Tardif v. City of New York et al
Filing
187
OPINION AND ORDER adopting in part 178 Report and Recommendation, re: 164 MOTION for Summary Judgment Pursuant to Fed. R. Civ. P. 56 filed by Thomas McManus, Edward Winski, Rumble, Daniel Mulligan, City of New York, Jo hn O'Connell, James McNamara, Alena Aminova, Kendal Creer, Marsha Rumble, Felix Schmidt. I have reviewed de novo Magistrate Judge Fox's thorough and fairly-reasoned Report and Recommendation ("R&R") that the Defen dants' Motion for Summary Judgment be granted in part and denied in part. I adopt the R&R in part, as indicated herein. The Court grants Defendants' motion for summary judgment on all claims except Plaintiff's deliberate ind ifference to her medical condition claim, Plaintiff's unconstitutional conditions of confinement claim, Plaintiff's excessive force claim against Sergeant McManus, and Plaintiff's assault and battery claim against Sergeant McManus. This Opinion and Order resolves Docket Entry No. 164. (As further set forth in this Opinion and Order.) (Signed by Judge Kimba M. Wood on 3/21/2017) (mro)
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC#:~~~~~~,__
DATE FILED: 3/.;;zd._//°7
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MARYM. TARDIF,
'a\ -- ..
OPINION AND ORDER
Plaintiff
-againstNo. 13 CV 4056 (KMW)
CITY OF NEW YORK, NEW YORK CITY
POLICE DEPARTMENT, INSPECTOR JOHN
O'CONNELL, DEPUTY INSPECTOR EDWARD
WINSKI,
POLICE
OFFICER
JAMES
MCNAMARA, POLICE OFFICER ALENA
AMINOV A, POLICE OFFICER KENDAL
CREER, POLICE OFFICER MARSHA RUMBLE,
POLICE OFFICER FELIX SCHMIDT, DEPUTY
INSPECTOR DANIEL MULLIGAN, SERGEANT
THOMAS MCMANUS, AND JOHN DOE NYPD
OFFICERS## 1-9,
Defendants.
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KIMBA M. WOOD, District Judge:
I have reviewed de novo Magistrate Judge Fox's thorough and fairly-reasoned Report and
Recommendation ("R&R") that the Defendants' Motion for Summary Judgment be granted in part
and denied in part. I adopt the R&R in part, as indicated below. I analyze each of Plaintiff's claims
in the order in which they were presented in her Third Amended Complaint.
1. False Arrest in Violation of the Fourth Amendment against Inspector O'Connell and
Officer Aminova
Plaintiff brings this § 1983 claim in connection with her April 16, 2012 arrest following
her participation in an Occupy Wall Street protest. Defendants argue throughout their moving
l
papers that the individual defendants are entitled to qualified immunity for the alleged false arrest,
and for each other claim Plaintiff brings.
Qualified immunity shields government officials from liability for civil damages as a result
of their performance of discretionary functions. Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982). Government actors performing discretionary functions are "shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Id. at 818. Even where the plaintiffs
federal rights and the scope of the official's permissible conduct are clearly established, the
qualified immunity defense protects a government actor if it was "objectively reasonable" for him
to believe that his actions were lawful at the time of the challenged act. Anderson v. Creighton,
483 U.S. 635, 641 (1987). The objective reasonableness test is met-and the defendant is entitled
to immunity-if "officers of reasonable competence could disagree" on the legality of the
defendant's actions. Malley v. Briggs, 475 U.S. 335, 341 (1989). See also Lennon v. Miller, 66
F.3d 416, 420 (2d Cir. 1995).
