Williams v. County of Nassau et al
Filing
38
DECISION AND ORDER: Defendant's Motion for Summary Judgment is DENIED-IN-PART and GRANTED-IN-PART. By stipulation, Defendants Barnes and Benedetto, Plaintiff's 42 U.S.C. § 1983 claim for malicious prosecution, and Plaintiff's clai m for punitive damages against Defendant Nassau County are DISMISSED. Further, Plaintiff's Monell claim and false arrest claim as to Plaintiff's formal arrest are DISMISSED. However, Plaintiff may proceed on his false arrest claim as to th e events preceding the formal arrest, and on his excessive force claim. Finally, Defendants will not be granted qualified immunity at this time, and Plaintiff may continue to pursue punitive damages against individual Defendants Carey, Monell, and A rnold. The parties are directed to proceed with any remaining discovery in accordance with this Order. The five-day jury trial in this action will begin at 9:30 am on June 8, 2015. Ordered by Judge William F. Kuntz, II on 8/18/2014. (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------)(
RASHARD WILLIAMS,
Plaintiff,
DECISION AND ORDER
10-CV-4815 (WFK) (ARL)
-againstCOUNTY OF NASSAU, POLICE OFFICER
MICHAEL CAREY Shield# 8526, POLICE
OFFICER MONEL Shield# 8916, POLICE
OFFICER BARNE Shield# 8905, POLICE
OFFICER BENED Shield# 7696, SGT. ARNOLD, :
POLICE OFFICER JOHN DOE #1, POLICE
OFFICER JOHN DOE #2,
Defendants.
---------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge
This 42 U.S.C. § 1983 action arises out of PlaintiffRashard Williams's arrest outside a nightclub
in West Hempstead, New York. Plaintiff alleges that he was illegally arrested and assaulted,
while Defendants argue that the officers' actions regarding Plaintiffs arrest were legal and
justified. Defendants Nassau County, Police Officer Carey, Police Officer Monell, Police
Officer Barnes, Police Officer Benedetto, and Sergeant Arnold now move for summary
judgment. The Court grants in part and denies in part Defendants' Motion.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Procedural History
Plaintiff filed this action on October 20, 2010. Dkt. 1 ("Compl."). His Complaint
focuses on Plaintiff's allegedly unjustified arrest and beating on October 21, 2007 by a number
of Nassau County police officers. Id. at iJiJ 21-47. From that incident, Plaintiff brings 42 U.S.C.
§ 1983 claims for false arrest and excessive force against Defendants Carey, Monell, Barnes,
Benedetto, 1 Arnold, and John Does 1-2. He also brings a Monell claim against Nassau County;
42 U.S.C. § 1983 substantive due process claims against all Defendants; § 1983 procedural due
process claims against all Defendants; pendent false arrest claims against all Defendants; pendent
assault and battery claims against all Defendants; negligent hiring and supervision claims against
all Defendants; and failure to intervene claims against the individual Defendants. See id. at iii!
51-117.
On April 13, 2012, Defendants moved for summary judgment, and on July 13, 2012, the
motion was fully submitted before this Court. See Dkts. 19, 22-27. The motion was denied
without prejudice on March 26, 2013, see 3126113 Docket Entry, and Defendants were granted
leave to resubmit the motion on April 18, 2013, see 4/18/13 Docket Entry (Minute Entry for
4/18/13 Pre-Trial Conference). The re-submitted motion for summary judgment, which asked
for dismissal of the entire action, was fully briefed on September 25, 2013. See Dkt. 32
(Memorandum in Support of Motion for Summary Judgment ("Mot.")) at 8-9.
II.
Defendants' Allegations
Defendants allege that Plaintiff is a 5'8", approximately 285-300 pound male. Dkt. 31
(Defendant's 56.1 Statement of Material Facts, hereinafter "Def.' s 56.1 ") at
ii
65.
