noting that material issues of fact as to the appropriateness of the force used by defendants in arresting plaintiff precluded summary judgment on issue that punitive damages were not available in plaintiff's civil rights action against defendantsSummary of this case from Picciano v. McLoughlin
00 Civ. 2221 (BSJ)
September 30, 2003
Plaintiff Antonio Lazaratos filed the instant action on March 23, 2000 against the defendants, which include Police Officer Rafael Ruiz and the Port Authority of New York and New Jersey (collectively referred to as the "Port Authority defendants"). Lazaratos claims that Officer Ruiz and several unnamed officers approached him and without just cause, provocation, warning, or consent, physically assaulted him, breaking his ribs and inflicting other physical injuries, and causing him physical pain and emotional trauma. He brings federal claims pursuant to the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983 and 1985 for, inter alia, violation of due process, excessive use of force, unlawful search and seizure, malicious prosecution, abuse of process, and failure to train and unconstitutional policies or customs. He also brings state law claims against the Port Authority defendants for assault, battery, malicious prosecution, abuse of process, negligence and gross negligence. The Port Authority defendants have moved for partial summary judgment pursuant to Fed.R.Civ.P. 56(c), claiming that all the claims in the Complaint, except Lazaratos' claim for the use of excessive force under federal law and state law claims of assault and battery, should be dismissed. Lazaratos has opposed this motion for partial summary judgment.
Originally, Lazaratos also sued unnamed New York City police officers as well as the City of New York; however, no New York City police officers were ever named and the City has been released as a defendant in this case.
I. Summary Judgment Standard
Summary judgment may not be granted unless
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgement as a matter of law.
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v., Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve the ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citingUnited States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Nonetheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
II. Factual Background
The facts in this case involve Officer Ruiz's arrest of Lazaratos and they are in serious dispute. On December 28, 1998 between approximately 10:00 a.m. and 11:00 a.m, Officer Rafael Ruiz, while on duty, observed Antonio Lazaratos, then 76 years old, urinate on a New York City public street, specifically on 41st Street between 8th and 9th Avenues, adjacent to the Port Authority Bus Terminal. Lazaratos concedes these facts. When Officer Ruiz approached Lazaratos and attempted to arrest him for urinating in public, a struggle ensued. According to Lazaratos, Officer Ruiz did not identify himself as a police officer when he approached Lazaratos, thereby causing him to "fear for his life." Lazaratos maintains that Officer Ruiz, along with several other unnamed officers, used excessive force when arresting him, throwing him onto the ground. (Lazaratos Dep. at 64-72). He claims that he landed face down, his chin, chest, knees and ankles all hitting the ground. (Lazaratos Dep. at 80, 81). He also asserts that the officers ripped the coat he was wearing. (Larazatos Dep. at 81). He testified that during this alleged assault he called out "help" and asked "for what reason?". (Lazaratos Dep. at 87). Officer Ruiz, however, claims that he identified himself as a police officer before approaching Lazaratos and that he only used that force which was necessary to restrain Lazaratos. (Ruiz Dep. at 44). He says that it was Lazaratos who pushed off the wall and sent both he and Lazaratos to the ground. (Ruiz Dep. at 49-50). He further explains that a bystander, Diego Lorenzo, assisted him in restraining Lazaratos, who continued to resist arrest while on the ground. (Ruiz Dep. at 56). Diego Lorenzo testified to the same effect.
Subsequent to the altercation, Lazaratos was arrested for public urination, disorderly conduct and resisting arrest. All three charges were subsequently dropped.
II. DiscussionBecause of the material facts in dispute with regard to the arrest, summary judgment with respect to the excessive use of force, assault, and battery claims would be inappropriate. However, the Port Authority defendants have moved for summary judgment against the other claims in the Complaint. The Court will address each one of their arguments in turn.
A. 42 U.S.C. § 1983 Claims
To maintain a successful § 1983 action, "the conduct complained of must have been committed by a person acting under color of state law and must deprive a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). The parties agree that at all relevant times, Officer Ruiz was acting under color of state law and within the scope of his employment as a Port Authority police officer. Thus, the issue to be resolved is whether Officer Ruiz deprived Lazaratos of his constitutional rights, privileges or immunities.
i. False Arrest
A § 1983 claim to be free from unreasonable seizure is "substantially the same as [a] claim for false arrest . . . under state law," and, therefore, courts apply the relevant state law to such claims. Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003). "Unde;r New York state law, to prevail on a claim of false arrest a plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'" Jocks, 316 F.3d at 134-35 (quoting Broughton v. State, 37 N.Y.2d 451, 456 (1975)).
