McNeill v. Jordan et al

Filing 109

ORDER RE REPORT AND 102 RECOMMENDATIONS, For the foregoing reasons, the court overrules Plaintiff's objections (Dkt. 106 ) and ADOPTS IN PART the R&R (Dkt. 102 ). Defendants' motion for summary judgment (Dkt. 93 ) is GRANTED IN PART a nd DENIED IN PART. Specifically, the court: GRANTS Defendants' motion for summary judgment on all claims against Defendants Jonathan Jordan, Anthony Gomez, and Molly Mitchell; GRANTS summary judgment as to Plaintiff's claims of excessive force and conspiracy against Defendant William Sommer; GRANTS summary judgment as to Plaintiff's claims of excessive force, malicious prosecution, and conspiracy against Defendant John Edgar; GRANTS summary judgment as to Plaintiff's deli berate indifference to medical needs, conspiracy, and all state law-based claims as to Defendant Anthony Chow; DENIES summary judgment as to Plaintiff's claims of unlawful entry, unlawful search and seizure, false arrest, and malicious prosecut ion as to Defendant William Sommer; DENIES summary judgment as to Plaintiff's claims of unlawful entry and false arrest as to Defendant John Edgar; DENIES summary judgment as to Plaintiff's claim of excessive force against Defendant Antho ny Chow. The parties are directed to contact the chambers of Magistrate Judge Steven L. Tiscione to schedule the filing of a Joint Pretrial Order in accordance with this court's Individual Rules, to be electronically filed no later than October l, 2017. The parties are further directed to confer and to contact the court's Deputy at 718-613-2545 to set a trial date. The Clerk of Court is respectfully directed to send a copy of this Order to Plaintiff. So Ordered by Judge Nicholas G. Garaufis on 7/10/2017. (c/m to plaintiff pro se) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

FITZROY MCNEILL,
MEMORANDUM & ORDER

Plaintiff,

14-CV-2872(NGG)
(ST)
-againstDETECTIVE JONATHAN JORDAN et al..
Defendants.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Fitzroy McNeill, proceeding pro se,filed this action on May 5,2014, against
New York Police Department("NYPD")Detectives Jonathan Jordan, John Edgar, and Anthony
Chow,NYPD Sergeant William Sommer, Dr. Anthony Gomez,and Registered Nurse Molly
Mitchell. rSee Compl.(Dkt. 1); Am. Compl.(Dkt. 8).) The action stems from Plaintiffs

May 2011 arrest and subsequent hospitalization at Woodhull Medical and Mental Health Center
("Woodhull"). Plaintiff brings claims under 42 U.S.C. § 1983 and state law.
Defendants filed a fully briefed motion for summary judgment(the "Motion") on

May 23,2016.(Mot.for Summ.J.(Dkt. 93).) On November 15,2016,the court referred the
Motion to Magistrate Judge Steven L. Tiscione for a report and recommendation("R&R")

pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Order
Referring Mot.(Dkt. 101).) On February 17, 2017, Judge Tiscione issued an R&R
recommending that the Motion be granted in part and denied in part. (R&R(Dkt. 102).) By

letter dated April 4,2017,^ Plaintiff objected to certain of Judge Tiscione's recommendations,
and Defendants filed a memorandum in support ofthe R&R shortly thereafter. rSee PI. Obj. to

On March 29,2017,the Court extended Plaintiffs time to object to the R&R. (Mar. 29,2017, Order(Dkt. 104).)

R&R("Obj.")(Dkt. 106); Defs. Resp. to Obj.("R&R Resp.")(Dkt. 107).) For the reasons stated
below, the court ADOPTS IN PART the R&R. Accordingly, Defendant's Motion is GRANTED
IN PART AND DENIED IN PART.

I.

