Wong v. Yoo et al

Filing 144

MEMORANDUM AND OPINION denying the motions of defendants Mangone and Ciurcina for summary judgment with respect to plaintiffs excessive force claims; denying all defendants motions for summary judgment with respect to plaintiffs false arrest claim; d enying the motions of defendants Yoo, Viani, and Alfano for summary judgment with respect to plaintiffs denial of medical treatment claim; denying the motions of defendants Yoo and Mangone for summary judgment with respect to plaintiffs malicious pro secution claim; granting defendant Ciurcinas motion for summary judgment and denying defendant Mangones motion for summary judgment with respect toplaintiffs § 1981 intentional discrimination claim; granting the motions of defendants Mangone and Ciurcina for summary judgment with respect to plaintiffs § 1985(3) civil rights conspiracy claim; granting third party defendant Citys motion for summary judgment with respect to third party plaintiffs representation claims and denying same with respect to third-party plaintiffs indemnification claims. Ordered by Senior Judge Charles P. Sifton on 8/18/2009. (Sifton, Charles)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------X Aaron Wong, - against Police Officer Young Yoo, Sergeant Anthony Alfano, Police Officer Stephen Viani, James Mangone, and Detective Leonard Ciurcina, Defendants. -------------------------------------------X Police Officers Young Yoo and Stephen Viani, Third-Party Plaintiffs, - against The City of New York, Third-Party Defendant. -------------------------------------------X SIFTON, Senior Judge. On September 25, 2004, plaintiff Aaron Wong commenced this action against defendants James Mangone, police officer Young Yoo, police officer Stephen Viani, sergeant Anthony Alfano, and detective Leonard Ciurcina. Plaintiff alleges that defendants MEMORANDUM OPINION & ORDER Plaintiff, 04-CV-4569 (CPS)(ALC) used excessive force against him, falsely arrested and imprisoned him, denied medical treatment to him, and maliciously prosecuted him, in violation of 42 U.S.C. 1983. He also alleges that defendants intentionally discriminated against him, in violation of 42 U.S.C. 1981, and conspired to deprive him of his rights -2under the Fourteenth Amendment to the United States Constitution, in violation of 42 U.S.C. 1985. On June 1, 2007, defendants Yoo and Viani filed a third-party complaint against third-party defendant the City of New York (the "City"), alleging that they were denied their right to representation and seeking indemnification. Presently before this Court are defendants' separate motions for summary judgment on plaintiff's claims, as well as thirdparty defendant City's motion for summary judgment on third-party plaintiffs Yoo's and Viani's claims. For the reasons set forth below, defendants' motions are granted in part and denied in part, and third-party defendant's motion is granted in part and denied in part. BACKGROUND The following facts are drawn from the deposition testimony, affidavits, exhibits, and Rule 56.1 statements submitted by the parties in connection with this matter. Events of May 16, 2003 On the afternoon of May 16, 2003, plaintiff was driving with his girlfriend, Brook Lopez, on Staten Island in New York. Deposition Testimony of Aaron Wong dated February 13 and March 22, 2006 ("Pl. Dep.") at 18, 137, 148-49. Ms. Lopez, a hispanic Disputes are noted. female who was 19 years old at the time, had plans to purchase a Playstation video game system for plaintiff, a 5'9", 145-pound, -3African American male who had celebrated his 21st birthday the day before. Id. at 10-11, 133, 137-38; Deposition Testimony of On the way to an outlet Brook Lopez ("Lopez Dep.") at 11, 38-39. mall, while driving on Jewett Avenue, plaintiff placed a call on Ms. Lopez' cell phone to two of his friends. Lopez Dep. at 45, 75. Pl. Dep at 149; Ms. Lopez scolded him for using the cell Lopez Dep. at phone while driving and asked him to pull over. 45-46. Since there was no place to pull over on Jewett Avenue, plaintiff took a left turn near Burnside Avenue and pulled into a driveway leading to a parking lot located at 168 Ravenhurst Avenue. Id; Pl. Dep. at 152; Deposition Testimony of James According to plaintiff, the Mangone ("Mangone Dep.") at 13. driveway looked more like a public street than a private driveway. Pl. Dep at 153. A residential complex was adjacent to Plaintiff put his car in reverse Id. While the parking lot. Id. at 154. and backed up into a parking spot against a wall. plaintiff was on the phone, a truck pulled in front of plaintiff's car, blocking it. Id. at 158; Lopez Dep. at 57. A 6'1", 250-pound, white male, later identified as defendant James Mangone, exited the truck and approached plaintiff's car. Dep at 159, 161; Mangone Dep. at 29-30. The parties dispute the nature of subsequent events. According to plaintiff and Ms. Lopez, defendant Mangone stuck his Pl. -4head and shoulders through the driver's side window of plaintiff's car, pushing the side-view mirror in toward the car, and yelled words to the effect of: I'm tired of you niggers being here. I'm tired of you niggers always here with your coke and your crack, and you throw your dirty [vials] on the floor and you take your dirty condoms after you finish fucking and put them on the floor. I'm tired of this shit. You niggers don't belong here. . . . Do you know anybody here? I bet you don't know anybody here. Who do you know here? You niggers don't know anybody here. Id. at 159-60, 174-76; Lopez Dep. at 60-61. According to defendant Mangone, however, using a moderate tone of voice, defendant Mangone asked plaintiff and Ms. Lopez what their business was in the parking lot without touching or leaning on plaintiff's car. Mangone Dep. at 53-54, 57. Defendant Mangone alleges that plaintiff replied, "none of your fucking business." Id. at 53. There is no dispute, however, that plaintiff falsely informed defendant Mangone that he knew someone who lived in the complex. Mangone Dep. at 53-54; Pl. Dep. at 164. Plaintiff and Ms. Lopez allege that they repeatedly asked defendant Mangone to allow them leave the parking lot. at 167; Lopez Dep. at 62. Pl. Dep. According to them, defendant Mangone stated that he would not allow them to leave, and that he was going to call 911 and the police. 62. Pl. Dep. at 167; Lopez Dep. at Defendant Mangone alleges, however, that plaintiff appeared "enraged" following their exchange and bolted out of his car, opening his car door quickly and hitting defendant Mangone in the -5hip with the driver's side-view mirror in the process. Dep. at 56. Mangone At that point, according to defendant Mangone, he Id. at 57. According to told plaintiff that he would call 911. plaintiff, however, plaintiff exited his car to fix the side-view mirror defendant Mangone had pushed in when he leaned into the car and to "get [defendant Mangone] away from the car." at 177. Pl. Dep There is no dispute that defendant Mangone took his phone from his belt and, rather than calling 911, used the Nextel function to call a man later identified as defendant Leonard Ciurcina, who he asked to "come to the back." Pl. Dep. at 180, 182. There is no dispute that while defendant Mangone was using his phone, plaintiff slapped the phone away from defendant Mangone's hand, causing it to fall to the ground. Mangone Dep. Mangone Dep at 58; at 59; Lopez Dep. at 65; Deposition Testimony of Aaron Wong dated August 21, 2008 ("Pl. Dep II") at 51-52. Plaintiff alleges that he heard defendant Mangone say a name into the phone and realized that he was not calling the police or someone who would "deescalate the situation." Pl. Dep. II. at 52. According to plaintiff, defendant Mangone then "charged" at plaintiff and shoved him into the front of the driver's side of the car, forcing the driver's side-view mirror frame in toward the car and causing the mirror itself to pop out of its frame. 