Richardson v. New York City et al
Filing
56
OPINION & ORDER: Defendants' 47 motion for summary judgment is granted in part and denied in part. Plaintiff's claims for false arrest, malicious prosecution, and excessive force are dismissed. His claims for unreasonable detention and failure to intervene may proceed to trial unless defendants renew their motion for summary judgment within 45 days. SO ORDERED by Senior Judge Allyne R. Ross, on 8/22/2011. C/mailed. (Latka-Mucha, Wieslawa)
FILED
IN CLERK'S OFFICE
U.S. DISTR!CT COURT ED.NY.
*
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
______________________________________________________ ---------------
J<
AUG 2 2 2011
*
BROOKLYN OFFICE
09-CV-4647 (ARR) (LB)
RICHARD RICHARDSON,
NOT FOR PRINT OR
ELECTRONIC
PUBLICAnON
Plaintiff,
-againstSERGEANT LYNDON PROVIDENCE, Shield No.
19061, and POLICE OFFICER JASWANT DYAL, Shield :
No. 13885,
Defendants.
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OPINION & ORDER
J<
ROSS, United States District Judge:
Richard Richardson brings this action pursuant to 42 U.S.c. § 1983 against Police
Officers Lyndon Providence and Jaswant Dyal of the New York City Police Department
("NYPD"). Plaintiff seeks to hold defendants liable for violations of his constitutional rights
during an incident in the Jay Street subway station in Brooklyn on October 14,2009. Now
before the court is defendants' motion for summary judgment. For the reasons explained below,
the motion is granted in part and denied in part.
I. BACKGROUND
The following facts are drawn primarily from plaintiffs deposition testimony. See
Deposition of Richard Richardson, Dec. 21, 2010 ("PI. Dep. "), annexed as Ex. B to Declaration
of Lisa Richardson, dated Feb. 23,2011 ("L. Richardson Decl."). The facts are undisputed
except as indicated. Defendants have not submitted affidavits in support of their motion.
Plaintiff is a disabled, homeless man. PI. Dep. at 18, 24. At the time of the incident, on
October 14,2009, he was 53 years old. Id. at 15. That afternoon, he entered the Jay Street
subway station at around 1:00 p.m. Id. at 34. He didn't have any money left on his half-fare
DJr
Metrocard, so he sought out a police officer to ask permission to board the train without
payment. Id. at 37. At the Jay Street station, plaintiff saw the two defendants in this action
standing beyond the turnstiles, and he called out to them. Id. at 35, 42. Officer Dyal responded
by waving plaintiff through the gate. Id. at 36. Plaintiff entered, explained his situation to
Officer Dyal, and asked to be permitted onto the train. Id. at 38. Officer Dyal refused. Id.
When plaintiff asked for an explanation, Officer Dyal responded, "[B]ecause I'm the boss and I
say so." Id. Then, observing the single stripe of Dyal's sleeve, plaintiff said, "[Y]ou only got
five years on the job.... I'm going to find an officer who is going to let me on." Id.
Then, "out of nowhere," Officer Providence grabbed plaintiff s jacket, pushed him up
against the wall, and began searching him. Id. at 40. Plaintiff struggled and tried to break loose,
but Officer Providence seized plaintiffs left hand by the finger and threw it behind plaintiffs
back. Id. at 40, 43, 45. Officer Providence told plaintiff to put his other hand behind his back,
plaintiff complied, and Officer Providence tightened a white plastic restrainer around plaintiffs
hands. Id. at 45-46. He told plaintiff to face the wall. Id. at 40,45. Then he pushed plaintiff
against the wall and told him to stand there. Id. at 47. Officer Dyal appeared to be shocked by
Officer Providence's conduct, but he did not intervene. Id. at 40-41.