To that end, there can be no federal civil rights claim for false arrest where the arresting officer had probable cause to arrest the plaintiff. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); Veras v. Truth Verification Corp., 451 N.Y.S.2d 761, 87 A.D.2d 381 (1st Dep't 1982). Probable cause is established "when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by a person to be arrested." O'Neill v. Town of Babylon, 986 F.2d 646, 650 (2d Cir. 1993) (quotingCalamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989)).
In this case, the facts leading up to the arrest of Lazaratos are undisputed: Lazaratos urinated in a public street, specifically on 41st Street between 8th and 9th Avenues and was observed doing so by Officer Ruiz. Based on his observation of this conduct, Officer Ruiz had probable cause to effectuate an arrest for a violation of the New York Penal Code and the New York City, Administrative Code regarding disorderly conduct and public urination, respectively. See New York Penal Law § 240.20(7); New York City Admin. Code § 16-118(6); People v. Cooke, 578 N.Y.S.2d 76 (J. Ct. 1991) (public urination may qualify as disorderly conduct). Accordingly, Lazaratos' claims for false arrest and unreasonable search and seizure are dismissed. ii. Malicious Prosecution
There is an issue of fact as to whether Officer Ruiz had probable cause to arrest Lazaratos for resisting arrest; however, since it is clear that he had two causes to arrest Lazaratos — namely, public urination and disorderly conduct — the Court need not consider this dispute.
Lazaratos also brings a § 1983 claim for malicious prosecution, and, as with false arrest, courts turn to the underlying state law in determining liability. Jocks, 316 F.3d at 134. Under New York law, in order to sustain a claim for malicious prosecution, a plaintiff must demonstrate: "1) that the defendant started a criminal proceeding against [plaintiff]; 2) that the proceeding terminated in the plaintiff's favor; 3) that there was no probable cause for the proceeding; and 4) that the proceeding was instituted with malice." Lowth v. Town of Cheektoawaga, 82 F.3d 563, 571 (2d Cir. 1996) (citing Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)). "Additionally, there must be a post-arraignment seizure for a § 1983 malicious prosecution claim." Jocks, 316 F.3d at 136.
In addition to his claim for malicious prosecution, Lazaratos also states in his Complaint that he should not have been subject to "false charges lodged against him by police officers acting under color of law." (Compl. at ¶ 20(e)). This claim is equivalent to a malicious prosecution claim and, therefore, the Court simultaneously addresses it in this section of its Opinion.
In this case, the undisputed facts demonstrate that there was probable cause to institute charges for public urination and disorderly conduct. However, the facts are in dispute as to whether Officer Ruiz had probable cause to initiate proceedings against Lazaratos for resisting arrest. Officer Ruiz recounts that he identified himself as a police officer and asked Lazaratos to place his hands against the wall. According to Officer Ruiz, Lazaratos refused to stand against the wall, pushed off the wall, threw his elbow at him, and knocked him to the ground. (Ruiz Dep. at 49). For his part, Lazaratos claims that Officer Ruiz did not identify himself and that Officer Ruiz along with other persons assaulted him. (Compl. at ¶ 13; Lazaratos Dep. at 52). Therefore, this Court cannot determine on summary judgment that Officer Ruiz had probable cause to prosecute for resisting arrest.
Still, the Court must dismiss the malicious prosecution claim with regard to the resisting arrest charges as Lazaratos has failed to demonstrate favorable termination of the proceedings against him. It is the plaintiff's burden to demonstrate that charges against him were terminated favorably. Where, as here,
the prosecution did not result in an acquittal, it is deemed to have ended in favor of the accused, for these purposes, only when its inal disposition is such as to indicate the innocence of the accused. . . . The answer to whether termination is indicative of innocence depends on the nature and circumstances of the termination; the dispositive inquiry is whether the failure to proceed "impl[ies] a lack of reasonable grounds for prosecution."Murphy v. Lynn, 118 F.3d at 948 (citing Loeb v. Teitelbaum, 432 N.Y.S.2d 487, 494 (2d Dep't 1980), modified on other grounds, 439 N.Y.S.2d 300 (2d Dep't 1981)) (emphasis added). In other words, the fact that a prosecution was terminated does not-necessarily mean that such termination was favorable.
