Omor v. New York City Human Resources Administration (HRA)
Filing
55
OPINION AND ORDER re: 46 MOTION for Summary Judgment . filed by Edgar Rosario, Theresa Green, Deborah Darrisan-Mete, City of New York, 54 MOTION OF JURY TRIAL. filed by Solo Obi Omor. For the reasons stated above, Defendants are granted summary judgment on the entirety of Plaintiff's Second Amended Complaint. The Clerk of the Court is directed to close items 46 and 54 on the docket and to close the case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Furthermore, because Plaintiff has filed five other actions in this Court, two of which were dismissed as frivolous, Omor v. New York State et al., 13 Civ. 1709 (LAP) (§ 1983 case; dismissed May 21, 2013); Omor v. Bloomberg, 13 Civ. 6741 (LAP)(§ 1983 case; dismissed Oct. 15, 2013), he is hereby warned that further duplicative or frivolous litigation in this Court will result in an Order barring Plaintiff from filing new actions without prior permission. See 28 U.S.C. § 1651. SO ORDERED. (Signed by Judge Ronnie Abrams on 2/27/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------)(
SOLO OBI OMOR,
1
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DOCUMENT
ELECTRONICAI.,LY FILED
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Plaintiff,
No. 13-CV-2439 (RA)
-v-
OPINION AND ORDER
CITY OF NEW YORK, HRA POLICE
OFFICER THERESA GREEN, SHIELD
1929, HRA POLICE LIEUTENANT EDGAR :
ROSARIO, and HRA POLICE SERGEANT
DEBORAH DARRISAN-METE, SHIELD
601,
Defendants.
-------------------------------------------------------- )(
RONNIE ABRAMS, United States District Judge:
Pro se Plaintiff Solo Obi Omar brings this action against Defendants City of New York
("City"), Sergeant Deborah Darrison-Mete, Lieutenant Edgar Rosario, and Police Officer Theresa
Green claiming violations of the First, Fourth, Fifth, Eighth, Tenth, Thirteenth, and Fourteenth
Amendments of the United States Constitution.
At the core of these claims is Plaintiffs
dissatisfaction with the City, which he blames for his unemployment and status in society. Plaintiff
also alleges various claims relating to his April 10, 2013 arrest, which occurred after he refused to
leave the Human Resources Administration ("HRA") when he was denied the amount of financial
assistance to which he felt entitled.
Before the Court is Defendants' motion for summary
judgment. For the reasons set forth below, the motion is granted in its entirety.
BACKGROUND 1
On April 10, 2013, Plaintiff visited the HRA in Bronx, New York, seeking financial
assistance to pay his rent of $892.93 per month. (Defendants' L. Civ. R. 56.1 Statement ("Def.
56.1 ") ,, 1, 2.) HRA staff informed Plaintiff that the HRA could provide Plaintiff with only
$215.00 in assistance. (Id. , 2.) Not satisfied with that amount, Plaintiff refused to give up his
seat or leave the premises after HRA staff asked him to do so. (Id.,, 3-5.) The HRA supervisor
called security and Sergeant Darrisaw-Mete and Officer Green arrived to assist the staff. (Id., 6.)
Refusing still to leave the premises, Plaintiff was placed under arrest for trespass, handcuffed, and
escorted by the officers to an office on the ground floor of the HRA building. (Id.,, 8-9.)
At around 5:00 p.m., Plaintiff asked the officers to use the men's restroom. (Id., 11.) The
officers, both female, told him that they would find a male officer to escort him to the restroom.
(Id. , 12.) Plaintiff purportedly has poor bladder control from his pre-existing diabetes and,
approximately 30 minutes after asking to use the restroom, he urinated on himself. (Id., 13.) At
approximately 6:00 p.m., Lieutenant Rosario, a male officer, arrived to escort Plaintiff to the
restroom. (Id., 15.)
While in the restroom, Plaintiff asserts that Lieutenant Rosario probed Plaintiff's anus with
his finger to search for drugs; specifically, he claims that he felt "something sharp" go in his anus
and that he did not see any other object in the area that could have caused the pain. (Id. ,, 15-16;
Omar Dep. at 52.)
When Plaintiff returned from the restroom, Sergeant Darrisaw-Mete informed Lieutenant
Rosario that Plaintiff was the subject of an outstanding arrest warrant for disorderly conduct. (Id.
,, 18, 20.) Lieutenant Rosario then transported Plaintiff to New York County Criminal Court,
Except as otherwise noted, the following facts are taken from Defendants' L. Civ. R. 56.1 Statement and
are supported by citations to the record.