At
approximately 3 :30 a.m. on October 21, 2007, Plaintiff allegedly exited Tabu Nightclub in West
Hempstead, New York. Id at
iii! 29-35.
Upon exiting, Williams observed Defendant Sergeant
Arnold speaking to another individual, non-party Greg Morell. Id. at
ii
55. Arnold was at that
time informing Morell that his comments were inappropriate and that they would lead to the
issuance of a disorderly conduct desk appearance ticket. Id.
1
The case caption and Complaint spell the names of Defendants Monell (Monel), Barnes
(Barne), and Benedetto (Bene) slightly differently. This Order uses the spelling as set forth in
Defendants' Motion for Summary Judgment.
2
Plaintiff then approached Morell and Arnold, yelling "fuck them." Id. At this time,
Arnold, along with Defendants Carey and Monell, told Plaintiff to move on because the situation
did not concern him. Id. at ,-i 56. Plaintiff instead continued to yell "fuck you" and became loud
and combative. Id. at ,-i 57. Defendants allege that Plaintiff appeared to be intoxicated, as he was
slurring his words and was unsteady on his feet. Id.
Defendants Carey and Monell purportedly proceeded to take hold of Plaintiffs arms to
remove him from the scene. Id. at ,-i 63. Plaintiff reacted by moving his arms away from the
officers, pushing the officers "with all his might," "swinging" at the officers, and "throwing wild
punches." Id. at ,-i,-i 64-65. Plaintiff also purportedly struck Monell in the shoulder with a closed
fist. Id. at ,-i 66. Eventually, Plaintiff pulled away and ran down an alley toward the rear of the
club. Id. at ,-i 67.
The Defendant Officers allegedly instructed Plaintiff to stop running, and Plaintiff
eventually did so. Id. at ,-i,-i 70-71. Arnold then verbally ordered Plaintiff to "get down on the
ground." Id. at ,-i 71. At that time, there were three officers, spaced approximately five feet from
each other, in a semicircle pattern around Plaintiff. Id. at ,-i 72. Arnold repeated his command
approximately five times, but Plaintiff did not comply. Id. at ,-i,-i 73-74. At that time, Arnold (5'
9" and 180 pounds) deployed his OC (pepper) spray. Id. at ,-i,-i 74-75.
Once hit by the OC spray in the face, Plaintiff allegedly became angry, pulled his sweater
off, and set himself in a "fighter's stance." Id. at ,-i 76. Plaintiff began "lunging, throwing wild
punches for 30, 40 seconds, [and] striking the officers with 'glancing punches,"' which caused
the officers to "move in defensive positions to avoid the punches." Id. at ,-i 77. Carey (5' 8" and
170 pounds) caught up to Plaintiff, discharged his OC spray in two bursts, and ordered Plaintiff
to the ground-again, to no avail.
Id. at ,-i,-i 79-80. As a result, Carey and Monell physically
3
engaged Plaintiff, which caused Plaintiff to fall "face/stomach first in the alley, into the wall," all
while still fighting the officers. Id. at iii! 81-84. The officers were able to subdue and handcuff
Plaintiff once he saw blood on hist-shirt, fell to his knees, and began screaming. Id. at if 85.
Once Plaintiff was handcuffed and an ambulance had arrived, he allegedly refused to
speak, give medical history, or allow vitals to be taken. Id. at
if 89. He was taken to Mercy
Medical Center, where he was noted to be "intoxicated, agitated, aggressive, threatening and
swearing at the hospital staff." Id. at
if 92. Plaintiff kicked a hospital worker at the foot of his
bed, and leather restraints were deemed to be required because of his "urgent, unanticipated,
unpredictable, violent ... aggressive behavior." Id. at
the safety of the hospital staff, id. at
iii! 93-94. Plaintiff was then sedated for
if 95, and was treated for lacerations to his head and right
ear, id. at if 110. Plaintiff later stated that he sustained a "contusion to his head and right hand,"
and that he retained those injuries "while struggling with the police." Id. at if 87.