In order to establish a § 1983 claim of false arrest, Plaintiff must prove that her arrest was
not otherwise justified, or not the result of valid probable cause. Savino v. City of New York, 331
F.3d 63, 75 (2d Cir. 2003). Plaintiff was arrested on April 16, 2012 for disorderly conduct and
making unreasonable noise in violation of New York State Penal Law§ 240.20(2). On the date of
the arrest, the NYPD Quality of Life 3-1-1 call center received numerous complaints of
disturbance, loud screaming, and other noise from the site of an Occupy Wall Street protest in
which Plaintiff was in attendance. R&R at 21-23. Police officers at the scene proceeded to arrest
Plaintiff after observing her producing unreasonable noise. Id. Plaintiff contends that Magistrate
Judge Fox relied on inadmissible evidence, namely, the 3-1-1 call logs, in recommending summary
2
judgment in favor of Defendants on Plaintiff's false arrest claim. Pl's. Obj. to R&R at 14. The
Court finds this issue to be immaterial. The call logs can be considered not for their truth, but for
their effect on the officers in forming a determination of probable cause to arrest. See Fed. R. Evid.
801. Irrespective of whether the 3-1-1 call logs should have been considered, Magistrate Judge
Fox indicates that enough other evidence existed to constitute probable cause for Plaintiffs arrest.
R&R at 20-25. Probable cause "is a complete defense to an action for false arrest, whether that
action is brought under state law or under § 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996).
The Court thus adopts Magistrate Judge Fox's recommendation that summary judgment be
granted in favor of Officers O'Connell and Aminova on Plaintiffs § 1983 false arrest claim.
2. Use of Force in Violation of the Fourth Amendment Against Inspector 0 'Connell, Officer
Rumble, Deputy Inspector Mulligan, Sergeant Thomas McManus and John Does ## 1-5
and 8-9.
Plaintiff also brings a federal § 1983 claim for excessive use of force in connection with
her March 17, March 21, and April 16, 2012 arrests, all of which followed her participation in
Occupy Wall Street protests. Plaintiff notes in her memorandum of law in opposition to
Defendants' motion for summary judgment that she will no longer pursue use of force-based
claims against Officer Rumble, Deputy Inspector Mulligan, or Inspector O'Connell. Pl's. Opp'n.
at 5. The Court thus dismisses Plaintiffs excessive force claim against Officer Rumble, Deputy
Inspector Mulligan and Inspector O'Connell.
As Defendants note throughout their moving papers, "personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."
McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). Plaintiff continues to allege that John
Does## 1-5 and 8-9 were directly involved in her arrest and the use of excessive force against her.
3
However, after extensive fact discovery and the filing of three amended complaints, Plaintiff is
still unable to identify the John Doe officers. Where a plaintiff has had ample time to identify a
Doe defendant and still has not done so, a plaintiff cannot continue to maintain a suit against the
John Doe defendant(s). Cowardv. Town & Vill. of Harrison, 665 F. Supp. 2d 281, 301 (S.D.N.Y.
2009) (Karas, J.). See also Watkins v. Doe, 2006 WL 648022, at *3 (S.D.N.Y. Mar.14, 2006)
(Castel, J.) (dismissing without prejudice claims against "Doe" defendants where "despite having
the full opportunity to conduct discovery, plaintiff has not yet identified and served [those]
defendants"). The Court thus dismisses Plaintiffs excessive force claims against John Doe
defendants ## 1-9.
The only remaining defendant against whom Plaintiff brings a§ 1983 excessive force claim is
Officer McManus. The Court does find a genuine dispute of material fact as to whether Officer
Mc Manus' s use of force against Plaintiff in effectuating her March 21, 2012 arrest was so
unreasonable as to abrogate his entitlement to qualified immunity. According to the factual record,
Defendant McManus pushed Plaintiff off of her crutches and onto the ground. 56.1
Ex. 33
~
~
540, Ex. 23,
261, 264-8. Because a reasonable jury could find that Defendant McManus's use of force
on the Plaintiff was "objectively unreasonable in light of the facts and circumstances confronting
[him]," Caravahlo v. City of New York, 2016 WL 1274575 at *9 (quoting Graham v. Connor, 490
U.S. 386, 397 (1989) (Castel, J.)), the Court declines to dismisses Plaintiffs excessive force claim
against Sergeant McManus. It thus declines to fully adopt Magistrate Judge Fox's recommendation
that summary judgment on Plaintiffs claim of excessive force be granted in favor of all defendants.