1
2
where Plaintiff pleaded guilty to the disorderly conduct offense before the Hon. Erika Edwards.
(Id. i-!i-119-20.)
As a result of the arrest, Plaintiff was handcuffed for a total of four to five hours; he claims
that this caused him pain and made his wrists swell. (Id. ,-r,-r 21-24.)
Plaintiff also asserts that certain property he had with him at the time of the arrest-ink
pens, highlighters, and a passport-was confiscated and never returned to him. (Id. ,-r 25.) He
concedes, however, that he made no effort to retrieve the property after his arrest. (Id. ,-r 26.)
In addition to his claims regarding the arrest, Plaintiff also faults the City for not providing
him with a job or training the HRA officers, and claims that the City violated his Thirteenth
Amendment rights because no matter how "educated ... how high [his] level" was, because he
was an African-American, the City would provide him only a government benefits card. (Id. ,-r,-r
27-28; Omor Dep. at 94.) He asserts that this treatment suggested that the City considered him as
"not an American." (Omor Dep. at 94.)
I.
Procedural History
Plaintiff filed this action in forma pauper is on April 11, 2013. (Dkt. 1.) Plaintiff filed an
Amended Complaint on April 29, 2014 (Dkt. 7), and a Second Amended Complaint ("SAC") on
July 22, 2013 (Dkt. 15). This is the third of six actions that Omor filed in this district during the
last ten years, and the second of three § 1983 actions he filed in 2013. 2
At the close of discovery in this case, Defendants filed the instant motion, seeking summary
judgment on Plaintiffs claims for false arrest, deliberate indifference to medical needs, excessive
force, unlawful search, and deprivation of property, and, as against the City, for failure to train and
2
See Omor v. Special Sec. Inc., No. 06 Civ. 7853 (SAS) (employment discrimination case; closed, Nov. 14,
2007); Omor v. New York State et al., 13 Civ. 1709 (LAP)(§ 1983 case; dismissed as frivolous, May 21, 2013); Omar
v. Bloomberg, 13 Civ. 6741 (LAP)(§ 1983 case; dismissed as frivolous, Oct. 15, 2013); Omor v. Sera Sec. Servs.
LLC et al., 14 Civ. 2602 (ALC) (employment discrimination case; motion to dismiss pending); Omor v. Libery Tax
Servs., 14 Civ. 2662 (AKH) (employment discrimination case).
3
other miscellaneous allegations. (Dkt. 46.) 3 In support of their motion, Defendants submitted
excerpts of Plaintiffs deposition testimony as well as New York City Criminal Court records.
(Nam Deel. Exs. B, C.) For reasons unknown (and somewhat perplexing) to the Court, however,
Defendants did not submit affidavits or testimony from the individual Defendants.
Plaintiff submitted a sworn affidavit and memorandum oflaw, as well as copies of excerpts
from his own deposition transcript. (Dkt. 52.) Although Plaintiff did not submit a responsive L.
Civ. R. 56.1 statement with his opposition, courts afford pro se litigants "special solicitude,"
particularly at the summary judgment stage. Jackson v. Fed. Exp., 766 F.3d 189, 195 (2d Cir.
2014) (quoting Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994)). Accordingly, a pro se plaintiff is
entitled to receive notice that he or she must respond to a defendant's motion for summary
judgment with evidence, or risk the dismissal of his claims. See L. Civ. R. 56.2; Ruotolo, 28 F.3d
at 8. Here, Plaintiff received the required notice under L. Civ. R. 56.2 (Dkt. 4 7), but nonetheless
failed to submit a responsive statement or otherwise contravene Defendants' statement in his
opposition. Thus, the facts in Defendants' statement may be deemed admitted. See Fed.R.Civ.P.
56(e)(2); Jackson, 766 F.3d at 194 (citing Jones v. Lamont, No. 05 Civ. 8126 (LAK), 2008 WL
2152130, at *l (S.D.N.Y. 2008), affd, 379 Fed. App'x 58 (2d Cir. 2010) (granting summary
judgment in pro se § 1983 case)). In light of Plaintiffs prose status, however, the Court will
liberally construe his submissions to raise any disputes or discrepancies they suggest as to
Defendants' portrayal of the facts.