BACKGROUND AND THE REPORT AND RECOMMENDATION

The court assumes familiarity with the facts ofthe case, and adopts the summary ofthe
relevant factual allegations and record evidence included in the R&R. (See R&R at 2-8.) Stated

briefly, several ofthe defendant police officers arrested Plaintiffin his apartment building for
marijuana possession and, after he was injured during his arrest,transported Plaintiff to

Woodhull for treatment. Plaintiff and Defendants dispute all but the most basic facts at issue of
this encounter, including but not limited to:(1) whether Plaintiff had marijuana in his possession
at the time of his arrest;(2)whether Plaintiff was in his apartment or a common area ofthe

apartment building when he was arrested;(3)the specifics ofPlaintiffs medical care while at the
hospital and thereafter; and(4)which Defendants were involved in Plaintiffs arrest and

transport to the hospital. (Compare Defs. Mem. in Supp. of Summ. J.(Dkt. 97) with PL Opp'n to
Summ.J.(Dkt. 98).)

Judge Tiscione recommended that the court grant summary judgment on the following
claims:

• The unlawful entry, unlawful search and seizure, false arrest, excessive force,
and deliberate indifference to medical needs claims against Jordan, on the basis
that Plaintifffailed to show that Jordan was personally involved with the events
at Plaintiffs residence or Woodhull(R&R at 13-14);
• The use of excessive force claims against Sommer and Edgar, based on
Plaintiffs failure to allege any intentional action by those defendants (id at
27-29);

• The malicious prosecution claims against Jordan and Edgar, on the basis that
they did not "initiate" Plaintiffs prosecution(id at 32-35);

• The deliberate indifference to medical needs claims against Chow, Mitchell,
and Gomez, based on Plaintiffs failure to allege either that he suffered an
objectively serious medical condition or that any of those Defendants were
aware of and disregarded that condition (id. at 37-41);

• The conspiracy claim against all Defendants, based on Plaintiffs failure to
allege an agreement between any ofthe Defendants (id. at 41-42); and
• The state-law claims against Jordan, Chow, Gomez, and Mitchell, based on
Plaintiffs failure to file his claims within the mandatory commencement period
of 1 year and 90 days applicable to New York City employees(id at 44).

Judge Tiscione further recommended that the court deny summary judgment on the following
claims:

• The unlawful entry claims against Sommer and Edgar, based on Plaintiffs
testimony that those officers entered his apartment and the absence ofrecord
evidence demonstrating "exigent circumstances"justifying their entry(id at
17-22);

• The claims of unlawful search and seizure against Sommer and of false arrest
against both Sommer and Edgar, based on Plaintiffs deposition testimony that
he did not possess or state that he possessed marijuana(id at 22-26);

• The excessive force claim against Chow,based on Plaintiffs testimony that he
was left in handcuffs for five hours,resulting in bruising and swelling that lasted
several days(id at 30-32); and

• Deny summary judgment on the malicious prosecution claim against Sommer
on the basis of Plaintiffs testimony regarding the circumstances of his search
and arrest and Sommer's role in initiating Plaintiffs prosecution(id at 32-37).
II.

DISCUSSION
A.

Standard of Review

A district court reviewing an R&R"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). The
court must make "a de novo determination ofthose portions ofthe report or specified proposed
findings or recommendations to which objection is made." Id To obtain de novo review, a

party "must point out the specific portions ofthe report and recommendation to which [that

party] object[s]." Forsvthe v. U.S. Nat'l Labor Relations Bd.. No. 14-CV-3127(NGG)
(LB),
2016 WL 1215319, at *1 (E.D.N.Y. Mar. 23, 2016)^quoting U.S. Flour Corp. v. Certified
Bakery. Inc.. No. lO-CV-2522(JS), 2012 WL 728227, at *2(E.D.N.Y. Mar. 6, 2012); see also
Fed. R. Civ. P. 72(b)(2)("[A] party may serve and file specific written objections to the

[R&R]."). If a party "makes only conclusory or general objections, or simply reiterates his
original arguments,the Court reviews the Report and Recommendation only for clear error."
Pall Corp. V. Entegris. Inc.. 249 F.R.D. 48,51 (E.D.N.Y. 2008); see also, e.g.. Petrovic v.
CommVofSoc. Sec.. No. 15-CV-2194(KMK)
(PED),2016 WL 6082038, at *1 (S.D.N.Y.

