Franks v. City of New York et al

Filing 48

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum & Order, the court affirms and adopts Judge Reyes's well-reasoned Report & Recommendation 44 in its entirety, and GRANTS defendants' motion f or summary judgment 36 . The clerk of court is respectfully directed to enter judgment in favor of defendants, close this case, and send a copy of this Memorandum & Order, the Judgment, and an appeals packet to the plaintiff at the address on the docket. Ordered by Judge Kiyo A. Matsumoto on 3/31/2017. (Newman, Alanna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
DEREK RAYMOND FRANKS,
ORDER ADOPTING
REPORT AND
RECOMMENDATION

Plaintiff,
-againstCITY OF NEW YORK, PO DANIELLE DONOGHUE,
PO MICHELE MAZZA, PO FRANK MUIRHEAD, PO
ROBERT WOODHOUSE, SGT BEKIM KALIKOVIC,
RETIRED PO MICHAEL DAVIS, FDNY JOHN
DOE, EMS JOHN DOE,

13-CV-6254(KAM)(RER)

Defendants.
--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Presently before the court is the Report and
Recommendation of United States Magistrate Judge Ramon E. Reyes,
Jr., filed on January 4, 2017, recommending that defendants’
motion for summary judgment should be granted.

(ECF No. 44,

Report and Recommendations re Motion for Summary Judgment dated
1/4/2017 (“R&R”) at 1.)

Plaintiff timely raises the instant

objections to the R&R’s recommendation that the court grant
summary judgment.

(ECF No. 47, Objection to Report and

Recommendations to grant summary judgment, dated 3/2/2017 (“Pl.
Obj.”).)

Defendants have not objected to the R&R and have not

responded to plaintiff’s objections.

The court has undertaken a

comprehensive de novo review of the R&R and the record in light
of plaintiff’s written objections pursuant to 28 U.S.C. §

636(b)(1)(C).

For the reasons set forth below, the court adopts

and affirms the R&R in its entirety.
Background
Pro se plaintiff Derek Franks commenced the instant
action on November 8, 2013, pursuant to 42 U.S.C. § 1983
(“Section 1983”), alleging, inter alia, excessive force and
failure to intervene in connection with his arrest on November
8, 2010, against the City of New York (the “City”), Police
Officer Danielle Donoghue (“Officer Donoghue”), Police Officer
Michele Mazza (“Officer Mazza”), Police Officer Frank Muirhead
(“Officer Muirhead”), and Police Officer Robert Woodhouse
(“Officer Woodhouse”), and by amended complaint on May 19, 2014,
plaintiff added defendants Sergeant Bekim Kalikovic (“Sergeant
Kalikovic”), retired Police Officer Michael Davis (“Officer
Davis”), “FDNY John Doe” and “EMS John Doe” (the “John Doe
defendants”) (all defendants are collectively designated
“defendants”).

(See ECF No. 1, Complaint, dated 11/8/2013; ECF

No. 20, Supplemental Complaint / “Amendment of Claim,” dated
5/19/2014.)

The court presumes familiarity with the underlying

facts and procedural history as set forth in greater detail in
the R&R, and which the court adopts and incorporates herein,
based on its de novo review of the record.

2

(See R&R at 1-3.)

On January 6, 2016, defendants moved for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure (“Rule 56”).

(See ECF No. 36, Motion for Summary

Judgment; ECF No. 37, Declaration re Motion for Summary Judgment
(“Def. Decl.”); ECF No. 38, Rule 56.1 Statement of Undisputed
Facts (“Def. 56.1 Stmt.”); ECF No. 40, Memorandum in Support of
Motion for Summary Judgment (“Def. Mem.”).)

Plaintiff opposed

defendants’ motion on March 2, 2016 (ECF No. 41, Memorandum in
Opposition re Motion for Summary Judgment (“Pl. Opp.”)), and
defendants filed a reply on March 18, 2016.

(ECF No. 42, Reply

in Support of Motion for Summary Judgment (“Def. Repl.”).)