Plaintiff does not specify the legal bases for his claims in either the SAC or his Opposition
to the Motion for Summary Judgment; nor does he contest Defendants' generous reading of the
3
Defendants' motion papers interchangeably refer to the motion as one for "partial summary judgment" and
for "summary judgment." Because Defendants appear to move for summary judgment on the entire SAC, however,
and because there are no genuine issues of material fact remaining for trial, the references to "partial summary
judgment" appear to be in error.
4
SAC.
The Court will therefore construe the claims in the SAC consistent with Defendants'
interpretation.
Plaintiffs' submissions, moreover, contain virtually no substantive analysis; his arguments
are often nonsensical and the submissions are replete with inappropriate references to the parties
and counsel of record in this case. Plaintiff's Affidavit, for instance, not only contains extraneous
references to Elliot Spitzer, Dominique S. Kahn, China, and the Garden of Eden, among others,
but also includes crude comments and baseless insults directed at Defendants' counsel. Similarly,
Plaintiffs Memorandum of Law veers illogically between brief discussions of constitutional
claims-including but not limited to the claims asserted here-and completely unrelated topics,
such as excrement and the sexual history of individuals associated with this case. Therefore, while
the Court has liberally construed Plaintiff's submissions, their utility is limited.
LEGAL STANDARD
Summary judgment is only appropriate where the Court concludes "after construing the
evidence in the light most favorable to the non-moving party and drawing all reasonable inferences
in its favor, that 'there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law."' Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011)
(quoting Fed. R. Civ. P. 56(a)). "When a plaintiff proceeds pro se, the court must construe his
submissions liberally and interpret them 'to raise the strongest arguments that they suggest."'
Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (quoting Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994)).
Once the moving party has shown that there is no genuine dispute of material fact
remaining, the non-movant must "set forth specific facts demonstrating that there is a genuine
issue for trial." Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (internal quotations omitted).
The non-movant may not, however, "rely on mere speculation or conjecture as to the true nature
5
of the facts to overcome a motion for summary judgment," as "[m]ere conclusory allegations or
denials cannot by themselves create a genuine issue of material fact where none would otherwise
exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citing Fletcher v. Atex, Inc., 68 F.3d
1451, 1456 (2d Cir. 1995)). Rather, the non-movant "must offer some hard evidence showing that
its version of the events is not wholly fanciful." Jeffreys v. City of New York, 426 F.3d 549, 554
(2d Cir. 2005) (quoting D'Amico v. City ofN.Y., 132 F.3d 145, 149 (2d Cir. 1998)); see also Aziz
Zarif Shabazz v. Pico, 994 F.Supp. 460, 470 (S.D.N.Y. 1998) (Sotomayor, J.).
"[I]n "the rare circumstance where the plaintiff relies almost exclusively on his own
testimony, much of which is contradictory and incomplete, it will be impossible for a district court
to determine whether the jury could reasonably find for the plaintiff and thus whether there are
any genuine issues of material fact, without making some assessment of the plaintiffs account."
Jeffreys, 426 F.3d at 554. In such case, the court may properly evaluate whether a reasonable juror
could have credited the plaintiff's testimony. Id. at 551; Rojas v. Roman Catholic Diocese of
Rochester, 660 F.3d 98, 105-06 (2d Cir. 2011 ).
Even in these circumstances, however, "the
moving party still must meet the difficult burden of demonstrating that there is no evidence in the
record upon which a reasonable factfinder could base a verdict in the plaintiff's favor." Id. at 554
(citing Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir. 1997)).
DISCUSSION
I.
False Arrest
Defendants argue that Plaintiff's false arrest claim fails because there was probable cause
to arrest him for trespass and that, in addition, once the officers discovered Plaintiff's open arrest
warrant, there was also probable cause to arrest him on that basis. (Defendants' Mem. of Law in
Support of Motion for Summary Judgment ("Def. Mem.") at 6.) The Court agrees.
"The existence of probable cause to arrest ... 'is a complete defense to an action for false
6
arrest,' whether that action is brought under state law or under § 1983." Gonzalez v. City of
Schenectady, 728 F.3d 149, 155 (2d Cir. 2013) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d
Cir. 1996)). "[P]robable cause to arrest exists when the officers have knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested has committed or is committing a
crime." Weyant, 101 F.3d at 852. In conducting a probable cause analysis, a court "must consider
[only] those facts available to the officer at the time of the arrest and immediately before it."
Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation marks and emphasis
omitted).
A. Probable Cause to Arrest for Trespass
Under New York law, "a person is guilty of trespass when he knowingly enters or remains
unlawfully in or upon a premises." N.Y.P.L. § 140.05. Where, as here, the premises are generally
open to the public, a person "remains unlawfully" if "he defies a lawful order not to ... remain
personally communicated to him by the owner of such premises or other authorized person." Id.