Oct. 14,2016). Portions ofan R&R to which a party makes no objection are also reviewed for
clear error. See U.S. Flour. 2012 WL 728227, at *2.

Where a pro se party objects to an R&R,"the court reads his objections 'liberally and
will interpret them to raise the strongest arguments that they suggest.'" Velasquez v. Metro Fuel
Oil Corp.. 12 F. Supp. 3d 387, 397(E.D.N.Y. 2014)(quoting Burgos v. Hopkins. 14 F.3d 787,
790(2d Cir. 1994)). However, a court "need not argue a pro se litigant's case nor create a case

for the pro se [litigant! which does not exist." Molina v. State ofN.Y.. 956 F. Supp. 257, 259
(E.D.N.Y. 1995).
B.

Plaintiffs Objections

The court finds that Plaintiff has put forward objections to several ofthe R&R's specific

reconunendations and therefore performs a de novo review of these sections.^ Applying de novo
review, the court adopts in full each ofthe objected-to portions ofthe R&R.

2 In addition to his objections. Plaintiff raises the new claim that he "should be allowed to sue... Sonuner and
Jordan for giving plaintiffthe name John McNeil without due process oflaw." (Obj. at 2.) While Plaiutiff's
previous filings mentioned the incorrect entry of his name, this is the first indication that he intends to claim that
misnaming as a basis for recovery. "New arguments and factual assertions cannot properly be raised for the first

time in objections to the R&R,and indeed may not be deemed objections at all." Smi^ v. HulUian.
No. 1 l-CV-2948(HB),2012 WL 4928904, at *1 (S.D.N.Y. Oct. 17, 2012L see also Chalasani v. Daines.
No. lO-CV-1978, 2011 WL 4465408, at *1 n.3 (E.D.N.Y. Sept. 28,2011)("Plaintiff also makes new claims and

1.

Deliberate Indifference to Medical Needs Claims against Mitchell and
Gomez

Plaintiff argues that Mitchell and Gomez^—^two ofthe medical professionals who treated
Plaintiff at Woodhull—"deliberately disregarded the substantial risk to plaintiff's mental and

physical health [by] den[ying] plaintiff mental health treatment." (Obj. at 2.) Plaintiff's claim is
based on his contention that, when he arrived at Woodhull, he sought and was denied psychiatric

care. (Am. Compl. at 2.) The court concludes that Plaintifffails to demonstrate a deprivation of
care that would support a constitutional claim and adopts the R&R's conclusion on that point.
"In order to establish a[]... claim arising out ofinadequate medical care, a prisoner

must prove deliberate indifference to his serious medical needs." Chance v. Armstrong. 143
F.3d 698,702(2d Cir. 1998)(internal quotation marks, citations, and alterations omitted).
Deliberate indifference claims require plaintiffs to satisfy both objective and subjective elements,
showing(1)that "the alleged deprivation [was], in objective terms, sufficiently serious"; and(2)

"the defendant [acted] with a sufficiently culpable state of mind." Iff (intemal citations and
quotation marks omitted).

The "objective seriousness" requirement is met where "the failure to treat a prisoner's
condition could result in further significant injury or the unnecessary and wanton infliction of
pain." Iff (intemal quotation marks and citation omitted). Indicia of objective seriousness
include:"(1) whether a reasonable doctor or patient would perceive the medical need in question

offers new facts for the first time in his objection. Generally courts do not consider such new arguments or new

evidence raised in objections to a magistrate judge's report and recommendations that could have been raised before
the magistrate but were not, and the Court declines to do so."(intemal quotation marks and citations omitted)).
Plaintiff provides no reason that he could not have raised this claim earlier, and the court declines to address the
merits ofthis argument here.