183-85, 190. Plaintiff caught the mirror. Pl. Dep. at Id. at 185. -6Defendant Mangone denies having pushed plaintiff into his car or causing the mirror to pop out of its frame, alleging that the mirror popped out when plaintiff opened the door of his car too quickly, hitting defendant Mangone in the hip with the mirror frame. Mangone Dep. at 59-61. There is no dispute that after the mirror popped out of its frame, plaintiff hit defendant Mangone on the face with the mirror, cutting him above and underneath one of his eyes and causing significant bleeding.1 69; Pl. Dep. at 185. Mangone Dep. at 61; Lopez Dep. at Plaintiff and Ms. Lopez allege that before plaintiff hit defendant Mangone with the mirror, defendant Mangone "walked up on" plaintiff and "was dodging at him with his fist up." Pl. Dep at 185; Lopez Dep. at 67. Defendant Mangone alleges that plaintiff "picked the mirror up off the floor and smashed [defendant Mangone] in the face with it." at 59-61. At this point defendant Mangone returned to his truck, and alleges that he saw plaintiff lean inside his car and reemerge with an open knife in his hand. Id. at 63-65. Plaintiff Mangone Dep. testified that after hitting Mangone with the mirror, he ran to the back of his car, and denies ever having reached for or used a knife during the altercation. 1 Pl. Dep. at 191, 226. Defendant At his deposition, plaintiff recalled hitting defendant Mangone on the right side of his face, Pl. Dep. at 187, while defendant Mangone recalled plaintiff hitting him on the left side of his face. Mangone Dep. at 61. This dispute is immaterial. -7Mangone then grabbed a circular saw from a toolbox in the back of his truck and threw it in plaintiff's direction. 66-68. Mangone Dep. at The saw hit the windshield of plaintiff's car, inside of which Ms. Lopez was sitting, causing the windshield to crack and shatter but not to break. 71. Id; Pl. Dep at 200-05; Lopez Dep. at Plaintiff picked up the saw where it had fallen and threw it at defendant Mangone's truck, causing the truck's windshield to crack and shatter without breaking. at 207-08. Defendant Mangone then returned to his truck and retrieved a metal pipe. Mangone Dep. at 69-70. He struck plaintiff's car Mangone Dep. at 68; Pl. Dep. more than once with the pipe, further damaging the windshield and the hood. Id. at 71-72; Pl. Dep. at 213. Meanwhile, plaintiff ran to the back of defendant Mangone's truck and retrieved a wooden broom handle. Mangone Dep. at 73. Ms. Lopez screamed for help and called 911 on her cell phone. Lopez Dep. at 74. At this point, according to plaintiff, a blue car arrived on the scene and sped directly toward plaintiff. Pl. Dep. at 215. Plaintiff alleges that he jumped over the top of the car to avoid being run over, and a white male, later identified as defendant Ciurcina, a New York City Police Detective who was off-duty at the time, exited the car. Id. at 216-17. Defendant Ciurcina performed masonry work for defendant Mangone during his off-duty hours, and it was defendant Ciurcina that defendant Mangone had -8contacted using the Nextel function of his phone. Deposition Testimony of Leonard Ciurcina ("Ciurcina Dep.") at 7-8, 14-15; Mangone Dep. at 58. There is no dispute that on the afternoon of May 16, 2003, defendant Ciurcina was dressed in plain clothes and did not have his shield. Ciurcina Dep. at 26. According to plaintiff, defendant Ciurcina then either exited the car with a level in his hand, or grabbed a level from defendant Mangone's truck, and began swinging the level at plaintiff. 216-17. Pl. Dep. at Defendant Mangone alleges, however, that he dropped the Mangone metal pole and himself grabbed the level from his truck. Dep. at 74. Both defendants Mangone and Ciurcina allege that defendant Ciurcina did not arrive on the scene until a few minutes later. Id. at 81; Ciurcina Dep. at 18. Plaintiff and defendant Mangone then began to strike at each other with the broom handle and the pipe or the level, respectively, in a sword-fighting manner. At some point, plaintiff either backed away or turned and ran from the parking lot around a corner toward Jewett Avenue. followed. Defendant Mangone Ms. Lopez Pl. Dep. at 219-21; Mangone Dep. at 74-78. recalls that seconds after plaintiff and defendant Mangone left her field of vision, defendant Ciurcina arrived on the scene, grabbed a level from defendant Mangone's truck, and ran after plaintiff and defendant Mangone. Lopez Dep. at 80-81. During the scuffle, plaintiff alleges that his clothes were torn up and -9ripped off, and that his wallet, asthma pump and knife fell out of his pocket. Pl. Dep. at 224-25. According to plaintiff, a third white male then arrived on the scene, later identified as non-party Port Authority police officer Robert Essex, who lived in a nearby house and had learned of the fight. Aff.") 1. Id. at 233-35; Affidavit of Robert Essex2 ("Essex Officer Essex recalls that plaintiff was bleeding Essex from his face and appeared dazed when he encountered him. Aff. 1. Officer Essex pointed his gun at plaintiff and ordered According to plaintiff to stop walking and to drop his weapon. Officer Essex, an unidentified white male then approached plaintiff from behind and, without warning, hit plaintiff over the right side of his head with a level. Id. Officer Essex then pointed his gun at the unidentified white male who had struck At oral argument, counsel for defendant Ciurcina objected to the Essex affidavit, arguing that I should not consider it because prior to receiving plaintiff's opposition papers, defendants did not know the identity of the third man to arrive at the scene and therefore had no opportunity to interview or depose Officer Essex. The record does not support this argument. Officer Essex's identity was established at least as of the date of the completion of the New York City Police Department's Internal Affairs Bureau ("IAB") investigation of this matter in June 2006, during the course of which Officer Essex was interviewed. See Declaration of Jeffrey S. Dantowitz ("Dantowitz Decl.") Ex. A (copy of IAB findings report dated June 22, 2006, including summary of Officer Essex's interview). A letter dated October 24, 2007 from the New York City Office of Corporation Counsel to Magistrate Judge Gold states that the IAB files would be provided to the parties on October 27, 2006. That the IAB files were, in fact, produced to the parties is confirmed by Magistrate Judge Gold's docket entry dated January 8, 2007. I find that each of the parties had an equal opportunity to identify and interview or depose Officer Essex following the disclosure of the IAB files and prior to the close of discovery. Further, at oral argument, counsel for plaintiff stated that he had never received any interrogatories or document requests relating to the identity or testimony of Officer Essex. Nor has this issue been raised before or ruled upon by a Magistrate Judge. Accordingly, since the Essex Affidavit is otherwise admissible, for the purposes of this motion, I will consider it. 2 - 10 plaintiff. The white male dropped the level and told Officer Essex he was "on the job," which Officer Essex interpreted to mean that the man was a police officer. Id. Plaintiff does not remember what transpired after Officer Essex ordered him to stand down, but recalls waking up lying face down with defendant Mangone's foot on his neck and defendant Ciurcina's knee on his back, with defendant Cirucina holding his hands behind his back. Pl. Dep. at 238-40. Ms. Lopez also recalls turning the corner from the parking lot and coming upon the three men in this position. Lopez Dep. at 82-83, 91, 93-94. Plaintiff's mouth was partially