Defendants argue that Plaintiff's initial arrest was made pursuant to: Resisting Arrest,
Assault in the Third Degree, and Obstructing Governmental Administration in the Second
Degree. Id. at if 96. According to Defendants, Plaintiff later pled guilty to Resisting Arrest and
served fifty days at the Nassau County Correctional Center. Id. at if 99.
In further support of their Motion for Summary Judgment, Defendants submit expert
witness findings and conclusions from Sergeant Richard Keddy of the Nassau County Police
Department. Id. at
if 101. Sergeant Keddy is an Academic Supervisor at the Nassau County
Police Department Academy who supervises and instructs a number of police officer training
courses. Id. at
iii! 102-04.
Sergeant Keddy opines that "Williams set in motion a series of
events that resulted in his injuries when he refused to cooperate with Nassau County Police
Officers," and that "[t]he use of force ... was justified under the United States Constitution, the
4
laws of New York State, and the rules and regulations of the Nassau County Police Department."
Id. at iii! 113-14.
III.
Plaintiff's Responsive Allegations
Plaintiff disputes many of the facts presented by Defendants. See Dkt. 34 (Plaintiffs
56.1 Statement of Facts, hereinafter "Pl.' s 56. l ").
Plaintiff alleges that on October 21, 2007, he approached a police officer to request the
return of Greg Morell's license, but that the officer was not speaking with Morell. Id. at iii! 5354, 120. The officer did not respond, so Plaintiff then asked for the identification a second and
third time. Id. at iii! 55, 60, 121. Once Plaintiff asked for the identification a fourth time, the
officer requested that Plaintiff himself produce identification. Id. at ii 60. At this point, Plaintiff
responded that he did not have identification, and stated: "Why? What'd I do? I ain't do
nothing." Id. at iii! 61, 122-23. The officer told Plaintiff that he had to come with them, to
which Plaintiff responded: "What did I do?" Id. at iii! 63, 125. Two to three officers then
allegedly grabbed Plaintiffs arm and wrist, and tried to put Plaintiffs hands behind his back. Id.
at ii 125. Plaintiff snatched his arm away and ran toward the back of the club. Id. at ii 126.
Plaintiff alleges that instead of tackling or striking the officers, as Defendants state, he
only tried to push the officers away. Id. at ii 66. Plaintiff allegedly "said nothing to the officers,
did not attempt to strike the officers, [and] did not attempt to kick the officers." Id. at ii 139.
Nonetheless, the officers pulled out pepper spray and started "Mace'ing" Plaintiff, which caused
burning and loss of vision in one eye. Id. at i!i!142-43. Defendants also charged Plaintiff, pulled
out a flashlight and a baton, grabbed him, and struck him with hard objects on the back, neck,
and head. Id. at iii! 44-46, 144, 146, 149. Plaintiff was brought to the ground, and even after
being handcuffed, Plaintiff alleges, the officers continued to hit him. Id. at iii! 148, 151.
5
Plaintiff provides further detail on the injuries that purportedly arose from the October
21, 2007 incident. Plaintiff states that he complained of "burning to his eyes" while he was at
the medical center. Id. at
iii! 169-70. Plaintiff also alleges that he was struck on the right side
with a flashlight and that he sustained a severe laceration to the right side of his skull that
required nine staples. Id. at
iii! 152-53. Further, Plaintiff claims that he sustained a laceration to
the inside of his right ear, requiring eight stitches, and that an MRI revealed a "bulging disc with
impingement" resulting in five months of physical therapy. Id. at
ii 153-54.
Finally, in response to Defendants' allegations of Plaintiffs behavior toward treating
medical personnel, Plaintiff argues that those facts are irrelevant, immaterial, inadmissible and
privileged.
Id. at
iii! 89-95. Plaintiff objects to Defendants' attempt to introduce expert
testimony by Sergeant Keddy on grounds of irrelevance, immateriality, and inadmissibility. Id
at
iii! 101-114. Plaintiff also argues that the purported expert testimony invades the province of
the finder of fact. See id.