^ Plaintiffs Complaint also asserts a deliberate indifference to medical needs claim against Jordan and Chow(Am.
Compl. at 2), and Judge Tiscione recommended dismissing that claim as well(R«feR at 37-41). Plaintiff does not
object to the R&R's objection with respect to Jordan or Chow. (Obj. at 1-2.)

as important and worthy of comment or treatment,(2)whether the medical condition
significantly affects daily activities, and(3)the existence of chronic and substantial pain."
Rodriguez v. Manenti. 606 F. App'x 25,26(2d Cir. 2015)(summary order)(quoting Brock v.
Wright. 315 F.3d 158,162(2d Cir, 2003)). "[I]n most cases, the actual medical consequences

that flow jfiom the alleged denial will be highly relevant to the question of whether the denial of
treatment subjected the [Plaintiff] to a significant risk of harm." Smith v. Carpenter. 316 F.3d
178, 187(2d Cir. 2003).

The court concludes that Plaintifffails to meet the objective prong of his deliberate

indifference claims against Gomez and Mitchell. Plaintiffs claims against those Defendants are
based entirely on their failure to provide him with psychiatric treatment or medication on the
date of his arrest. (Obj. at 1-2). However, medical records from that date contain no indication
that Plaintiff sought mental health treatment or that attending medical professionals believed that
his mental health state was "worthy of comment or treatment." Rodriguez.606 F. App'x at 26.

(Ex. M to Deck (Dkt. 94-13) at ECF pp.2-13 (Plaintiffs medical records).) Likewise, Plaintiff
does not allege that he suffered chronic or lasting effects j&om his lack oftreatment but only

states that treatment could have provided him with rehef during his hospitalization—^relief which
he hoped would include removal of his handcuffs(Ex. A to Deck ("PI. Dep. Tr.")(Dkt. 94-2)
153:4-5), obtaining medication (id. 153:15-21), and avoiding "depression and ... not being able
to rest and relax"(id 155:9-10). In the absence offacts or testimony showing lasting medical
effects or objective indicia of substantial harm,the court concludes that Plaintifffails to

demonstrate the serious degree of deprivation needed to support his claim."^

Because the court concludes that Plaintifffails to satisfy the objective prong of his deliberate indifference to
medical needs claim, it is not required to evaluate the subjective requirement. See, e.g.. Goris v. Breslin. 402
F. App'x 582, 584(2d Cir. 2010)(summary order).

Accordingly,the court adopts Judge Tiscione's recommendation and grants summary
judgment as to the deliberate indifference claims against Gomez and Mitchell.
2.

Unlawful Entry Claims against Jordan. Edgar, and Sommer

In relation to his claim that Defendants Jordan, Edgar, and Sommer unlawfully entered
his residence in violation of his Fourth Amendment rights. Plaintiff objects to Judge Tiscione's

conclusion that his apartment complex itself was not "private." (See Obj. at 2.) The court finds
otherwise and adopts the R&R's conclusion on that issue.

Parties bringing Fourth Amendment-based claims for unlawful entry must show that they
have a "reasonable expectation of privacy" in the area into which the defendants allegedly
intruded. See, e.g., Patrizio v. Nelson. No. 14-CV-7497(JBW)
(VMS),2016 WL 3582047, at *6

(E.D.N.Y. June 28, 2016). This expectation exists where "the place [into which defendants
entered] is one that the [plaintiff] has the right to keep private and subject to his exclusive
control." United States v. Holland. 755 F.2d 253, 255(2d Cir. 1985)(emphasis added).

Examining this requirement, the Second Circuit has repeatedly concluded that"common halls
and lobbies of multi-tenant buildings are not within an individual tenant's zone of privacy even
though they are guarded by locked doors." Id.; accord United States v. Grav. 283 F. App'x 871,
873(2d Cir. 2008)(summary order).

Plaintiff argues that his apartment complex was not public because "the general public
did not have access to the inside of the building and the exterior door to the building was

locked. (Obj. at 2.) The court is bound by precedent to disagree with Plaintiffs position: the
fact that the building is not open to the general public does not mean that it was subject to his
exclusive control or right to privacy, and so he cannot stake his claim on entry into the common
areas ofthe apartment complex. Holland. 755 F.2d at 255.