§ 140.00(5). Thus, to establish probable cause for trespass, Defendants must show: (1) that there
was a lawful order excluding Plaintiff from the premises, (2) that the order was communicated to
Plaintiff by a person with the authority to make the order, and (3) that Plaintiff defied the order.
Carpenter v. City of New York, 984 F.Supp.2d 255, 265 (S.D.N.Y. 2013) (citing People v.
Munroe, 853 N.Y.S.2d 457, 458 (N.Y. Sup. App. Term 2007)).
Probable cause to arrest may be established as a matter of law "if there is no dispute as to
the pertinent events and the knowledge of the officers." Faruki v. City of New York, No. 10 Civ.
9614 (LAP), 2012 WL 1085533, at *4 (S.D.N.Y. Mar. 30, 2012), affd, 517 F. App'x 1 (2d Cir.
2013). Plaintiff admits that both HRA staff and an HRA supervisor asked Plaintiff to leave the
premises because other people were waiting to be assisted, and that, despite their requests, he
7
refused to leave. (Def. 56.1
iii! 4-6;
Omor Dep. at 35-37.)
Plaintiff further concedes that these
facts were communicated to the officers when they arrived. (Def. 56.1
iJ
7; Omor Dep. at 40.)
Because Plaintiff does not dispute the relevant facts regarding the incident or the officers'
knowledge of his conduct, Defendants have established as a matter of law that there was probable
cause to arrest Plaintiff for trespass. See Carpenter, 984 F.Supp.2d at 266-67; Feruki, 517 F. App'x
at 2 (affirming summary judgment for Defendants where store recording captured employee asking
plaintiff to leave store).
B. Probable Cause to Arrest Based on Bench Warrant
Defendants further argue that there was probable cause to arrest Plaintiff when Sergeant
Darrisaw-Mete discovered that he had an outstanding arrest warrant for disorderly conduct. (Def.
Mem. at 10.) Although the officers did not know about the warrant when the officers first removed
Plaintiff from the HRA office and placed him under arrest, the Court agrees that there was an
additional basis for finding probable cause once the warrant was discovered. 4
The facts regarding the warrant are undisputed. Plaintiff admits that he was taken to New
York County Criminal Court after Sergeant Mete told Lieutenant Rosario about the warrant.
(Omor Dep. at 62.) Furthermore, court records establish that Plaintiff was presented before the
Hon. Erika Edwards on that warrant, summons number 2009SC006648. (Nam Deel. Ex. C, Tr. of
April 10, 2013 New York Cnty. Crim. Ct. Proceedings.) During that proceeding, Plaintiff pleaded
guilty to disorderly conduct under N.Y.P.L. § 240.20 and was sentenced to time served. (Id.)
Probable cause exists to arrest when an officer learns of an open arrest warrant. See e.g.
Martinez v. City of New York, 340 F. App'x 700, 701 (2d Cir. 2009); United States v. Miller, 265
F. App'x 5, 7 (2d Cir. 2008). There is no dispute that there was an open warrant for Plaintiff at
4
This additional basis for probable cause does not cover the period of time between Plaintiffs removal from
the HRA office and the discovery of the warrant.
8
the time of his arrest and that there was thus probable cause to arrest him on that basis. Moreover,
Plaintiff is precluded from challenging his arrest on the basis of the outstanding warrant because
he pleaded guilty to the underlying disorderly conduct offense; his false arrest claim would
therefore necessarily-and unlawfully-"imply the invalidity of [that] conviction." See Poventud
v. City of New York, 750 F.3d 121, 132 (2d Cir. 2014) (en bane) (citing Heck v. Humphrey, 512
U.S. 477, 487 (1994)). See also Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) ("Heck specifies
that a [plaintiff] cannot use § 1983 to obtain damages where success would necessarily imply the
unlawfulness of a (not previously invalidated) conviction or sentence."); Rodriguez v. Vill. of
Ossining, 918 F. Supp.2d 230, 241(S.D.N.Y.2013) (discussing false arrest claim). Accordingly,
Plaintiff's false arrest claim fails as a matter of law.
II.
First Amendment Claim Based on Arrest
To the extent Plaintiff asserts that the arrest violated his First Amendment rights (see Omor
Dep. at 90), that claim also fails. 5 Although he testified at his deposition that Defendants violated
his right to "peacefully assemble" at the HRA office, Plaintiff has not specified how the Defendant
officers prevented him from exercising his First Amendment rights. Assuming that his claim,
liberally construed, asserts that the arrest was an unlawful restriction on his right to protest the
HRA's financial assistance, such claim cannot succeed.
