Perry v. County of Westchester et al
Filing
36
MEMORANDUM AND ORDER granting in part and denying in part 23 Motion for Summary Judgment filed by Patrick Polese and Village of Pelham: For the reasons set forth within, the motion (docket no. 23) is granted in part and denied in part. (Signed by Judge Naomi Reice Buchwald on 11/28/2011) Copies Mailed By Chambers. (ab)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
WILLIAM PERRY,
Plaintiff,
MEMORANDUM AND ORDER
- against COUNTY OF WESTCHESTER, WESTCHESTER COUNTY
POLICE DEPARTMENT, TOWN OF PELHAM,
VILLAGE OF PELHAM, and SGT. PATRICK
POLESE,
09 Civ. 9391 (NRB)
Defendants.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff
William
Perry
brings
this
action
against
defendants the Village of Pelham (“Pelham”) and Patrick Polese,
a
member
of
Pelham’s
police
department,1
alleging
various
constitutional violations under 42 U.S.C. § 1983 and tort claims
under New York State law. Presently before us is defendants’
motion for summary judgment.
For
the
reasons
stated
herein,
defendants’
motion
is
granted in part and denied in part.
1
Plaintiff
Westchester,
Pelham.
previously dismissed his claims as against the County
the Westchester County Police Department, and the Town
of
of
BACKGROUND2
Late
driving
in
some
the
evening
friends
of
from
August
Mount
16,
2008,
Vernon,
New
plaintiff
York
to
was
Port
Chester, New York. He was driving a car with South Carolina
plates
registered
to
his
deceased
brother,
though
the
registration had been suspended. Plaintiff did not have a valid
driver’s license at the time and had not had one since 2005.
En
route
“Hutchinson”),
to
the
plaintiff
Hutchinson
passed
River
through
Parkway
Pelham.
He
(the
stopped
briefly at a traffic light before turning right onto an on-ramp
leading to the Hutchinson’s northbound lanes. Plaintiff recalls
that
the
traffic
light
had
been
blinking
red,
while
Polese
recounts that the light was unblinking and a sign was posted
prohibiting right turns on red. On the on-ramp, plaintiff was
pulled
over
by
Polese.
Either
at
that
time
or
shortly
thereafter, Polese was joined by a number of other officers.
2
The facts set forth herein are taken from defendant’s Rule 56.1 Statement,
the Declaration of James A. Randazzo (“Randazzo Decl.”) and attached
exhibits, plaintiff’s Statement of Facts Pursuant to Rule 56.1, and the
Declaration of Ann Jen (“Jen Decl.”) and attached exhibits. We note that
plaintiff failed to comply with Rule 56.1 of the Local Rules of the United
States District Courts of the Southern and Eastern Districts of New York (the
“Local Rules”), which mandates that “[t]he papers opposing a motion for
summary
judgment
shall
include
a
correspondingly
numbered
paragraph
responding to each numbered paragraph in the statement of the moving party,”
Local Rule 56.1(b), instead simply providing his own version of the facts.
While we are thus entitled to treat all facts in defendants’ Rule 56.1
statement as admitted, see Local Rule 56.1(c), we employ our broad discretion
in this area and utilize plaintiff’s non-compliant Rule 56.1 statement, as
well as our own review of the record, to confirm defendants’ recitation of
the facts and supplement those facts where necessary. See Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001). Conflicts in the
evidence have been resolved in favor of the non-moving party.
2
The police asked plaintiff for his license and registration
and had him exit his car. While conducting their investigation,
the police sent plaintiff’s friends on their way in a cab. At
some point, plaintiff reentered his car to wait for the police
to finish their investigation. Plaintiff claims that he then
overheard some of the officers state, “The Sergeant is pissed
off. I don’t know what he might do with this guy tonight. This
black nigger.” Polese denies that any such statements were made.
Plaintiff then started his car and drove away from the
scene, onto the Hutchinson, and the police gave pursuit with
both their lights and sirens on. The chase ended when plaintiff
crashed his car, damaging the front fender and passenger side of
the vehicle. Polese then approached the car with his gun drawn
and ordered plaintiff to exit the vehicle. Plaintiff did not
move, and Polese reached through the open driver’s side window,
grabbed plaintiff by the front of his shirt, and pulled him
through
the
window.
Plaintiff
was
put
to
the
ground
and
handcuffed, during which, he claims, he hit a rock or brick with
the left side of his body and head. Plaintiff also claims that,
while on the ground, one of the police officers present, though
not Polese, kicked him and called him a “black mother fucker,”
and that he was then dragged to a police car.
