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holding that an excessive force claim based on an officer's use of mace was "not actionable" where the plaintiff had not alleged any injuries apart from "the expected side-effects: temporary discomfort and disorientation"
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05 Civ. 10230 (SAS).
July 27, 2007
For Plaintiff: Anthony C. Ofofile, Esq., Ofodile Associates, P.C., Brooklyn, New York.
For Defendants: Hillary A. Frommer, Corporation Counsel for the City of New York, New York, New York.
OPINION AND ORDER
I. INTRODUCTION
Stephen Williams is suing the City of New York and four law enforcement officers (collectively, the "City") under section 1983 of Title 42 of the United States Code ("section 1983"). Williams alleges that the officers falsely arrested and imprisoned him, maliciously prosecuted him, used excessive force when arresting him, and subjected him to an unlawful strip/visual body cavity search. Further, Williams alleges that the City is liable for the unlawful strip search conducted by its officers pursuant to a municipal policy or practice. All Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted in part and denied in part.
Williams voluntarily dismissed the action against Retired Officer Scott Carrell with prejudice. See The City's Memorandum of Law in Support of Their Motion for Summary Judgment (" Def. Mem.") at 1.
II. BACKGROUND
The facts, most of which are in dispute, are taken from Williams' Statement Pursuant to Local Rule 56.1 ("Pl. 56.1"), The City of New York, Eaton, McCarthy and Neyland's Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 ("City 56.1"), and any affidavits, declarations, and exhibits attached thereto. Where the facts are in dispute, all reasonable inferences have been drawn in favor of Williams, the non-moving party. The City asks that its factual statements be admitted due to Williams' purported failure to properly oppose summary judgment. However, "`[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.'" American Med. Ass `n v. United Healthcare Corp., No. 00 Civ. 2800, 2007 WL 1771498, at *2 (S.D.N.Y. June 18, 2007) (quoting Holtz v. Rockefeller Co., 258 F.3d 62, 73 (2d Cir. 2001)). By filing a response to the City's 56.1 statement, Williams has satisfied the formal requirements of Local Civil Rule 56.1.
A. The City's Version of the Facts
On the afternoon of May 24, 2004, Police Officer Lawrence Neyland and Sergeant Thomas McCarthy (collectively, the "Officers") were patrolling the vicinity of Fifth Avenue and Thirty-Fifth Street in Manhattan. The Officers, who were dressed in plain clothes, had received complaints of marijuana sales in this area.
See City 56.1 ¶ 1.
See id. ¶¶ 2, 10.
The Officers had different recollections of how they first noticed Williams. McCarthy stated that he and Neyland were getting a snack inside a corner deli, located on the West side of Fifth Avenue and Thirty-Fifth Street, when he noticed Williams on the opposite side of Fifth Avenue. In contrast, Neyland stated that he and McCarthy noticed Williams well before they entered the deli. Neyland testified that as he and McCarthy approached the corner of Fifth Avenue and Thirty-Fifth Street in their vehicle, Neyland noticed a man who appeared to be aggravated slam down a telephone. Neyland then noticed the same man kick a taxicab as he crossed the street. In response, the Officers got out of their vehicle to follow the man. Subsequently "the individual stopped on a corner so [Neyland] and Sergeant McCarthy went across the street and into a deli or cafe and proceeded to sit at a table and watch the individual through a window."
See 3/22/07 Deposition of Sergeant Thomas McCarthy ("McCarthy Dep."), Ex A. to 6/10/07 Declaration of Hillary A. Frommer, counsel for the City ("Frommer Decl."), at 13:10.
See 3/22/07 Deposition of Police Officer Lawrence Neyland ("Neyland Dep."), Ex. B to Frommer Decl., at 10:7-10:9
See id. at 10:9-10:11.
Id. at 10:11-10:16.
At 4:55 p.m., the Officers were inside the deli watching this person, later identified as Williams. McCarthy saw Williams look around suspiciously before walking to a telephone booth with another black male. McCarthy watched the second man hand Williams what appeared to be money. Williams, in return, handed an unidentified object to the man, and put the money into his pants pocket. McCarthy, using his past experience as a narcotics officer, believed he had witnessed Williams engage in a hand-to-hand narcotics transaction. McCarthy then informed Neyland about the transaction he had witnessed.
See City 56.1 ¶ 3.
See McCarthy Dep. at 17:5-17:8.
See City 56.1 ¶ 7.
See id. ¶¶ 7, 8.
See id. ¶ 9.
See id. ¶ 11.
A few minutes after observing the first transaction, McCarthy saw a second individual approach Williams and hand him an unidentified object. In response, Williams removed an unknown object from his pocket and handed it to this man. McCarthy believed that he had witnessed Williams engage in a second hand-to-hand narcotics transaction. The Officers then observed Williams standing across the street for approximately fifteen to twenty minutes.
See id. ¶ 12.
See id.
See id. ¶ 15.
See id. ¶ 20.
Based upon McCarthy's observations, the Officers left the deli and approached Williams near the telephone booth. As they approached, Neyland identified both himself and McCarthy, "pulled out [his] shield which was around [his] neck . . . [and] said, `police, can we ask you a couple of questions.'" McCarthy also approached Williams with his shield around his neck, and "asked him what he was doing there and what his name was." Williams responded that he had been waiting for a friend for five minutes. Subsequently, Neyland told Williams that he and McCarthy had in fact been watching Williams for about twenty minutes. In the interest of safety, Neyland also asked Williams if he was in possession of any sharp object.
See id. ¶¶ 17-18.
Neyland Dep. at 18:17-18:25.
McCarthy Dep. at 27:20-27:24.
See City 56.1 ¶ 19.
See id. ¶ 20.
See id. ¶ 21.
Williams then reacted with force, pushed McCarthy to the ground, and attempted to flee the area. In response, Neyland immediately grabbed Williams in an attempt to apprehend him for assaulting a police officer. Williams struggled against Neyland, causing them both to fall to the ground. Williams continued to resist arrest. In order to subdue Williams, McCarthy sprayed Williams' eyes with police-issued O.C. Chemical Spray (mace). However, the Officers were unable to handcuff Williams because he had placed his hands in the crotch area of his pants. McCarthy believed it was likely Williams was hiding a weapon in the crotch of his pants. He therefore ordered Williams to remove his hands from his pants and place them behind his back. When Williams did not comply, McCarthy forcibly pulled Williams' hands out of his crotch area and successfully handcuffed him. After Williams had been handcuffed, the Officers recovered money and marijuana from his person.
See id. ¶¶ 22, 23.
See id. ¶ 24.
See id. ¶ 25.
See id. ¶ 29.
See id. ¶ 30.
See id. ¶ 31.