Accordingly, the court adopts Judge Tiscione's finding that the common areas ofthe

building are not covered by Plaintiffs "reasonable expectation of privacy."^
3.

False Arrest and Malicious Prosecution Claims against Jordan

Plaintiff argues that Jordan is not entitled to summary judgement as to either the false
arrest or malicious prosecution claims. Plaintiff argues that Jordan,"like Edgar and Sommer,

knew that the allegedly found marijuana was neither in a public place, nor burning." (See Obj. at
2.) The court concludes that summary judgment is appropriate as to each ofthese claims.
a.

False Arrest

"[A]n action for false arrest requires that the plaintiff show that'(1)the defendant

intended to confine him,(2)the plaintiff was conscious ofthe confinement,(3)the plaintiff did
not consent to the confinement, and(4)the confinement was not otherwise privileged.'"
Ackerson v. Citv of White Plains. 702 F.3d 15,19(2d Cir. 2012)(quoting Broughton v. State of

New York. 37 N.Y.2d 451,456(1975)). Moreover, as a prerequisite to all claims brought under
Section 1983,the plaintiff must show that the defendant had personal involvement in the alleged
constitutional deprivation. S^ Farrell v. Burke,449 F.3d 470,484(2d Cir. 2006); Celestin v.
Citv ofN.Y.,581 F. Supp. 2d 420,428-29(E.D.N.Y. 2008)(applying personal involvement
requirement to false arrest claim). "Personal involvement may be established by a showing of
direct participation, meaning 'personal participation by one who has knowledge ofthe facts that
rendered the conduct illegal,' or indirect participation 'such as ordering or helping others to do
unlawful acts.'" Celestin. 581 F. Supp. 2d at 429(quoting Provost v. Citv ofNewburgh.262
F.3d 146,155(2d Cir. 2001)).

^ The unlawful entry claims as to Sommer and Edgar, however, survive summaryjudgment, based on Plaintiffs
testimony that those officers entered his apartment, which is undisputedly covered by the Fourth Amendment. (See
R&R at 18-22.)

Plaintiff fails to show that Jordan was personally involved in Plaintiffs arrest, and so the

false arrest claim against him fails. While Plaintiff initially alleged that Jordan was present at his
apartment and for the arrest therein fsee Am. Compl.^ 5), he subsequently conceded that he was
mistaken in that identification (PI. Opp'n at 4 n.l). Though Plaintiffs arrest paperwork lists
Jordan as the "arresting officer"(Ex. C to Decl.(Dkt. 94-3) at ECF p.2), Jordan's records from

the date ofthe incident indicate that he was in an entirely different location^ and participated
only in post-arrest functions (see, e.g., Ex. H to Decl.(Dkt. 94-8) at ECF p.2; Ex. G to Decl.
("Jordan Dep. Tr.")(Dkt. 94-7) 11:16-12:19, 39:5-11; Ex. I to Decl.("Jordan Decl.")(Dkt.
94-9).) Further, there is no evidence suggesting that Jordan ordered, assisted, or otherwise

indirectly participated in Plaintiffs arrest. As such, even if credited. Plaintiffs present objection
that Jordan "knew that the allegedly found marijuana was neither in a public place, nor burning"

(Obj. at 2)could only have occurred after the arrest was completed and would not remedy
Jordan's lack of personal involvement in the arrest itself.

Accordingly,the court agrees with Judge Tiscione that Jordan is entitled to summary

judgment on the false arrest charge based on Plaintiffs failure to demonstrate that Jordan was
personally involved in Plaintiff's arrest.
b.