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3. Deliberate Indifference to a Medical Condition in Violation of the Fourteenth Amendment
Against Officer Rumble and Officer Schmidt
Plaintiffs claim of deliberate indifference to her medical condition stems from an alleged
repeated failure of Defendants to respond to and treat Plaintiffs epilepsy while in police custody.
The Court finds a genuine dispute of material fact as to whether Defendants' conduct was
reasonable during Plaintiffs March 17-18, 2012 and April 16, 2012 terms of custody. Officers
failed to respond to repeated requests by Plaintiff for her seizure medication, which her doctor had
directed her to take at specific times. After failing to take her medication, Plaintiff experienced
seizures while in police custody. 56.l
~
153, 177-178, 509-510, 617, 619-622.
Magistrate Judge Fox recommended dismissing Plaintiffs claim of deliberate indifference on
the grounds that Officers Rumble and Schmidt are entitled to qualified immunity. R&R at 33.
Though in agreement with Plaintiff that the NYPD had violated its own internal guidelines in
failing to provide certain medical care to Plaintiff, he nonetheless viewed summary judgment as
appropriate because "plaintiff failed to identify a case where officers were held to have violated
Fourteenth Amendment rights by violating NYPD's own guidelines in circumstances similar to
those of this case." Id. A violation of Department procedure indicates a possibility that a juror
could find the officer's actions so unreasonable as to give rise to § 1983 liability. The Court thus
declines to adopt Judge Fox's Recommendation, and denies Defendants' motion for summary
judgment on Plaintiffs deliberate indifference to her medical condition claim.
4. Unconstitutional Conditions of Confinement in Violation of the Fourteenth Amendment
against Officer Rumble and Officer Schmidt
Plaintiff brings her§ 1983 claim of unconstitutional conditions of confinement in connection with
her March 17 and April 16, 2012, arrests. Magistrate Judge Fox recommended dismissing Plaintiffs
§ 1983 unconstitutional conditions of confinement claim because Plaintiff"failed to identify a case
5
where officers acting under circumstances similar to those described in the undisputed facts ...
were held to have violated a Plaintiffs constitutional rights under the Fourteenth Amendment."
R&R at 34. The Court does not find this fact, in itself, sufficient to vitiate otherwise valid disputes
of material fact (as noted above) that go to the reasonableness of Plaintiffs medical treatment
while in police custody. The Court declines to adopt Magistrate Judge Fox's recommendation that
Defendants' motion be granted on qualified immunity grounds. It denies Defendants' motion for
summary judgment with respect to Plaintiffs § 1983 claim of unconstitutional conditions of
confinement.
5. Americans with Disabilities Act Claim against the NYP D and the City of New York
Plaintiff concedes that the law does not permit her to bring an Americans with Disabilities Act
("ADA") claim against the NYPD. She nonetheless preserves her ADA claim against the City of
New York.
To establish a valid ADA claim a plaintiff must make a prima facie showing that "(1) she is a
'qualified individual' with a disability; (2) [she] was excluded from participation in a public
entity's services, programs, or activities or was otherwise discriminated against by a public entity;
and (3) such exclusion or discrimination was due to [her] disability." Hargrave v. Vermont, 340
F.2d 37, 34-35 (2d Cir. 2003). "A qualified individual can base a discrimination claim on any of
three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact;
and (3) failure to make a reasonable accommodation." Fulton v. Goard, 591 F.3d 37, 43 (2d Cir.
2009).
To satisfy the "intentional discrimination" theory, a plaintiff need not demonstrate "personal
animosity or ill will," but rather, need only show "deliberate indifference to the strong likelihood
of a violation," Loeffler v. Staten Island Univ. Hosp.,
6
582 F.3d 268, 275 (2d Cir. 2009).
The Court finds that Plaintiff has failed to raise a proper ADA claim. Mere failure attend to the
medical needs of a person in custody does not in itself violate the ADA. Courts "routinely dismiss
ADA suits by disabled inmates that allege inadequate medical treatment, but do not allege that the
inmate was treated differently because of his or her disability." Elbert v. NY. State Dep't of Corr.