Here, Lazaratos claims only that the resisting arrest charges were "dropped." (Lazaratos Rule 56.1 statement at ¶ 8). He has submitted no evidence whatsoever to show that the charges were terminated favorably. Accordingly, Lazaratos' malicious prosecution claim is dismissed.
The Court will allow Lazaratos leave to amend his Complaint to include a claim for malicious prosecution if he procures the necessary certified records to demonstrate a favorable termination or can otherwise substantiate his claim of favorable termination. Such amendment must be made by October 21, 2003 or the claim for malicious prosecution will be dismissed with prejudice. If Lazaratos can show a favorable termination, his malicious prosecution claim will be allowed to proceed with respect to the resisting arrest charge. iii. Abuse of Process
The Court notes that, contrary to the Port Authority defendants' request, the doctrine of qualified immunity does not dispose of the matter. If a jury were to believe Lazaratos' account of the facts — that Officer Ruiz assaulted him — such behavior would clearly violate established statutory and constitutional rights and, as such, Officer Ruiz would not be immune from* liability. The Court recognizes that the Port Authority defendants have reserved their right to bring future motions based on a claim of qualified immunity with respect to the excessive force claims after a trial on the merits. (Port Auth. Reply at 6).
With respect to an abuse of process claim made pursuant to § 1983, courts also draw from the applicable state law. Cook v. Sheedon, 41 F.3d 73, 79-80 (2d Cir. 1994) (citing Martin v. City of Albany, 396 N.Y.S.2d 612, 614 (N.Y. 1977)). The Second Circuit has explained that for a plaintiff to establish an abuse of process claim pursuant to § 1983 or state law, he must establish the following:
(1) regularly issued process compelling the performance or forbearance of some prescribed act, (2) the person activating the process must have been motivated to do harm without economic or social excuse or justification, and (3) the person activating the process must be seeking some collateral advantage or corresponding detriment to the plaintiff which is outside the legitimate ends of process.Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994) (citing Hornstein v. Wolf, 109 A.D.2d 129, 491 N.Y.S.2d 183, 187 (Dep't 1985), aff'd, 67 N.Y.2d 721, 499 N.Y.S.2d 938, 490 N.E.2d 857 (1986)). Nevertheless, Lazaratos has failed to allege or offer factual support to satisfy any of the elements of this cause of action. He has offered no facts to show that there was an ulterior motive that prompted Officer Ruiz to make the arrest nor has he offered facts to show or even suggest that Officer Ruiz sought some other collateral advantage or corresponding detriment to Lazaratos outside of the legitimate ends of process. Lazaratos' abuse of process claim is therefore dismissed.
iv. Municipal Liability
Pursuant to § 1983, Lazaratos seeks to hold the Port Authority liable for its policies or customs to allegedly:
1) punish summarily persons who appear not to be responsive to police directions or who appear to challenge police authority . . .; 2) provide false information, testify falsely, and falsify official records; 3) use unnecessary force . . .; 4) cover up any illegal and improper conduct committed by another police officer in accordance with the custom not to "blow the whistle" on a fellow officer. . . .
Lazaratos only made these claims as part of his federal claim. These allegations were not made under state law. Accordingly, they are addressed solely under § 1983.
In order for a plaintiff to sufficiently allege employer liability pursuant to § 1983, he must prove that the acts complained of are a result of the official custom and policy of the defendant governmental agency. Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 479 (1986); Monell v. Dep't of Social Servs., 436 U.S. 568, 694 (1978). Indeed, where a plaintiff claims that the governmental agency has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the governmental agency is not held liable solely for its employee's actions. Bryan County v. Brown, 520 U.S. 397, 405,rehearing denied, 520 U.S. 1283 (1997) (citing City of Canton v. Harris, 489 U.S. 378, 391-92 (1989)).
Consequently, to establish municipal liability, a plaintiff must demonstrate (i) the existence of a municipal policy or custom and (ii) the existence of a causal connection between said policy or custom and the deprivation of the plaintiff's constitutional rights. Sarus v. Rotundo, 831 F.2d 397, 400 (2d Cir. 1987) (citations omitted). Alternatively, a plaintiff can support a claim for municipal liability for a failure to train if he can show that:
1) a policymaker knows to a moral certainty that her employees will confront a given situation; (2) the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation; and (3) the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (citations omitted).
