer.
Defendants' motion for summary judgment dismissing Holder's Section 1983 and common law claim for false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to the other Defendants for the reasons stated supra.
Defendants' motion for summary judgment on all other claims of Holder is granted in all other respects.
Franka Kerr
Defendants' motion for summary judgment dismissing Franka Kerr's Section 1983 claim for use of excessive physical force is granted because Plaintiff is unable to identify the police officers whom she claims pushed her. Defendants' motion for summary judgment dismissing Kerr's claim for assault and battery based on physical acts is denied because a genuine issue of material fact exists as to whether Kerr was pushed. Because Kerr has testified that a New York City police officer pushed her, the motion for summary judgment on the assault and battery claim based on physical force is denied as against unidentified police officers.
Defendants' motion for summary judgment dismissing Kerr's Section 1983 claim for being pepper sprayed is granted because she cannot show that a Defendant personally sprayed her. Franka Kerr did not see anybody that pepper sprayed her. (Defs.' 56.1 Stmt. Kerr, Ex. B, at 136-37.) She testified that she was behind the fence when she felt the burning in her face. (Id.) Defendants' motion for summary judgment dismissing Kerr's common law assault and battery claim is granted as to the claim of assault because there is no evidence presented that any Defendant threatened to pepper spray her by words or actions. The motion is denied as to Kerr's claim of battery against Defendants Barberi, Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, and Parrish because there is evidence that each of these Defendants discharged their pepper spray canisters at some point during the incident. (Pls.' Gen. 56.1 Stmt., Exs. 21, 22, 37, 47, 51, 55, 68, 71.) Kerr is entitled to present evidence that each of these Defendants used their pepper spray and that this use caused her to suffer the effects of pepper spray. The motion is granted as to Defendants Anemone, Maple, Chapman, and Devlin because there is no evidence that they ever discharged pepper spray or were in command when the pepper spray was discharged.
Defendants' motion for summary judgment dismissing Kerr's Section 1983 and common law claims for false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to all other Defendants for the reasons stated supra. In all other respects, Defendants' motion for summary judgment on the claims of Kerr is granted.
Morgan Stephens
Defendants' motion for summary judgment dismissing Morgan Stephen's Section 1983 claim for use of excessive physical force is granted because Stephen offers no evidence that any named Defendant hit him on the "shoulder back." (Stephen's 56.1 Stmt., Ex. 1, at 48.) Defendants' motion for summary judgment dismissing Stephen's common law assault and battery claim for use of physical force is granted as to the individually named Defendants but will continue as against unidentified police officers.
Defendants' motion for summary judgment dismissing Stephen's Section 1983 claim of excessive force by use of noxious gas is granted because Stephen does not identify the police officer who sprayed him. (Stephen's 56.1 Stmt., Ex. 1, at 52-57.) Defendants' motion for summary judgment on Stephen's common law assault and battery claim is granted as to all named Defendants — Barberi, Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, Parrish, Anemone, Maple, Chapman, and Devlin — because Stephen has not presented evidence identifying any Defendant as the "heavy set" officer who sprayed him. Stephen's common law claim for assault and battery by use of pepper spray will continue against an unidentified police officer.
Defendants' motion for summary judgment dismissing Stephen's Section 1983 and common law claims for false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to Defendants Picht, Parrish, Prendergast, Toole, Wiencko, Barberi, Difede, Webber, Moloney, Craig, Single, O'Connor, O'Hagan, Lesiewicz, De Lorenzo, Brunner, and Papagiannis for the reasons stated supra.
In all other respects, Defendants' motion for summary judgment on the claims of Stephen is granted.
Oral Theobalds
Defendants' motion for summary judgment dismissing Oral Theobalds' Section 1983 claim for use of excessive physical force is granted because Theobalds has offered no evidence to identify the police officer he alleges hit him on the left shoulder.
Defendants' motion for summary judgment dismissing Theobalds' claim for assault and battery against unidentified police officers is denied. Theobalds has presented sufficient evidence of offensive or harmful contact to proceed.
In his response to the summary judgment motions, Plaintiff withdrew his Section 1983 excessive force and common law assault and battery claims for the use of pepper spray. (Theobalds' Resp. to Defs.' 56.1 Stmt., ¶¶ 14, 41.)
Defendants' motion for summary judgment dismissing Theobalds' Section 1983 and common law claims of false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to all other Defendants for the reasons stated, supra. In all other respects, Defendants' motion for summary judgment is granted.
Karen Wilson
Karen Wilson makes no Section 1983 claim for excessive physical force or common law assault and battery based on physical acts. (Wilson Compl.)