Plaintiff
misdemeanors
was
and
arrested
traffic
and
charged
violations.
3
He
with
pled
a
variety
guilty
to
of
the
misdemeanor crime of Unlawful Fleeing a Police Officer in a
Motor Vehicle in the Third Degree, N.Y. Penal Law § 270.25, in
satisfaction of all charges, and was thereafter sentenced to
time served and three years of probation.
Plaintiff filed the instant complaint on November 12, 2009.
DISCUSSION
I.
Legal Standard
Summary judgment is appropriate when “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). “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.” Scott v. Harris,
550 U.S. 372, 380 (2007) (quoting Anderson v. Liberty Lobby,
Inc.,
477
U.S.
242,
247-48
(1986))
(internal
alterations
omitted); see also Quarles v. Gen. Motors Corp. (Motors Holding
Div.), 758 F.2d 839, 840 (2d Cir. 1985). “Only disputes over
facts
that
governing
might
law
affect
will
the
properly
outcome
preclude
of
the
the
suit
entry
under
of
the
summary
judgment.” Anderson, 477 U.S. at 248.
On a motion for summary judgment, the initial burden rests
with the moving party to make a prima facie showing that no
issues of material fact exist for trial. See Celotex Corp. v.
4
Catrett, 477 U.S. 317, 330-31 (1986). Once this showing is made,
“[t]o
defeat
summary
judgment,
the
non-movant
must
produce
specific facts” to rebut the movant’s showing and to establish
that there are material issues of fact requiring trial. Wright
v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998) (citing Celotex,
477 U.S. at 322). In determining whether a genuine issue of
material fact exists, a court must view the facts in the light
most favorable to the non-moving party and make all reasonable
inferences
in
that
party’s
favor.
See
Fincher
v.
Depository
Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010). For
these purposes, a court “may not make credibility determinations
or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000).
II.
Plaintiff’s Section 1983 Claims
Pursuant to 42 U.S.C. § 1983, plaintiff asserts claims for
false
arrest,
illegal
search,
and
excessive
force
against
Polese, as well as a Monell claim against Pelham. Each will be
addressed in turn.
A.
A
False Arrest and Illegal Search
claim
of
false
arrest
under
Section
1983
“is
substantially the same as a claim for false arrest under New
York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
Both
causes
of
action
require
plaintiff
to
demonstrate
that
“defendant intentionally confined him without his consent and
5
without justification.” Covington v. City of New York, 171 F.3d
117, 122 (2d Cir. 1999) (quoting Weyant, 101 F.3d at 852). An
officer is justified in effecting an arrest if probable cause to
arrest exists. See id. Probable cause exists “when the arresting
officer
has
knowledge
or
reasonably
trustworthy
information
sufficient to warrant a person of reasonable caution in the
belief that an offense has been committed by the person to be
arrested.” Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d
Cir. 1998) (internal quotation marks omitted).
Polese
had
probable
cause
to
arrest
plaintiff
for
unlawfully fleeing a police officer. The elements of that crime
require that (1) a person knew he had been directed to stop “by
a uniformed police officer or a marked police vehicle by the
activation of . . . the lights,” and (2) the person attempted to
flee by “driving at speeds which equal or exceed twenty-five
miles per hour above the speed limit or engaging in reckless
driving.” N.Y. Penal Law § 270.25. It is undisputed that the
officers
turned
on
their
lights
and
sirens
when
pursuing
plaintiff. Further, Polese testified at his deposition that he
drove at approximately eighty-five miles per hour during his
pursuit of plaintiff, and the chase visited no roads on which
the speed limit was in excess of fifty-five miles per hour. See
N.Y. Veh. & Traf. Law § 1180-a(1) (limiting the speed limit on
New York roads to fifty-five miles per hour, with limited, non-
6
applicable
exceptions).
These
uncontroverted
facts
are
sufficient to find that Polese had probable cause to arrest
plaintiff, defeating the false arrest claim.3
This determination also establishes a complete defense to
plaintiff’s illegal search claim. See Illinois v. Lafayette, 462
U.S. 640, 645 (1983) (“A custodial arrest of a suspect based on
probable
cause
is
a
reasonable
intrusion
under
the
Fourth
Amendment; that intrusion being lawful, a search incident to the
arrest requires no additional justification.” (quoting United
States v. Robinson, 414 U.S. 218, 235 (1973)); Perez v. City of
New York, No. 07 Civ. 10319, 2009 U.S. Dist. LEXIS 50066, at
*15-16
(S.D.N.Y.