While the HRA office is a local
government office open to the public, it is not a public forum "that has as a principal purpose ...
the free exchange of ideas." Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 67980 (1992) (distinguishing between non-public forum government property where members of the
public are freely allowed to enter, and public forum intentionally created for public discourse);
5
Defendants address this argument only in a footnote to their probable cause discussion (Def. Mem. at 6,
n.2); because Plaintiff testified about his First Amendment claim, however, the Court provides a more detailed
analysis.
9
Perry v. McDonald, 280 F.3d 159, 166 (2d Cir. 2001). Restrictions on speech in a non-public
forum-including those based on subject matter and speaker identity-are lawful "so long as the
distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint
neutral." Byrne v. Rutledge, 623 F.3d 46, 54 (2d Cir. 2010) (quoting Cornelius v. NAACP Legal
Def. & Educ. Fund, Inc., 473 U.S. 788, 806 (1985)). Here, there is no evidence that Defendants'
actions were unreasonable in light of the purposes served by the government building, or motivated
by the content of Plaintiffs expressive speech. See U.S. v. Murtari, 120 F. App'x 378, 380 (2004)
(finding no First Amendment violation where criminal defendant was arrested for trespass and
disorderly conduct at Syracuse Federal Building). 6
Similarly, there is no evidence that Defendants arrested Plaintiff in retaliation for the
exercise of his First Amendment rights. To establish such a claim, Plaintiff must show: (1) that he
engaged in protected speech, (2) that there was a causal connection between Plaintiffs speech and
an adverse action taken by Defendants, and (3) that such Defendants' actions effectively chilled
the exercise of Plaintiffs First Amendment rights. Williams v. Town of Greenburgh, 535 F.3d
71, 76-77 (2d Cir. 2008). Assuming arguendo that the first two prongs are met-which is not at
all clear-Plaintiffs retaliation claim nonetheless fails on the third prong because he suffered no
cognizable injury. To satisfy this prong, Plaintiff must put forth evidence that (1) Defendants
silenced him or (2) their actions had some "actual, non-speculative chilling effect" on his speech.
Id. at 78 (citing Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir. 2002)). But as in Williams,
6
Significantly, the record establishes only that the Officers arrested Plaintiff for trespass on the basis of the
information given to them by the HRA staff-there is no evidence that the officers believed, or had reason to believe,
that Plaintiffs refusal to leave the HRA office was an act of public protest or other expressive speech. (See Omor
Dep. at 40-41.) Furthermore, in contrast to cases in which a restriction has been found unreasonable, there is no
indication in the record that Plaintiff was permanently barred from the government office. See Huminkski v. Corsones,
396 F.3d 53, 92 (2d Cir. 2004) (finding notice against trespass unreasonable where it prohibited "indefinitely any and
all expressive activities" in and around state courthouses).
10
Plaintiff "has not alleged facts indicating that [Defendants] deprived [him] of his constitutionally
protected right to free speech," and he has not "produced any evidence showing that defendants'
actions chilled his speech or otherwise prevented him from speaking." Id. (affirming summary
judgment for Defendants where plaintiff was arrested for trespass at town community center where
he was previously employed, but did not produce any evidence of chilling effect from defendants'
conduct); see also Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). 7
Consequently, Plaintiffs First Amendment claim fails as a matter of law.
III.
Deliberate Indifference
Plaintiff further asserts that after his arrest, he urinated on himself because Sergeant
Darrisaw-Mete and Officer Green denied him access to the restroom for approximately one hour.
(Omor Dep. at 45-50.) Although Plaintiff does not assert that he experienced any pain as a result
of the delay, he claims that he lost control of his bladder because of his pre-existing diabetes. (See
id.) To the extent that Plaintiff seeks to assert a deliberate indifference claim on this basis, such
claim fails as a matter of law.
To set forth a claim of deliberate indifference to medical need, Plaintiff must show: (1) that
"the alleged deprivation [was] sufficiently serious, in the sense that a condition of urgency, one
that may produce death, degeneration, or extreme pain exist[ ed]," and (2) that the official acted
with a "sufficiently culpable state of mind." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(internal citations and quotations omitted); see also, Caiozzo v. Koreman, 581F.3d63, 71-72 (2d
Cir. 2009) (holding that the same standard applies to claims by convicted prisoners under the
7
In Williams, the Court also affirmed summary judgment on the plaintiffs false arrest claim, explaining that
there was probable cause for the arrest because a reasonable officer could conclude that the plaintiff, who had been
expelled from the community center and returned without obtaining permission, was trespassing. 535 F.3d at 79. See
also Curley, 268 F.3d at 69-70, 73 (affirming summary judgment on false arrest claim and finding no causal connection
for First Amendment claim because there was probable cause for the arrest).