Until 2:30 p.m. plaintiff stood facing the wall while defendants were "talking, just joking
around." Id. at 47-48. Then, after about an hour and half, Providence cut the restrainer off
plaintiff s hands and said to him, "[A]sshole[,] [d]o you feel like doing five years standing up in
that corner[?]" Id. at 48-49. Then Providence gave plaintiff a notice of violation to the Transit
Adjudication Bureau (the "TAB") for entering the subway without paying and let him go. Id. at
49-51; Transit Summons No. 102462764 ("Transit Summons"), annexed as Ex. C to L.
Richardson Dec!.
2
Plaintiff appeared at a TAB hearing in order to contest the violation, but the hearing
officer sustained the violation and ordered plaintiff to pay a fine. PI. Dep. 52. Plaintiff didn't
take any further action on the violation and has not paid the fine. Id. at 52-53. The fine was
consequently reduced to a judgment and forwarded to the Sheriff s Office for execution. See id.
at 52; Sheriffs Notice of Impending Levy ("Sheriffs Notice"), annexed as Ex. D to L.
Richardson Deci.
In this action, plaintiff alleges that his finger was injured when Officer Providence
twisted it behind his back. PI. Dep. at 50-51, 67. Plaintiff remembers seeking treatment at the
Brooklyn Hospital emergency room on the day of the incident, October 14,2009, but his hospital
records record a visit on the following day, October 15,2009. Compare PI. Dep. at 55-56, with
Brooklyn Hospital Center Medical Records ("Certified Medical Records"), annexed as Ex. A to
Reply Declaration of Lisa Richardson, dated Apr. 6, 2011 ("L. Richardson Reply DecI.").
Plaintiff was diagnosed with a sprain of his finger. Certified Medical Records; PI. Dep. at 57.
Diagnostic imaging did not reveal any dislocation or fracture; although an MRI made about ten
months later could not exclude the possibility of a small subchondral fracture, the reviewing
doctor's impression was that it more likely reflected osteoarthrosis. Certified Medical Records;
Bensonhurst MRI Report, dated Aug. 24, 2010 ("MRI Report"), annexed as Ex. F to L.
Richardson Decl.; PI. Dep. at 57, 62-63. Plaintiffs medical treatment for this injury has included
physical therapy; steroid shots were prescribed but plaintiff discontinued them because of their
side effects. Certified Medical Records; PI. Dep. at 59-61.
H. DISCUSSION
The court liberally construes plaintiffs pro se complaint to assert § 1983 claims for false
arrest, malicious prosecution, excessive force, unreasonable detention, and failure to intervene.
3
Plaintiff may not assert pendent state-law claims because he has not filed a notice of claim as
required by New York law.) Defendants have moved for summary judgment against plaintiffs
§ 1983 claims on the bases that (1) there was probable cause to arrest plaintiff, (2) the civil TAB
proceeding did not terminate in plaintiffs favor, (3) Officer Providence's use of force against
plaintiff was objectively reasonable, and (4) both defendants are entitled to qualified immunity.
The court concludes that defendants are entitled to summary judgment on plaintiffs claims for
false arrest, malicious prosecution, and excessive force. Although defendants have moved
against the complaint in its entirety, their moving papers do not address plaintiffs claims for
unreasonable detention and failure to intervene. Summary judgment is therefore denied as to
these claims, without prejudice to defendants' renewal of their motion within 45 days.
A.
Standard of Review
Under Rule 56(c) of the Federal Rules of Civil Procedure, a moving party is entitled to
summary judgment if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317,322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). '''While
genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either
party ... materiality runs to whether the dispute matters, i.e., whether it concerns facts that can
affect the outcome under the applicable substantive law.'" McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal
quotation marks omitted». In determining whether there is a genuine issue of material fact, "the
I See PI. Dep. at 9-10; N.Y. Gen. Mun. §§ 50-e, 50-i. Filing a notice of claim is a mandatory condition precedent to
suit against New York City and its employees, and failure to comply with this condition is grounds for dismissing
New York state-law claims in federal court. Cantave v. New York City Police Officers, No. 09-CV-2226, 2011 WL
1239895, at *12 (E.D.N.Y. Mar. 28,2011).