Servs., 751 F. Supp. 2d 590, 595 (S.D.N.Y. 2010) (Karas, J). 1 Plaintiffs claim of inadequate
medical treatment is properly construed as one of unconstitutional conditions of confinement or
deliberate indifference to her medical condition in violation of the Fourteenth Amendment, which
Plaintiff also alleges. It thus declines to adopt Magistrate Judge Fox's recommendation, and grants
summary judgment in favor of Defendants on Plaintiffs ADA claims against the City of New
York.
1
See also Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998) (dismissing ADA claim where it was
"clear that the plaintiff [wa]s in essence challenging the adequacy of his [Vocational Educational
Services for Individuals with Disabilities] services, not illegal disability discrimination"); Atkins
v. County of Orange, 251 F.Supp.2d at 1225, 1232 (S.D.N.Y. 2003) (Conner, J.) (dismissing
mentally-disabled inmates' ADA claim, which alleged that they were placed in isolation, because
they did not "allege that violent and self-destructive inmates who are disabled due to mental illness
are treated any differently than violent, self-destructive inmates who are not disabled due to mental
illness"); /d.(dismissing disabled plaintiffs ADA claim that alleged that he received an
"inappropriate medical regime [that] caused him to sleep all the time, miss recreation and meal
opportunities and otherwise deprive[ d] him of any significant activity of any kind while he was at
the jail," because the claim was "in essence challenging the adequacy of the mental health services
provided at the Jail, not illegal disability discrimination" (internal quotation marks omitted)). Nails
v. Laplante, 596 F.Supp.2d 475, 481-82 (D.Conn.2009) (dismissing inmate's ADA claim, which
focused on inadequate medical care, because the complaint "d [id] not include any non-conclusory
allegations of discriminatory animus or ill will based on his disability and identifie[ d] no program
he could not participate in or any service that was denied as a result of his disability").
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6. New York State Law Assault and Battery claim against Officer Creer, Deputy Inspector
Mulligan, Sergeant Thomas McManus, and John Does ## 1-5, 8-9
Under New York law, an "assault" is an intentional placing of another person in fear of
imminent harmful or offensive contact" and a "battery" is an intentional wrongful physical contact
with another person without consent. See, e.g., Green v. City ofNew York, 465 F.3d 65, 86 (2d Cir.
2006). A police officer's use of force in effectuating an arrest may constitute an assault and battery
when the force is "objectively unreasonable 'in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation."' Caravalho v. City of New York,
2016 WL 1274575, at *9 (S.D.N.Y. March 31, 2016) (Castel, J.), quoting Graham v. Connor, 490
U.S. 386, 397 (1989). The Court agrees with Magistrate Judge Fox's determination that no
genuine dispute of material fact exists as to Officer Creer's involvement in an alleged assault and
battery on either of the two arrest dates in question. R&R at 27-29. As Magistrate Judge Fox notes,
the parties do not dispute that the officer who allegedly used unreasonable force on Plaintiff bears
no physical resemblance to Officer Creer. Id. The Court thus dismisses Plaintiffs assault and
battery claim against Officer Creer.
Because Plaintiff has indicated that she will no longer pursue use-of-force based claims against
Deputy Inspector Mulligan, R&R at 8, the Court also dismisses Plaintiffs assault and battery claim
against Deputy Inspector Mulligan.
The only remaining individual defendants are Sergeant McManus, and still unidentified John
Does ##1-5, and 8-9. As previously noted, fictitious parties must eventually be dismissed if
discovery does not yield their identities. Because, after lengthy discovery, Plaintiff has still failed
to identify John Does ## 1-4 and 8-9, Plaintiffs assault and battery claim against them is
dismissed. Because the Court preserves Plaintiffs excessive force claim against Sergeant
8
Mc Manus in connection with her March 21, 2012 arrest, it also preserves her assault and battery
claim against him.
It thus adopts Judge Fox's Recommendation with regard to Defendants Creer, Mulligan, John
Does ##1-5 and 8-9, but denies Defendants' motion for summary judgment with respect to
Sergeant McManus.
7. First Amendment Retaliatory Arrest claim against Deputy Inspector 0 'Connell and Officer
Aminova.