dried shut with blood, and upon regaining consciousness, he spit out three or four pieces of his teeth. Pl. Dep. at 241-42. In contrast, according to defendant Mangone, after plaintiff ran from the parking lot around the corner toward Jewett Avenue, defendant Mangone followed and came upon plaintiff lying face down on the ground with a crowd surrounding him. 78. Mangone Dep. at Id. at 81. Defendant Mangone knelt down next to plaintiff. At this point, defendants Mangone and Ciurcina allege that defendant Ciurcina arrived on the scene. Dep. at 18-19. Id. at 81; Ciurcina Defendant Ciurcina recalls that when he reached defendant Mangone, Mangone told him, "A male just tried to stab me." Ciurcina Dep. at 19. Defendant Mangone recalls that at some point, he put his knee on plaintiff's back "to make sure he - 11 wouldn't go anywhere," and defendant Ciurcina testified that he grabbed plaintiff's arms and put them behind his back. Dep. at 90, Ciurcina Dep. at 22. Mangone Both defendants Mangone and Ciurcina noticed that plaintiff was bleeding from his head and face. Mangone Dep. at 81, Ciurcina Dep. at 23. At some point thereafter an ambulance and two uniformed police officers, later identified as defendants Yoo and Viani, arrived. Pl. Dep. at 243. Defendant Yoo is an Asian male, and Ciurcina Dep. at his partner, defendant Viani, is a white male. 25; Deposition Testimony of Young Yoo ("Yoo Dep.") at 9; Deposition Testimony of Stephen Viani ("Viani Dep.") at 7. Defendant Ciurcina does not recall whether he identified himself as a police officer to defendants Yoo and Viani, but testified that he probably did. Ciurcina Dep. at 26. According to defendant Ciurcina, either defendant Yoo or defendant Viani handed him handcuffs, and defendant Ciurcina then handcuffed plaintiff. Id. Plaintiff and defendant Mangone also recall that Pl. Dep. at 247; defendant Ciurcina handcuffed plaintiff. Mangone Dep. at 89. Defendants Yoo and Viani recall the progression of events after their arrival somewhat differently. They allege that upon arrival, they observed a crowd of people in the parking lot, and saw two individuals later identified as plaintiff and defendant Mangone standing up among them. Yoo Dep. at 11-12; Viani Dep. at - 12 9. They testified that they did not observe any injuries on plaintiff's body, but defendant Yoo stated that he noticed defendant Mangone was bleeding heavily from his forehead. Dep. at 12-14, 26; Viani Dep. at 23. Yoo Defendant Viani undertook crowd control, Viani Dep. at 9-10, while defendant Yoo approached defendant Mangone and asked him what had happened. 14. Yoo Dep. at Defendant Mangone related his version of events to defendant Yoo, namely that he had asked plaintiff and Ms. Lopez what business they had in the parking lot, that plaintiff had responded rudely, and after a brief shouting match, that plaintiff had attacked defendant Mangone by striking him in the face with the car's side-view mirror. Mangone Dep. at 84-86. Id. at 14-15, 17, 20-24; Defendant Mangone also showed defendant Yoo the knife, and told him that plaintiff had threatened him with it. According to defendant Mangone, the knife was open, but Yoo Dep. at 27-28; defendant Yoo recalls that it was closed. Mangone Dep. at 86. Defendant Yoo also recalls that defendant Mangone identified himself to defendant Yoo as a police officer and showed him a shield, and defendant Viani testified that defendant Yoo told him that Mangone had stated he was a police officer. Yoo Dep. at 29-30; Viani Dep. at 14. After conferring with defendant Viani, defendant Yoo alleges that he approached plaintiff and asked him what had happened. Yoo Dep. at 31. Plaintiff, however, does not recall having any - 13 conversation with defendant Yoo prior to his arrest. 246. Pl. Dep. at According to defendant Yoo, plaintiff's story was "pretty similar" to defendant Mangone's version of events, except that plaintiff denied having responded rudely to defendant Mangone. Yoo Dep. at 32, 36-37. Defendant Yoo alleges that plaintiff did not report that defendant Mangone had threatened him or pushed him first, and that he admitted he had struck defendant Mangone with the mirror in self-defense. Id. at 39-40, 42-43. Defendant Yoo further alleges that he showed the knife to plaintiff and asked him where it had come from, and that plaintiff replied that the knife had fallen out of his pocket. Id. at 46-47. According to defendant Yoo, plaintiff did not inform him that Officer Essex had pointed his gun at him or that he had been knocked to the ground, nor did he tell him that defendant Mangone had blocked plaintiff's car with his truck and used racial slurs against him. Id. at 47-48, 64. After conferring with defendant Viani, Id. defendant Yoo informed plaintiff that he was under arrest. at 48. According to defendants Yoo and Viani, defendant Yoo then Id. at 50-51; Viani Dep. at 16. personally handcuffed plaintiff. Defendants Yoo and Viani then placed plaintiff in their police vehicle. Yoo Dep. at 61. At some point thereafter, defendant Alfano, a New York City Police Sergeant, arrived. Id. at 49-50. Defendant Yoo told It's an defendant Alfano, "sergeant this is what we have. - 14 assault . . . Mangone is the victim, Wong was the one who attacked him." Id. at 49. Defendant Yoo also testified that he related plaintiff's and defendant Mangone's stories to defendant Alfano, told him that he and defendant Viani had arrested plaintiff, and that defendant Alfano approved the arrest. 50. Id. at Defendant Alfano further recalls that as part of the arrest verification process, he spoke to both defendant Mangone and plaintiff about their versions of events, Deposition Testimony of Anthony Alfano ("Alfano Dep.") at 17-19, 32-33, but neither defendant Mangone nor plaintiff recall speaking to defendant Alfano on May 16, 2003. Mangone Dep. at 96-97; Pl. Dep. at 251. Defendant Alfano testified that he did not see any blood on plaintiff's body or clothing. Alfano Dep. at 11, 22. According to plaintiff, defendant Yoo first asked him for his version of events after he was handcuffed and placed in the police car. Pl. Dep. at 244, 248-50. Plaintiff alleges that defendant Yoo came over to him "sarcastically" and laughed at him while he asked plaintiff what had happened. Id. at 249-50. According to plaintiff, after defendant Yoo asked him whether he had tried to stab defendant Mangone, and plaintiff denied having tried to stab him, id. at 250, plaintiff "got the feeling that [defendants Yoo and Viani] didn't really care what was right or wrong at that point so [he] didn't comment anymore." II. at 114. Pl. Dep. Plaintiff alleges that he never related his side of - 15 the story to the defendant officers. Id. Defendant Yoo recalls that at this point, plaintiff told him that he, and not defendant Mangone, was the victim, and that defendant Yoo was arresting him improperly. Yoo Dep. at 61. There is no dispute that medical personnel present on the scene attended to defendant Mangone's facial injuries, but did not treat plaintiff for any injuries. Dep. at 243, 248; Yoo Dep. at 59. Mangone Dep. at 95-96; Pl. Defendant Yoo testified that he asked plaintiff at least twice whether he wanted medical treatment, but plaintiff responded, "No, no, no, I want you to listen to me, listen to what I'm telling you." Yoo Dep. at 60. When defendant Yoo said that plaintiff was "not making any sense," plaintiff allegedly responded, "Fine, forget it." Id. Defendant Alfano recalls that an emergency medical technician ("EMT") approached him, informed him that plaintiff was refusing medical aid, and asked him to try to change plaintiff's mind about accepting treatment and going to the hospital. at 11-12. Alfano Dep. Defendant Alfano alleges that he asked plaintiff if he Id. at 11. Plaintiff wanted treatment, and plaintiff refused. testified that no one asked him if he wanted medical treatment while at the scene, nor did he affirmatively request medical treatment. Pl. Dep. at 248, 252. Defendant Yoo collected the knife and the side-view mirror and vouchered them as evidence from the scene. Yoo Dep. at 63- - 16 64; see also Declaration of Alan D. Levine ("Levine Decl.") Ex. O (copy of property voucher for the knife and the mirror). There is no dispute, however, that none of the defendant officers vouchered the pipe, the level, or the broom, nor did they examine plaintiff's car or defendant Mangone's truck. Yoo Dep. at 25-26, Ms. 32-35, 63-64; Viani Dep. at 25, 27; Alfano Dep. at 21, 23. Lopez approached defendant Yoo, identified herself as plaintiff's girlfriend, and said that she was in plaintiff's car during the fight between plaintiff and defendant Mangone. 