Malicious Prosecution

"To prevail on a claim of malicious prosecution,four elements must be shown:(1)the
defendant initiated a prosecution against plaintiff,(2)without probable cause to believe the

proceeding can succeed,(3)the proceeding was begun with malice, and(4)the matter terminated

® Jordan's contemporaneous notes indicate that he was present at"284 Schaffer Street" at the time ofPlaintifTs
arrest and separately indicate that Sommer and the "Field Team" were present at Plaintiffs apartment building.
(Ex. H to Decl.(Dkt. 94-8) at ECF p.2; see also Ex. G to Decl. ("Jordan Dep. Tr.")(Dkt. 94-7)35:14-20.)

in plaintifPs favor.

Ricciuti v. N.Y.C. Transit Auth.. 124 F.3d 123,130(2d Cir. 1997). For

claims brought under Section 1983,the Plaintiff must additionally demonstrate "that there was []

a sufficient post-arraignment deprivation ofliberty restraint to implicate the Plaintiffs Fourth
Amendment rights." Rohman v. N.Y.C. Transit Auth.. 215 F.3d 208,215(2d Cir. 2000).

The third prong ofthis test—^requiring a showing of malice—is particularly relevant here.
In order to meet that requirement, a plaintiff must show "that the defendant[] commenced the

criminal proceeding due to a wrong or improper motive, something other than to see the ends of
justice served." Lowth v. Town of Cheektowaga, 82 F.3d 563,573(2d Cir. 1996). The malice
"element is closely related to the lack of probable cause requirement...[and][i]n most cases...

malice may be inferred from the lack ofprobable cause." Llerando-Phinns v. Citv ofN.Y.,290
F. Supp. 2d 372,383(S.D.N.Y. 2005).

Plaintiff has failed to provide any evidence to satisfy the malice element as to Jordan. In
essence. Plaintiffs malicious prosecution claim against Jordan is premised on his allegations that
(1)the charges against Plaintiff were unsupported by probable cause;(2)the facts stated in the
criminal complaint that would support probable cause are false;(3)Jordan was aware of and
assisted in promulgating this deception; and (4)his reason for doing so was malicious. Even

accepting Plaintiffs premise that the statements in the complaint are false, however,the court
finds no basis in the record to infer that Jordan was aware ofthis falsity or lack of probable
cause. While Jordan admittedly swore out and signed the criminal complaint against Plaintiff, he

states that he did so only on the basis ofinformation provided by Sommer. (Jordan Dep. Tr. at

'
These first four requirements are drawn from the New York state-law standard for malicious prosecution, which is
incorporated into Section 1983 claims. See, e.g.. Posr v. Dohertv. 944 F.2d 91,100(2d Cir. 1991); see also
Garrawav v. Newcomb. 154 F. App'x 258,259(2d Cir. 2005)(summary order)("To succeed on a malicious
prosecution claim, a plaintiff must show that defendant's conduct was tortious under state law and that it resulted
[in] a constitutionally cognizable deprivation of liberty.").

10

11:11-13; 22:10-19; Jordan Decl.)^ Plaintiff does not refute this assertion, and the court gives no
weight to his conclusory objection that Jordan "knew" the facts in the complaint were false. See
Jeffreys v. City ofN.Y.,426 F.3d 549, 554(2d Cir. 2005)(holding that parties opposing

summary judgment cannot "rely on conclusory allegations or unsubstantiated speculation"
(internal quotation marks and citations omitted)). Absent any facts suggesting that Jordan was
aware that the complaint was supported by false statements and not probable cause,the court
sees no basis to infer that Jordan drafted the complaint for a malicious purpose. ^Llerando-

Phipps. 390 F. Supp. 2d at 383(noting the tie between the probable cause and malice elements).
Accordingly,the court finds Jordan is entitled to summary judgment on Plaintiffs
malicious prosecution claim based on the lack ofrecord evidence suggesting he acted with a
malicious motive.^