4
district court is not to weigh the evidence but is instead required to view the evidence in the light
most favorable to the party opposing summary judgment, to draw all reasonable inferences in
favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845,854
(2d Cir. 1996) (citing Anderson, 477 U.S. at 255). "[T]he moving party may obtain summary
judgment by showing that little or no evidence may be found in support of the nonmoving party's
case." Gallo v. Prudential Residential Servs., 22 F.3d 1219,1223 (2d Cir. 1994); Celotex, 477
U.S. at 322 ("Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on which that party will bear the
burden ofproof.").
B.
False Arrest
A § 1983 claim for false arrest requires proof of the same four elements as a claim for
false arrest under New York law: (1) the defendant intentionally confined plaintiff, (2) plaintiff
was conscious of the confinement, (3) plaintiff did not consent to the confinement, and (4) the
confinement was not otherwise privileged. See Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir.
2003); Harris v. County of Nassau, 581 F.Supp.2d 351,354-55 (E.D.N.Y. 2008); Broughton v.
State, 37 N.Y.2d 451,456 (1975). Ifprobable cause exists at the time of arrest, the confinement
is privileged. Jocks, 316 F.3d at 135; Martinez v. City of New York, 340 Fed. Appx. 700, 701
(2d Cir. 2009). Thus, the existence of probable cause constitutes a complete defense to a falsearrest claim. Covingtonv.CityofNewYork, 171 F.3d 117, 122 (2dCir. 1999). Inthisaction,
because defendants had probable cause to arrest plaintiff as a matter of law, the court grants
summary judgment in their favor.
5
At the time of plaintiffs arrest, Providence wrote him a summons for violating the New
York City Transit Authority's Rules of Conduct (the "Rules") by entering the station without
paying. See 21 N.Y.C.R.R. § 1050.4(a) ("No person shall use or enter upon the facilities or
conveyances of the authority, for any purpose, without the payment of the fare or tender of other
valid fare media .... "). Persons violating the Rules are subject to either:
(a) criminal prosecution in the criminal court of the City of New York, which
court may impose a fine not to exceed $25 or a term of imprisonment for not
longer than 10 days, or both; or
(b) civil penalties imposed by the transit adjudication bureau in an amount not to
exceed $100 per violation (exclusive of interest or costs assessed thereon).
§ 1050.10; see also N.Y. Pub. Auth. Law § 1209-a(3) (giving the TAB "non-exclusive
jurisdiction" over violations of the Rules). The police officer citing the violation has complete
discretion concerning whether to issue a citation to the criminal court or a notice of violation to
the TAB. New York Civil Liberties Union v. New Your City Transit Auth., No. 10-372-CV,
2011 WL 2852412, at *2, 12 (2d Cir. July 20, 2011) ("NYCLU"); People v. Mattocks, 12
N.Y.3d 326,334 n.2 (2009) (noting broad charging discretion in connection with turnstile
jumping). In this case, Officer Providence wrote plaintiff a notice of violation to the TAB.
Although a TAB notice is not fully equivalent to a criminal citation, see Hernandez v. City of
New York, No. 00-CV-9507, 2004 WL 2624675, at *5 (S.D.N.Y. Nov. 18,2004) (rejecting the
contention that the plaintiff s voluntary payment of a civil fine to the TAB was conclusive
evidence of probable cause in the manner of a criminal guilty plea), the court concludes that the
TAB adjudication of plaintiff s violation is entitled to preclusive effect in the present § 1983
action.