STANDARD OF REVIEW
A court appropriately grants summary judgment if "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). No genuine issue of material fact exists "where the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party." Lovejoy-Wilson
v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The moving party must meet its burden
by pointing to evidence in the record, including depositions, documents, affidavits, or other
materials which it believes demonstrates the absence of a genuine issue of material fact. Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
"In determining
whether summary judgment is appropriate, [the] Court will construe the facts in the light most
6
favorable to the non-moving party and must resolve all ambiguities and draw all reasonable
inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal
quotation marks and citations omitted). The role of the court is not to weigh the evidence and
determine the truth of the matter, but rather to perform "the threshold inquiry of determining
whether there is the need for a trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986).
If the moving party fulfills its preliminary burden, the burden shifts to the non-movant to
raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(l). The non-moving
party must make a showing sufficient to establish the existence of each element constituting its
case. See Celotex, 477 U.S. at 322-23 ("[A] complete failure of proof concerning an essential
element of the non-moving party's case necessarily renders all other facts immaterial.").
Statements that are devoid of specifics and evidence that is "merely colorable" are insufficient to
defeat a properly supported motion for summary judgment. See Bickerstaff v. Vassar Coll., 196
F.3d 435, 452 (2d Cir. 1999); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). "A dispute
about a 'genuine issue' exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d
160, 163 (2d Cir. 2008) (citing Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)).
DISCUSSION
I.
Stipulated Dismissals
Plaintiff consents to the dismissal of Barnes and Benedetto as Defendants in this action.
See Dkt. 35 (Opposition to Motion for Summary Judgment ("Opp.")) at 8. Plaintiff also consents
to the dismissal of the 42 U.S.C. § 1983 claim for malicious prosecution. Id at 9. Finally,
Plaintiff consents to the dismissal of punitive damages against Defendant Nassau County. See
7
id. (citing City of Newport v. Fat Concerts, Inc., 453 U.S. 247, 271 (1981)). Accordingly, all
claims against Barnes and Benedetto, and any claim for malicious prosecution 2 or punitive
damages against Nassau County are dismissed.
II.
Municipal Liability
Defendants move for summary judgment on Plaintiff's Monell claim. They argue that
Plaintiff does not set forth factual allegations that the Defendants' allegedly unconstitutional acts
were due to a Nassau County policy, practice, and/or custom and that there is no evidence that
Nassau County failed to hire, screen, train, retain, supervise, control and discipline the officers.
Mot. at 8-9. Defendants argue that Plaintiff has not identified a specific deficiency in the Nassau
Police Department's training program that caused Plaintiffs' injuries, and that in fact, officers
received "extensive training, including training in excessive force."
Id. at 9.
Further,
Defendants allege that no one in a policymaking position was aware of and consciously ignored
violations being committed by Defendants Carey, Monell, and Arnold. Id. at 9-10.
In response, Plaintiff points to the purported expert report from Sergeant Keddy. Opp. at
4-5. Plaintiff argues that Keddy' s conclusion that "the use of force was necessary and reasonable
. . . indicates a deliberate indifference to Plaintiffs constitutional rights by a policy level
supervisor[.]" Id. at 5.
Plaintiffs strategy-to use evidence submitted by Defendants on summary judgment to
prove his own Monell claim-is novel.
However, it is insufficient.
As set forth in the
eponymous Monell v. Dep 't of Soc. Servs. decision, it is only when "execution of a government's
policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be
2
Defendants also moved to dismiss Plaintiffs pendent malicious prosecution claim in their
Motion for Summary Judgment, but the Complaint does not appear to bring a claim. See Mot. at
14. To the extent Plaintiff intended to bring such a claim, the Court dismisses it as inadequately
pl ed.
8
said to represent official policy, inflicts the injury that the government as an entity is responsible
under§ 1983." 436 U.S. 658, 694 (1978).