® While the court agrees with Judge Tiscione's ultimate conclusion that the malicious prosecution claim against
Jordan should be dismissed, it respectfully declines to adopt his reasoning on that point. Like this court, Judge
Tiscione emphasized Jordan's lack ofindependent knowledge but concluded from this fact that Plaintifffailed to
show Jordan "initiated" the proceeding. The "initiation" prong ofa malicious prosecution requires a showing that a
defendant "played an active role in the prosecution, such as giving advice and encouragement or importuning the
authorities to act." DeFilippo v. Ctv. ofNassau. 583 N.Y.S.2d 283,284(N.Y. App. Div. 1992). "Applying these
principles to claims against police officers, courts have found a triable issue offact as to the initiation element where
the defendant-officer brought formal charges and had the person arraigned, filled out complaining and corroborating
affidavits, swore to and signed a felony complaint, or created false information and forwarded it to
prosecutors." Espada v. Schneider. 522 F. Supp. 2d 544,553(S.D.N.Y. 2007): see also Llerando-Phipps v. Citv of
N.Y.. 390 F. Supp.2d 372,382-83(S.D.N.Y. 2005)(collecting cases). As Judge Tiscione noted, however, this court
previously questioned whether swearing out a complaint would be adequate where "Plaintiff provided no evidence
that [the defendant officer] did anything other than disclose the information within his knowledge—^that is, what he
learned from speaking with [witnesses who had personal knowledge]—and sign the complaint." Jouthe v. Citv of
N.Y.. No. 05-CV-1374(NGG)
(WP),2009 WL 701110, at *12(E.D.N.Y. Mar. 10,2009). However,the court
ultimately did not rest its decision on that point, instead concluding that the complaint was supported by probable
cause and not driven by malice. Id The court again declines to decide whether a lack ofindependent knowledge by
the officer swearing out a complaint is sufficient to show that the officer did not "initiate" the prosecution.
^ Plaintiff further argues that the fact that the marijuana allegedly recovered from his possession was not burning
serves as a bar to prosecution for "fifth degree marijuana possession." (See Obj. at 2.) Using that fact as a basis for
a malicious prosecution claim against Jordan, however, would still require a showing that Jordan was at least aware
that the marijuana was not burning at the time ofthe arrest. As the court concludes that the record is devoid of
evidence demonstrating Jordan's involvement in the arrest or knowledge of any alleged falsity in his later account, it
necessarily also finds that the record fails to show involvement or knowledge sufficient determine that a specific
statement (i.e. that the marijuana was buming) was false.

11

4.

New Claims Against Anthonv Chow

Plaintiff objects to Judge Tiscione's recommendation that Plaintiff should not be allowed
to add new claims against Chow. In his opposition to the motion for summary judgment.
Plaintiff states that he mistakenly named Jordan as one ofthe officers who was present in his

apartment on the date of his arrest, and avers that "Chow was in fact[] the officer who escorted
me to the hospital and used excessive force against me in my home." (Opp'n at 4 n.1.) Though
he does not make a direct request. Plaintiff appears to seek leave to substitute Chow for Jordan as
to all claims that relate to the events that occurred in his apartment. (Id)

Plaintiffs request is most appropriately addressed as a motion to amend his complaint.
Where a party seeks to amend its pleading before trial,"[t]he court should freely give leave when
justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend may be denied, however, based
on "undue delay, bad faith or dilatory motive on the part ofthe movant,repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance ofthe amendment,futility of amendment,etc." Foman v. Davis, 371 U.S. 178,182

(1962). Under this standard, courts generally do not allow amendments proposed in the course
ofsummary judgment motions.

Beckman v. U.S. Postal Serv., 79 F. Supp. 2d 394,407-08

(S.D.N.Y. 2000)(collecting cases)("Because a failure to assert a claim until the last minute will
inevitably prejudice the defendant, courts in this District have consistently ruled that it is
inappropriate to raise new claims for the first time in submissions in opposition to summary
judgment."(internal quotation marks and citation omitted)). However,"a district court... may
grant a pro se litigant leave to amend, after the close of discovery and during the pendency ofa
summary judgment motion." Fidelitv Tufn. Servs. Inc. v. Debtdomain GLMS Pte Ltd..