"[W]hen a state agency acting in a judicial capacity resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate, ... federal
6
courts must give the agency's factfinding the same preclusive effect to which it would be entitled
in the State's courts." Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (internal quotation
marks and citation omitted); accord Rodriguez v. City of New York, 41 Fed. Appx. 486,488-89
(2d Cir. 2002) (finding that an agency determination established probable cause, barring the
plaintiffs § 1983 claim for false arrest). Under New York law, the doctrine of collateral
estoppel is applicable to give preclusive effect to the final, quasi-judicial determinations of
administrative agencies "when rendered pursuant to the adjudicatory authority of an agency to
decide cases brought before its tribunals employing procedures substantially similar to those
used in a court oflaw." Ryan v. New York Telephone Co., 62 N.Y.2d 494, 499-500 (1984); see
also Rodriguez, 41 Fed. Appx. at 488. "Of course, the issue must have been material to the first
action or proceeding and essential to the decision rendered therein, and it must be the point
actually to be determined in the second action or proceeding such that a different judgment in the
second would destroy or impair rights or interests established by the first." Ryan, 62 N.Y.2d at
500 (internal quotations marks and citations omitted); see also Rodriquez 41 Fed. Appx. at 488.
"In the application of collateral estoppel with respect to administrative determinations, the
burden rests upon the proponent of collateral estoppel to demonstrate the identicality and
decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a
full and fair opportunity to litigate the issue in prior action or proceeding." Ryan, 62 N.Y.2d at
501; see also Cortez v. City of New York, No. 99-CV-4304, 2001 WL 410092, at *6 (S.D.N.Y.
Apr. 20, 2001).
As the Second Circuit recently observed, "the TAB acts as an adjudicatory body [and]
operates under procedures modeled on those of courts." NYCLU, 2011 WL 2852412, at *11
(holding that the First Amendment guarantees a presumptive right of public access to TAB
7
hearings). "When a neutral adjudicator determines whether public transit users have violated a
Rule, that determination has the force of law .... " Id. Thus, the TAB hearing at which
plaintiffs summons was sustained was a quasi-judicial determination within TAB's adjudicatory
authority, and its money judgment against him is enforceable "without court proceedings, in the
same manner as the enforcement of money judgments in civil actions." See id. at *2 (quoting
N.Y. Pub. Auth. Law § 1209-a(4)(e)). Its determination that plaintiff violated the Rules by
walking through the gate at the Jay Street station without paying the fare necessarily entails that
Providence had probable cause to believe plaintiff violated the Rules. Finally, plaintiff has not
demonstrated that he was not given a full and fair opportunity to litigate the issue. Although
plaintiff intimates that his hearing was unfair because the TAB hearing officers, like the police,
work for the City, PI. Dep. at 52, the court notes that he could have appealed the decision to an
internal appeals board and, from there, to state court, see NYCLU, 2011 WL 2852412, at *2;
N.Y. Pub. Auth. Law § 1209-a(8), but he has not done so. Therefore, plaintiff may not assert in
this action that defendants lacked probable cause.
Because defendants had probable cause to believe plaintiff violated § 1050.4(a) of the
Rules, they were entitled to arrest him. See Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) ("If
an officer has probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the
offender."). Therefore, plaintiffs false-arrest claim fails. See Sands v. City of New York, No.
04-CV-5275, 2006 WL 2850613, at *4-5 (E.D.N.Y. Oct. 3,2006) (dismissing false-arrest claim
based on custodial arrest for littering).
8
c.
Malicious Prosecution
The existence of probable cause also bars plaintiffs § 1983 claim for malicious
prosecution. See Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010); Savino v.
City of New York, 331 F.3d 63, 72 (2d Cir. 2003). Under New York law, a malicious
prosecution claim has four elements: "( 1) the initiation or continuation of a criminal proceeding
against plaintiff; (2) termination of the proceeding in plaintiffs favor; (3) lack of probable cause
for commencing the proceeding; and (4) actual malice as a motivation for defendant's actions."
Manganiello, 612 F.3d at 161 (internal quotation marks omitted); Broughton v. State, 37 N.Y.2d
451, 457 (1975). In order to prevail on a § 1983 claim for malicious prosecution, a plaintiff must
also establish (5) a sufficient post-arraignment restraint on his liberty to implicate his Fourth
Amendment rights. Rohman v. New York City Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000);
Manganiello, 612 F.3d at 160-61. Thus, the existence of probable cause negates an essential
element of plaintiff s claim. In addition, the court notes that plaintiff cannot establish other
elements of this cause of action because no criminal action was commenced against him, the
civil TAB proceeding did not terminate in his favor, and there was no post-arraignment
deprivation of his liberty.