See id. ¶¶ 32-34.
See id. ¶ 35.
See id. ¶¶ 36-38; McCarthy Dep. at 29:5-31:14.
Williams was then transported by a sector car to the Midtown South Precinct (the "Precinct"). At the Precinct, Williams told the police that his name was Ivy Williams because he did not want to give his real name. McCarthy then summoned Emergency Medical Services ("EMS") to the Precinct to tend to Williams' eyes. Williams did not request any other medical attention. The Officers assigned Police Officer Andrew Eaton to process Williams' arrest. The Officers relayed the events surrounding Williams' arrest to Eaton, who then conducted a more thorough pat-frisk of Williams. During the pat-frisk, Eaton recovered a cell phone and three hundred dollars from Williams' pocket. Eaton vouchered the items and gave the voucher slips to Williams. The EMS then arrived at the Precinct to flush Williams' eyes with saline. Williams did not alert the EMS or the police to any other injuries. In fact, Williams suffered only minor scrapes and bruises. Neither McCarthy, Neyland, nor Eaton ever performed a strip search on Williams. McCarthy testified that he had no reason to strip search Williams based upon the circumstances of his arrest.
See City 56.1 ¶ 39.
See 1/29/07 Deposition of Stephen Williams ("Williams Dep."), Ex. C to Frommer Decl., at 81:25. See also City 56.1 ¶ 43. Williams' testimony is interspersed throughout each party's exhibits. Relevant pages 1-67 are attached as Ex. 2 to the 6/27/07 Declaration of Anthony C. Ofodile, counsel for Stephen Williams, ("Ofodile Decl."). Relevant pages numbered 68-92 are attached as Ex. 10 to Ofodile Decl. Relevant pages numbered 93-121 are attached as Ex. 11 to Ofodile Decl. Relevant pages numbered 122-164 are attached as Ex. 12 to Ofodile Decl. Pages 53, 56-57, 69-70, 72-74, 78, 80-81, 83, 143 and 178 are attached as Ex. C to Frommer Decl.
See City 56.1 ¶ 41. McCarthy acted in accordance with the New York Police Department ("NYPD") patrol guide. See New York City Police Department Patrol Guide Section 212-95, Ex. F to Frommer Decl.
See McCarthy Dep. at 61:12-61:22.
See City 56.1 ¶¶ 45-46.
See id. ¶¶ 47-52.
See id. ¶¶ 53-54.
See id.
See id. ¶ 55.
See id. ¶ 57.
See Williams Dep. at 83:13.
See City 56.1 ¶ 60. Williams cannot specifically identify the police officer he alleges performed a strip search on him, but contends that the Officers set up a confusing situation by assigning the arrest to a different police officer at the Precinct. See Pl. 56.1 ¶ 44. McCarthy testified that, in general, individuals arrested for misdemeanor drug offenses cannot be searched unless there is "a reason to do it." One such reason is where the officer feels the arrestee is hiding drugs in private areas of his body. McCarthy Dep. at 53:24-54:19.
See McCarthy Dep. at 54:8-54:19.
Eaton signed the complaint against Williams, charging him with one count of Resisting Arrest and one count of Criminal Possession of Marijuana in the Fourth Degree. Williams was then taken to Central Booking and arraigned in the Criminal Court of the City of New York. Neither McCarthy, Neyland nor Eaton determined the criminal charges for which Williams would be prosecuted, and neither McCarthy nor Neyland had any personal involvement in Williams' prosecution. Williams was imprisoned until May 16, 2004. He was released when a friend posted his fifteen-hundred dollar bail. The criminal charges against Williams were eventually lowered to unlawful possession. On June 8, 2005, all charges against Williams were dismissed.
See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Opp. Mem.") at 5.
See id.
See City 56.1 ¶¶ 63-65.
See Opp. Mem. at 5.
See id.
See City 56.1 ¶ 66.
See id.
B. Williams' Version of the Facts
On May 24, 2004, Williams had traveled from the Bronx to the Fifth Avenue and Thirty-Sixth Street area of Manhattan with his friend, Darrell Braithwait, to shop for clothing. Because it was a hot day Williams dressed in light clothing. At around 4:45 p.m., Williams was on the southeast corner of Fifth Avenue and Thirty-Sixth Street, waiting for Braithwait to finish browsing in a store. Williams disputes that he kicked a taxi or mishandled a public telephone while he waited. Williams also denies that he engaged in any hand-to-hand transactions. Williams contends that while waiting for Braithwait, he was approached by two white men in plain clothes, later identified as McCarthy and Neyland. Neither man displayed a shield or identified himself as a police officer. Without warning, the Officers grabbed Williams, pushed him violently into a nearby telephone booth, punched his chest and arms, and patted him down. The Officers asked him what he was doing there, to which Williams responded that he had been waiting for a friend for the past five minutes. The Officers told Williams that they had in fact been watching him for some time. Williams, fearing he was being attacked by two strangers, attempted to escape the telephone booth by pushing forward on the men's chests. One of the Officers threw Williams to the ground. Once he was on the ground, the Officers grabbed Williams' arms, kneed him in the ribs and back, and shouted foul epithets at him. Williams admits that he used force to push himself off the ground, saying "[g]et off of me" and, as a result, one of the Officers sprayed Williams in the eyes with mace thereby impairing his vision. Williams denies he ever had his hands in the crotch area of his pants, or resisted the instruction to remove his hands from his pants. The Officers then handcuffed Williams, at which point Williams heard radio transmissions. This was the first time Williams realized the men were most likely police officers. Williams denies he was in possession of marijuana on the day of the arrest. Williams further denies that the Officers found any money at the scene of the arrest.
See Williams Dep. at 48:13-49:7, 51:18-52:24.
See id. at 48:7-48:9 (Williams testified that he wore "some jeans, some boots, and just a shirt, it was hot.").
See id. at 56:14-65:23.
See id. at 57:9-57:16.
See Opp. Mem. at 11.
See Williams Dep. at 55-60. See also Opp. Mem at 1.
See Opp. Mem. at 1.
See id.
See Williams Dep. at 67:5-69:10.
See id. at 69:2-69:7. See also Opp. Mem. at 2.
See Williams Dep. at 60:25-62:6, 69:23-70:13. Williams' testimony indicates that at this time, it "crossed his mind" that the two men were perhaps police officers. Id. at 69:16-69:21.
See Pl. 56.1 ¶ 22.
See id.
Williams Dep. at 71:21-72:7.
See id.
See Pl. 56.1 ¶ 31.
See Williams Dep. at 73:12-73:14; Opp. Mem. at 2.
See Williams Dep. at 160:6-161:20.