12

No. 09-CV-7589(LAK)
(KNF),2011 WL 3665138, at *3(S.D.N.Y, Aug. 11,2011)(citing
Hanlinv. Mitchelson. 794 F.2d 834, 841 (2d Cir. 1986)).
The court concludes that Plaintiff should not be allowed to substitute Chow for Jordan at

this stage ofthe litigation. Plaintiff had ample opportunity to correct his alleged mistake months
before submitting his opposition to the summaryjudgment motion. At latest, he could have

become aware ofany misidentification when he deposed Jordan and Chow on consecutive days.
(See Ex. N to Decl.("Chow Tr.")(Dkt. 94-14) 1:15; Jordan Tr. 1:13.) However,Plaintiff gave
no indication during those depositions or in the ensuing months that he was aware of any
misidentification or beheved that Chow had engaged in acts originally attributed to Jordan.

Instead, Plaintiff waited six months, during which time the parties completed discovery and

Defendants filed for summary judgment. Viewed in this light. Plaintiffs request for a second
amendment to his Complaint appears designed to avoid summary judgment. The court
concludes that this is an insufficient justification to permit amendment, as it is the product of

undue and unexplained delay by Plaintiff and would prejudice Defendants by delaying
proceedings and, potentially, require discovery to be reopened.

Berman v. Parco, 986 F.

Supp. 195,217(S.D.N.Y. 1997)("Leave to amend a complaint will generally be denied when
the motion to amend is filed solely in an attempt to prevent the Court from granting a motion...

for summary judgment, particularly when the new claim could have been raised earlier."
(internal quotation marks and citations omitted)).

Accordingly,the court adopts Judge Tiscione's recommendation that Plaintiff not be
allowed to amend his Complaint to include new claims against Chow.

13

C.

Other Sections of the Report and Recommendation

Sections ofthe R&R to which no party has objected are reviewed only for clear error.

See, e.g.. Walker v. Vaughan. 216 F. Supp. 2d 290,291 (S.D.N.Y. 2002); Jarvis v. N. American
Globex Fund. L.P.. 823 F. Supp. 2d 161,163(E.D.N.Y. 2011). The court has reviewed the
remaining sections ofthe R&R and,finding no clear error, adopts them in full,
ni.

CONCLUSION

For the foregoing reasons, the court overrules Plaintiffs objections(Dkt. 106)and ADOPTS IN

PART^''the R&R(Dkt. 102). Defendants' motion for summaryjudgment(Dkt. 93)is
GRANTED IN PART and DENIED IN PART. Specifically, the court:

• GRANTS Defendants' motion for summary judgment on all claims against
Defendants Jonathan Jordan, Anthony Gomez,and Molly Mitchell;

• GRANTS summary judgment as to Plaintiffs claims of excessive force and
conspiracy against Defendant William Sommer;
• GRANTS summaryjudgment as to Plaintiffs claims ofexcessive force, malicious
prosecution, and conspiracy against Defendant John Edgar;

• GRANTS summary judgment as to Plaintiffs deliberate indifference to medical
needs, conspiracy, and all state law-based claims as to Defendant Anthony Chow;
• DENIES summary judgment as to Plaintiffs claims of unlawful entry, unlawful
search and seizure,false arrest, and malicious prosecution as to Defendant William
Sommer;

• DENIES summary judgment as to Plaintiffs claims of unlawful entry and false
arrest as to Defendant John Edgar;

• DENIES summary judgment as to Plaintiffs claim of excessive force against
Defendant Anthony Chow.

The court adopts all aspects ofthe R&R except for its determination that Jordan did not "initiate" the prosecution
against Plaintiff. See supra note 8.

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The parties are directed to contact the chambers of Magistrate Judge Steven L. Tiscione
to schedule the filing ofa Joint Pretrial Order in accordance with this court's Individual Rules, to
be electronically filed no later than Octoberl,2017. The parties are further directed to confer
and to contact the court's Deputy at 718-613-2545 to set a trial date.

The Clerk of Court is respectfully directed to send a copy ofthis Order to Plaintiff.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York

NICHOLAS G, GARAUFIS

July 1^,2017

United States District Judge

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