54. Yoo Dep. at 53- Ms. Lopez recalls informing both defendants Yoo and Viani that she wanted to speak with them and being told to "wait at the car." Lopez Dep. at 107, 117-18. However, none of the defendant Yoo officers ever asked Ms. Lopez for her version of events. Dep. at 53-55; Lopez Dep. at 117. Defendant Ciurcina left the scene without speaking to any of the defendant officers. Ciurcina Dep. at 30, 52. Officer Essex states that he approached defendant Alfano at least twice, identified himself as a police officer, and told him that he wanted to describe what had occurred, but that defendant Alfano "waived [him] off, indicating that he did not want to speak to [him]." Essex Aff. 2. Defendants Yoo and Viani then drove plaintiff in their police car to the 120th Precinct for arrest processing. at 66. Yoo Dep. While defendant Viani parked the car, defendant Yoo Id. at 70; Pl. Dep. escorted plaintiff to a small holding cell. - 17 at 253. In the holding cell, about 20 minutes after arriving at the precinct, plaintiff informed either defendant Yoo or another non-party officer that he was not feeling well and that his head hurt. Yoo Dep. at 71; Pl. Dep. at 256-58. According to plaintiff, he was "bleeding profusely nonstop" at this time and spitting up blood. Pl. Dep. at 253, 323-24. Plaintiff requested to be taken to the hospital, Yoo Dep. at 72-73; Pl. Dep. at 256, and defendant Viani escorted plaintiff to St. Vincent's hospital about 20 minutes later. Pl. Dep. at 259-30; Viani Dep. at 34-37. At the hospital, plaintiff was diagnosed with a right mandible fracture and facial abrasions. See Levine Decl. Ex. Q He (copy of St. Vincent's medical report dated May 16, 2003). was treated and eventually returned to the precinct and placed in a general holding cell for the night. Yoo Dep. at 77-78. There is no dispute that plaintiff's injuries eventually required multiple hospital visits and at least two surgeries to correct the damage to plaintiff's jaw. See Levine Decl. Ex. R (copies of St. Vincent's "Operative Reports" corresponding to surgeries performed on May 22, 2003 and September 11, 2003, and detailing plaintiff's relevant medical history). Prosecution of Plaintiff Later in the evening of May 16, 2003, defendant Yoo met with an Assistant District Attorney ("ADA") at the criminal court on Staten Island. Yoo Dep. at 79. He brought plaintiff's arrest - 18 paperwork with him, informed the ADA of his version of the events of that afternoon, and signed a sworn criminal complaint against plaintiff. as follows: Deponent states that he is informed by James Mangone, that the defendant with intent to cause physical injury the informant [sic] did cause such injury to the deponent [sic] by means of a dangerous instrument, to wit: a side view mirror, in that the defendant did hit the informant in the face with said dangerous instrument, causing the informant to suffer physical injuries including but not limited to lacerations to the face and nose, as well as substantial pain, annoyance, and alarm. Levine Decl. Ex. N (copy of criminal complaint dated May 16, 2003). Defendant Yoo was never called to appear and did not Yoo Dep. at Id. at 80. The complaint stated, in relevant part, appear in any court proceedings against plaintiff. 80. The next day, plaintiff was arraigned and charged with assault, criminal possession of a weapon, and harassment. Dep. at 362; Levine Decl. Ex. N. Pl. Plaintiff pleaded not guilty and was released on his own recognizance, but was compelled to appear between eight and ten times in court over the next year and a half in connection with the charges. 04. Pl. Dep. II at 102- The charges were eventually dismissed for unknown reasons. A report issued by the New York City Police Id. at 104. Department's ("NYPD") Internal Affairs Bureau ("IAB") on June 22, 2006, states that "the criminal case against [plaintiff] was dismissed due to [defendant] Mangone's lack of cooperation with - 19 the SI DA's office." Declaration of Jeffrey S. Dantowitz ("Dantowitz Decl.") Ex. A (copy of IAB findings report dated June 22, 2006). Defendant Ciurcina also testified that defendant Mangone told him the District Attorney's Office had dropped the charges against plaintiff because defendant Mangone had failed to appear in court. Ciurcina Dep. at 37-38. According to defendant Ciurcina, defendant Mangone failed to appear in court because the District Attorney's Office mailed his subpoenas to the wrong address. Id. at 38. In contrast, defendant Mangone testified that he did once travel to criminal court in relation to plaintiff's case, where, after waiting "all morning," an ADA told him that plaintiff "had copped a plea to disorderly conduct and that the case was over." Mangone Dep. at 100. Procedural History and Defendant Yoo and Viani's Requests for Representation On August 1, 2004, and September 1, 2004, the Civilian Complaint Review Board ("CCRB") forwarded complaints filed by plaintiff's mother and Ms. Lopez, respectively, concerning plaintiff's arrest to the IAB. Dantowitz Decl. Ex. A. In October of 2004, the case was reviewed by the IAB and closed as unsubstantiated. Id. On October 25, 2004, plaintiff commenced this lawsuit against defendants Mangone, Yoo, and other unidentified defendants in connection with the events of May 16, 2003. On February 4, 2005, an Assistant Corporation Counsel of the New - 20 York City Office of Corporation Counsel ("Corporation Counsel") filed a notice of appearance on behalf of defendant Yoo. Also in February of 2005, the IAB again reviewed the CCRB complaints brought by plaintiff's mother and girlfriend, and again closed the case as unsubstantiated. Id. On April 21, 2005, the IAB commenced a third investigation into the May 16, 2003 incident, during which all parties to this lawsuit except defendant Mangone, as well as Ms. Lopez, Officer Essex, and two EMTs were interviewed. Ex. A. Dantowitz Decl. 3; Id. On June 22, 2006, the IAB issued its investigative Id. 4, Ex. A. It found, findings regarding the incident. among other things, that defendants Yoo and Viani had violated NYPD rules and regulations by failing to provide medical assistance to plaintiff at the scene of the incident. By letter dated January 2, 2007, Corporation Counsel notified defendant Yoo that it could no longer represent him because it was unable to make the requisite findings under New York General Municipal Law 50-k(2).3 Id. Ex. B (copy of 3 New York General Municipal Law 50-k(2) provides, in relevant part, as follows: At the request of the employee . . . the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court . . . arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred . N.Y. Gen. Mun. Law 50-k(2) (emphasis added). - 21 letter). Among the individual defendants that had been named by that time, Corporation Counsel had only filed a notice of appearance on behalf of defendant Yoo. On January 29, 2007, Magistrate Judge Gold granted Corporation Counsel's