D.
Excessive Force
"In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged application of
force." Graham v. Connor, 490 U.S. 386,394 (1989) (identifying the Fourth, Eighth, and
Fourteenth Amendments as potential bases for an excessive force claim in the appropriate
circumstances). "Where, as here, the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one invoking the
9
protections of the Fourth Amendment, which guarantees citizens the right 'to be secure in their
persons ... against unreasonable ... seizures' of the person." Id.; see Lemmo v. McKoy, No.
08-CV-4264, 2011 WL 843974, at *4 (E.D.N.Y. Mar. 8,2011) (applying Fourth Amendment
standard to the use of force in a police precinct after the plaintiff had been arrested but before he
was arraigned); see also Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989) ("We think the
Fourth Amendment standard probably should be applied at least to the period prior to the time
when the person arrested is arraigned or formally charged, and remains in the custody (sole or
joint) of the arresting officer. "). Allegations of excessive force occurring after arraignment but
before conviction are governed by the Fourteenth Amendment; after conviction the Eighth
Amendment applies. Lemmo, 2011 WL 843974, at *4?
The Fourth Amendment standard, applicable to the present case, is purely objective: "the
question is whether the officers' actions are 'objectively reasonable' in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation."
Graham, 490 U.S. at 397 ("An officer's evil intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of force; nor will an officer's good intentions make
an objectively unreasonable use of force constitutional."); see Nimely v. City of New York, 414
F.3d 381,390 (2d Cir. 2005). In Graham, the Supreme Court provided guidance on how to apply
2 The Eighth and Fourteenth Amendment tests that apply to the claims of pre-trial detainees and sentenced convicts
are essentially the same. United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999) (citing Hudson v. McMillian, 503
U.S. 1 (1992». This test includes both a subjective component, focusing on the defendant's motive for his conduct,
and an objective component, focusing on the conduct's effect on the plaintiff. Wright v. Goord, 554 F.3d 255, 268
(2d Cir. 2009) (citing Hudson, 503 U.S. at 7-8). The sUbjective component turns on "whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S.
at 7. The objective component turns on whether "the alleged wrongdoing was objectively 'harmful enough' to
establish a constitutional violation" in light of "contemporary standards of decency." Id. at 8 (internal quotation
marks and citations omitted). Although a prison official's use of force to cause harm maliciously and sadistically
will always violate contemporary standards of decency, whether or not a significant injury is evident, de minimis
uses of physical force do not constitute constitutional violations, "provided that the use of force is not of a sort
repugnant to the conscience of mankind." Id. at 9-10 (internal quotation marks and citations omitted).
10
the Fourth Amendment standard to claims that police officers used excessive force in the course
of an arrest or other seizure:
Determining whether the force used to effect a particular seizure is "reasonable"
under the Fourth Amendment requires a careful balancing of the nature and
quality of the intrusion on the individual's Fourth Amendment interests against
the countervailing governmental interests at stake. Our Fourth Amendment
jurisprudence has long recognized that the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of physical coercion
or threat thereof to effect it. Because the test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application,
however, its proper application requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.
490 U.S. at 396 (internal quotations and citations omitted). Graham further teaches that "[t]he
'reasonableness' of a particular use of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight." Id. ("Not every push or
shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the
Fourth Amendment.") (internal quotation marks and citation omitted). "The calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about
the amount of force that is necessary in a particular situation." Id.
Applying the Graham test to the present case, it is beyond dispute that Officer Providence
was entitled to use "some degree of physical coercion or threat thereof' to effect plaintiffs
lawful arrest and to search him. See id. Plaintiff admits that he struggled against Officer
Providence, who then twisted plaintiffs finger in order to handcuff him:
When he grabbed my jacket with one hand I struggled. That's when he grabbed
my left hand, twist [sic] the finger and threw it behind my back. Then he pulled a
white restrainer from out of his belt from his belt. He told me to put my hand
behind my back and tightened the restrainer on and he told me to face the wall.
