Baines v. The City of New York et al
MEMORANDUM OPINION AND ORDER re: 187 MOTION for Summary Judgment, filed by Brian White, Michael Delmerico, Peter Guyheen, Chris McNerney, John Christman, Odonoghue, Joseph Cutrone, Joseph Leonard. The Court grants summary judgment wit h respect to (1) Baines's claims against Officers Delmerico, McNerney, and Cutrone; and (2) his claim against Officer O'Donoghue with respect to the initial alleged unlawful entry (and related allegations). Otherwise, Defendants' motio n for summary judgment is denied. By separate Order to be entered today, the Court is referring the case for settlement-purposes only to the assigned Magistrate Judge (the Honorable James L. Cott). No later than one week after pro bono counsel en ters a notice of appearance or September 29, 2017, whichever is earlier, the parties shall contact the Chambers of Magistrate Judge Cott to schedule a settlement conference as soon as possible. In the event that the case does not settle, the Court will issue a further Order with respect to the timing and procedures leading up to trial (the details of which will depend on whether Baines is represented or not). The Clerk of Court is directed to terminate Docket No. 187; to terminate Officers De lmerico, McNerney, and Cutrone as Defendants; and to mail Baines a copy of this Opinion and Order. This Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith, and in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Chris McNerney (Shield #11264, Individually and as Police Officer for the City of New York), Joseph Cutrone (Shield #1168, Individually and as a Police Officer for the City of New York) and Michael Delmerico (Shield #1138, Individually and as a Police Officer for the City of New York) terminated.) (Signed by Judge Jesse M. Furman on 8/9/2017) (ras)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK, et al.,
JESSE M. FURMAN, United States District Judge:
Plaintiff Donnell Baines, a state prisoner proceeding pro se, brings claims, pursuant to
Title 42, United States Code, Section 1983, against several officers from the New York City
Police Department arising from the entry into, and search of, his apartment in December 2009. 1
In prior opinions, familiarity with which is assumed, the Court granted in part and denied in part
motions to dismiss Baines’s claims. See Baines v. City of N.Y., No. 10-CV-9545 (JMF), 2014
WL 1087973 (S.D.N.Y. Mar. 19, 2014) (dismissing claims against City of New York); Baines v.
City of N.Y., No. 10-CV-9545 (JMF), 2015 WL 3555758 (S.D.N.Y. June 8, 2015) (dismissing
Plaintiff’s equal protection, due process, and conspiracy claims). The remaining Defendants
now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment
on Baines’s surviving claims, for unlawful entry, unreasonable search, excessive force, and
failure to intervene. For the reasons that follow, the motion is largely denied.
Baines filed his initial complaint in 2010, but his case was stayed for a while because he
was being prosecuted in state court. (Docket Nos. 12, 34).
First, Defendants’ arguments with respect to Baines’s unlawful entry claims and their
primary argument with respect to his unlawful search claim — that the search was a lawful
“protective sweep” — are borderline sanctionable. In their motion to dismiss, Defendants relied
on dictum in Georgia v. Randolph, 547 U.S. 103 (2006), to argue that they were authorized to
enter Baines’s apartment to protect his erstwhile companion, Kimberly Mitchell, the alleged
victim of domestic violence — or, in the alternative, that they had qualified immunity on that
basis. See Baines, 2015 WL 3555758, at *6. Defendants asserted that the search of the
apartment was a lawful protective sweep. See id. at *9. The Court rejected those arguments,
holding with respect to the unlawful-entry claims that “nothing in Randolph suggests that an
officer may enter a residence to accompany a party who does not have actual or apparent
common authority over that residence, at least absent exigent circumstances.” Id. at *7. If the
Officers unlawfully entered Baines’s apartment, the Court continued, they could not rely on the
protective-sweep doctrine to conduct a search. See id. at *9. Strikingly, in their present motion,
Defendants do not contend that the facts are different than the Court took them to be when
deciding the motion to dismiss. (Nor could they: Baines testified that he told the Officers that
Mitchell no longer lived in his apartment and that Mitchell confirmed that herself. (Docket No.
205 (“Pl.’s SOF”) ¶¶ 54-56, 59-61).) Instead, with barely an acknowledgment of the Court’s
prior ruling, Defendants recycle the very arguments that the Court already rejected. Defendants’
arguments are no more persuasive the second time around.
By contrast, Defendants seek to dismiss Baines’s excessive force claims for the first time,
but their arguments can also be swiftly rejected. Baines testified that (1) an officer at the scene
cuffed his hands behind his back and lifted him using the handcuffs until his arms were in the air
behind him and he was doubled over; (2) he was held in that position for over a minute, during
which time he was screaming, and he eventually heard a “popping sound” in his shoulder; (3) the
officer then pulled downward on the handcuffs with enough force to slam him down on the floor;
and (4) at no point did he resist arrest. (Docket No. 190 (“Englert Decl.”), Ex. G (“Baines
Depo.”), at 301-03, 305-06). If that account is true, a reasonable jury could conclude that the
officer’s use of force was objectively unreasonable and thus excessive. See Yang Feng Zhao v.