On

October 7, 2016, this court referred the instant motion to Judge
Reyes for an R&R.

(See Order Referring Motion, dated

10/7/2016.)
On January 4, 2017, Judge Reyes issued an R&R
recommending that the court grant defendants’ motion for summary
judgment.

The R&R notified the parties that any objections to

the R&R must be filed within fourteen days of receipt of the
R&R.

(R&R at 6-7.)

On March 2, 2017, after seeking and

obtaining an extension of time to file objections, plaintiff
filed his objections to the R&R, requesting that this court deny
defendants’ motion for summary judgment.

(See Pl. Obj. at 2.)

Defendants did not respond to plaintiff’s objections.
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Discussion
For the reasons set forth below, upon review of the
R&R and the instant objections, as well as a comprehensive de
novo review of the applicable law and the underlying record,
including the court docket, the amended complaint, defendants’
motion for summary judgment, plaintiff’s opposition, and the
related declarations and exhibits, the court affirms and adopts
the R&R in its entirety.
I.

Standards of Review
A district court reviews those portions of a Report and

Recommendation to which a party has timely objected under a de
novo standard of review and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.”

28 U.S.C. § 636(b)(1)(C).

Where “no or merely

perfunctory objections” to the Report and Recommendation have been
filed, however, the district court reviews for clear error.
Caires v. Jp Morgan Chase Bank N.A., No. 16-cv-2694, 2017 WL
384696, at *1 (S.D.N.Y. January 27, 2017).

The district court is

permitted “to adopt those sections of a magistrate judge’s report
to which no specific objection is made, so long as those sections
are not facially erroneous.”

S.E.C. v. Nadel, No. 11-cv-215, 2016

WL 4718188, at *2 (E.D.N.Y. September 9, 2016) (citations
omitted).
4

Although a pro se party’s objections are “generally
accorded leniency” and should be construed to “raise the strongest
arguments that they suggest,” Milano v. Astrue, No. 05-cv-6527,
2008 WL 4410131, at *2 (S.D.N.Y. September 26, 2008) (quoting
Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)), a pro se
party’s objections “must be specific and clearly aimed at
particular findings in the magistrate’s proposal, such that no
party be allowed a second bite at the apple by simply relitigating
a prior argument.”

Pinkney v. Progressive Home Health Servs., No.

06-cv-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008),
aff’d, 367 F. App’x 210 (2d Cir. 2010) (citations and internal
quotation marks omitted); see also Leibovitz v. City of New York,
No. 14-cv-3297, 2016 WL 1189526, at *1 (S.D.N.Y. March 21, 2016)
(“Although [t]he objections of pro se parties are ‘generally
accorded leniency and should be construed to raise the strongest
arguments that they suggest[,] ... even a pro se party’s
objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal,
such that no party be allowed a second bite at the apple by simply
relitigating a prior argument.”) (internal citations and quotation
marks omitted) (alterations in original).

5

II.

Plaintiff’s Objections
Plaintiff asserts a general objection to the R&R’s

recommendation that summary judgment be granted, and contends
that summary judgment should be denied because certain evidence,
namely a “four minute fifty-six second video” and “written
statements from [his] witnesses” demonstrate issues of material
fact.

(Pl. Obj. at 2.)

Although plaintiff does not

specifically object to any particular recommendations or
underlying rationale discussed in the R&R, the court construes
plaintiff’s objections to raise the strongest argument they
suggest and reviews the R&R and underlying record de novo.
In his instant objections, plaintiff claims that he
has evidence, including a video, written witness statements, and
medical records, which he also provided to defendants during
discovery.

(Pl. Obj. at 2.)

However, the court has no record

that such evidence was produced, and plaintiff did not include
any of the aforementioned evidence in his opposition to
defendants’ summary judgment motion or in his objections to the
R&R.

