Davis v. Klein et al

Filing 50

MEMORANDUM & ORDER: By motion dated 12/17/2012, defendants seek summary judgment on all claims. Plaintiff has failed to respond to that 46 motion. Summary judgment is granted in favor of all defendants. This action is dismissed. The Cour t certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. The Clerk of Court is directed to enter judgment and to close this case. SO ORDERED by Judge Eric N. Vitaliano, on 10/17/2013. C/mailed to pro se Plaintiff at all addresses as listed on the docket. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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RAYMOND DAVIS,

MEMORANDUM & ORDER
Plaintiff,
ll-CV-4868 (ENV)
-against-

.

OFFICER LIZABETH KLEIN, OFFICER TODD:
KEYES, SERGEANT FRANK CROCITTO
Defendants.

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VITALIANO, D.J.
Plaintiff Raymond Davis brings this suit,pro se, pursuant to 42 U.S.C. § 1983,
against Officer Lizabeth Klein, Officer Todd Keyes and Sergeant Frank Crocitto.
He alleges the use of excessive force, false arrest and an unlawful strip search, all
arising out of his arrest and booking. By motion dated December 17,2012,
defendants seek summary judgment on all claims. Plaintiff has failed to respond to
that motion. For the reasons discussed below, the motion is granted in its entirety.
Background
On the afternoon of July 8, 2011 Davis was caught shoplifting at a Marshall's
clothing store in Queens. Compl. at 4. When the store security officer confronted
plaintiff about the stolen merchandise, he removed a pair of pliers from his pocket
and pointed them at the security officer "in a threatening manner." Declaration of
Aimee K. Lulich ("Lulich Decl."), Ex. C. Following a brief stand-off, Davis fled the
store, but was apprehended by police officers a short distance away. When stopped,
police officers found both unreceipted Marshall's merchandise and a pair of pliers
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in Davis's possession. At this point, the stories diverge. Defendants contend,
consistent with what is contained in the police report, that Davis resisted arrest by
"flailing violently," "refusing to be rear handcuffed" and "assaulting police officer
Keyes." Id. Davis, on the other hand, denies actively resisting arrest. According to
his complaint and deposition testimony, during the arrest several of the officers
threw him up against a wall and kicked and punched him repeatedly in the head,
face and back. Compl. at 5; Lulich Decl. Ex. B. Davis further testified that, as a
result of this arrest process, he suffered bruises, scrapes, a "busted" lip, and a
swollen face. Id.
Once subdued, Davis was transported to the precinct, where he was booked
and prepared for processing. As Officer Keyes tells it, Davis again resisted when he
attempted to remove Davis's belt, punching and kicking him and causing him to fall
and twist his' knee. Indeed, medical records show that Officer Keyes received
treatment for a "left knee contusion" at Forest Hills Hospital on that same day. See
Lulich Decl. Ex. G. Davis, on the other hand, claims that, during booking, the
officers stripped him of his clothes, handcuffed him and began to beat him. Compl.
at 5. While Davis was handcuffed in the holding cell, officers allegedly punched him
in his face multiple times in an effort to remove Davis's pants and sneakers. Finally,
according to plaintiff, Officer Keyes engaged in "inappropriate ... touching" while
Davis was in the holding cell by placing his hand inside of Davis's underwear and
attempting to touch Davis's anus. Compl. at 5; Lulich Decl. Ex. B. Davis testified

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that, when Officer Keyes placed his hand inside of his underwear, he, Davis "went
crazy" and, as a result, Officer Keyes never actually touched his anus. Id.
Following booking, Davis was transported that same evening to Elmhurst
Hospital. According to Davis, the medical records "show[] [he] made [a] complaint
about [his] head and leg and back." Compl. at 7. Medical records do indicate that
Davis lodged a complaint about back and wrist pain. More dispositively, however,
viewed in their entirely, the hospital records are wholly inconsistent with and offer
no support for the type of brutality that Davis alleges. In fact, the medical records
leave no doubt that Davis "denie[d] any bleeding/swelling/ecchymosis on the
wrist/head area" and that his "forearm appearance [was] normal." See Lulich Decl.
Ex. H. Further, the records indicate that plaintiff was classified as "Non-Urgent,"
he had "no skin abrasions" and his head was "normocephalic and atraumatic." Id.
Finally, the hospital records demonstrate that plaintiff actually refused further
medical treatment, stating to the doctor, "I am good." Id.
On September 21, 2011, Davis pled guilty to petit larceny and resisting arrest
charges that arose out of the subject incident. He was sentenced to and served 8
months in jail. See Lulich Decl. Ex. L.
Standard for Summary Judgment
Pursuant to Rule 56, a federal district court must grant summary judgment
upon motion and finding, based on the pleadings, depositions, interrogatory
answers, admissions, affidavits, and all other admissible evidence that "there is no
genuine issue as to any material fact and that the moving party is entitled to a
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"

judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The initial burden is
on the moving party to demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Feingold v. New York, 366 F.3d 138,148 (2d Cir. 2004). In determining whether the
moving party has met this burden, a court must construe all evidence in a light most
favorable to the nonmoving party, resolving all ambiguities and inferences in its
favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106
S.Ct. 1348,89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.
2002). However, "the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact."
Anderson, 477 U.S. at 247-48 (emphasis in original); Burt Rigid Box, Inc. v.
Travelers Prop. Cas. Corp., 302 F.3d 83, 90 (2d Cir. 2002). Material facts are those
which, given the substantive law, might affect the suit's outcome. Anderson, 477
U.S. at 248.
If the moving party makes a prima facie showing that there are no genuine

issues of material fact, the nonmoving party must go beyond the pleadings and put
forth "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P.
56(e); Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). In so doing, the
nonmoving party may not rely on conclusory allegations or speculation. Golden
Pac. Bancorp v. FDIC, 375 F.3d 196,200 (2d Cir. 2004) (citing D'Amico v. City of
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New York, 132 F.3d 145, 149 (2d Cir.1998»; Fed. R. Civ. P. 56(e) ("Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein."). Thus, to defeat a motion for
summary judgment, the nonmoving party "must do more than simply show that
there is some metaphysical doubt as to the material facts." Jeffreys v. City of New
York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Matsushita, 475 U.S. at 586).
Nonetheless, the nonmoving party need not make a compelling showing; it need
merely show that reasonable minds could differ as to the import of the proffered
evidence. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 1997).
Mindful that plaintiff is proceeding pro se, the Court additionally reads his
papers liberally and interprets them as raising the strongest arguments they suggest.
See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994). Moreover in that regard, plaintiff's failure to oppose
this motion does not relieve the Court of its responsibility to independently assess
whether the summary judgment that motion seeks is warranted on the record.
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Discussion
I.

False Arrest
Construing plaintiff's complaint liberally, plaintiff appears to be pursuing a

false arrest claim under § 1983. The record is fatal to any such claim. Where a
plaintiff is convicted for an offense for which he was arrested, his claim of false
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arrest cannot succeed as a matter of law. See Allison v. Farrell, 97 Civ. 2247 (DAB),
2002 WL 88380, at *4 (S.D.N.Y. Jan. 22,2002); Cameron v. Fogarty, 806 F.2d 380,
388-89 (2d Cir. 1986) ("[W]here law enforcement officers have made an arrest, the
resulting conviction is a defense to a § 1983 action asserting that the arrest was
made without probable cause."). It is undisputed that Davis pled guilty to petit
larceny and resisting arrest, crimes for which the subject arrest was made. Plaintiff
has not shown, nor is there any reason to believe he could, that this conviction has
been reversed on appeal, called into questi~n by a federal court's issuance of a writ
of habeas corpus, or otherwise invalidated in any other way. The unassailed
conviction slams the courthouse door on this claim. Heck v. Humphrey, 512 U.S.
477,486-87, 114 S.Ct. 2364,2372, 129 L.Ed.2d 383 (1994). Summary judgment
dismissing this claim is granted.
II.

Excessive Force
Plaintiff claims that officers used excessive force both in effectuating his

arrest and in conducting a search of his person at the precinct as part of the booking
process. The Court "analyzes claims of excessive force arising in the context of an
arrest under the Fourth Amendment's objective reasonableness test, paying 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." Phelan v. Sullivan, 2013 U.S. App. LEXIS
19147 at *6 (2d Cir. Sept. 17,2013) (citation omitted). It is the standard that applies
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to both the arrest and the post-arrest booking process. Campbell v. City of New
York, 2010 U.S. Dist. LEXIS 66389 at *24 (S.D.N.Y. 2010). "Officers are entitled to
use some degree of force when restraining a suspect during an arrest." Faruki v.
City of New York, 517 Fed. Appx. 1,2 (2d. Cir. Feb 7, 2013); see also Graham v.
Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) ("Not every
push or shove, even ifit may later seem unnecessary in the peace ofa judge's
chambers, violates the Fourth Amendment.")
In this case, it cannot be genuinely disputed that Davis actively resisted arrest
and booking. He took flight from the scene of the crime, brandished a weapon to
make his escape and forcefully resisted arrest and booking. Responding police
officers were, clearly, justified in using some measure of force in arresting Davis, in
booking him and in preparing him for detention. Without the slightest doubt the
use of force by the police in arresting and processing Davis was entirely justified.
He pleaded guilty to a criminal charge that he physically resisted the officers
arresting him, and even admitted that he "went crazy" during the search of his
person and other procedures incident to his preparation for detention in the
precinct lock-up. That the use of force was so well-justified, of course, does not
mean its use was without limit. Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir.
2000) ("The fact that a person whom a police officer attempts to arrest resists,
threatens, or assaults the officer no doubt justifies the officer's use of some degree of
force, but it does not give the officer license to use force without limit.") Though