request to withdraw as attorney for defendant Yoo. On June 1, 2007, defendants Yoo and Viani filed a third-party complaint against the City alleging that they were denied their right to representation and seeking indemnification. The present motions for summary judgment followed on March 16, 2009. DISCUSSION I. Standard for Summary Judgment A court must grant a motion for summary judgment if the movant shows that "there is no genuine issue as to any material fact" and that "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate "[w]hen the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Elec. Inspectors, Inc. v. Vill. of E. Hills, A fact is material when it 320 F.3d 110, 117 (2d Cir. 2003). - 22 "might affect the outcome of the suit under the governing law." Id. The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir. 1987). In order to defeat such a motion, the non-moving party must raise a genuine issue of material fact. Although all facts and inferences therefrom are to be construed in the light most favorable to the non-moving party, the non-moving party must raise more than a "metaphysical doubt" as to the material facts. See Matsushita, 475 U.S. at 586; Harlen Assocs. v. Vill. of Mineola, 273 F.3d 494, 498 (2d Cir. 2001). The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Twin Labs., Inc. v. Weider Health & Fitness, 900 Rather, the non-moving party must F.2d 566, 568 (2d Cir. 1990). produce more than a scintilla of admissible evidence that supports the pleadings. First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968); Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 175 (2d Cir. 2003). deciding such a motion the trial court must determine whether "after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." 398 (2d Cir. 2000). Pinto v. Allstate Ins. Co., 221 F.3d 394, In - 23 II. Plaintiff's Claims With the exception of defendants Yoo and Viani, who filed a joint motion, each individual defendant separately moves for summary judgment on all of plaintiff's claims. A. Section 1983 Claims Section 1983 of Title 42 of the United States Code4 "provides an instrument by which an individual deprived of a federal right by a person acting under color of state law may be compensated." 1994). Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir. "To state a claim under 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law; and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States" or federal law. Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of N.Y., 985 F.2d 94, 98 (2d Cir. 1993)). Further, "[i]t 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." Wright v. Section 1983 provides, in relevant part, as follows: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]" 4 - 24 Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quotation marks and citation omitted). 1. Excessive Force Plaintiff first claims that defendants Mangone and Ciurcina violated 1983 by using excessive force against him.5 "[E]xcessive force claims must be analyzed under the rubric of the constitutional right that is most directly implicated by the facts giving rise to the claim." F.3d 381, 390 n.7 (2d Cir. 2005). Nimely v. City of N.Y., 414 Where, as here, a claim of excessive force arises in the context of alleged police pursuit or arrest, the claim is analyzed "under the Fourth Amendment and its `reasonableness' standard." Kerman v. City of N.Y., 261 F.3d Police officers' 229, 238-39 (2d Cir. 2001) (citation omitted). application of force is excessive, in violation of the Fourth Amendment, if it is "objectively unreasonable in light of the facts and circumstances confronting them, without regard to the officers' underlying intent or motivation." Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) (internal quotation marks and brackets omitted) (quoting Graham v. Connor, 490 U.S. 386, 397 In his amended complaint, plaintiff does not identify the defendants against whom each specific 1983 claim is alleged. In his opposition to defendants' motions for summary judgment, however, plaintiff appears to assert his excessive force claim only with regard to defendants Mangone and Ciurcina. Accordingly, to the extent the amended complaint states excessive force claims against the remaining defendants, I deem them to have been abandoned. See Blake v. Race, 487 F. Supp. 2d 187, 217 (E.D.N.Y. 2007) (noting that where a "plaintiff's opposition papers d[o] not address defendants' motion for summary judgment on [a] claim, the claim is deemed abandoned" and collecting cases). In any event, the record is devoid of facts that would support an excessive force claim against any of the remaining defendants. 5 - 25 (1989)). Determining whether excessive force has occurred requires a weighing of the "facts and circumstances of each particular case, including the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest." (citation omitted). i. Color of State Law Id. In opposing plaintiff's excessive force claim, defendants Mangone and Cirucina first argue that they were not acting under color of state law on May 16, 2003, and therefore, that a 1983 claim against them must fail as a matter of law. In support of this argument, defendant Cirucina points out that while he was employed as a police detective on the relevant date, he was not on duty at the time and was present at the scene by virtue of his approved, off-duty employment with defendant Mangone. "[W]hile it is clear that `personal pursuits' of police officers do not give rise to section 1983 liability, there is no bright line test for distinguishing `personal pursuits' from activities taken under color of law." F.3d 545, 548 (2d Cir. 1994). Pitchell v. Callan, 13 That a police officer was off-duty at the time of an incident is not determinative; the court must examine the nature of the officer's actions as a whole. See id. How the plaintiff subjectively reacted to the officer's conduct or whether the plaintiff perceived the officer as such is not the - 26 subject of the inquiry. See Davis v. Lynbrook Police Dep't., 224 F. Supp. 2d 463, 476 (E.D.N.Y. 2002) ("Although Davis does not claim to have believed that Curtis was a police officer at this point, Davis' subjective reaction to Curtis' conduct is not relevant to determining whether Curtis was acting under color of state law.") (citing Pitchell, 13 F.3d at 548). Liability may attach where an off-duty officer "invokes the real or apparent power of the police department." (citation omitted). Pitchell, 13 F.3d at 548 "Liability also may exist where off-duty police officers perform duties prescribed generally for police officers." Id. (citation omitted). Viewing the facts in the light most favorable to plaintiff, a reasonable fact-finder could find that defendant Ciurcina was acting under color of state law on May 16, 2003. Defendant Ciurcina testified that upon arrival at the scene in response to defendant Mangone's call, he restrained plaintiff by holding his arms behind his back, most likely identified himself to the officers who later arrived at the scene as a police detective, and handcuffed plaintiff with handcuffs given to him by one of the responding officers. While defendants dispute between themselves who handcuffed plaintiff and when, plaintiff also testified, inter alia, that defendant Ciurcina restrained him and handcuffed him. Further, a factual dispute exists as to whether defendant Ciurcina arrived on the scene while the physical - 27 altercation between plaintiff and defendant Mangone was still ongoing, retrieved a level from defendant Mangone's truck, joined defendant Mangone in attempting to subdue plaintiff, and hit plaintiff over the head with a level.6 In addition, Officer Essex testified that the man he saw strike plaintiff with a level (who may have been defendant