City of N.Y., 656 F. Supp. 2d 375, 389-91 (S.D.N.Y. 2009) (finding excessive force where
officers pressed the plaintiff’s head down against a table without any legitimate justification for
doing so); Johnson v. City of N.Y., No. 05-CV-2357 (SHS), 2006 WL 2354815, at *5 (S.D.N.Y.
Aug. 14, 2006) (denying summary judgment on a claim of excessive force and noting that “there
surely would be no objective need to ‘stomp’ and ‘kick’ an individual already under police
control”); Pierre-Antoine v. City of N.Y., No. 04-CV-6987 (GEL), 2006 WL 1292076, at *4
(S.D.N.Y. May 9, 2006) (noting that it is “much harder” to show that force was necessary to
effect an arrest when the suspect is already handcuffed); see generally Graham v. Connor, 490
U.S. 386, 395-96 (1989) (discussing the standards applicable to excessive force claims).
Defendants’ sole argument to the contrary is that the force used against Baines was de
minimis. (Docket No. 191 (“Defs.’ Mem.”), at 12-14). In support of that argument, they cite the
fact that he did not seek medical treatment after the incident and his testimony that, when he and
an officer were discussing his injuries at the precinct after his arrest, they “laughed it off.” (Id. at
14). Considered in context, however, Baines’s testimony about “laugh[ing] it off” is more
ambiguous than Defendants let on; in fact, it arguably corroborates the fact that Baines was
injured in some fashion. And while the lack of medical treatment evidence “may ultimately
weigh against [Baines] in the minds of the jury in assessing whether the force used was
excessive,” the law is clear that it is not dispositive of his excessive form claim. Robison v. Via,
821 F.2d 913, 924 (2d Cir. 1987); accord Blair v. City of N.Y., No. 03-CV-1485 (SLT) (CLP),
2009 WL 959547, at *11 (E.D.N.Y. Mar. 31, 2009); see also, e.g., Franks v. New Rochelle
Police Dep’t, No. 13-CV-636 (ER), 2015 WL 4922906, at *15 (S.D.N.Y. Aug. 18, 2015)
(denying summary judgment even though the plaintiff failed to “allege any major injury
stemming from the purported choking to which he was subjected during his arrest” because the
reasonableness of the force was a factual question “best left to the considered judgment of a
jury”); Yang Feng Zhao, 656 F. Supp. 2d at 389-91 (noting the fact that there was no record of
plaintiff seeking medical treatment for his alleged injury but still finding that officer used
excessive force). Accordingly, Defendants’ motion for summary judgment is denied with
respect to Baines’s excessive force claim as well.
Only one other argument by Defendants warrants any discussion: that Baines’s unlawful
search and failure-to-intervene claims fail (at least as to some Defendants) because Baines has
not identified which officers were involved. (Defs.’ Mem. 9, 14-15). It is well settled “that
personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir.
2001) (internal quotation marks and brackets omitted). A police officer, however, “has an
affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being
violated in his presence by other officers.” O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988).
Thus, an officer is liable if he or she “observes or has reason to know . . . that any constitutional
violation has been committed by a law enforcement official” and the officer had “a realistic
opportunity to intervene” to stop the violation. Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994) (citations omitted). Ultimately, “[w]hether an officer had sufficient time to intercede or
was capable of preventing the harm being caused by another officer is an issue of fact for the
jury unless, considering all the evidence, a reasonable jury could not possibly conclude
Applying those standards here, the Court agrees that Baines’s failure-to-intervene claims
against Officers Michael Delmerico, Chris McNerney, and Joseph Cutrone fail as a matter of
law. Each of those Defendants claims that he was not involved in the Officers’ “entry” into, or
“search of,” Baines’s apartment. (Englert Decl., Ex. Q (“Delmerico Decl.”) ¶ 5; Englert Decl.,
Ex. R (“McNerney Decl.”) ¶ 5; Englert Decl., Ex. S (“Cutrone Decl.”) ¶ 5). And while there is
some evidence from which a jury could infer that the three Officers were at the scene (see, e.g.,
Pl.’s SOF ¶ 34; Baines Decl., Ex. D (“Valentin Letter”), at 2), Baines cites no evidence from
which a jury could find that they knew (or had reason to know) of the alleged violations, let
alone that they had a “realistic opportunity” to stop them. Baines’s arguments to the contrary
rest on speculation that Officer Brian White would have briefed his fellow officers regarding the
telephone call between Mitchell and Baines in advance of the first entry and that Officers
Delmerico, McNerney, and Cutrone must have heard what was going on inside the apartment
(for example, because noise travels easily between the apartment and the hallway, an officer
walked into the hallway and asked in “a really loud voice” for Mitchell’s consent to search the
apartment, and Baines screamed at the “top of [his] lungs” when he was subjected force).
(Docket No. 206 (“Pl.’s Opp’n”), at 20; Pl.’s SOF ¶¶ 24-25, 59-61, 83-85; Baines Depo. 291,
303, 308). Such speculation, however, is insufficient to avoid summary judgment. See, e.g.,
Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (noting that to defeat a
summary judgment motion, “[t]he non-moving party may not rely on mere conclusory
allegations nor speculation, but instead must offer some hard evidence showing that its version
of the events is not wholly fanciful” (internal quotation marks omitted)).