11
PI. Dep. at 45. Defendants submit that plaintiffs struggle entitled Officer Providence to use this
amount of force. The court agrees. Even if plaintiff sustained a small fracture or osteoarthrosis
from his encounter with Officer Providence, 3 the court concludes that, under the circumstances,
the brief twisting of plaintiffs finger to control his arm for handcuffing cannot be deemed
unreasonable or "excessive" as a matter oflaw. See Keene v. Schneider, 350 Fed. Appx. 595,
597 (2d Cir. 2009) (reversing the district court's denial of defendants' motion for summary
judgment on the ground of qualified immunity where force was necessary overcome the
plaintiffs resistance to being handcuffed and the use of force stopped immediately after the
handcuffs were secured); Sassower v. City of White Plains, No. 89-CV-1267, 1995 WL 222206,
at *6-7 (S.D.N.Y. Apr. 13, 1995) (granting summary judgment to police officers on the
plaintiff s excessive force claims where the plaintiff resisted arrest, and in the course of arresting
Both parties devote considerable discussion to the extent of plaintiffs injury. While some district courts have
borrowed from the Eighth Amendment test for excessive force against sentenced convicts to dismiss claims in which
an arrestee suffers only de minimis injuries, see,~, Smith v. City of New York, No. 04-CV-3286, 2010 WL
3397683, at * 10 (S.D.N.Y. Aug. 27, 2010) (characterizing short-term pain, swelling, and bruising as de minimis),
the Second Circuit has held that even minor injuries, including scrapes and bruises, can support an excessive-force
claim, Maxwell v. City of New York, 380 F.3d 106, 109-10 (2d Cir. 2004) (reversing the district court's entry of
summary of judgment against a plaintiff who had suffered only "minor scrapes, bumps or bruises [that] potentially
could occur, often unintended, during any arrest," pain, and post-concussive syndrome); Robinson v. Vi!!, 821 F.2d
913,923-24 (2d Cir. 1987) (allowing a plaintiffs claim to survive summary judgment where a police officer pushed
her against the inside of the door ofa car, "yanked" her out, threw her up against the fender, and twisted her arm
behind her back, causing only bruising for which she did not seek medical treatment). See generally Lemmo, 2011
WL 843974, at *5-6. In addition, the Second Circuit has approved of the award of nominal damages for the use of
excessive force in violation of the Fourth Amendment where no compensable injury can be proven. Amato v. City
of Saratoga Springs, 170 F.3d 311, 317 (2d Cir. 1999) ("While the main purpose of a § 1983 damages award is to
compensate individuals for injuries caused by the deprivation of constitutional rights, a litigant is entitled to an
award of nominal damages upon proof of a violation of a substantive constitutional right even in the absence of
actual compensable injury."). Thus, the extent of plaintiffs injury is not dispositive of his Fourth Amendment
excessive force claim. See Pierre-Antoine v. City of New York, No. 04-CV-6987, 2006 WL 1292076, at *5
(S.D.N.Y. May 9, 2006) ("[T]he medical evidence ... does not reveal any severe injury; such evidence does not,
however, entitle [the defendant] to judgment as a matter of law."); Lemmo, 2011 WL 843974, at *7 (denying
summary judgment where the plaintiff sustained minor injuries when officers "cranked" his thumbs while his hands
were handcuffed behind his back). Nevertheless, it is "probative of the amount and type of the force actually used
by the arresting officers, and that in tum is likely to reflect on the reasonableness of that force." See Zhao v. City of
New York. 656 F. Supp. 2d 375,390 (S.D.N.Y. 2009).
3
12
her, the officers "grabbed her, pulled her hands behind her back and handcuffed her in an
extremely painful manner," despite the plaintiffs "weak condition").
In the alternative, Officer Providence is entitled to qualified immunity for his conduct.