Although a court must resolve all ambiguities and draw all

reasonable inferences against the moving party, see Flanigan v.
Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)), cert. denied, 534 U.S. 1065 (2001), “the nonmoving
6

party may not rest upon mere conclusory allegations or denials”
in opposing a motion for summary judgment.

Castro v. Cnty. of

Nassau, 739 F. Supp. 2d 153, 165 (E.D.N.Y. 2010) (citing R.G.
Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.
1984)).

Further, “the mere existence of a scintilla of evidence

in support of the plaintiff’s position will be insufficient.”
Jordan v. Sheehy, 559 F. App’x 77, 78 (2d Cir. 2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
Here, although plaintiff has alluded to a video and
witness statements at various points in time, he has failed to
“come forward with admissible evidence sufficient to raise a
genuine issue of fact for trial.”

Jaramillo v. Weyerhaeuser

Co., 536 F.3d 140, 145 (2d Cir. 2008) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)).

As Judge Reyes noted in

the R&R, plaintiff is equivocal at best regarding the facts that
would be shown by the video.

(See R&R at 3.)

In plaintiff’s

sworn deposition testimony, he described repeatedly turning his
body and trying to roll over, and trying to roll under the van,
while police officers attempted to place both of his hands in
handcuffs, during which time he claims to have been hit in the
face by the police.
123:4-12.)

(ECF No. 43, Deposition Transcript (“Tr.”)

When asked whether the police continued to strike

him after they were able to place both of plaintiff’s hands in
7

handcuffs, plaintiff testified, “the police, I don’t remember
them beating me with handcuffs –- with both hands tied,” and
stated that he was “not sure” if the video showed the
firefighters kicking him after he was restrained.
124:3.)

(Tr. 123:19-

Plaintiff further testified during his deposition that

the officers were instructing him to put his arm behind his back
while using force for “the whole four minutes and fifty-six
seconds” of the video, during which the officers physically
attempted to place handcuffs on both of plaintiff’s hands.

(Tr.

96:4-14.)
Plaintiff, however, contradicts his sworn deposition
by stating in his instant objections that “while being struck by
the defendants it [is] clearly visible (on video) I was fully
restraint in [sic] no longer able to attempt to shield my face
from being hit.”

(Pl. Obj. at 2.)

Plaintiff’s contradictory

unsworn statements, proffered in support of his objections to
the R&R, do not present a sufficient ground to deny summary
judgment.

See Clayborne v. OCE Business Servs., 381 F. App’x

32, 35 (2d Cir. 2010) (finding that a party may not “create an
issue of fact by submitting an affidavit in opposition to a
summary judgment motion that, by omission or addition,
contradicts the affiant’s previous deposition testimony”)
(quoting Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 619 (2d
8

Cir. 1996)); Herzfeld v. JPMorgan Chase Bank, N.A., 354 F. App’x
488, 488-89 (2d Cir. 2009) (“[F] actual allegations that might
otherwise defeat a motion for summary judgment will not be
permitted to do so when they are made for the first time in the
plaintiff’s affidavit opposing summary judgment and that
affidavit contradicts [plaintiff’s] own prior deposition
testimony.”) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d
Cir. 2001)).
In addition, upon de novo review of the record, the
court adopts and affirms Judge Reyes’s recommendation that there
is no disputed issue of material fact with respect to
plaintiff’s claims of excessive force and failure to intervene.
With respect to plaintiff’s claim of excessive force, it is
well-settled that “not every push or shove” constitutes
excessive force in violation of the Fourth Amendment.

See Tracy

v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010) (quoting Graham v.
Connor, 490 U.S. 386, 397 (1989)).

In assessing whether the use

of force is excessive, courts consider “(1) the nature and
severity of the crime leading to the arrest, (2) whether the
suspect poses an immediate threat to the safety of the officer
or others, and (3) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight.”

Id.; see also

Crowell v. Kirkpatrick, 400 F. App’x 592, 594 (2d Cir. 2010).
9

In addition, courts review the record from the perspective of “a
reasonable officer on the scene, rather than with the 20/20
vision of hindsight.”