See Opp. Mem. at 6. Williams contends that the Court should infer that the officers planted the marijuana based on the City's failure to mention the seizure of the marijuana in its motion papers. See Opp. Mem. at 10. Williams further alleges that the inconsistencies in the Officers' descriptions of the marijuana seized from Williams demonstrates the falsity of the Officers' allegations. In particular, McCarthy testified that the marijuana was packaged into several glass vials inside of plastic bags, while Neyland testified that the marijuana was in a brown paper lunch bag. See McCarthy Dep. at 29:5-31:15; Neyland Dep. at 11:19-17:7.
See Pl. 56.1 ¶ 53.
At the Precinct, Williams was patted down again, at which point his cell phone was removed and vouchered. Thereafter, an EMS worker arrived, flushed Williams' eyes, and attended to his scrapes and bruises. Subsequently, one of the Officers who had approached Williams on the street strip searched him in the Precinct bathroom. Further, Williams testified that three hundred dollars were recovered from his sock during the strip search.
See Williams Dep. at 78:5-78:13.
See id. at 82:22-83:15.
See id. at 85:1-85:16. The search required Williams to bend over to facilitate an examination of his testicles. See id. Williams contends that the reason he cannot more specifically identify which officer strip searched him is because the Officers created a confusing situation by assigning a new officer, Eaton, to process Williams' arrest. See Opp. Mem. at 4. Williams also presents the 2/07/06 Civilian Complaint Review Board Report, Ex. 6 to Ofodile Decl., as evidence that the strip search occurred.
See Williams Dep. at 86:5-86:10. Williams contends he never received a voucher for his money. See id. at 93:5-93:6. Williams further asserts that when he eventually received his voucher, the bill denominations were incorrect and the typewriting on the monetary voucher differed from the cell phone voucher he obtained the day of the arrest. Williams suggests this demonstrates that the monetary voucher was produced at a later date. See 5/24/04 Property Clerk's Vouchers, Ex. 9 to Ofodile Decl.; Opp. Mem. at 3.
III. LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." An issue of fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" A fact is material when it "`might affect the outcome of the suit under the governing law.'" "It is the movant's burden to show that no genuine factual dispute exists."
Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (quoting Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998)).
Bouboulis v. Transport Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,244 (2d Cir. 2004) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)).
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it must do more than show that there is "`some metaphysical doubt as to the material facts,'" and it "`may not rely on conclusory allegations or unsubstantiated speculation.'" However, "`all that is required [from a non-moving party] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.'"
McClellanv. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2002)).
McClellan, 439 F.3d at 144 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)).
In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in that party's favor. However, "[i]t is a settled rule that `[c]redibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.'" Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party."
See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007) (citing Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997)).
McClellan, 439 F.3d at 144 (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). Accord Anderson, 477 U.S. at 249.
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)).
IV. APPLICABLE LAW
A. False Arrest and Imprisonment Under The Fourth Amendment
Section 1983 "does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere." In order to state a claim under section 1983, a plaintiff must show that the conduct complained of was committed by a person or entity acting under color of state law, and that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution.
Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).
See Palmieri v. Lynch, 392 F.3d 73, 78 (2d Cir. 2004).
A section 1983 claim for false arrest arises under the Fourth Amendment right to be free from unreasonable seizures and is identical to a claim for false arrest under New York law. False arrest and false imprisonment are synonymous under New York law. To establish a claim for false arrest or false imprisonment, a plaintiff must show that "(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." "A confinement is privileged if probable cause exists for its initiation."
See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). See also Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992).
See Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (noting false arrest and false imprisonment have identical elements). See also Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991).
Bernard v. United States, 25 F.3d 98, 103 (2d Cir. 1994).
Bail v. Ramirez, No. 04 Civ. 5084, 2007 WL 959045, at *6 (S.D.N.Y. Mar. 29, 2007).
1. Reasonable Suspicion
The reasonable suspicion test is objective, not subjective. "When discussing how reviewing courts should make reasonable-suspicion determinations, they must look at the `totality of the circumstances' of each case to see whether the detaining officer has a `particularized and objective basis for suspecting legal wrongdoing.'" Police can stop and briefly detain an individual for investigative purposes if the officer "has a reasonable suspicion supported by articulable facts that criminal activity `may be afoot,' even if the officer lacks probable cause."
See Cartier v. Lussier, 955 F.2d 841, 843 (2d Cir. 1992)).
United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)).
United States v. Sokolow, 490 U.S.1, 8 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)).
2. Probable Cause
The existence of probable cause to arrest is a complete defense to a false arrest claim. "In general, 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." However, in order to establish probable cause, "it is not necessary to make `a prima facie showing of criminal activity' or to demonstrate that it is more probable than not that a crime has been or is being committed." In contrast, "probable cause requires only the possibility of criminal activity or the possibility that evidence of a crime will be found." Moreover, "courts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not." Further, it is well-settled that "the question of whether or not probable cause existed may be determin[ed] as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers." Conversely, "[w]here the question of whether an arresting officer had probable cause is predominantly factual in nature, as where there is a dispute as to the pertinent events, the existence vel non of probable cause is to be decided by the jury." To find probable cause in cases involving resisting arrest, there must be probable cause to believe that the arrestee has committed some independent crime at the time of resistence for an officer to find probable cause for resisting the arrest.
See Gaskins v. City of New York, No. 03 Civ. 0605, 2004 WL 1777585, at *2 (S.D.N.Y. Aug. 6, 2004) (citing Hyde v. Arresting Officer Caputo, No. 98 Civ. 6722, 2001 WL 521699, at *2-4 (E.D.N.Y. May 11, 2001)).
Id. (quotation marks and citation omitted). Accord Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) ("If an officer has probable cause to believe than an individual has committed even a very minor criminal offense . . . he may, without violating the Fourth Amendment, arrest the offender.").
United States v. Cruz, 834 F.2d 47, 50 (2d Cir. 1987) (quoting United States v. Travisano, 724 F.2d 341, 346 (2d Cir. 1983)).
See id.
United States v. Gaskin, 364 F.3d 438, 457 (2d Cir. 2004).
Weyant, 101 F.3d at 852 (emphasis added).
Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997).
See Curry v. City of Syracuse, 316 F.3d 324, 336 (2d Cir. 2003) ("There are thus at least two essential elements of a charge for resisting arrest under New York law: (1) the person charged must have intentionally attempted to prevent the arrest of himself or someone else, and (2) the arrest he attempted to prevent must itself have been supported by a warrant or by probable cause.").
B. Malicious Prosecution
A claim for malicious prosecution is distinct from an action for false arrest or false imprisonment because each is composed of different elements and protects a different interest. In order to establish a claim for malicious prosecution under section 1983, a plaintiff must also allege all of the elements of malicious prosecution under state law. Under New York law, to prevail on a claim of malicious prosecution, a plaintiff must show: "(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiff's favor."