Police officers are entitled to qualified immunity for their actions unless it would be clear to a
reasonable officer that his conduct was unlawful in the situation confronted. Stephenson v. Doe,
332 F.3d 68, 77 (2d Cir. 2003); see also Loria v. Gorman, 306 F.3d 1271, 1282 (2d Cir. 2002)
("Said differently, if the officer's conduct violated a right, we analyze the objective
reasonableness of the officer's belief in the lawfulness of his actions."). "[E]ven officers who
are found to have used excessive force may be entitled through the qualified immunity doctrine
to an extra layer of protection 'from the sometimes hazy border between excessive and
acceptable force.'" Stephenson, 332 F.3d at 77 (quoting Saucier v. Katz, 533 U.S. 194,206
(2001)). In light of the court's conclusion that the Officer Providence did not use excessive force
against plaintiff, the court necessarily also holds that he is entitled to qualified immunity with
respect to this conduct. Cf. Lemmo, 2011 WL 843974, at *8 ("In Fourth Amendment excessive
force cases, ... the qualified immunity and excessive force analyses 'converge on one question:
[w]hether in the particular circumstances faced by the officer, a reasonable officer would believe
that the force employed would be lawful.''') (quoting Cowan v. Breen, 352 F.3d 756, 764 n.7 (2d
Cir. 2003)).
E.
Unreasonable Detention
The Graham test also applies to plaintiff s claim for unreasonable detention under the
Fourth Amendment. See Bryant v. City of New York, 404 F.3d 128 (2d Cir. 2005) (applying the
Graham test to determine the reasonableness of pre-arraignment detentions following warrantless
arrests). A detention of more than 48 hours before a probable-cause hearing is presumptively
13
,.
unreasonable. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). A detention of
fewer than 48 hours may also be unreasonable if it is unreasonably prolonged, for example, "for
the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will
against the arrested individual, or delay for delay's sake." Id.; Bryant, 404 F.3d at 137; cf.
Lemmo, 2011 WL 843974, at *6-7 (observing that although a police officer's intentions are not
elemental to the Graham test of reasonableness, the intentional, gratuitous use of force is usually
unreasonable). Although plaintiffs hour-and-a-half detention did not approach the 48-hour
mark, he alleges that defendants detained him capriciously and arbitrarily. Thus, he has stated a
claim for unreasonable detention.
F.
Failure to Intervene
Although plaintiff alleges that only Officer Providence physically detained him, he
nonetheless states a claim against Officer Dyal for failure to intervene. "A law enforcement
officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are
being violated in his presence by other officers." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.
1988). An officer who fails to intercede is therefore liable for the preventable harm caused by
the actions of other officers where he or she observes or has reason to know that those other
officers are violating a person's constitutional rights. Anderson v. Branen, 17 F.3d 552, 557 (2d
Cir. 1994). However, liability may attach only when, "(1) the officer had a realistic opportunity
to intervene and prevent the harm; (2) a reasonable person in the officer's position would know
that the victim's constitutional rights were being violated; and (3) the officer does not take
reasonable steps to intervene." Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501,512 (S.D.N.Y.
2008) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1988»; Cantave, 2011 WL
1239895, at *8. In the present case, plaintiff alleges the elements of this cause of action: Officer
14
Dyal knew that Officer Providence was violating plaintiff s constitutional rights by unreasonably
detaining him but took no action to prevent or stop the violation, despite having a reasonable
opportunity to do so.
III. CONCLUSION
For the reasons set forth above, defendants' motion for summary judgment is granted in
part and denied in part. Plaintiffs claims for false arrest, malicious prosecution, and excessive
force are dismissed. His claims for unreasonable detention and failure to intervene may proceed
to trial unless defendants renew their motion for summary judgment within 45 d'!Ys.
SO ORDERED.
/Signed by Judge Ross/
Allyne R. R ss
United State District ~e
Dated:
August 22, 2011
Brooklyn, New York
15
SERVICE LIST
Pro Se Plaintiff
Richard Richardson
Cadman Plaza Post Office
P.O. Box 22886
Brooklyn, NY 11202-2886
16
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