Defendants' motion for summary judgment dismissing Wilson's Section 1983 claim of excessive force by use of pepper spray is granted. Wilson did not see any police officers use pepper spray, and Plaintiff has not presented evidence that she was sprayed with pepper spray by any named Defendant. (Defs.' 56.1 Stmt. Wilson, Ex. B, at 55.) Wilson testified that she sensed pepper spray in the air (id. at 55-57), and that she experienced difficulty breathing and a burning sensation in her eyes (id.). This evidence is insufficient for Karen Wilson to prove a Section 1983 claim for excessive force by use of pepper spray against any Defendant named in the complaint. See Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).
Defendants' motion for summary judgment dismissing Wilson's claim for assault is granted because there is no evidence that any officer threatened her with the use of pepper spray. The motion for summary judgment on Wilson's claim for battery is granted as to Defendants Anemone, Maple, Chapman, and Devlin because there is no evidence they discharged pepper spray or were present at the site when the police officers discharged pepper spray. The motion is denied as to Defendants Barberi, Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, and Parrish because there is evidence that each of these Defendants discharged their pepper spray canisters at some point during the incident. (Pls.' Gen. 56.1 Stmt., Exs. 21, 22, 37, 47, 51, 55, 68, 71.)
Defendants' motion for summary judgment dismissing Wilson's Section 1983 claim and common law claim for false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to all the other individual Defendants for the reasons stated, supra.
All other motions of the individual Defendants for summary judgment dismissing the claims of Karen Wilson are granted.
Kenrick Young
Kenrick Young does not assert a Section 1983 claim for excessive force or a common law assault and battery claim based on the use of physical force.
Defendants' motion for summary judgment dismissing K. Young's Section 1983 excessive force claim for the use of pepper spray is granted because Plaintiff does not identify, either in deposition or by affidavit in opposition, any Defendant as using pepper spray on him. Summary judgement is also granted on the common law claim against named Defendants because K. Young does not identify any of the Defendants as the one officer who sprayed him with mace. K. Young's claim for assault and battery by use of pepper spray will continue against unidentified police officers.
Defendants' motion for summary judgment dismissing K. Young's Section 1983 and common law claims of false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, and granted as to the remaining Defendants for the reasons stated, supra.
In all other respects, Defendants' motion for summary judgment is granted.
Michael O. Young
Michael O. Young does not assert a Section 1983 claim for excessive use of physical force or a common law claim of assault and battery for use of physical force. (Defs.' 56.1 Stmt. M. Young ¶¶ 1, 32.)
Defendants' motion for summary judgment dismissing M. Young's Section 1983 claim of excessive force and common law assault and battery claim based on the use of pepper spray is granted as to all named Defendants. M. Young has presented no evidence identifying any of the named Defendants as the individual officer who sprayed him. M. Young will continue to have a common law assault and battery claim against an unidentified police officer.
Defendants' motion for summary judgment dismissing M. Young's Section 1983 and common law claims for false imprisonment is denied as to Defendants Anemone, Maple, Chapman, and Devlin, and granted as to all other individual Defendants for the reasons stated supra.
In all other respects, the Defendants' motion for summary judgment on M. Young's claims is granted.
Neneita Young
Defendants' motion for summary judgment on Neneita Young's Section 1983 claim against Defendant Barberi for use of excessive physical force is granted. Plaintiff claims that while Defendant Barberi was engaged in arresting Horace Gordon, he told her to move back and pushed her in her stomach with a nightstick. (N. Young's 56.1 Stmt., Ex. 1, at 59-62.) N.Y.oung did not suffer any injuries as a result of this single push. No reasonable jury would find that this action constitutes excessive force. These actions by Barberi are insufficient to meet the Fourteenth Amendment standard of excessive force because they do not "shock the conscience. See Rodriguez v. Phillips, 66 F.3d 470, 477 (2d. Cir. 1995). Furthermore, Defendant Barberi is entitled to qualified immunity for excessive force claims of this sort. See id.
Defendants' motion for summary judgment dismissing N. Young's common law claim against Defendant Barberi for assault and battery is denied because the degree of force used is not relevant to a common law battery claim. See United Nat'l Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). N. Young has offered sufficient evidence of harmful or offensive contact to proceed with this claim.
Defendants' motion for summary judgment on N. Young's Section 1983 claim and common law claim against Defendant Barberi for the use of pepper spray is denied, but those same claims against Defendants Webber, Craig, Single, Lesiewicz, De Lorenzo, Brunner, Papagiannis, Parrish, Anemone, Maple, Chapman, and Devlin are granted because there is no evidence submitted showing that N. Young was sprayed by those Defendants or that Defendants Anemone, Maple, Chapman, or Devlin were present at the site at the time N. Young testifies she was sprayed by Defendant Barberi.
Defendants' motion for summary judgment dismissing N. Young's Section 1983 and common law claims for false imprisonment are denied as to Defendants Anemone, Maple, Chapman, and Devlin, but granted as to all other Defendants for the reasons stated supra.
Defendants' motion for summary judgment dismissing all other claims of N. Young is granted.
IT IS SO ORDERED.