See Weyant, 101 F.3d at 853.
See Fulton v. Robinson, 289 F.3d 188, 195 (2d Cir. 2002); Janetka v. Dabe, 892 F.2d 187, 189 (2d Cir. 1989) ("A claim of malicious prosecution brought pursuant to section 1983 . . . is governed by state law in the absence of federal common law.").
Posr v. Court Officer Shield No. 207, 180 F.3d 409, 417 (2d Cir. 1999) (citing Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)).
1. Initiation of the Prosecution
"In malicious prosecution cases brought against police officers, plaintiffs have demonstrated that officers initiated criminal proceedings by having the plaintiff arraigned, by filling out complaining and corroborating affidavits, and by signing felony complaints." Further, "[a]lthough there is a presumption that a prosecutor exercises independent judgement in deciding whether to initiate and continue a criminal proceeding, an arresting officer may be held liable for malicious prosecution `when a police officer creates false information likely to influence a jury's decision and forwards that information to prosecutors.'"
Mitchell v. Victoria Home, 434 F. Supp. 2d 219, 227 (S.D.N.Y. 2006). Accord Cox v. County of Suffolk, 827 F. Supp. 935, 938 (E.D.N.Y. 1993) (holding that police officer initiated prosecution against defendant when he swore to and subscribed a felony complaint).
Mitchell, 434 F. Supp. 2d at 227 (quoting Brome v. City of New York, No. 02 Civ. 7184, 2004 WL 502645, at *5-6 (S.D.N.Y. Mar. 15, 2004)).
2. Probable Cause
Plaintiff must also establish the lack of probable cause for defendant's commencement of the prior judicial proceeding against plaintiff. The existence of probable cause to arrest is a complete defense to a malicious prosecution claim. "Probable cause is defined as `such facts and circumstances as would lead a reasonable prudent person in like circumstances to believe plaintiff guilty.'" A mere mistake with respect to the relevant facts does not establish a lack of probable cause, provided the party "acted reasonably under the circumstances in good faith." "`[T]he issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts.'" "Where there is `conflicting evidence, from which reasonable persons might draw different inferences . . . the question [is] for the jury.'"
See Gaskins, 2004 WL 1777585, at *2 (citing Hyde, 2001 WL 521699, at *2-4).
Perryman v. Village of Saranac Lake, — N.Y.S.2d —, 2007 WL 1774678, at *1 (3d Dep't June 21, 2007) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)).
Allen v. Town of Colonie, 583 N.Y.S.2d 24, 27 (3d Dep't 1992) (citing Colon, 60 N.Y.2d at 82).
Lundgren v. Margini, 817 N.Y.S.2d 349, 350 (2d Dep't 2006) (quoting Parkin v. Cornell Univ., Inc., 78 N.Y.2d 523, 529 (1991)).
Parkin, 78 N.Y.2d at 529 (quoting Veras v. Truth Verification Corp., 451 N.Y.S.2d 761, 764 (1st Dep't 1982), aff'd, 57 N.Y.2d 947).
3. Malice
To demonstrate malice in a malicious prosecution claim, plaintiff does not have "to prove that the defendant was motivated by spite or hatred. . . . " Rather, it means that the defendant must have "commence[d] a criminal proceeding `due to a wrong or improper motive, something other than a desire to see the ends of justice served.'" "A lack of probable cause generally creates an inference of malice." "The courts permit a plaintiff to prove this element circumstantially by showing that the accuser had to have known that the action could not have succeeded or that there was no probable cause to prosecute plaintiff."
Nardelli v. Stamberg, 44 N.Y.2d 500, 502-03 (1978)).
Maskantz v. Hayes, 832 N.Y.S.2d 566, 570 (1st Dep't 2007) (quoting Nardelli, 44 N.Y.2d at 502-03).
Boyd v. City of New York, 336 F.3d 72, 78 (2d Cir. 2003) (citing Ricciuti, 124 F.3d at 131).
14 N.Y. Prac., New York Law of Torts § 1:82 (2006) (citing Munoz v. City of New York, 271 N.Y.S.2d 645, 649 (1966)).
4. Prosecution Terminated in Favor of Plaintiff
In a malicious prosecution action, "a plaintiff must establish that the underlying criminal action was terminated in his or her favor." "A criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused's innocence."
Rohrs v. Rohrs, 793 N.Y.S.2d 532, 533 (2d Dep't 2005).
McFawn v. Kresler, 88 N.Y.2d 859, 860 (1996).
C. Excessive Force
To prevail on a claim of excessive force, a plaintiff must show that the force used by the arresting officer was intentional and objectively unreasonable. Whether an officer's actions were reasonable depends on a fact-intensive inquiry considering "the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Summary judgment is inappropriate on claims of excessive force "when there are facts in dispute that are material to a determination of reasonableness."
See Graham v. Connor, 490 U.S. 386, 393-94 (1989).
Id. at 396-97.
Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir. 2001).
"Plaintiff's claim for excessive force does not turn on whether the Defendant acted upon the requisite degree of probable cause, but whether the Defendant's conduct was `objectively reasonable' in light of the facts and circumstances as presented to the Defendant at the time of the Plaintiff's arrest." Further, to sustain a claim for excessive force, the plaintiff must establish through admissible evidence that the alleged use of force is "objectively sufficiently serious or harmful enough" to be actionable. "Generally, the force used by the Defendant must be more than de minimis in order for the Plaintiff's claim to be actionable." However, "a plaintiff need not sustain severe injury to maintain a claim that the use of force was objectively unreasonable under the Fourth Amendment."
Graham, 490 U.S. at 397.
United States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999).
Graham, 490 U.S. at 397.
Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004). Accord Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) ("If the force used was unreasonable and excessive, the plaintiff may recover even if the injuries inflicted were not permanent or severe.").
D. Unlawful Strip Search
"The Second Circuit has ruled that strip searches of individuals charged with misdemeanors or other minor offenses are lawful only when `officers have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.'" The law in New York on this topic is well-settled and "[a] fair reading of Second Circuit law on the subject suggests that strip searches of misdemeanor arrestees will be the exception, not the rule."
Dodge v. County of Orange, 209 F.R.D. 65, 72 (S.D.N.Y. 2002) (quoting Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986)).
See generally Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001) (holding that the law on this point is so well-settled that qualified immunity was not available to shield a police officer who conducted a strip search in the absence of reasonable suspicion).
Dodge, 209 F.R.D. at 72.