Lazaratos has failed to produce evidence of either kind. He points to no official policy or custom that Ruiz followed to the detriment of his rights. And, with respect to his claim of failure to train, Lazaratos relies on an expert opinion and the deposition testimony of Officer Ruiz. Neither is sufficient to support Lazaratos' claim. The expert opinion is that Officer Ruiz did not properly arrest Lazaratos; it does not speak to larger issues of employee training. (Lazaratos Ex. 4).
As for the deposition testimony of Officer Ruiz, Lazaratos places great weight on the fact that, among other things, Officer Ruiz did not recall being trained with regard to courteous treatments of civilians. (Ruiz Dep. at 24-26). However, the fact that an officer has not been trained with respect to courteous treatment of civilians is not evidence that Officer Ruiz was not trained with regard to use of force. Accordingly, Lazaratos' § 1983 claims against the Port Authority are dismissed in their entirety.
B. 42 U.S.C. § 1985 Claims
Section 1985 prohibits conspiracies to interfere with a person's civil rights. Griffen v. Breckenridge, 402 U.S. 88, 102-04 (1971). A valid claim must set forth the facts and circumstances of the alleged conspiracy. Mass v. McClenahan, 893 F. Supp. 225, 231 (S.D.N.Y. 1995). A plaintiff must also show that he was deprived of equal protection of the laws and thereby injured in his person or property or deprived of a constitutional right. United Bd. of Carpenters v. Scott, 463 U.S. 825, 829-30 (1983). Lazaratos cannot meet these requirements. This section was not intended to apply to all interferences with rights of others, but only to those which are founded upon some class-based or racially invidious discriminatory intent. Clearly, Lazaratos has not alleged nor can he prove such a claim. This claim is therefore dismissed.
C. First, Fourteenth, and Fifth Amendment and other Claims
Lazaratos has alleged a First, Fourteenth and Fifth Amendment violation of his rights. To establish a First Amendment claim, a plaintiff must demonstrate (1) that he had an interest protected by the First Amendment, (2) that the defendant's actions were motivated by or substantially caused by the plaintiff's exercise of that right, and (3) that defendant's action chilled the plaintiff's exercise of his first amendment rights. Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). Here, Lazaratos states in his opposition papers that Officer Ruiz "preemptively retaliated against [him] for potentially exercising his First Amendment rights to express himself and petition for redress of a grievance." (Lazaratos Opp. at pt. VI). However, he has offered no evidence of any speech or otherwise protected activity in which he engaged or sought to engage, which Officer Ruiz or any of the other defendants attempted to thwart. In his deposition, he did state that he called for help during the alleged attack, but there is no indication that this speech or any other speech was chilled by the Port Authority defendants. As a result, Lazaratos' First Amendment claim must be dismissed.
Lazaratos' Complaint also includes a claim that he was "deprived of liberty without due process." (Compl. at ¶ 20(a)). It is unclear whether this claim is meant to be made under the Fourteenth Amendment, but, to the extent that it is, it may not go forward because there is no substantive due process right which arises from the facts as he has alleged them. Indeed, "if the liberty interest claimed by [plaintiff] is his right to be free from criminal prosecution except upon probable cause, then [the Supreme Court decision] Albright directs that the violation be tested under standards of the Fourth Amendment, because the conduct complained of was undertaken within the context of the criminal investigation." Micalizzi v. Ciamarra, 206 F. Supp.2d 564, 580 (S.D.N.Y. 2002) (citang Albright v. Oliver, 510 U.S. 266, 270 (1994)). Accordingly, Lazaratos' due process claim must be dismissed.
Of course, the Court considers Lazaratos' claims of unlawful search and seizure and prosecution pursuant to the Fourth Amendment as part of its consideration of his § 1983 claims.
Similarly, Lazaratos has failed to present any factual support or to cite any case for his claim that his Fifth Amendment right, the right against self incrimination, was violated. This claim is also, therefore, dismissed.
Finally, Lazaratos alleges in his Complaint that his right "not to have summary punishment imposed upon him by police officers acting under color of law" was violated as was his right to have "access to the courts to petition for redress of grievances." (Compl. at ¶ 20(c) (h)). Except to the extent that by summary punishment Lazaratos is alleging abuse of force, these allegations do not state a cognizable claim under the law and are accordingly dismissed.