June
8,
2009)
(“As
the
court
has
already
reasoned that probable cause existed for the plaintiff's arrest,
granting
relates
the
to
defendants’
the
motion
plaintiff’s
for
unlawful
summary
search
judgment,
claim,
as
it
appears
warranted, since the search was incident to an arrest based upon
probable cause.”).
Defendants’ motion for summary judgment with respect to the
false arrest and illegal search claims is therefore granted.
3
Plaintiff also eventually pleaded guilty to having unlawfully fled from the
police. That plea invalidates any false arrest claim. See Maietta v. Artuz,
84 F.3d 100, 103 n.1 (2d Cir. 1996) (“[C]ommon law principles preclude a
challenge to the validity of an arrest after a guilty plea, for purposes of a
civil suit under 42 U.S.C. § 1983.”).
7
B.
Excessive Force
Plaintiff makes two separate arguments on the grounds of
excessive
force.
First,
he
contends
that
Polese
utilized
an
unreasonable degree of force when pulling him through the window
of his car and bringing him to the ground to effect the arrest.
Second,
he
asserts
that
Polese
had
a
duty
to
intervene
to
protect him from the officers who kicked and dragged him.
1.
Unreasonable Force
To prevail on a Fourth Amendment claim of excessive force,
a plaintiff must show that the amount of force used by law
enforcement was “objectively unreasonable in light of the facts
and circumstances confronting [an officer], without regard to
[his] underlying intent or motivation.” Jones v. Parmley, 465
F.3d 46, 61 (2d Cir. 2006) (quoting Graham v. Connor, 490 U.S.
386, 397 (1989)). An officer’s actions are not to be judged in
hindsight,
but
rather
from
the
perspective
of
a
reasonable
officer on the scene. See id. Thus, “not every push or shove,
even if it may later seem unnecessary in the peace of a judge’s
chambers, violates the Fourth Amendment,” Maxwell v. City of New
York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham, 490 U.S.
at 396) (internal alteration omitted), and an officer may need
to
use
some
degree
of
force
in
the
course
of
an
arrest,
particularly where forced to make split-second judgments in a
tense situation. See id.
8
The parties disagree about a number of aspects of Polese’s
arrest of plaintiff. Defendants assert that damage to the car
after the crash had jammed the car door such that it was unable
to
be
window.
opened,
necessitating
Plaintiff
plaintiff’s
acknowledges
that
he
removal
“could
through
not
open”
the
the
door, but he claims his inability was due to Polese holding him
at gunpoint while his hands were in the air, not any physical
damage to the vehicle. Plaintiff further asserts that he was not
given sufficient opportunity to try to open the door before
Polese pulled him through the window, and that, after he was
defenestrated,
Polese
slammed
him
against
a
rock
or
brick,
injuring him.4
We are admittedly skeptical that an officer of the law
would choose to heft a fully grown man through a car window
4
Defendants urge us to disregard plaintiff’s testimony to this effect, (Jen
Decl., Ex. B, Examination of William Perry, at 73, 75 (Nov. 4, 2009)),
because it was given at hearing conducted under General Municipal Law § 50-h
at which they were not present and differs in content from plaintiff’s
deposition. Testimony from a Section 50-h hearing, however, is properly
considered on a motion for summary judgment, see, e.g., Yang Feng Zhao v.
City of New York, 656 F. Supp. 2d 375, 389-90 (S.D.N.Y. 2009) (finding
Section 50-h testimony sufficient for an excessive force claim to survive
summary judgment), and admissible at trial under Federal Rule of Evidence
801(d)(1). Cf. McKay v. Principi, No. 03 Civ. 1605, 2004 U.S. Dist. LEXIS
22316, at *5 n.10 (S.D.N.Y. Nov. 4, 2004) (considering testimony given at an
administrative hearing on a motion for summary judgment). The testimony,
moreover, is supported by plaintiff’s affidavit. (Aff. of William Perry,
¶ 4.) While it is true that “a party may not, in order to defeat a summary
judgment motion, create a material issue of fact by submitting an affidavit
disputing his own prior sworn testimony,” Trans-Orient Marine Corp. v. Star
Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991), plaintiff’s
affidavit does not directly contradict his deposition testimony, which is
ambiguous as to whether he was injured as he was removed from the car and
handcuffed. (E.g., Randazzo Decl., Ex. D, Dep. of William Perry, 67:5-7
(“[T]he Sergeant just pulled me through the window. That’s all he did and
hurt me a little bit.”), 68:10-11 (“. . . I was too much in pain. I was
thrown on the ground.”).)