Id.

Applying the above considerations, the court finds
that it was objectively reasonable for defendants to exercise
force to restrain plaintiff, and that the force utilized was not
excessive under the circumstances.

It is undisputed that

despite being asked by police officers to step away from the
ambulance area onto the sidewalk, plaintiff stepped closer to
the ambulance in order to continue taking down a phone number
being shouted by his friend, while the police and EMTs were
attempting to transport his friend in the ambulance to the
hospital.
20.)

(Def. 56.1 Stmt. at ¶¶ 4-5; Pl. Opp. at 1; Tr. 91:1-

In addition, it is undisputed that after plaintiff was

told by the officer to step back, he again approached the
ambulance and was then told by a police officer that he was
being handcuffed for the police officers’ safety, and that
plaintiff nonetheless continued to resist being handcuffed by
keeping his arm by his side, repeatedly turning and rolling his
body, and asking what he did wrong.

(Def. 56.1 Stmt. at ¶¶ 6-7;

Pl. Opp. at 1; Tr. 91:10-20, 92:16-93:18.)
Although plaintiff has explained in his deposition
that he was physically unable to move his left arm behind his
10

back due to a prior injury, there is no evidence that he advised
the officers of this limitation as they attempted to place him
in handcuffs.

Instead, plaintiff continued turning his body,

while standing and after the officers brought him to the ground,
in order to ask why he was being arrested and to avoid physical
force.

(Tr. 93:16-94:16, 122:1-123:8.)

The court finds that,

from the perspective of the defendant officers at the time of
the incident, a 6’3 and 240 pound man, who had just defied a
police order to step away, engaged in physical contact with
officers attempting to place him in handcuffs, and resisted
arrest without explanation.

See Tracy, 623 F.3d at 97 (finding

use of force reasonable even though plaintiff accidentally
slipped on ice during officer’s attempt to restrain plaintiff
because “our focus is not on [plaintiff]’s motivations but
instead on the sequence of events from the perspective of a
reasonable officer at the scene.”).

Plaintiff further testified

that when defendants started trying to handcuff him, plaintiff
moved to retrieve his headphones that fell out of his ear, while
continuing to ask what he did wrong.

(Tr. 154:12-155:12.)

The court also notes that the Arrest Report from the
incident reports that plaintiff not only resisted arrest, but
exhibited violent behavior towards the police officers who were
attempting to restrain him, including that the officer observed
11

plaintiff “pull victims [sic] hair and threw [sic] her to the
ground” and that plaintiff was “refusing to be handcuffed by
responding officers, kicking, punching and biting responding
officers.”
Report.)

(See ECF No. 37-3, Def. Decl. Ex. C, NYPD Arrest
Although the court does not consider the Arrest Report

for the truth of the matters asserted therein, the court may
consider the Arrest Report to determine the state of mind of the
arresting officers, and consider the Arrest Report from the
perspective of a reasonable officer at the scene regarding
whether the use of force against plaintiff was excessive under
the circumstances.

See Breeden v. City of New York, No. 09-cv-

4995, 2014 WL 173249, at *5 (E.D.N.Y. January 13, 2014) (“A
statement is admissible non-hearsay when it is offered as
evidence of the effect of a statement on the listener, the
knowledge motivating his actions, or his state of mind at the
relevant point in time.”) (citing United States v. Puzzo, 928
F.2d 1356, 1365 (2d Cir. 1991)); see also Corcoran v. Higgins,
No. 08-cv-10734, 2010 WL 1957231, at *1 n.1 (S.D.N.Y. May 13,
2010) (finding narrative section of an arrest report admissible
to show why officers were conducting a particular
investigation).1

Though not dispositive, the court further notes that as a result of this
incident, plaintiff was convicted by a jury of assault in the second degree,
obstructing governmental administration in the second degree, and resisting
1

12

Viewing these facts from the perspective of the
officers at the time of the arrest, the court finds that it was
reasonable for defendants, in exercising their “split-second
judgment” to perceive plaintiff’s ongoing movements while
actively resisting being handcuffed, as “non-compliant and
threatening behavior.”