11
Eighth Amendment and pretrial detainees' claims under the Fourteenth Amendment).
Here, the record is bereft of any evidentiary support for either prong of a deliberate
indifference claim. First, although Plaintiffs diabetes qualifies as a "sufficiently serious" medical
condition, see Edmonds v. Central N.Y. Psychiatric Center, No. 10 Civ. 5810 (DAB), 2011 WL
3809913 at *4 (S.D.N.Y. 2011), he has not introduced any evidence showing that the one hour
delay in his access to a restroom worsened or threatened to worsen his condition in any meaningful
way. Although Plaintiff asserts that he was temporarily uncomfortable, he admits that he was not
in any pain, and does not claim that the one hour delay caused, or had the potential to cause, any
lingering effects. (See Omor Dep. at 50.) These facts do not establish a sufficiently serious
deprivation. See Smith v. Carpenter, 316 F.3d 178, 188 (2d Cir. 2003) (explaining that although
plaintiff is not required to show actual physical injury, the absence of present physical injury is
often "probative in assessing the risk of future harm"); Rodriguez v. City of New York, 802 F.
Supp. 2d 477, 482 (S.D.N.Y. 2011) (awarding summary judgment to Defendants where Plaintiff
introduced no evidence that his medical condition worsened).
Secondly, Plaintiff has provided no evidence that the officers acted with the requisite state
of mind. To establish deliberate indifference, Plaintiff must show that Defendants "'kn[ew] of and
disregard[ed] an excessive risk to [Omor's] health or safety' and that [they were] 'both ... aware
of facts from which the inference could be drawn that a substantial risk of serious harm exist[ ed],
and ... also dr[ e]w the inference."' Caiozzo, 581 F.3d at 72 (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994)). Here, there is no evidence that the officers knew of Plaintiffs condition, or that
a one hour delay in Plaintiffs access to the bathroom would create a "substantial risk of serious
harm." Although Plaintiff testified that he told the officers about his bladder problem, he did not
tell them he had diabetes. (Omor Dep. at 47.) Moreover, there is no indication that the officers
disregarded Plaintiffs request. Indeed, Plaintiff testified that when he asked to use the restroom,
12
the female officers explained that they could not take him, but that they would call for assistance
from a male officer-which they then did. (Id. at 49; Def. 56.1,-i,-i12, 14.)
From these facts, no reasonable juror could conclude that the officers knowingly
disregarded Plaintiffs serious medical needs. Summary judgment is thus appropriate on this
claim.
IV.
Excessive Force
Plaintiff also asserts that Defendants subjected him to "excessive force" or "cruel and
unusual punishment" by handcuffing him from the time of his arrest to his presentment in criminal
court-approximately four to five hours in total. (Def. 56.1,-i21; Omor Dep. at 93.)
"A claim that law-enforcement officers used excessive force to effect a seizure is governed
by the Fourth Amendment's 'reasonableness' standard." Plumhoff v. Rickard, 134 S. Ct. 2012,
2020 (2014) (citations omitted).
To determine reasonableness, the Court must balance the
intrusion against the governmental interests at stake, looking to the "totality of the circumstances."
Id. The inquiry is made from the perspective "of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight." Id. (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
Merely "de minim is uses of physical force" are not of a constitutional dimension, "provided that
the use of force is not a sort repugnant to the conscience of mankind." Wilkins v. Gaddy, 559 U.S.
34, 37-38 (2010).
Plaintiff cannot establish an excessive force claim based merely on the fact that he was
handcuffed after his arrest. "Frequently, a reasonable arrest involves handcuffing the suspect, and
to be effective handcuffs must be tight enough to prevent the arrestee's hands from slipping out."
Esmont v. City of New York, 371 F. Supp. 2d 202, 214 (E.D.N.Y. 2005).