To succeed on such a claim, a plaintiff must
establish: "(l) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a
denial of a constitutional right." Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983).
Even if, arguendo, Keddy is a policymaker whose opinions represent a policy or custom
of the Nassau County Police Department, Plaintiff has not established the second element of
causation.
Plaintiff makes no effort to articulate the "direct causal link" between that policy or
custom and the wrongs he allegedly suffered on October 21, 2007. See City of Canton, Ohio v.
Harris, 489 U.S. 378, 385 (1989); Vaiana v. Nassau Cnty. Dep 't of Corr., 11-CV-1013, 2012
WL 541086, at *4 (E.D.N.Y. Feb. 21, 2012) (Bianco, J.) (citing Monell, 436 U.S. at 691)
("[L ]iability is limited to constitutional violations that occurred as a result of a government's
policy or custom."). Plaintiff does not demonstrate that Keddy was the official who directly
committed or commanded the alleged violation of Plaintiffs rights, or that Keddy indirectly
caused the misconduct of a subordinate municipal employee. See Jeffes v. Barnes, 208 F.3d 49,
61 (2d Cir. 2000) ("Because respondeat superior liability is not permissible ... the courts must
apply rigorous standards of culpability and causation ... to ensure that the indirect-causation
theory not result in the municipality's being held liable solely for the actions of its employee.")
(internal citations omitted). This deficiency renders Plaintiffs claim insufficient on summary
judgment, and therefore the Monell claim is dismissed. See Lojan v. Crumbsie, 12-CV-0320,
2013 WL 411356, at *3 (S.D.N.Y. Feb. 1, 2013) (Preska, J.) ("Even if municipal policy set in
motion the events that culminated in the harm to Plaintiff, more is required to establish the
requisite causal link.").
9
III.
False Arrest
Because federal and state law claims for false arrest are "substantially the same," the
Court addresses Plaintiff's § 1983 and New York false arrest claims together. See Weyant v.
Okst, 101 F.3d 845, 852 (2d Cir. 1996). To state a claim for false arrest, Plaintiff must show that
(1) the Defendants intentionally confined him, (2) Plaintiff was conscious of the confinement, (3)
Plaintiff did not consent to the confinement, and (4) the confinement was not otherwise justified.
Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). Typically, a false arrest claim fails as a matter
of law when a plaintiff pleads guilty to the underlying charge. See Rodriguez v. Vil!. of Ossining,
918 F. Supp. 2d 230, 241 (S.D.N.Y. 2013) (Seibel, J.) (collecting cases).
The Court takes judicial notice of Plaintiff's guilty plea to Resisting Arrest as to N.Y.
Pen. L. § 205.30.
See Mot. at 11-12 (requesting judicial notice); Opp. at 8 (consenting to
judicial notice); see also Fed. R. Evid. 20l(a)-(b). Defendants argue that Plaintiff's guilty plea
made his arrest "otherwise privileged,'' and that as a result, it could not constitute false arrest.
See id. at 12-14 (citing Posr, 944 F.2d at 97). 3 Plaintiff concedes that as a result of his guilty
plea, he may not seek redress for the false arrest claim "related to Plaintiff's arrest for resisting
arrest." Opp. at 9. Accordingly, the Court dismisses the false arrest claim to the extent that its
factual underpinnings coincide with Plaintiff's guilty plea.
3
The parties dispute the scope of the judicial notice that should be taken of the guilty plea.
Defendants ask the Court to take note of the Information, which noted that "At the
aforementioned date and time, while attempting to place defendant Rashard Williams under
lawful arrest for Obstructing Governmental Administration, the defendant [Williams] did resist
arrest by flailing his arms and throwing punches at arresting officers." See Mot. at 12-14.