The Second Circuit has also held that reasonable suspicion as it relates to strip searches entails "something stronger than a mere `hunch,' but something weaker than probable cause." Further, "[t]o establish reasonable suspicion, `. . . officials must point to specific objective facts and rational inferences that they are entitled to draw from those facts in light of their experience.'"
Varione v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (quoting Wood v. Clemons, 89 F.3d 922, 929 (1st Cir. 1996)).
Id. (quoting Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982)).
E. Municipal Liability
The Supreme Court does not interpret section 1983 to impose unbridled liability on municipalities: "[T]he language of [section] 1983, read against the background of the . . . legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." As subsequently reaffirmed and explained by the Supreme Court, municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right. A municipality "may not be held liable on a theory of respondeat superior." Moreover, courts apply "`rigorous standards of culpability and causation'" to ensure that the municipality is not held liable solely for the actions of its employees. Thus, in order for an individual deprived of a constitutional right to have recourse against a municipality under section 1983, he must show that he was harmed by a municipal "policy" or "custom." However, a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the State.
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).
Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000). Accord Monell, 436 U.S. at 691.
Jeffes, 208 F.3d at 61 (quoting Board of County Comm `rs v. Brown, 520 U.S. 397, 405 (1997)).
Monell, 436 U.S. at 690-91. Accord Brown, 520 U.S. at (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81 (1986).
See Tuttle, 471 U.S. at 831 (Brennan, J., concurring in part and concurring in the judgment) (stating that "[t]o infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell").
In determining municipal liability, it is necessary to conduct a separate inquiry into whether there exists a "policy" or "custom." The Supreme Court has identified at least two situations that constitute a municipal policy: (1) where there is an officially promulgated policy as that term is generally understood ( i.e., a formal act by the municipality's governing body), and (2) where a single act is taken by a municipal employee who, as a matter of State law, has final policymaking authority in the area in which the action was taken.
See Monell, 436 U.S. at 690.
See Pembaur, 475 U.S. at 480-81. See also Walton v. Safir, 122 F. Supp. 2d 466, 477 (S.D.N.Y. 2001) (stating that "the act of an official with final decision-making authority, if it wrongfully causes the plaintiff's constitutional injury, may be treated as the official act of the municipality") (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)).
A municipal "custom," on the other hand, need not receive formal approval by the appropriate decisionmaker: "an act performed pursuant to a `custom' that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." To succeed on this theory, plaintiff must prove the existence of a practice that is permanent. "[O]ne method of showing custom is to demonstrate that the custom or practice is so well settled and widespread that the policymaking officials of the municipality can be said to have either actual or constructive knowledge of it yet did nothing to end the practice." When either a "policy" or "custom" has been proven, section 1983 imposes liability because the City in its capacity as a municipality — as opposed to mere employees of the City — harmed the plaintiff for exercising a constitutionally protected right.
Brown, 520 U.S. at 404. Accord Tuttle, 471 U.S. at 823-24.
See Praprotnik, 485 U.S. at 127.
Silva v. Worden, 130 F.3d 26, 31 (1st Cir. 1997) (quotation marks and citation omitted).
See, e.g., Brown, 520 U.S. at 417 ("The `official policy' requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.") (quoting Pembaur, 475 U.S. at 479-80); Pembaur, 475 U.S. at 480 (" Monell reasoned that recovery from a municipality is limited to acts that are, properly speaking, acts `of the municipality' — that is, acts which the municipality has officially sanctioned or ordered.").
In the context of a claim for municipal liability based on a failure to train, the inference that such a custom or policy existed may be drawn from plaintiff's proffer of circumstantial evidence, such as evidence that the municipality: (1) so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within the jurisdiction, or (2) had notice of but repeatedly failed to make any meaningful investigation into charges of misconduct by lower-level employees.
See, e.g., City of Canton v. Harris, 489 U.S. 378, 387-92 (1989).
See, e.g., Fiacco v. City of Rensselaer, 783 F.2d 319, 327-28 (2d Cir. 1986).
At the summary judgment stage, the Second Circuit has set forth four requirements "for showing that a lack of training manifests deliberate indifference." First, "to reach the jury, the plaintiff must offer evidence from which a reasonable jury could conclude `that a policy-maker knows `to a moral certainty' that her employees will confront a given situation.'" Second, "the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation." Third, "the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Fourth, "plaintiffs must `identify a specific deficiency in the city's training program and establish that that deficiency is closely related to the ultimate injury, such that it actually caused the constitutional deprivation.'" Last, "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy."
Green v. City of New York, 465 F.3d 65, 80 (2d Cir. 2006) (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992)).
Id. at 80-81 (quoting Walker, 974 F.2d at 297).
Id.
Id.
Id. (quoting Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004)).
Ricciuti, 941 F.2d at 123.
F. Qualified Immunity
The doctrine of qualified immunity shields government officials from civil liability as long as "`their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Qualified immunity balances "the need . . . to hold responsible public officials exercising their power in a wholly unjustified manner and . . . [the need] to shield officials responsibly attempting to perform their public duties in good faith from having to explain their actions to the satisfaction of a jury." Because qualified immunity "is `an immunity from suit rather than a mere defense from liability . . . it is effectively lost if a case is erroneously permitted to go to trial.'" Accordingly, the Supreme Court has repeatedly "`stressed the importance of resolving the question of qualified immunity at the earliest possible stage in litigation.'"
Velez v. Levy, 401 F.3d 75, 100 (2d Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Locurto v. Safir, 264 F.3d 154, 162-63 (2d Cir. 2001).
Saucier v. Katz, 533 U.S. 194, 200-01 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)).
When assessing a claim of qualified immunity, a court must first determine whether, "taken in the light most favorable to the party asserting injury . . . the officer's conduct violated a constitutional right." If no constitutional right is violated, no further inquiry is necessary. However, if a constitutional violation is proven, "the next . . . step is to ask whether the right was clearly established." Qualified immunity applies unless the official's conduct violated a clearly established constitutional right.
Id.
Id.
Further "if an arrest lacks probable cause for its support, it is, objectively speaking, in violation of clearly established law," and thus the arresting officers cannot be shielded from liability under qualified immunity. "An arresting officer is entitled to qualified immunity from a suit for damages . . . if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." "[A]n `arresting officer is entitled to qualified immunity as a matter of law if the undisputed facts and all permissible inferences favorable to plaintiff show . . . that officers of reasonable competence could disagree on whether the probable cause test was met.'" More generally, "the existence of . . . factual disputes precludes a meaningful resolution of the qualified immunity defense at the summary judgment stage."
Marshall v. Sullivan, 105 F.3d 47, 53-54 (2d Cir. 1996).
Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991).
McClellan, 439 F.3d at 148 (quoting Robison, 821 F.2d 921).