Although routine,
however, overly tight handcuffs may constitute excessive force in some circumstances;
accordingly, courts may consider evidence that: "1) the handcuffs were unreasonably tight; 2) the
13
defendants ignored the [plaintiff s] pleas that the handcuffs were too tight; and 3) the degree of
injury to the wrists." Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459, 468
(S.D.N.Y. 2008) (quoting Esmont, 371 F.Supp.2d at 215) (emphasis omitted). Courts in this
Circuit have generally found that handcuffing does not suffice for an excessive force claim unless
it causes some injury beyond temporary discomfort or bruising.
Lynch ex rel. Lynch, 567
F.Supp.2d at 468-69 (collecting cases); Sachs v. Cantwell, 10 Civ. 1663 (JPO), 2012 WL 3822220,
at* 14 (S.D.N.Y. Sept. 4, 2012) (same).
Here, Plaintiff has made inconsistent statements about his injuries: he asserts that the
handcuffs caused temporary "redness and swelling" (Omor Dep. at 50-51 ), and testified that he
"could have had a heart attack and dropped dead" from the handcuffs (id. at 93), but he also
testified that he was not claiming any physical injuries from his arrest (id. at 100). In any event,
Plaintiff has never claimed that he suffered any serious or permanent injury from the handcuffs.
In addition, there is no indication that he told any of the officers that the cuffs were too tight. In
fact, he explained at his deposition why he failed to tell the officers that he was in pain: "But
immediately I was, as a man, able to be in pain, to sit there with handcuffs, sitting down, and that's
it ... I wasn't complaining of the pain." (Id. at 51.) Without knowledge of Plaintiff's discomfort,
the officers could not have responded to his complaints, and thus cannot be held liable for
unreasonably ignoring them. See Esmont, 371 F.Supp.2d at 215 (granting summary judgment
where there was no evidence that plaintiff asked for his handcuffs to be loosened).
The length of time Plaintiff was handcuffed-by his assertion, four to five hours-similarly
does not render the officers' conduct unreasonable. Lieutenant Rosario took Plaintiff directly to
court from the HRA Office and he was released later that night. There is no evidence that the
decision to keep Plaintiff handcuffed during that period was objectively unreasonable or even
unusual. See Lynch, 567 F.Supp.2d at 469; Bender v. City ofNew York, No. 09 Civ. 3286 (BJS),
14
2011 WL 4344203, at *6 (S.D.N.Y. Sept. 14, 2011) (dismissing excessive force claim where
plaintiff alleged six hours of discomfort).
For these reasons, Plaintiff's excessive force claim fails as a matter of law.
V.
Deprivation of Property
Plaintiff's contention that certain items belonging to him-pens, highlighters, and his
passport-were unlawfully confiscated and not returned does not constitute a cognizable § 1983
claim. To the extent he asserts a due process claim for deprivation of property, such claim is barred
where the state provides a meaningful post-deprivation remedy under state law. Hudson v. Palmer,
468 U.S. 517, 533 (1984). This rule applies even to intentional deprivations of property by state
actors. Id. New York, where the arrest occurred, provides various state law remedies that would
fully compensate Plaintiff for his property loss, including actions for negligence, conversion, or
replevin against Defendants. See, e.g., Toliver v. City of New York, No. 10 Civ. 5806 (SHS)
(JCF), 2013 WL 6476791, at *7 (S.D.N.Y. Dec. 10, 2013), report and recommendation adopted,
2014 WL 549402 (Feb. 11, 2014); Dove v. City of New York, No. 99 Civ. 3020 (DC), 2000 WL
342682, at *3 (S.D.N.Y. March 30, 2000). Here, Plaintiff has not sought any available state
remedy; in fact, he has not made any attempt whatsoever to retrieve his property. (Def. 56.1 ~ 26.)
Accordingly, this claim must fail. See, e.g., Toliver, 2013 WL 6476791 at *7.
VI.
Search by Lieutenant Rosario
Plaintiff also asserts that Lieutenant Rosario "dip[ped] his finger into [Plaintiff's] anal"
after escorting him to the bathroom at the HRA Office. (Def. 56.1 ~ 15.) Although the Court
recognizes that such an allegation raises serious Fourth Amendment concerns, there is not a
sufficient evidentiary basis for the claim to proceed to trial. At his deposition, Plaintiff claimed
that the officer was "[s]earching for drugs," and speculated that the pain he felt must have been
from Lieutenant Rosario's finger because he "did not see any other object" around, such as a
15
"chair," that could have caused the pain. (Omor Dep. at 55, 58.) Plaintiff does not claim that he
was able to witness Lieutenant Rosario physically search him, nor does he provide any additional
evidence that the search even occurred. He does not assert, for instance, that he complained about
the search to the other ofiicers at the HRA Office or to anyone else; nor does he introduce any
evidence-or even claim-that he sought medical treatment after he was released later that night.