Ciurcina) told him he was "on the job," which Officer Essex took to mean that the man was a police officer. Drawing all reasonable inferences in plaintiff's favor, a reasonable fact-finder could find that defendant Ciurcina undertook these actions as a police officer. Accordingly, a jury must determine whether, in light of the nature of all of defendant Ciurcina's actions, defendant Ciurcina acted under color of state law on May 16, 2003. These disputed facts distinguish this case from McNamara v. City of New York, No. 06 Civ 5585, 2009 WL 735135 (S.D.N.Y. Mar. 20, 2009). In McNamara, Judge Swain granted summary judgment in a defendant officer's favor on a plaintiff's excessive force claim where the defendant officer, who was off-duty and walking his dog at the time, engaged in a verbal dispute with the plaintiff which subsequently escalated into a physical altercation. There was no dispute that at some point after the dispute became physical, the defendant officer pulled out his gun, pointed it at plaintiff, showed plaintiff his badge, and identified himself as a police officer. Id. at *3. Under these circumstances, Judge Swain held that "no rational fact finder could determine that [the defendant officer] was acting under color of state law prior to the time he displayed his badge and gun and identified himself as a police officer. Thus, there is no predicate for liability under section 1983 or section 1988 for the physical altercation that occurred before [defendant] identified himself as a police officer." Id. By contrast, in this case, plaintiff and defendant Ciurcina never themselves engaged in a private verbal dispute that escalated to physical violence. Rather, plaintiff and defendant Mangone entered into a private verbal altercation that became physical, and defendant Ciurcina responded to the scene after receiving defendant Mangone's call. Unlike in the McNamara case, in which the defendant officer's initial conduct was private in nature, a reasonable fact-finder could find that defendant Cirucina acted as a police officer from the time he responded to defendant Mangone's call, arrived at the scene of the incident, and observed the physical dispute between plaintiff and defendant Mangone. 6 - 28 Defendant Mangone also contends that he was not acting under color of state law during his interaction with plaintiff because, on May 16, 2003, he was a private citizen (albeit a retired police officer). "[P]rivate individuals are liable under Section 1983 where the private actor operates as a willful participant in joint activity with the State or its agents[.]" Jouthe v. City of N.Y., No. 05-CV-1374, 2009 WL 701110, at *18 (E.D.N.Y. Mar. 10, 2009) (internal quotation marks omitted) (quoting Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003), cert. denied, 539 U.S. 942 (2003)). "To establish joint action, a plaintiff must show that the private citizen and the state official shared a common unlawful goal; the true state actor and the jointly acting private party must agree to deprive the plaintiff of rights guaranteed by federal law." Restaurant, 923 F. Supp. 46, 49 (S.D.N.Y. 1996). Drawing all reasonable inferences in favor of plaintiff, a reasonable fact-finder could determine that defendant Mangone acted in concert with defendant Ciurcina after defendant Ciurcina's arrival on the scene. As noted above, the parties Bang v. Utopia dispute whether defendant Cirucina joined defendant Mangone in his physical dispute with plaintiff. Crediting plaintiff's version of events, a reasonable fact-finder could determine that defendant Ciurcina and defendant Mangone shared the unlawful goal of using excessive force against plaintiff. Accordingly, whether - 29 defendant Mangone acted under color of state law after involving defendant Ciurcina in the incident cannot be determined as a matter of law. ii. Whether Force Was Excessive Defendants Mangone and Ciurcina further argue that regardless of whether they were acting jointly under color of state law on May 16, 2003, the force they used was not legally excessive. Material issues of fact exist as to the amount of Defendant force used after defendant Ciurcina's arrival. Cirucina alleges that he merely used force in order to restrain plaintiff's arms and handcuff him, and defendant Mangone alleges that the only force he used was, at some point, to hold plaintiff on the ground by placing his knee on plaintiff's back. According to plaintiff, however, defendant Ciurcina arrived on the scene while his physical dispute with defendant Mangone was ongoing, and either defendant Ciurcina or defendant Mangone subsequently approached him from behind and hit him over the right side of his head with a level. A reasonable fact-finder could find that either or both of defendants Mangone and Ciurcina used force against plaintiff that was objectively unreasonable following defendant Cirucina's arrival on the scene, and accordingly, neither defendant Mangone nor defendant Ciurcina is entitled to summary judgment. - 30 iii. Qualified Immunity Defendant Ciurcina argues that even if he is not entitled to summary judgment on the merits of plaintiff's excessive force claim, summary judgment should nevertheless be granted in his favor on the basis of qualified immunity. "Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200 (2001), overruled on other grounds by Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 813 (U.S. Jan. 21, 2009).7 The doctrine of qualified immunity provides "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. (citation omitted). Under the doctrine of qualified immunity, "officials who act in ways they reasonably believe to be lawful . . . should not be held personally liable." 641 (1987). Anderson v. Creighton, 483 U.S. 635, In the police officer context, the doctrine "serves to protect police from liability and suit when they are required to make on-the-spot judgments in tense circumstances." 7 Lennon v. In Pearson v. Callahan, the Supreme Court overruled Saucier's requirement that a district court must first determine whether there was a deprivation of a constitutional right, and then whether such right was clearly established. Pearson, 129 S.Ct. at 818. Under Pearson, the court may exercise its discretion in deciding which prong to address first, in light of the particular circumstances of each case. Id. (noting that though the Saucier sequence is often appropriate and beneficial, it is no longer mandatory). - 31 Miller, 66 F.3d 416, 424 (2d Cir. 1995) (citation omitted). In general, public officials are entitled to qualified immunity if either (1) their actions did not violate a constitutional right, or (2) if the alleged facts show a violation of a constitutional right, the court finds that the right was not clearly established at the time of the challenged actions. See Moore v. Andreno, 505 F.3d 203, 208 (2d Cir. 2007). Whether a right was clearly established depends on "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." 533 U.S. at 202). Id. (quoting Saucier, "To determine whether a particular right was clearly established at the time of the alleged offense, courts should consider: (1) whether the right in question was defined with `reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." 