Plaintiff denies that he admitted the facts in the Information, see Opp. at 8-9, but the Court is
otherwise persuaded. In the testimony from the allocution, the acceptance of the plea offer was
"conting~nt upon the [Plaintif0 pleading guilty to the charge as outlined, consenting to the
prosecut10n by the accusatory mstrument." Dkt. 37 ("Reply") at IO (internal citations removed).
10
However, Plaintiff also argues that he has a residual false arrest claim based on the
seizure of Plaintiff's person "prior to the time Defendants claim to have arrested Plaintiff for
resisting arrest." Id. (emphasis removed); see also id. at 11 ("The period between the moment in
time when Defendants wrongfully seized the Plaintiff for failing to have identification and the
period when the officers had the lawful authority to arrest the Plaintiff for resisting arrest is a
legally cognizable deprivation of Plaintiff's liberty interest."). In response, Defendants complain
that the facts for the pre-arrest false arrest claim are an "improper attempt to set forth a new
cause of action [or] ... amend the Plaintiff's pleadings." Reply at 12.
The Court agrees with Plaintiff that a viable false arrest claim still exists. Confinement
that is not part of a formal arrest may give rise to a claim under § 1983.
See Vasquez v.
Pampena, 08-CV-4184, 2009 WL 1373591, at *2-3 (E.D.N.Y. May 18, 2009) (Gleeson, J.)
(denying motion to dismiss false arrest claim because plaintiff claimed that he was not able to
leave while officer wrote out summons); see also Posr v. Doherty, 944 F.2d at 98 ("An arrest
need not be formal [to constitute a false arrest]; it may occur even if the formal words of arrest
have not been spoken provided that the subject is restrained and his freedom of movement is
restricted.").
Further, the Complaint contains the factual allegations on which Plaintiff now
seeks redress. Cf Beck v. City of NY, 12-CV-9231, 2014 WL 80544, at *3 (S.D.N.Y. Jan. 3,
2014) (Abrams, J.) (dismissing false arrest claim because plaintiff's argument that she was
detained at the scene of the accident was "inconsistent with the complaint"). Specifically, the
Complaint alleges that in response to Williams's request that his friend's identification be
returned, the police officer Defendants demanded that Williams produce his own identification,
and when he failed to do so, declared that Williams was under arrest.
Compl. at ,-i,-i 25-32.
Because Plaintiff has submitted evidence supporting this account of events, and Defendant does
11
not move to dismiss the claim on substantive grounds, the claim addressing events prior to
Plaintiffs formal arrest will stand. See Pl. 's 56.1 at
iii! 118-25. At trial, liability and damages
for only this part of the false arrest claim will be considered.
IV.
Excessive Force
Defendants move for summary judgment on Plaintiffs excessive force claim, arguing
that the level of violence Plaintiff exhibited during his arrest "forced police officers to react in
the manner in which they did." Mot. at 20-21. In support of their argument, Defendants cite
Plaintiffs guilty plea to Resisting Arrest and argue that the force exuded "was in no way
excessive, because the police officer[s'] actions were in response to Plaintiffs actions." Id. at
21.
A police officers' application of force is excessive if it is "objectively unreasonable in
light of the facts and circumstances confronting them, without regard to their underlying intent or
motivation." Maxwell v. City ofN.Y, 380 F.3d 106, 108 (2d Cir. 2004) (internal citations and
quotations omitted).
Application of this standard requires an inquiry into the totality of the
circumstances, "including the severity of the crime at issue, whether the suspect posed an
immediate threat to the safety of others and whether he is actively resisting arrest." Sullivan v.
Gagnier, 225 F.3d 161, 165 (2d Cir. 2000).
To adopt Defendants' position under these standards, the Court would have to credit
Defendants' testimony over Plaintiffs. This the Court cannot do. See Liberty Lobby, Inc., 4 77
U.S. at 255 ("Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling
on a motion for summary judgment or for a directed verdict.").
Defendants' Motion
emphasizes Plaintiffs guilty plea to resisting arrest, but this fact does not definitively swing the
12
totality of the circumstances test in favor of Defendants. A plaintiffs resistance is one of several
factors into objective reasonableness, and the Second Circuit has repeatedly held that "resistance
to arrest does not give the officer license to use force without limit in response."