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vigorously denied by defendants, in sum and substance, the abuse of the right to use
force is what Davis alleges.
The Court, as is basic, must resolve all ambiguities in favor of the non-moving
party. Such ambiguity, where different versions of the force employed are stated,
might arise; that is, if all that was in the record were the bald story-telling by each
side. But, here, there is more and it is significant, since, where undisputed medical
records directly and irrefutably contradict a plaintiff's description of his injuries, no
reasonable jury could credit plaintiff's account of the happening. Bove v. City of
New

Yor~

1999 WL 595620 at *6 (S.D.N.Y. 1999) (granting summary judgment on

an excessive force claim where plaintiff's "allegations [were] completely
contradicted by the hospital's records.") In this case, the hospital records from the
evening of Davis's arrest demonstrate that, at most, Davis had minor soreness in his
wrist. See Lulich Decl. Ex. H. If officers had repeatedly punched plaintiff during
the arrest and booking process, as he alleges, it is simply not believable that the
hospital records would indicate that Davis had "no skin abrasions" and that his
facial appearance was "normocephalic and atraumatic." These medical records,
bluntly, directly contradict the version of facts plaintiff gave in his complaint as well
as in his deposition (testimony that his face was "swollen" and covered in "knots" as
a result of a "brutal beating" administered by the police). Further, the record is
utterly devoid of evidence of any kind supporting Davis's description of his
injuries-other than his own claims. See Bove at *6 ("There are no affidavits from
the plaintiff's treating physicians or psychologists, no hospital records-in short,
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nothing to substantiate ... the alleged 'beating' by the NYPD .... All the record
contains for purposes of this motion are [plaintiff's] bald and conclusory allegations
which are insufficient to withstand a motion for summary judgment."); accord
Jeffreys v. City of New York, 426 F.3d 549, 552 (2d Cir. 2005) ("[I]n the rare
circumstance where the plaintiff relies almost exclusively on his own testimony,
much of which is contradictory and incomplete, it will be impossible for a district
court to determine whether the jury could reasonably find for the plaintiff, and thus
whether there are any 'genuine' issues of material fact, without making some
assessment of the plaintiff's account.") (citation omitted). Accordingly, plaintiff's
excessive force claim is dismissed.
III.

Unlawful Strip Search
Relatedly to his excessive force claim, the Court construes his complaint to

advance a claim for an unconstitutional strip search in violation of the Fourth
Amendment. The Second Circuit recently clarified its long-standing rule that the
strip search of an individual arrested for either a misdemeanor or felony "must be
justified by an individualized reasonable suspicion of concealed weapons or
contraband." Gonzalez v. City of Schenectady, 2013 U.S. App. LEXIS 17943 at *47
(2d Cir. 2013). Here, Davis possessed a concealed weapon (a pair of pliers) when he
was arrested, and ultimately was charged with criminal possession of a weapon.
Davis' possession of a concealed weapon-along with his erratic and violent
behavior-established individualized reasonable suspicion and justified the officers'
strip search of a prisoner, while at the precinct. Azor v. City of New York, 2012
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·

.,

u.s. Dist. LEXIS 47067 (E.D.N.Y. 2012) ("Because [officers] arrested [plaintiff] for
possessing a hidden weapon ... they had reasonable suspicion justifying a stripsearch for additional concealed weapons before booking him.") Accordingly,
plaintiff's claim for an unconstitutional strip search is dismissed.
Conclusion
For all of the above reasons, upon their motion, summary judgment is
granted in favor of all defendants. This action is dismissed.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status is
denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
The Clerk of Court is directed to enter judgment and to close this case.

SO ORDERED.
Dated:
Brooklyn, New York
October 17, 2013

/S/ Judge Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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