For similar reasons, Baines’s failure-to-intervene claims against Officer O’Donoghue fail
with respect to the initial alleged unlawful entry (and related allegations). Notably, Baines
concedes that Officer O’Donoghue “was never physically present on the scene.” (Pl.’s Opp’n
22). And while he asserts that Officer O’Donoghue was present for the telephone call between
Mitchell and Baines in which Baines stated (and Mitchell conceded) that she no longer lived in
the apartment (Pl.’s Opp’n 22), he provides no actual evidence to back up that conclusory
assertion. (Additionally, even if Officer O’Donoghue was present for the telephone call, it does
not follow that he would have known that the Officers were going to enter the apartment over
Baines’s objection.) By contrast, Baines’s claim against Officer O’Donoghue survives with
respect to the second alleged unlawful entry into the apartment. Baines alleges that, after he was
placed in a holding cell, Officer O’Donoghue informed him that other officers were going to
escort Mitchell back to his apartment to help retrieve her belongings. (Pl.’s SOF ¶ 76). Baines
claims that he objected and asked Officer O’Donoghue to intervene, but Officer O’Donoghue
refused and told him to bring a civil suit against Mitchell instead. (Id. ¶¶ 77-78; Baines Depo.
317-18). Drawing all inferences in Baines’s favor, a reasonable jury could find from that
evidence that Officer O’Donoghue knew about the alleged violation and had a “realistic
opportunity” to intervene and stop the second entry. Anderson, 17 F.3d at 557.
That leaves Baines’s claims against Officers Brian White, Peter Guyheen, Joseph
Leonard, and John Christmann. Because Officers White and Guyheen were in the apartment at
the time of Baines’s arrest (Docket No. 189 (“Defs.’ SOF”) ¶¶ 3-6, 8-9, 31), a reasonable jury
could infer that they were involved in the search immediately thereafter or had a realistic
opportunity to stop it. But whether there is sufficient evidence to support the claims against
Officers Leonard and Christmann is a closer question, as there is no evidence with respect to
whether they were inside the apartment and Baines does not identify the three Officers who
conducted the search. Three considerations, however, cause the Court to err on the side of
allowing Baines’s claims against Officers Leonard and Christmann to proceed. First, if Baines
was subjected to the force that he alleges, it is hardly surprising that he would be unable to
“identify which of the defendant officers specifically engaged in the” allegedly unlawful
search. Tieman v. City of Newburgh, No. 13-CV-4178 (KMK), 2015 WL 1379652, at *26
(S.D.N.Y. Mar. 26, 2015). Second, Baines did provide a physical description of the three
officers involved in the search and requested, but was not provided with, photographs of the
Defendant Officers for the purpose of identification. (See Baines Depo. 316-17; Baines Depo.
261; Pl.’s Opp’n 12, n.2). At trial, therefore, he might very well be able to identify the involved
Officers. Cf. Universal Calvary Church v. City of N.Y., No. 96-CV-4606 (RPP), 2000 WL
1538019, at *18 (S.D.N.Y. Oct. 17, 2000) (granting summary judgment on Section 1983 claims
for lack of personal involvement where plaintiff had “photographs of all of the named
Defendants” but “never identified any of the named Defendants, either by name, description,
photograph, or witness testimony at any time”). And third, because Baines proceeds pro se he
warrants “special solicitude” from the Court. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.
For the foregoing reasons, the Court grants summary judgment with respect to
(1) Baines’s claims against Officers Delmerico, McNerney, and Cutrone; and (2) his claim
against Officer O’Donoghue with respect to the initial alleged unlawful entry (and related
allegations). Otherwise, Defendants’ motion for summary judgment is denied. In light of the
substance of Baines’s surviving claims and the need for trial to resolve them, the Court exercises
its discretion under Title 28, United States Code, Section 1915(e)(1), and will seek to obtain pro
bono counsel for Baines. See Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).
Further, the Court believes — in light of this ruling; the possibility that Baines will obtain
counsel in short order; and the fact that Baines’s injuries, if any, were relatively minor — that the
parties should attempt to settle the case without the need for trial. To that end, by separate Order
to be entered today, the Court is referring the case for settlement-purposes only to the assigned
Magistrate Judge (the Honorable James L. Cott). No later than one week after pro bono
counsel enters a notice of appearance or September 29, 2017, whichever is earlier, the
parties shall contact the Chambers of Magistrate Judge Cott to schedule a settlement conference
as soon as possible. In the event that the case does not settle, the Court will issue a further Order
with respect to the timing and procedures leading up to trial (the details of which will depend on
whether Baines is represented or not).
The Clerk of Court is directed to terminate Docket No. 187; to terminate Officers
Delmerico, McNerney, and Cutrone as Defendants; and to mail Baines a copy of this Opinion
This Court certifies, pursuant to Title 28, United States Code, Section 1915(a)(3), that
any appeal from this Order would not be taken in good faith, and in forma pauperis status is thus
denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Date: August 9, 2017
New York, New York
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