Tracy v.
Freshwater, 623 F.3d 90, 99 (2d Cir. 2010) (internal quotations omitted) (citing Sullivan v.
Gagnier, 225 F.3d 161, 166 (2d Cir. 2000)).
Further, Plaintiff has introduced facts suggesting that excessive force was applied. For
example, Plaintiff testifies that he was struck on the back, neck, and head, by hard objects and a
flashlight. Pl. 's· 56
at~~
149-50. Plaintiff also argues that the Defendant officers continued to
"hit, kick and strike" him after he was being handcuffed. Id. at
the back, and strikes on the head and right side. Id.
at~~
~
151. These included a kick in
151-52. Plaintiff also adduces evidence
demonstrating that he sustained a severe laceration to his skull, requiring nine staples, a
laceration to his right ear requiring eight stitches, and a "bulging disc with impingement." Id. at
~~
152-154. On these factual submissions, the Court cannot find as a matter of law that it was
objectively reasonable for officers to have inflicted these alleged injuries on Plaintiff.
See
Johnson v. City of NY, 05-CV-2357, 2006 WL 2354815, at *5 (S.D.N.Y. Aug. 14, 2006) (Stein,
J.) ("While not every push or shove ... violates the Fourth Amendment, there surely would be
no objective need to stomp and kick an individual already under police control.") (internal
citations omitted).
This triable issue of fact renders summary judgment inappropriate.
See
Pierre-Antoine v. City of NY, 04-CV-6987, 2006 WL 1292076 (S.D.N.Y. May 9, 2006) (Lynch,
J.) (allegations that officers kicked and punched individual, including after he was handcuffed,
precluded summary judgment for defendants on excessive force); Benson v. Yaeger, 05-CV784S, 2009 WL 1584324, at *5 (W.D.N.Y. June 3, 2009) (Skretny, J.) (denying defendants'
motion for summary judgment because even though officers were permitted to use the degree of
13
force necessary to effectuate plaintiffs arrest, a jury could reasonably find that "windmill[ing]"
plaintiffs shoulder in so doing was unreasonable). 4
V.
Qualified Immunity
Defendants argue that qualified immunity should shield them from liability. See Mot. at
21-23. However, because conflicting issues of material fact exist, the Court is unable to apply
the doctrine at this time.
Qualified immunity attaches when it would have been objectively reasonable for a
defendant to believe that his actions did not violate clearly established statutory or constitutional
rights of which a reasonable person would have known. Zellner v. Summerlin, 494 F.3d 344,
367 (2d Cir. 2007) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
"[A] conclusion
that the defendant official's conduct was objectively reasonable as a matter of law may be
appropriate where there is no dispute as to the material historical facts, [but] if there is such a
dispute, the factual questions must be resolved by the factfinder." Kerman v. City of NY, 374
F.3d 93, 109 (2d Cir. 2004) (internal citations omitted); see also Oliveira v. Mayer, 23 F.3d 642,
649 (2d Cir. 1994) ("Though immunity ordinarily should be decided by the court, that is true
only in those cases where the facts concerning the availability of the defense are undisputed;
otherwise, jury consideration is normally required.") (internal citations omitted).
4
Defendants point to the testimony of Keddy, the Academic Supervisor of the Nassau County
Police Academy, to argue that Plaintiff was to blame for the ensuing events and injuries. See
Mot. at 18; Reply at 17. However, the Court will not allow this purported expert to perform the
duties of the trier of fact. See Nimely v. City of N. Y, 414 F.3d 381, 397 (2d Cir. 2005) ("[E]xpert
testimony that usurps either the role of the trial judge in instructing the jury as to the applicable
law or the role of the jury in applying that law to the facts before it, by definition does not aid the
jury in making a decision; rather, it undertakes to tell the jury what result to reach, and thus
"attempts to substitute the expert's judgment for the jury's[.]") (internal citations omitted).