Tracy, 623 F.3d at 96-97.

Finally, as

discussed above, it is undisputed that the police officers
ceased utilizing force against plaintiff after both of his hands
were placed in handcuffs, and plaintiff has not proffered
sufficient evidence to create an issue of fact for trial as to
whether the firefighters continued to strike him after he was
handcuffed.
Based on the foregoing, the court finds that plaintiff
has failed to raise a disputed issue of material fact with
respect to his claim of excessive force, and the court therefore
adopts and affirms Judge Reyes’s recommendation that summary
judgment should be granted to defendants on plaintiff’s
excessive force claims.

The court further affirms and adopts

Judge Reyes’s recommendation that summary judgment should be
granted on plaintiff’s claim of failure to intervene, due to the

arrest. (See ECF No. 37-4, Def. Decl. Ex. D, Richmond County Supreme Court
Certificate of Disposition.) The assault for which plaintiff was found guilty
involved his physical contact with police officers. (See Def. 56.1 Stmt. at ¶
11; Def. Decl. Ex. D.); N.Y. Penal Law § 120.05(3).

13

above determination that the use of force did not violate
plaintiff’s constitutional rights, and the fact that plaintiff
has failed to demonstrate that any of the defendants had a
“realistic chance to intercede” or that they were “tacit
collaborators” in unlawful conduct.
F.3d 89, 107 (2d Cir. 2016).

See Figueroa v. Mazza, 825

Indeed, as discussed above,

plaintiff has not established that any constitutional violation
or other unlawful conduct occurred.
Finally, the court affirms and adopts Judge Reyes’s
recommendation that summary judgment should be granted with
respect to plaintiff’s claims against the City.

The court

adopts and affirms Judge Reyes’s recommendation that plaintiff
has failed to allege or present evidence from which a jury could
find the existence of a policy or custom which caused plaintiff
to be denied a constitutional right, as required for a claim of
municipal liability under Section 1983.

See Wray v. City of New

York, 490 F.3d 189, 195 (2d Cir. 2007) (citing Batsita v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)); see also Santia
Arroyo v. The City of New York, et al., No. 16-cv-2425, 2017 WL
1087926, at *2 (2d Cir. March 21, 2017) (citing Monell v. Dep’t
of Social Servs., 436 U.S. 658, 690 (1978)).

In addition, the

court adopts and affirms Judge Reyes’s recommendation on the
merits of plaintiff’s excessive force claims, as discussed
14

above, with respect to the individual defendants added in the
amended complaint, specifically, Sergeant Kalikovic, Officer
Davis, and the John Doe defendants.
The court further finds, on de novo review, that
plaintiff’s claims against Sergeant Kalikovic, Officer Davis,
and the John Doe defendants are time-barred, and do not relate
back under Rule 15 of the Federal Rules of Civil Procedure
(“Rule 15”), because plaintiff did not name, or even reference
as John Does, these additional defendants until after the
statute of limitations had already expired on his Section 1983
claim.

“Section 1983 actions in New York are subject to a

three-year statute of limitations, running from the time a
plaintiff knows or has reason to know of the injury giving rise
to the claim.”

Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir.

2015) (internal citations omitted); Hogan v. Fischer, 738 F.3d
509, 517 (2d Cir. 2013).

Here, the limitations period began to

run on November 8, 2010, the date of the alleged excessive use
of force during plaintiff’s arrest, and therefore, the
limitations period expired on November 8, 2013, the date that
the original complaint was filed.