Johnson v. Ganim, 342 F.3d 105, 117 (2d Cir. 2003).
V. DISCUSSION
1. The Officers
A. False Arrest and Imprisonment
The facts clearly show that: (1) the Officers intended to confine Williams when they arrested and imprisoned him on May 24, 2004, (2) Williams was conscious of the confinement, and (3) Williams did not consent to the confinement. The main issue of contention is whether Williams' arrest and confinement was privileged, i.e., whether or not the Officers had reasonable suspicion to justify an investigatory stop and probable cause to justify an arrest.
a. Reasonable Suspicion
Whether the Officers had the requisite reasonable suspicion to stop and investigate Williams rests upon disputed issues of fact. The City contends that the Officers had reasonable suspicion to investigate Williams because of: (1) his violent and nervous activities, (2) his suspicious transactions, and (3) his flight upon seeing police officers. The City cites numerous cases which demonstrate that an individual's presence in a known drug location, coupled with either suspicious narcotics activity or flight from police officers, can constitute reasonable suspicion for investigation. However, the City's arguments are unavailing because they require this Court to decide disputed issues of fact. Drawing all reasonable inferences in Williams' favor, the only activity the Officers observed was Williams waiting for his friend near a telephone booth in a known drug trafficking location. "[A]n individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime." Further, the City's argument that Williams fled upon seeing the Officers is similarly unsubstantiated. Whether or not Williams knew McCarthy and Neyland were police officers when he attempted to flee is a disputed fact which cannot be decided on a motion for summary judgment. Thus, the issue of reasonable suspicion is not amenable to disposition by summary judgment.
See Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (holding police had reasonable suspicion to stop an individual in a known narcotics trafficking location because he fled unprovoked from police); United States v. Alexander, 907 F.2d 269, 271 (2d Cir. 1990) (reasonable suspicion existed to stop plaintiff where he double-parked in a known drug location, returned later with a suspicious brown paper bag, and proceeded to drive erratically and run red lights); United States v. Garcia, 339 F.3d 116, 119 (2d Cir. 2003) (finding reasonable suspicion where officers observed defendant engaging what they believed to be counter-surveillance in a known drug trafficking area); United States v. Harley, 682 F.2d 398, 401 (2d Cir. 1982) (flight from police officers warranted an investigatory stop); United States v. Stone, 73 F. Supp. 2d 441, 446 (S.D.N.Y. 1999), aff'd, 225 F.3d 647 (2d Cir. 2000) (reasonable suspicion existed when individual attempted to hide something in his pocket and fled from police).
Brown v. Texas, 443 U.S. 47, 52 (1979).
b. Probable Cause
The City contends that probable cause existed to arrest Williams when he pushed the Officers (thereby assaulting a policeman), attempted to flee, and was found in possession of marijuana. However, drawing all inferences in favor of Williams, a reasonable jury could conclude that the Officers lacked probable cause for arrest. Williams contends he was unaware that the men were police officers because the Officers were dressed in plain clothes and failed to show Williams any form of police identification. Moreover, Williams asserts that he was never in possession of marijuana on May 24, 2004. Because the existence of probable cause turns on disputed issues of fact, the issue of probable cause is not amenable to disposition by summary judgment. Accordingly, Williams' false arrest claim cannot be dismissed on summary judgment.
See Sutton v. Duguid, No. 05 Civ. 1215, 2007 WL 1456222, at *8 (E.D.N.Y. May 16, 2007) ("If a jury credits plaintiff's version of the events — that defendant's were not wearing police shields and defendants never announced themselves as police officers in such a way that would reasonably put plaintiff on notice that they were officers — then a reasonable jury could find that defendants lacked probable cause to believe that plaintiff resisted arrest. . . ."). See also Hamlett v. Town of Greenburgh, No. 05 Civ. 3215, 2007 WL 119291, at *5 (S.D.N.Y. Jan. 17, 2007) (denying summary judgment on false arrest claim where there was a disputed fact over whether the officer failed to identify himself to plaintiff as a police officer, because it was "material to the issue of whether [the officer] acted reasonably in believing that he had probable cause to arrest Plaintiff").
2. Eaton
It is undisputed that Eaton played no role in the arrest. Therefore, Eaton is entitled to summary judgment on the false arrest claim.
B. The Malicious Prosecution Claim
1. The Officers
The City argues that the Officers are entitled to summary judgment on the malicious prosecution claim because the Officers played no role in initiating a prosecution against Williams. Neither officer signed or prepared the formal complaint — it was the District Attorney who prosecuted Williams. It is well settled, however, that signing and submitting complaints constitutes an initiation of a prosecution. It is undisputed that Eaton prepared and signed the complaint against Williams.
See Mitchell, 434 F. Supp. 2d at 227.
Additionally, the allegations contained in the complaint were based exclusively on the Officers' information. A police officer can be held to have initiated a prosecution by failing to provide material information to an investigation or prosecution which influences the decision to prosecute. Taking Williams' version of the facts as true, a reasonable jury could conclude that the Officers fed Eaton false information, which found its way into Eaton's complaint.
See Noga v. City of Schenectady Police Officers, 169 F. Supp. 2d 83 (N.D.N.Y. 2001) (holding that questions of material fact remained as to whether the defendant officer had initiated the prosecution where defendant "set into motion" the events that led to plaintiff's arrest). See also Chimurenga v. The City of New York, 45 F. Supp. 2d 337, 343 (S.D.N.Y. 1999) (denying summary judgment on the initiation element of malicious prosecution where triable issues remained as to whether correction officers gave prosecuting authorities false information because these officers were alleged to have planted evidence upon plaintiff).
The City relies on Rohman v. New York City Transit Auth., 215 F.3d 208, 217 (2d Cir. 2000) for the proposition that the mere reporting of information to a prosecutor cannot support a section 1983 claim against a public agency. In that case, however, a lay person was the source of the allegedly false information that led the agency to initiate a prosecution.
"It is well established in New York that `probable cause to arrest is a prerequisite for making an authorized arrest' and if there is no probable cause to arrest a person, that person `cannot be guilty of resisting arrest.'" Williams alleges that the Officers fabricated evidence in order to charge him with drug possession. Williams also contends that he could not have knowingly resisted arrest since he was not aware the Officers were police until after he was already handcuffed and heard police radio transmissions. Resolving all inconsistencies in a light most favorable to Williams, a reasonable jury could find the charges against Williams were "secured through bad faith or perjury." Furthermore, a "[l]ack of probable cause generally raises an inference of malice sufficient to withstand summary judgment." Lastly, there is no dispute that the matter terminated in Williams' favor. For all of those reasons, the City's motion for summary judgment on malicious prosecution is denied.