14
Here, there is no question that freedom from false arrest and excessive force are
clearly established constitutional rights. Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995).
Thus, the only issue to be determined is whether it was objectively reasonable for the individual
defendants to believe that their acts did not violate Plaintiffs rights. See Jeanty v. Cnty. of
Orange, 379 F. Supp. 2d 533, 542 (S.D.N.Y. 2005) (Conner, J.).
This issue is disputed, as
explained above, because there are differing accounts as to what occurred before, during, and
after Plaintiffs arrest on October 21, 2007. If Plaintiffs account of the facts is fully credited, it
would be difficult to find that the individual defendants could objectively believe that their acts
did not violate Plaintiffs constitutional rights. See supra Sections III-IV.
Given these contested factual circumstances, the Court cannot proceed to the legal
determination necessary for a finding of qualified immunity. Defendants' request for qualified
immunity is accordingly denied.
See, e.g., Okoroafor v. City of N. Y, 07-CV-9387, 2013 WL
5462284, at *4-5 (S.D.N.Y. Sept. 25, 2013) (Batts, J.) (denying request for qualified immunity
on summary judgment because parties presented conflicting factual accounts).
VI.
Punitive Damages
Plaintiff has consented to the dismissal of punitive damages against Nassau County, but
he reasserts the availability of punitive damages as to the individual Defendants. See Opp. at 2324.
Defendants did not initially move to dismiss the punitive damages as to individual
Defendants. See Mot. at 23. However, in their reply brief, Defendants assert that dismissal as to
the individual Defendants is proper because "Plaintiff fails to raise an issue of material fact with
regard to any violation of Plaintiffs constitutional rights, and further fails to specifically allege
facts that would at the very least give rise to an inference. that the defendants['] conduct was
motivated by evil motive, intent, or reckless indifference." Reply at 23.
15
Defendants' argument is improperly raised for the first time in the reply brief and is
substantively incorrect. Plaintiff's account of the arrest and alleged beating raises an issue of
material fact as to violation of his constitutional rights and provides sufficient indication, for
summary judgment purposes, that officers were motivated by the requisite "ill will or malice."
See Ragin v. Harry Mac klowe Real Estate Co., 6 F .3d 898, 909 (2d Cir. 1993) (citing punitive
damages standard); see also supra Sections III-IV.
Accordingly, the Court will not dismiss
Plaintiffs request for punitive damages as to the individual Defendants Carey, Monell, and
Arnold at this time. See Lazaratos v. Ruiz, OO-CV-2221, 2003 WL 22283832, at *7 (S.D.N.Y.
Sept. 30, 2003) (Jones, J.) ("[B]ecause [Plaintiff] has provided sufficient evidence to overcome
summary judgment [with respect to excessive use of force] ... defendants' motion [for summary
judgment] must be denied with respect to punitive damages."); see Thomas v. Kelly, 903 F. Supp.
2d 237, 269 (S.D.N.Y. 2012) (Carter, J.) (collecting cases "award[ing] punitive damages against
police officers who use excessive force against a defenseless plaintiff').
CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is DENIEDIN-PART and GRANTED-IN-PART.
By stipulation, Defendants Barnes and Benedetto,
Plaintiffs 42 U.S.C. § 1983 claim for malicious prosecution, and Plaintiffs claim for punitive
damages against Defendant Nassau County are DISMISSED. Further, Plaintiffs Monell claim
and false arrest claim as to Plaintiffs formal arrest are DISMISSED. However, Plaintiff may
proceed on his false arrest claim as to the events preceding the formal arrest, and on his
excessive force claim. Finally, Defendants will not be granted qualified immunity at this time,
and Plaintiff may continue to pursue punitive damages against individual Defendants Carey,
Monell, and Arnold.
The parties are directed to proceed with any remaining discovery in
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s/WFK
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