9
rather than have him exit through the car’s door if the latter
course was a viable option. We also regard with some degree of
suspicion the allegations of plaintiff’s fortuitous alighting
upon a rock and subsequent injuries, given his own testimony
that the doctor who examined him told him that he had not been
injured, (Randazzo Decl., Ex. C, Examination of William Perry,
at 32 (May 14, 2010)), and the dearth of any medical records
before the Court.
Nevertheless, these are disputes of material fact: whether
plaintiff
had
a
chance
to
attempt
to
exit
the
car
himself,
whether the car’s door could be opened, and whether plaintiff in
fact sustained injuries from his removal. Each of these issues
materially
bears
on
the
question
of
whether
Polese
used
excessive force, and they are properly reserved for trial.
2.
Failure to Intercede
Plaintiff also asserts that Polese should have intervened
and prevented him from being kicked and dragged to a police car.5
An
officer
prevent
will
harm
be
liable
caused
by
for
his
other
failure
to
officers,
intercede
among
to
other
circumstances, “where that officer observes or has reason to
5
Plaintiff includes an officer’s use of a racial epithet in his description
of the violations for which Polese should have intervened, but “an arresting
officer’s use of racial epithets does not constitute a basis for a § 1983
claim,” Miro v. City of New York, No. 95 Civ. 4331, 2002 U.S. Dist. LEXIS
9857, at *12 (S.D.N.Y. June 3, 2002), including a failure to intercede.
10
know . . . that excessive force is being used.” Anderson v.
Branen, 17 F.3d 552, 557 (2d Cir. 1994).
However,
complaint.
plaintiff
Rather,
he
did
not
raised
it
raise
for
this
the
claim
first
time
in
his
in
his
opposition to defendants’ motion for summary judgment. As such,
the claim is not properly before the Court. See, e.g., Syracuse
Broad.
Corp.
v.
(sanctioning
“brush[ing]
Newhouse,
the
aside
236
district
a
F.2d
court’s
further
charge,
522,
525
(2d
Cir.
summary
judgment
made
the
in
1956)
order
briefs
and
affidavits, but not alleged in the complaint”); Gillman v. Inner
City Broad. Corp., No. 08 Civ. 8909, 2011 U.S. Dist. LEXIS 4759,
at *1-2 n.1 (S.D.N.Y. Jan. 18, 2011).
Moreover,
“liability
even
[would]
had
not
the
claim
attach
unless
been
properly
plaintiff
raised,
[could]
prove
that there was ‘a realistic opportunity to intervene to prevent
the harm from occurring.’” Husbands v. City of New York, No. 05
Civ. 9252, 2007 U.S. Dist. LEXIS 61042, at *37 (S.D.N.Y. Aug.
16, 2007) (quoting Anderson, 17 F.3d at 557), aff’d, 335 F.
App’x 124 (2d Cir. 2009). Polese, engaged as he was in effecting
plaintiff’s arrest, simply would not have had an opportunity “to
prevent a single, discrete kick, presumably lasting no more than
one second, delivered by another officer.” Id. at *38.
11
C.
Municipal Claims
It is well-settled that a municipality can only be sued
under Section 1983 if the alleged injury was the result of an
official policy, custom, or practice of the municipality. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978);
Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir.
1985). The failure to properly train employees, as alleged here,
may constitute such a policy or practice only in instances where
“the failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact,” City
of Canton v. Harris, 489 U.S. 378, 388 (1989), and actually
causes the injury alleged. See id. at 390.
The Second Circuit has identified three requirements before
a
failure
to
train
amounts
to
deliberate
indifference:
the
plaintiff must show that (1) “a policymaker knows ‘to a moral
certainty’ that her employees will confront a given situation”;
(2) “the situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
difficult or that there is a history of employees mishandling
the situation”; and (3) “the wrong choice by the city employee
will
frequently
cause
the
deprivation
of
a
citizen’s
constitutional rights.” Walker v. City of New York, 974 F.2d
293,
297-98
(2d
Cir.
1992).
Additionally,
“at
the
summary
judgment stage, plaintiffs must ‘identify a specific deficiency
12
in
the
city’s
training
program
and
establish
that
that
deficiency is closely related to the ultimate injury, such that
it actually caused the constitutional deprivation.’” Green v.
City
of
New
York,
465
F.3d
65,
81
(2d
Cir.
2006)
(quoting
Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir.
2004)).
Plaintiff has offered no evidence whatsoever with respect
to Pelham’s training protocol for its police officers or any
incidents
similar
circumstances,
to
that
summary
alleged
judgment
by
is
plaintiff.
such
granted
properly
Under
for
defendants on all failure to train claims. See id. at 81-82
(affirming
district
court’s
grant
of
summary
judgment
when
plaintiffs, having offered some evidence as to the extent of the
alleged
failure
to
train,
nevertheless
“offered
insufficient
evidence to reach the jury”).