1 F.3d 1317, 1328 (2d Cir. 1993). Frank v. Relin, Immunity applies "if officers of reasonable competence could disagree" on whether the conduct at issue was unlawful. (1986). As discussed above, drawing all reasonable inferences in plaintiff's favor, a reasonable fact-finder could determine that See Malley v. Briggs, 475 U.S. 335, 341 - 32 defendant Ciurcina violated plaintiff's right to be free from unreasonable force as secured by the Fourth Amendment. I now turn to whether this right was clearly established at the time of defendant Ciurcina's alleged offense. Numerous courts have noted that the right to be free from objectively unreasonable force during police pursuit and arrest is well settled. See, e.g., Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2002) (noting that it is "well established that the use of excessive force in the course of an arrest is constitutionally prohibited"). In particular,8 "it is not objectively reasonable for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 (2d Cir. 2003) (citation and internal quotation marks omitted). Under New York law, deadly force is "force which, under the circumstances in which it is used, is readily capable 8 In the Fourth Amendment context, unless the alleged use of force is obviously objectively unreasonable, the Supreme Court requires a more "particularized" inquiry into whether an individual's Fourth Amendment right to be free from unreasonable force has been violated. See Brosseau v. Haugen, 543 U.S. 194, 198-99 (U.S. 2004) ("[T]here is no doubt that Graham v. Connor . . . clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson [v. Creighton] `that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.") (citing Saucier, 543 U.S. at 201-02). - 33 of causing death or other serious physical injury." Law 10.00(11). According to plaintiff and non-party witness Officer Essex, either defendant Mangone or defendant Ciurcina hit plaintiff over the head with a level during the physical dispute with such force that it fractured plaintiff's jaw and caused plaintiff to lose consciousness. The alleged blow to plaintiff's head qualifies as N.Y. Penal deadly force, as it was readily capable of causing death or serious physical injury. At the time plaintiff was struck, Officer Essex states that he was pointing a gun at plaintiff, and that the person who hit plaintiff with the level approached plaintiff from behind. Crediting plaintiff's version of events, a reasonable fact-finder could find that defendant Ciurcina struck plaintiff over the head with the level, and that at that time, defendant Ciurcina had no reason to fear that plaintiff posed a risk of death or serious injury to him or to others. This finding would compel a conclusion that under clearly established law, defendant Ciurcina's use of deadly force was objectively unreasonable. However, defendant Ciurcina denies ever having wielded the level, alleging that he only used force against plaintiff when he held plaintiff's arms behind his back and handcuffed him. When "there are facts in dispute that are material to a determination of reasonableness," dismissal on the basis of a qualified immunity defense is inappropriate. Thomas - 34 v. Roach, 165 F.3d 137, 143 (2d Cir. 1999). Accordingly, whether defendant Ciurcina is entitled to qualified immunity on plaintiff's excessive force claim cannot be determined as a matter of law on summary judgment, and defendant Ciurcina's motion is denied with respect to this claim. 2. False Arrest and Imprisonment Plaintiff also asserts a claim of false arrest against all defendants.9 Federal claims for false arrest brought via 1983 rest on an individual's Fourth Amendment right to be "free from unreasonable seizures, including arrest without probable cause," and are "substantially the same as a claim for false arrest under New York law." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). To state a claim for false arrest under New York law, a plaintiff must show that: (1) the defendant intentionally confined 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 justified. N.Y., 331 F.3d 63, 75 (2d Cir. 2003). See Savino v. City of A plaintiff may establish intentional confinement by showing that the defendant "affirmatively procured or instigated the plaintiffs' arrest" by 9 Here again, plaintiff does not identify the defendants against whom he presses his false arrest claim in his amended complaint. He opposes summary judgment on his false arrest claim only with regard to defendants Yoo, Viani, Alfano, and Ciurcina. However, because plaintiff argues that defendant Mangone acted in concert with defendant Ciurcina as a state actor, and because defendant Mangone interprets the false arrest claim as pleaded with regard to himself, I consider plaintiff's false arrest claim with regard to defendant Mangone in addition to the other defendants. - 35 another. 1997). Regardless of whether the first three prongs are satisfied, a claim for false arrest and imprisonment will fail where a defendant establishes that probable cause existed, as the existence of probable cause constitutes justification and is a complete defense to an action for false arrest and imprisonment. See Bernard v. U.S., 25 F.3d 98, 102 (2d Cir. 1994). "Probable King v. Crossland Sav. Bank, 111 F.3d 251, 255 (2d Cir. cause to arrest exists when the authorities have knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." Haven, 950 F.2d 864, 870 (2d Cir. 1991). Golino v. City of New Probable cause is an objective determination based upon the information available to the officer at the time of the arrest; the officer's subjective beliefs and motivations are irrelevant. U.S. 146, 152-53 (2004). Devenpeck v. Alford, 543 A court may determine whether probable cause existed as a matter of law as long as there is "no dispute as to the pertinent events and the knowledge of the arresting officers." Weyant, 101 F.3d at 852. There is no dispute that defendant Yoo intentionally confined plaintiff when he either handcuffed him or caused him to be handcuffed and placed him in the police car, and that plaintiff was conscious of the confinement and protested his - 36 innocence. Thus, plaintiff has met his burden under the first Accordingly, I three prongs of the false arrest inquiry.10 proceed to consider whether I may determine as a matter of law on summary judgment that justification in the form of probable cause existed with regard to plaintiff's arrest. i. Probable Cause According to defendant Yoo, who informed plaintiff that he was under arrest, and defendant Alfano, who supervised defendant Yoo and approved the arrest, probable cause to arrest plaintiff existed for the crime of assault. In support of this argument, they point to their alleged conversations with both defendant Mangone and plaintiff prior to plaintiff's arrest, defendant Mangone's statements that plaintiff had hit him and threatened 10 While the parties do not discuss this possibility, I note that an alternate theory of plaintiff's arrest exists. Under this theory, plaintiff was arrested when defendant Ciurcina, acting under color of state law in concert with defendant Mangone, physically restrained plaintiff against his will by holding him on the ground. Regardless, however, I conclude that even when all facts are construed and inferences drawn in plaintiff's favor, no reasonable fact-finder could find that defendant Ciurcina's belief that he had probable cause to arrest plaintiff for assault was not objectively reasonable. According to plaintiff, defendant Ciurcina arrived upon the scene while plaintiff and defendant Mangone were still engaged in a physical dispute. Both plaintiff and defendant Mangone were visibly injured. In light of all of the information known to defendant Ciurcina, including his preexisting relationship with defendant Mangone, it was objectively reasonable for defendant Ciurcina to belief that plaintiff had assaulted defendant Mangone. This is particularly true given that there is no dispute that plaintiff either backed away or turned and fled from the parking lot, an action that a reasonable police officer could interpret as inculpatory. No reasonable factfinder could find that while the fight was ongoing, circumstances required or indeed permitted defendant Ciurcina to make further inquiries into whether plaintiff's actions were justified before forceably restraining plaintiff. Accordingly, probable cause to arrest plaintiff existed under this arrest scenario, and plaintiff cannot hold either defendant Ciurcina or defendant Mangone, who allegedly acted in concert with defendant Ciurcina, liable on this theory. - 37 him with a knife, plaintiff's purported admission that he hit defendant Mangone in the face with the mirror, and their personal observations of defendant Mangone's facial injuries and the lack of injury to plaintiff. They further argue that in light of these facts, they had no duty to make a further investigation before arresting plaintiff, as they had objectively reasonable grounds to believe plaintiff had committed assault and no reason to believe defendant Mangone's account of events was unreliable. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) ("Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest."); Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) ("An arresting officer advised of a crime by a person who claims to be the victim . . . has probable cause to effect an arrest absent circumstances that raise doubts as to the victim's veracity."). Plaintiff's version of the information available to defendants Yoo and Alfano at the time of his arrest is, however, quite different. According to plaintiff, defendant Mangone had his foot on plaintiff's neck and defendant Ciurcina had his knee on his back when defendants Yoo and Viani arrived on the scene. Several parties and non-parties recall that plaintiff was dazed, had sustained cuts and tears to his body and clothing, and was - 38 visibly bleeding and spitting up blood and teeth at the time. Plaintiff alleges that defendant Ciurcina handcuffed him with either defendant Yoo's or defendant Viani's handcuffs before any investigation was made.11 Further, plaintiff denies that defendants Yoo or Alfano asked him for his version of events until after he was arrested and in the patrol car, and that in fact, because defendant Yoo came over to him "sarcastically" and laughed at him, he never told any of the officers his version of what had happened. In addition, according to plaintiff, Ms. Lopez, Officer Essex, and indeed the officers themselves, none of the officers responding to the scene asked any of the bystanders for a statement, despite Ms. Lopez's and Officer Essex's efforts to tell the officers what they had seen. Based on these differing versions of events, multiple disputes of material fact exist as to the pertinent events and the knowledge of defendants Yoo and Alfano at the time of plaintiff's arrest. 11 Crediting plaintiff's version of events, a While defendants Yoo and Alfano do not make the argument, I note that in this case, whether defendant Ciurcina had probable cause to arrest plaintiff is irrelevant to whether defendants Yoo and Alfano had probable cause for plaintiff's arrest. While in some cases, under the "collective knowledge doctrine," facts supporting probable cause may be imputed from one officer to another, see U.S. v. Colon, 250 F.3d 130, 135 (2d Cir. 2001), some amount of communication between officers is necessary in order for a second officer's reliance on the first officer's knowledge to be reasonable. See Loria v. Gorman, 306 F.3d 1271, 1292 (2d Cir. 2002) ("An officer may arrest an individual based on a report by another officer only if reliance on that report is objectively reasonable."). Here, there is no dispute that the onduty officers did not question defendant Ciurcina regarding what had transpired, and that defendant Ciurcina did not call upon the on-duty officers to assist him in arresting plaintiff. Indeed, material issues of fact exist as to whether there was any communication at all between defendant Ciurcina and defendants Yoo and Alfano. - 39 reasonable fact-finder could determine that defendant Mangone's and defendant Ciurcina's postures upon the officers' arrival, plaintiff's visible injuries, the lack of any threat of immediate harm, and the presence of eyewitnesses eager to provide statements in plaintiff's favor were circumstances that called into doubt defendant Mangone's version of events and required further investigation into whether probable cause to arrest plaintiff for assault was negated by the justification of selfdefense. Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996) (noting that under New York law, "the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause"); Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir. 1994) (citing with approval the holding in BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) that "[r]easonable avenues of investigation must be pursued [to establish probable cause]"); see also Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003) (holding that "under some circumstances, a police officer's awareness of the facts supporting a defense can eliminate probable cause," and noting that self-defense is an exculpatory defense). Accordingly, the motions of defendants Yoo and Alfano for summary judgment on plaintiff's false arrest claim are denied. - 40 ii. Personal Involvement Defendants Viani, Ciurcina, and Mangone each argue that they cannot be held liable for false arrest because they were not personally involved in plaintiff's arrest. As previously noted, personal involvement is a prerequisite to a finding of liability under 1983. 1994). See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. Personal involvement may be established by a showing of direct participation, meaning "intentional participation in the conduct constituting a violation of the victim's rights by one who knew of the facts rendering it illegal." Newburgh, 262 F.3d 146, 155 (2d Cir. 2001). Provost v. City of Personal involvement is also established where police officers fail "to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994); see also Jeffreys v. Rossi, 275 F. Supp. 2d 463, 474 (S.D.N.Y. 2003). In order for liability to attach on a failure to intervene theory, a police officer must have known that a constitutional violation was being committed by a law enforcement official, and "there must have been a realistic opportunity to intervene to prevent the harm from occurring." Anderson, 17 F.3d at 557. According to I turn first to defendant Viani's arguments. defendant Viani, he did not directly participate in plaintiff's arrest because his role at the scene of the crime was limited to - 41 managing crowd control, and did not include investigating the incident or making arrests. Both defendants Yoo and Viani acknowledge, however, that they acted as partners during the incident, that defendant Yoo conferred with defendant Viani more than once prior to arresting plaintiff, and that defendant Yoo shared at least some of the details of what he had learned during his investigation with defendant Viani. Based upon these facts, a reasonable fact-finder could find that defendant Viani was involved in the decision to arrest plaintiff, and therefore, that he directly participated in plaintiff's arrest. Further, a reasonable fact-finder could also find that defendant Viani knew that defendant Yoo was making an arrest without probable cause, that he had a reasonable opportunity to intervene, and that he failed to do so. Accordingly, material issues of fact exist concerning defendant Viani's personal involvement in plaintiff's arrest. Nor do the personal involvement arguments of defendants Ciurcina and Mangone entitle them to summary judgment. As previously discussed, material issues of fact exist as to whether defendant Ciurcina was acting as a police officer when he arrived at the scene, and whether he and defendant Mangone acted jointly to subdue and restrain plaintiff against his will. Drawing all reasonable inf

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