Plaintiff's summary judgment submissions offer no additional clarification. Although he refers
numerous times to illegal searches (see, e.g., Pl. Mem. at 6, 9, 15), the surrounding discussion is
unintelligible and does not contain any specific references to the bathroom incident.
In sum, Plaintiff has introduced no "hard evidence" of his claim against Lieutenant Rosario,
and instead relies entirely on his unsubstantiated assertions.
See Jeffreys, 426 F.3d at 554.
"Although a district court generally should not weigh evidence or assess the credibility of
witnesses," Rojas, 660 F.3d at 104-05 (internal quotations and citation omitted), in view of the
totality of Plaintiff's statements and submissions-which, as discussed above, are generally
incoherent, contradictory, illogical, and unsupported-his testimony is insufficient by itself to
establish a genuine dispute for trial, see id. at 106 (to "require district courts to allow parties to
defeat summary judgment simply by testifying to the allegations in their pleadings ... would
license the mendacious to seek windfalls in the litigation lottery") (internal quotations omitted);
Garnica v. Edwards, No. 13 Civ. 3943 (AKH), --F.Supp.3d--, 2014 WL 7180395, at *5 (S.D.N.Y.
Dec. 11, 2014). Thus, the Court concludes that the claim fails because "[n]o reasonable person
would undertake the suspension of disbelief necessary to give credit to [Plaintiff's] allegations.''
Jeffreys, 426 F.3d at 555 (quoting Schmidt v. Tremmel, No. 93 Civ. 8588 (JSM), 1995 WL 6250,
at *3 (S.D.N.Y. Jan. 6, 1995) (dismissing claims of illegal searches by federal corrections
officers)).
16
VII.
Claims Against the City
Finally, Plaintiffs claims against the City also fail as a matter of law. Plaintiff testified
that he sued the City for "not ... act[ing] on [his] behalf as recommended by the Tenth [and Fifth
Amendments]." (Def. 56.1
~
27.) When asked to further specify his allegations, he asserted that
that the City violated his rights by (1) not providing him with a job, and (2) failing to train City
employees (including HRA officers), (3) that the City did not "look[] at him as an American," and
(4) that the City violated his Thirteenth Amendment rights because "no matter how you educated
... how high your level is, as an African-American," the City offered him only a disability benefits
card. (Omor Dep. at 87, 94.) 8 Plaintiff provides no evidence or further clarification of these
claims; as with the claims discussed above, he relies entirely on his own unsubstantiated assertions.
To state a constitutional claim for relief against the City, or any other municipal body, a
plaintiff must allege that his constitutional injury occurred as a result of an "official municipal
policy." Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011). Because municipalities "are
responsible only for their own illegal acts," they cannot be held "vicariously liable under § 1983
for their employees' actions." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (citations
omitted). Official municipal policy "includes the decisions of a government's lawmakers, the acts
of its policymaking officials, and practices so persistent and widespread as to practically have the
force of law." Id. (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691
(1978)). Plaintiff cannot establish municipal liability in this case because he has not established a
constitutional violation and he does not assert that any of the violations he alleges were caused by
particular City policies. Plaintiff's claims against the City thus fail. 9
8
Of these allegations, only Plaintiffs failure to train claim is included in the SAC. (See SAC at 5.)
9
To the extent that the miscellaneous assertions contained in Plaintiff's summary judgment submissions
constitute any additional claims against the City, these claims are also meritless.
17
CONCLUSION
For the reasons stated above, Defendants are granted summary judgment on the entirety of
Plaintiffs Second Amended Complaint. 10 The Clerk of the Court is directed to close items 46 and
54 on the docket and to close the case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Furthermore, because
Plaintiff has filed five other actions in this Court, two of which were dismissed as frivolous, Omor
v. New York State et al., 13 Civ. 1709 (LAP) (§ 1983 case; dismissed May 21, 2013); Omor v.
Bloomberg, 13 Civ. 6741 (LAP)(§ 1983 case; dismissed Oct. 15, 2013), he is hereby warned that
further duplicative or frivolous litigation in this Court will result in an Order barring Plaintiff from
filing new actions without prior permission. See 28 U.S.C. § 1651.
SO ORDERED.
February 27, 2015
New York, New York
Dated:
R me Abrams
United States District Judge
10
Because there is no issue remaining for trial, Plaintiffs motion for a jury trial is denied.
18
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