D. State Law Claims
As noted above, Lazaratos has brought state law claims for assault, battery, malicious prosecution, negligence and gross negligence, and abuse of process against the Port Authority defendants. The Port Authority defendants seek summary judgment against all these claims except those for assault and battery. The Court first turns to a consideration Lazaratos' claims for negligence and gross negligence. To the extent that these negligence claims relate to Lazaratos' alleged false arrest and malicious prosecution, they are barred. False arrest and malicious prosecution "are not acts of negligence, and plaintiff cannot recover for them under general principles of negligence law."Sarnicola v. County of Westchester, 229 F. Supp.2d 259, 277 (S.D.N.Y. 2002); Shea v. County of Erie, 609 N.Y.S.2d 473, 474 (4th Dep't 1994) ("Although plaintiff's cause of action sounds in negligence, he `may not recover under broad general principles of negligence but must proceed by way of the traditional remedies of false arrest and imprisonment.'") (citing Boose v. City of Rochester, 421 N.Y.S.2d 740 (4th Dep't 1979)). Accordingly, Lazaratos' negligence claims with respect to his arrest are actually for the intentional torts of false imprisonment and malicious prosecution and will be treated as such.
To the extent that Lazaratos' negligence claims regard the alleged assault, these claims are similarly barred. "New York does not recognize negligent battery. . . . Accordingly, `once intentional offensive contact has been established, the actor is liable for . . . [battery] and not negligence.'" Sawyer, 196 F. Supp.2d at 228 (quotingSchetzen v. Robotis, 709 N.Y.S.2d 193, 194 (2d Dep't 2000) (quoting Wetzberger v. City of New York, 680 N.Y.S.2d 260, 261 (2d Dep't 1998) (internal quotations omitted)). Here, all the claims that Lazaratos has made against Officer Ruiz and the other defendants have involved accusations that they purposefully assaulted him. Under New York law, this is considered an intentional tort. See Wilson v. The Diocese of New York of the Episcopal Church, Civ.A. No. 96-2400, 1998 WL 82921, at *6 (S.D.N.Y. Feb. 26, 1998) (stating that New York law rejects attempts by plaintiffs to "transmogrify intentional torts into `negligenc'") (quoting Schmidt v. BiShOp, 779 F. Supp. 321, 324-35 (S.D.N.Y. 1999)). Thus, Lazaratos' negligence claims are dismissed.
The next issue for the Court is, therefore, whether the state law claims for false arrest, malicious prosecution, and abuse of process can proceed as against the Port Authority defendants. For the reasons explained above, Lazaratos' claims for false arrest and abuse of process are dismissed under both federal and state law. Also as explained earlier, Lazaratos' malicious prosecution claim must be dismissed — although he may replead — insofar as he has offered no evidence of favorable termination.
E. Punitive Damages
In his Complaint, Lazaratos demands punitive damages, and Officer Ruiz has objected based on his contention that his conduct does not warrant the imposition of punitive damages. Punitive damages may be awarded against an individual defendant for violations of federal law where a defendant acts with "reckless or callous disregard for plaintiff's rights and intentionally violates federal law." Smith v. Wade, 461 U.S. * 30, 45, 51 (1983). The plaintiff must prove the defendant acted wantonly or willfully or was motivated by ill will or malice.Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 909 (2d Cir. 1993) (citations omitted). "However, because [Lazaratos] has provided sufficient evidence to overcome summary judgment [with respect to excessive use of force], the Court cannot state as a matter of law that [Lazaratos] is not entitled to punitive damages. For this reason, defendants' motion must be denied with respect to punitive damages."Emblen v. Port Authority of New York/New Jersey, Civ.A. No. 00-8877, 2002 WL 498634, at *12 (S.D.N.Y. Mar. 29, 2002); Housing Works, Inc. v. Turner, 179 F. Supp. 177, 209 (S.D.N.Y. 2001).
Based on the foregoing, the Port Authority defendants motion for partial summary judgment is granted in part and denied in part. The claims that remain and will go to trial are, therefore, those for excessive use of force and assault and battery as against Officer Ruiz and the Port Authority. Lazaratos is granted leave to amend his Complaint to include a claim for malicious prosecution, pursuant to both § 1983 and state law, on or before October 21, 2003., if he can demonstrate favorable termination either by a certified copy of the disposition of the charges or other verifiable evidence.
As established at the most recent pretrial conference, the trial in this case is scheduled for November 17, 2003. Proposed voir dire and jury instructions as well as motions in limine are due November 10, 2003. Additionally, a final pretrial conference will be held on November 12, 2003 at 4:30 p.m.