Thus, for plaintiff’s claims

against the additional defendants in his amended complaint to be
timely, they would have to relate back to the date of the
original complaint under Rule 15.
15

An amended complaint that

“changes the party or the naming of the party against whom a
claim is asserted” relates back to the date of the original
complaint if the claim asserted “arose out of the conduct,
transaction, or occurrence” set out in the original complaint,
and:
“within the period provided by Rule 4(m) for
serving the summons and complaint, the party
to be brought in by amendment: (i) received
such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake
concerning
the
proper
party's
identity.”
Fed. R. Civ. P. 15(c)(1)(C).
It is well-settled in the Second Circuit that lack of
knowledge regarding a defendant’s identity does not constitute a
“mistake” concerning identity, and an amended complaint adding
new defendants does not relate back to the date of the original
complaint if the defendants were not originally named because
plaintiff did not know their identities at the time that the
complaint was filed.

See, e.g., Scott v. Vill. of Spring

Valley, 577 F. App’x 81, 82-83 (2d Cir. 2014); Hogan, 738 F.3d
at 517-18; Sherrard v. City of New York, No. 15-cv-7318, 2016 WL
1574129, at *4 (S.D.N.Y. April 15, 2016).
equally to pro se litigants.

This standard applies

Perez v. New York City Police, 234

16

F.3d 1262, 2000 WL 1715248, at *1 (2d Cir. 2000) (quoting TapiaOrtiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999)).
In addition, the court finds that the defendants added
in plaintiff’s amended complaint were not on notice from the
original complaint such that the amended complaint would relate
back under New York law, which governs under Rule 15(c)(1)(A).
See Fed. R. Civ. P. 15(c)(1)(A) (“An amendment to the pleading
relates back to the date of the original pleading when [ ] the
law that provides that applicable statute of limitations allows
relation back.”); see also Hogan, 738 F.3d at 518-19 (finding
that “New York state law provides a more forgiving principle of
relation back in the John Doe context”) (internal quotation
marks omitted).

Under Section 1024 of the New York Civil

Practice Law and Rules (“CPLR”), a plaintiff may proceed against
an unknown party “by designating so much of his name and
identity as is known,” such as by a “John Doe” designation, and
may substitute the true identity even after expiration of the
limitations period.

N.Y. C.P.L.R. § 1024; see also Hogan, 738

F.3d at 518-19 (“New York courts have interpreted this section
to permit John Doe substitutions nunc pro tunc.”).
Here, however, plaintiff did not name any “John Doe”
defendants in the original complaint, nor did he otherwise
indicate that additional defendants, whose identities were
17

unknown at the time, would be named in the future.

The court,

therefore, finds that even under the more permissive state law
standard, plaintiff’s claims against the added defendants are
time-barred.

Finally, the court further notes that the burden

is on plaintiff to exercise diligence to uncover the identities
of any unknown defendants prior to the expiration of the
limitations period.

See Sherrard, 2016 WL 1574129, at *6

(“[C]ourts have imposed a requirement under CPLR § 1024 that
plaintiffs exercise due diligence, prior to the running of the
statute of limitations, to identify the defendant by name.”)
(quoting Hogan, 738 F.3d at 519) (internal quotation marks
omitted).

Here, plaintiff filed the original complaint on the

last possible day before the statute of limitations expired, and
there is no evidence in the record that plaintiff exercised any
diligence prior to the expiration of the limitations period, to
identify additional defendants by name or otherwise.

See id. at

*6.
Based on the foregoing, the court finds that even if
plaintiff had presented sufficient evidence on the merits with
respect to his claim of excessive force, plaintiff’s claims
against the defendants added in the amended complaint would be
time-barred.

18

Conclusion
For the foregoing reasons, and upon de novo review,
the court affirms and adopts Judge Reyes’s well-reasoned R&R in
its entirety, and grants defendants’ motion for summary
judgment.

The clerk of court is respectfully directed to enter

judgment in favor of defendants, close this case, and send a
copy of this Memorandum and Order, the judgment, and an appeals
packet to the plaintiff at the address on the docket.
SO ORDERED.

Dated:

March 31, 2017
Brooklyn, New York
___________/s/_______________
Hon. Kiyo A. Matsumoto
United States District Judge

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