Curry, 316 F.3d at 336 (citations omitted).
See Taylor v. City of New York, No. 03 Civ 6477, 2006 WL 1699606, at *4 (S.D.N.Y. June 21, 2006) (denying summary judgment on malicious prosecution claim for drug possession where plaintiff contended he never had any drugs on him during the day of the arrest). While Williams chiefly relies on his own testimony to support his allegations, "credibility assessments, choices between conflicting versions of the events, and the weighting of evidence are matters for the jury, not for the court on a motion for summary judgment." Fischl, 128 F.3d at 55.
Taylor, 2006 WL 1699606, at *4.
Ricciuti, 124 F.3d at 131.
2. Eaton
Eaton is entitled to summary judgment on the malicious prosecution claim based, in part, on the collective knowledge doctrine (also referred to as the fellow officer rule). The collective knowledge doctrine provides that an "arresting officer might not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but may nonetheless act reasonably in relying on information received by other law enforcement officials." Eaton reasonably relied on the statements of the Officers (whether true or false) to compose and file the complaint against Williams. Moreover, Williams has not presented any evidence to demonstrate that Eaton acted with an improper motive when he filed the complaint. Thus, Eaton is also entitled to summary judgment on the claim of malicious prosecution.
United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001).
Williams' proposition that under the fellow officer rule, "if the officer giving the information or the instructions does not have the requisite probable cause or reasonable suspicion for an arrest, then the officer receiving and acting on the information and instructions" can still be held liable for malicious prosecution "regardless of the good faith of the latter officer," is inapplicable to this case. Opp. Mem. at 23. The supporting cases cited by Williams are inapposite, as they mainly address situations where, unlike here, the arresting officer made a gross error in his decision to physically arrest a suspect, or acted upon insufficient information to secure an arrest. See Moakely v. Velarde, No. 99 Civ. 8959, 2002 WL 287848 (S.D.N.Y. Feb. 27, 2002); Lalonde v. Bates, 166 F. Supp. 2d.713, 718 (N.D.N.Y. 2001); Mendoza v. City of Rome, 872 F. Supp. 1110, 1116 (N.D.N.Y. 1994). Moreover, it is well established that "the doctrine has traditionally been applied to assist officers in establishing probable cause — not to impute bad faith to one member of an enforcement team on the basis of another member's knowledge." Savino v. City of New York, 331 F.3d 63, 73 (2d Cir. 2003).
C. Excessive Force
It is undisputed that Williams suffered only scrapes, bruises and the effects of the O.C. Chemical Spray. It is also undisputed that Williams received only brief medical treatment for his eyes.
The City is correct that "a de minimis use of force rarely will suffice to state a Constitutional claim." Further, numerous courts have held that where plaintiff's injuries are de minimis, the claim of excessive force cannot rise to the level of a constitutional violation as a matter of law. Even drawing all inferences in favor of Williams, no jury could conclude that Williams' scrapes and bruises reflect more than a de minimis injury.
Graham, 490 U.S. at 393-94.
See Rincon v. City of New York, No. 03 Civ. 8276, 2005 WL 646080, at *5 (S.D.N.Y. Mar. 21, 2005) (rejecting claim of excessive force based on a de minimis injury where plaintiff alleged that the officer threw her to the ground, causing her stitches to open and her leg to bleed); Cunningham v. Rodriguez, No. 01 Civ. 1123, 2002 WL 31654960, at *5-6 (S.D.N.Y. Nov. 22, 2002) (rejecting excessive force claim where plaintiff's injury, muscle pain from hits to the face and back, were considered de minimis); Bove v. New York City, No. 98 Civ. 8800, 1999 WL 595620, at *6 (S.D.N.Y. Aug. 6, 1999) (rejecting excessive force claim where plaintiff failed to produce medical records of his injuries and the only documented injury was a bruised head).
In this case, the harm Williams suffered as a result of being sprayed with mace was also de minimis. While the use of mace by an officer may, in some circumstances, amount to excessive force, here Williams suffered only the expected side-effects: temporary discomfort and disorientation. Because Williams has not alleged any injuries from being sprayed with mace, the allegation of excessive force against the Officers is not actionable. Williams' claim of excessive force fails against all defendants as a matter of law.
D. The Unlawful Strip Search Claim
See McLaurin v. New Rochelle Police Officers, 373 F.Supp.2d 385, 394 (S.D.N.Y. 2005) (allegations against defendant officer was not actionable where plaintiff's injuries from the use of mace was temporary discomfort); Mills v. Fenger, No. 98 Civ. 0034E, 2003 WL 251953, at *3 n. 13 (W.D.N.Y. Jan. 3, 2003), vacated on other grounds, 216 Fed. Appx. 7 (2d Cir. 2006) (holding that officers use of pepper spray against plaintiff did not amount to excessive force because plaintiff did not allege, or show, any injuries resulting from the pepper spray); Fultz v. Whittaker, 187, F. Supp. 2d 695, 703 (W.D. Ky. 2001) (granting qualified immunity to officer on excessive force claim where officer used pepper spray on plaintiff and the only injury suffered was temporary discomfort).
Cf. Muprhy v. Neuburger, No. 94 Civ. 7421, 1996 WL 442797, at *8 (S.D.N.Y. 1996) (granting motion to dismiss where plaintiff did not show that he was injured as a result of defendant's allegedly excessive conduct).
In Hayes v. New York City Police Dep `t, 212 Fed. Appx. 60, 62 (2d Cir. 2007), the court stated that "we have permitted claims to survive summary judgment where the only injury alleged is bruising." Because Hayes is a summary order, it does not have precedential effect. See Local Rule 32.1.
1. The Officers
Whether or not Williams was in fact strip searched at the Midtown South Precinct is disputed. However, for the purposes of this motion, I must assume that Williams was strip searched.
The City argues that Williams' claim fails as a matter of law because he has failed to identify which defendant conducted the strip search. The City cites cases in which courts have granted summary judgment where plaintiffs failed to produce any evidence implicating the defendants in the strip search. Here, by contrast, Williams testified that one of the Officers who attacked him in the street conducted the strip search. This testimony is sufficiently specific to present a triable issue of fact as to whether Neyland or McCarthy performed the strip search.
See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in [the Second] Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983'" (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991))).
See Vogeler v. Colbath, No. 04 Civ. 6071, 2005 WL 2482549, at *7 (S.D.N.Y. Oct. 6, 2005) (granting summary judgment on unlawful strip search where plaintiff failed to show defendant was personally involved because his only evidence was that defendants name was on the filed papers); Gonzalez v. City of New York, No. 03 Civ. 1260, 2006 WL 1995127, at *4 (E.D.N.Y. July 14, 2006) (granting summary judgment on unlawful strip search where plaintiff offered no evidence indicating that either defendant was involved in the strip search).