Plaintiff
also
asserts
that
a
failure
to
properly
discipline or sanction the officers may support his theory of
municipal liability under Section 1983. Such a claim requires
evidence
that
Pelham’s
“response
to
complaints
of
use
of
excessive force by City police officers was uninterested and
superficial,” Fiacco v. City of Rensselaer, 783 F.2d 319, 331
(2d
Cir.
1986),
or
of
a
“persistent
failure
to
discipline
subordinates who violate civil rights.” Batista v. Rodriguez,
702 F.2d 393, 397 (2d Cir. 1983). Once again, plaintiff has
13
provided none of the necessary evidence. Summary judgment in
favor of defendants is warranted.
III. Plaintiff’s State Law Claims
Plaintiff also alleges claims under New York State law for
assault, battery, intentional infliction of emotional distress,
and
negligence
against
Polese,
and
negligent
hiring
and
retaining against Pelham.
A.
Assault and Battery Claims
The New York State law pertaining to assault and battery
“parallels
the
federal
laws
regarding
excessive
force”
for
claims against police officers acting in the course of their
duties. Kramer v. City of New York, No. 04 Civ. 106, 2004 U.S.
Dist. LEXIS 21914, at *33-34 (S.D.N.Y. Nov. 1, 2004); accord
Humphrey
v.
Landers,
344
F.
App’x
686,
688
(2d
Cir.
2009)
(“Except for § 1983’s requirement that the tort be committed
under color of state law, the essential elements of excessive
force and state law assault and battery claims are substantially
identical.” (internal quotation marks and alterations omitted)).
Because
we
have
already
found
that
substantial
issues
of
material fact preclude granting summary judgment on plaintiff’s
claim
that
Polese
used
unreasonable
force
in
conducting
the
arrest, we cannot grant summary judgment on these claims either.
14
B.
To
Intentional Infliction of Emotional Distress
establish
a
claim
for
intentional
infliction
of
emotional distress, plaintiff must show that Polese’s conduct
was “so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious,
and
utterly
intolerable
in
a
civilized
society.”
Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (quoting
Howell v. N.Y. Post Co., 81 N.Y.2d 115, 121 (1993)). Although we
cannot on summary judgment determine whether Polese’s use of
force was reasonable, we can -- and do -- decide, even accepting
plaintiff’s version of the events, that Polese’s conduct did not
even approach the level of shocking behavior needed to support a
claim of intentional infliction of emotional distress.
C.
Polese’s Negligence and Pelham’s Negligent Hiring and
Retention
A claim of negligence will survive summary judgment when a
plaintiff alleges facts that establish that the defendant had a
duty to protect the plaintiff, the defendant breached that duty,
and breach caused the plaintiff to be injured. See Lombard v.
Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir. 2002).
Negligent
hiring
employer
“failed
and
to
retention
requires
investigate
a
a
showing
prospective
that
an
employee
notwithstanding knowledge of facts that would lead a reasonably
prudent person to investigate that prospective employee.” Biggs
15
v. City of New York, No. 08 Civ. 8123, 2010 U.S. Dist. LEXIS
121332, at *34 (S.D.N.Y. Nov. 16, 2010) (quoting Richardson v.
City of New York, No. 04 Civ. 05314, 2006 U.S. Dist. LEXIS
92731, at *45-46 (S.D.N.Y. Dec. 21, 2006)).
When a plaintiff has submitted no evidence with respect to
his negligence claims, they are properly dismissed on a motion
for
summary
judgment,
even
if
excessive
force
claims
have
survived the same motion. See Williams v. City of White Plains,
718 F. Supp. 2d 374, 379-81 (S.D.N.Y. 2010). Plaintiff here has
submitted no evidence on these claims, and indeed abandoned them
in his opposition to the motion for summary judgment. Summary
judgment
is
appropriately
entered
claims.
16
against
plaintiff
on
these
CONCLUSION
For the
foregoing
reasons,
the motion
(docket
no.
23)
is
granted in part and denied in part.
Dated:
New York, New York
November 28, 2011
// , " /
(//
<
)
/}
/,
.cL<--~c/i~~J
/
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Copies of the foregoing Order have been mailed on this date to
the following:
Attorney for Plaintiff
Ann Jen, Esq.
Mallilo & Grossman
163-09 Northern Boulevard
Flushing, NY 11358
Attorney for Defendant
James A. Randazzo, Esq.
Gelardi & Randazzo LLP
800 Westchester Avenue, Suite S 608
Rye Brook, NY 10573
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?