In order to state a claim for First Amendment retaliation, plaintiff must establish "l) [she] ha[s]
an interest protected by the First Amendment; 2) defendants' actions were motivated or
substantially caused by [her] exercise of that right; and 3) defendant's actions effectively chilled
the exercise of [her] first Amendment right." Kuck v. Danaher, 600 F.3d 159, 168 (2d Cir. 2010).
Because the Court agrees with Magistrate Judge Fox's finding that there was probable cause to
arrest Plaintiff on April 16, 2012, it finds that Plaintiff has failed to prove a protected interest. It
thus also agrees with Magistrate Judge Fox that Plaintiff's First Amendment retaliation claim must
be dismissed on qualified immunity grounds. The Court adopts Magistrate Judge Fox's
recommendation that summary judgment be granted in favor of Officers O'Connell and Aminova
on Plaintiffs First Amendment retaliation claim.
8. Malicious prosecution against Deputy Inspector 0 'Connell and Officer Aminova.
Plaintiffs malicious prosecution claim arises from her April 16, 2012 arrest for unreasonable
noise. To establish a malicious prosecution claim, New York law requires that Plaintiff prove "that
the defendant lacked probable cause to believe that the proceeding could succeed." Posr v. Court
9
Officer Shield# 207, 180 F.3d 409, 417 (2d Cir. 1999). Plaintiffs April 16, 2012 arrest followed
numerous justifiable orders by the NYPD to minimize protest noise level. 56.1 ~~ 31 O, 313-322,
340-341. The Court once again notes its earlier finding that probable cause existed for Plaintiffs
April 16, 2012 arrest. It thus also finds probable cause for any subsequent prosecution stemming
from that arrest. The Court adopts Magistrate Judge Fox's recommendation that Plaintiffs
malicious prosecution claim be dismissed.
9. Respondeat Superior Claims Against the City of New York
Plaintiff alleges respondeat superior liability against the City of New York for four of the six
§ 1983 claims she brings. Specifically, she claims respondeat superior liability for her alleged
false arrest, the use of excessive force against her, deliberate indifference to her medical condition,
and alleged unconstitutional conditions of confinement. Magistrate Judge Fox dismissed all of
Plaintiffs respondeat superior claims for failure to prove that the officers acted pursuant to
municipal policy or custom, as is required under Monell v. Dep't ofSoc. Servs. of City ofN Y, 436
U.S. 658 (1978). It is well settled that that "a municipality cannot be held liable solely because it
employs a tortfeasor----or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory." Id at 691 (emphasis in original).
In Plaintiffs objection to the R&R, she nonetheless argues that Magistrate Judge Fox
wrongfully conflated her state law respondeat superior claims with Monell and the federal § 1983
municipal liability standard. Nowhere in Plaintiffs Third Amended Complaint does she indicate
that her respondeat superior claims arise under New York state, and not federal, law. Because the
four predicate claims for which Plaintiff seeks respondeat superior liability are federal § 1983
10
allegations 2 , the Court assesses any vicarious liability under the high Monell standard. The Court
agrees with Magistrate Judge Fox that none of the actions undertaken by the individual defendants
were performed pursuant to municipal policy or custom. It thus dismisses all respondeat superior
claims against the City of New York.
CONCLUSION
The Court grants Defendants' motion for summary judgment on all claims except Plaintiffs
deliberate indifference to her medical condition claim, Plaintiffs unconstitutional conditions of
confinement claim, Plaintiffs excessive force claim against Sergeant McManus, and Plaintiffs
assault and battery claim against Sergeant McManus. This Opinion and Order resolves Docket
Entry No. 164.
SO ORDERED.
DATED:
New York, New York
MarchZ~
2017
KIMBA M. WOOD
United States District Judge
See Plaintiffs Third Amended Complaint at~ 230, where she states that "The defendant officers
were engaged in governmental activity as on duty New York City police officers when they falsely
arrested Plaintiff without probable cause, used excessive force in the course of arresting Plaintiff,
were deliberately indifferent to Plaintiffs serious medical condition, and subjected Plaintiff to
2
unconstitutional conditions of confinement,"
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