Questions of fact also remain as to whether the Officers had grounds to perform a strip search. Under Williams' version of the events, the Officers found no contraband on Williams at the scene of the arrest. If this is so, the Officers lacked reasonable suspicion that Williams was concealing guns or drugs on his person. Finally, it is undisputed that Williams was wearing light summer clothing that day. At least one court has found that when a pat down of a defendant wearing "light summer clothing" failed to reveal any contraband, it was highly unlikely that a strip search would do so. Moreover, according to Williams, he was approached without warning at the scene of the arrest, which gave him no opportunity to hide contraband. Summary judgment on Williams' unlawful strip search claim is denied.
See United States v. Asbury, 586 F.2d 973, 976-77 (2d Cir. 1978) (discovery of incriminating matter during initial search can give rise to a reasonable suspicion to strip search an individual).
Foote v. Spiegel, 118 F.3d 1416, 1425 (10th Cir. 1997) ("The record establishes a thorough pat-down search through Foote's light summer clothing did not reveal anything. Almost anything the strip search could have revealed would already have been discovered in the pat-down search."). Accord Hartline v. Gallo, No. 03 Civ. 1974, 2006 WL 2850609, at *6 (E.D.N.Y. Sept. 30, 2006) (finding reasonable suspicion of a strip search is bolstered where arrestee was wearing three layers of loose-fitting clothing).
See Sarnicola v. County of Westchester, 229 F. Supp. 2d 259, 273 (S.D.N.Y. 2002) (lack of reasonable suspicion to strip search plaintiff was evidenced by plaintiff's sudden arrest at the scene of the crime, where he was dressed in light clothing, without an opportunity to hide any contraband).
2. Eaton
Summary judgment is granted to Eaton on the claim of an unlawful strip search. By Williams' own admission, he was strip searched by one of the men who approached him on the street. Eaton was not present during Williams' arrest and did not approach him on the street.
See Williams Dep. at 85:1-85:16.
3. The City's Liability for the Unlawful Strip Search
The City permits strip searches "when the arresting officer reasonably suspects that weapons, contraband or evidence may be concealed upon the person or in the clothing in such a manner that they may not be discovered by previous search methods." Further, an officer who wishes to conduct a strip search must obtain permission from a supervisor. On its face, this policy is constitutional under the Fourth Amendment. Thus, in order to succeed against the City, Williams must be able to prove that the City has engaged in an unlawful custom or practice.
208-05 Arrest — General Search Guidelines ("Strip Search Policy") Ex. G to Frommer Decl.
See id.
Williams argues that the City has engaged in such an unlawful custom or practice and has also failed to train its employees to conduct lawful strip searches. To support his argument, Williams cites several earlier lawsuits accusing the City of maintaining an unlawful strip search policy. But these cases provide no help to Williams as they generally address an outdated policy. Indeed, the City has recently revised its written policy governing strip searches and it is now facially constitutional. In any event, "the existence of repeated complaints . . . is not sufficient; rather, it is the combination of such complaints with the municipality's response which `tip[s] the scales toward the probative.'" Williams has not set forth any evidence demonstrating a lack of response by the City.
See, e.g., Sorensen v. City of New York, No. 98 Civ. 3356, 2000 WL 1528282 (S.D.N.Y. Oct. 16, 2000) (finding City's 1997 written strip search policy unconstitutional); Spinner v. City of New York, No. 01 Civ. 2715, 2003 WL 23648356 (E.D.N.Y. Oct. 10, 2003) (noting no finding on the merits, but permitting a class to be certified).
See Strip Search Policy effective January 1, 2000.
Cea v. Ulster Co., 309 F. Supp. 2d 321, 335 (N.D.N.Y. 2004) (quoting Neighbour v. Covert, 68 F.3d 1508, 1512 (2d Cir. 1995)) ("A plaintiff must demonstrate `how a particular policymaker's specific choice with respect to the training deficiency at issue reflects `deliberate indifference' to their constitutional rights, and how this indifference caused their injuries.'" (quotations omitted)).
With respect to training, McCarthy testified that the City's officers are aware that not every drug-related misdemeanor arrestee can be strip searched without some reasonable suspicion that an individual is concealing contraband. Moreover, McCarthy testified that he was aware of a heightened standard for strip searching narcotics arrestees.
See McCarthy Dep. at 53:9-53:24.
The only evidence Williams offers of a failure to train is that he himself was strip searched. This allegation is insufficient to raise an inference of a municipal policy or custom. For each of these reasons, the City's motion for summary judgment on the Monell claim is granted.
See Walker, 974 F.2d at 300 (reversing lower court's dismissal for failure to state a claim, but stating that only if plaintiff "can produce some evidence that policymakers . . . failed to institute appropriate training or supervision" will his claim survive a future motion for summary judgment). See also Gentile v. County of Suffolk, 926 F.2d 142, 152-53 (2d Cir. 2001) (holding that the "critical question here is whether there is sufficient evidence in the record of municipal policy, custom or practice, so that a jury could reasonably infer that the individual conduct in this case was casually connected to the policy.")
E. Qualified Immunity of the Officers
Because all claims against the City and Eaton have been dismissed, it is unnecessary to decide whether those parties are entitled to qualified immunity.
Disputed factual issues remain regarding Williams' claims for false arrest and malicious prosecution, both of which turn on whether the Officers had probable cause to make the arrest. If the jury finds the Officers' version of events credible, then they had probable cause to arrest Williams. If the jury credits Williams' version, then there was no probable cause for the arrest. Under Williams' version, no reasonable officer would have believed he had the authority to make an arrest in the absence of probable cause. Thus, qualified immunity is not a defense to these claims. A reasonable jury could conclude that under Williams' rendition of the facts, no reasonable officer would have believed Williams had committed a crime and no reasonable officer would have stopped and arrested him.
By the same reasoning, the Officers are not entitled to qualified immunity on the claim of an unlawful strip search. Should the jury find a lack of reasonable suspicion, the search would have violated not only settled constitutional law, but the City's official strip search policy. Thus, under those circumstances, no reasonable juror could find that it was objectively reasonable for the Officers to believe a strip search of Williams did not violate his constitutional rights.
IV. CONCLUSION
For the foregoing reasons, the City's motion for summary judgment to dismiss the Monell claim and the excessive force claim and Eaton's motion for summary judgment are granted. The Officers' motion for summary judgment with regards to the false arrest, malicious prosecution, and strip search claims is denied. The Clerk of the Court is directed to close this motion (docket # 22). A conference is scheduled for August 13th, 2007 at 4:30 p.m.
SO ORDERED: