Munoz v. The City Of New York , et al
Filing
95
MEMORANDUM OPINION AND ORDER.....the defendants July 15, 2016 motion for summary judgment is granted as to the plaintiffs claims against the City, and it is denied as to the plaintiffs claims against the individual defendants. (Signed by Judge Denise L. Cote on 12/30/2016) Copy Mailed By Chambers to Nehmias Munoz. (gr) Modified on 12/30/2016 (gr).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NEHMIAS MUNOZ,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, POLICE OFFICER
:
ROBERT REID, POLICE OFFICER STEPHEN
:
JONES, SERGEANT BRIAN FLYNN, and
:
SERGEANT JAMES KELLY,
:
:
Defendants.
:
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14cv6628 (DLC)
MEMORANDUM OPINION
AND ORDER
APPEARANCES:
For the plaintiff:
Pro Se Nehmias Munoz
For the defendants:
Ariel Shaun Lichterman
New York City Law Department
100 Church Street
New York, NY 10007
DENISE COTE, District Judge:
This action arises out of the arrest of the plaintiff
Nehmias Munoz (“Munoz”) on September 13, 2011, following his
commission of an armed robbery in the Bronx, New York.
The
plaintiff asserts that the arresting officers used excessive
force against him.
on July 15, 2016.
The defendants moved for summary judgment
For the following reasons, the defendants’
motion is granted in part.
The following facts are undisputed or taken in the light
most favorable to the plaintiff, unless otherwise noted.
On
the afternoon of September 13, 2011, Munoz robbed a man at
gunpoint while high on crack cocaine.
Afterwards, Munoz
entered a nearby deli, still carrying the gun.
The individual
defendants then arrived at the deli and approached Munoz.
Upon
seeing the defendants, Munoz brandished the gun and told them,
“This ain’t for you.”
The defendants took Munoz to the ground
and seized his gun from him.
During this struggle, Munoz bit Jones on the wrist and
told the defendants that he was “not going back to jail” and
that they were “gonna have to kill [him].”
According to the
plaintiff, the defendants struck Munoz in the head, punched him
multiple times, and twisted his arm; Munoz sustained
lacerations above his left eye and on his arm, as well as one
or two broken ribs.
Munoz.
At some point, the defendants handcuffed
The order in which these events transpired constitutes
the central factual dispute in this case.
Munoz was indicted by a New York grand jury on charges of
first-degree robbery, criminal possession of a weapon, assault,
and resisting arrest.
On April 16, 2013, Munoz pleaded guilty
to first-degree robbery.
Munoz alleges that the defendants used excessive force in
violation of his rights pursuant to 42 U.S.C. § 1983 and the
Fourth Amendment.
In making an arrest, “law enforcement
officers violate the Fourth Amendment if the amount of force
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they use is objectively unreasonable in light of the facts and
circumstances confronting them.”
Rogoz v. City of Hartford,
796 F.3d 236, 246 (2d Cir. 2015) (citation omitted).
“The
reasonableness of the amount of force used . . . must be judged
from the perspective of a reasonable officer on the scene . . .
Id. at 246-47 (citation
at the moment the force is used.”
omitted).
Additionally, an “officer is under a duty to
intercede and prevent fellow officers from subjecting a citizen
to excessive force[] and may be held liable for his failure to
do so if he observes the use of force and has sufficient time
to act to prevent it.”
Figueroa v. Mazza, 825 F.3d 89, 106 (2d
Cir. 2016).
The parties agree that the defendants were entitled to use
force to effect Munoz’s arrest.
According to Munoz, however,
the defendants continued to use force against him after he had
been disarmed, handcuffed, and subdued.
Testimony that
officers used injurious force against a restrained and
compliant arrestee is sufficient to raise a genuine dispute of
material fact.
See Rogoz, 796 F.3d at 250-51; Tracy v.
Freshwater, 623 F.3d 90, 98-99 (2d Cir. 2010).
If a reasonable
jury were to credit Munoz’s account, they could find that the
defendants’ use of force was excessive.
98-99.
See Tracy, 623 F.3d at
These questions of fact and credibility are “a matter
for the factfinder; it [i]s not a matter that the court c[an]
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properly resolve on a motion for summary judgment.”
F.3d at 249.
Rogoz, 796
For the same reasons, this factual dispute
precludes summary judgment on the basis of qualified immunity.
Id.
The defendants also move for summary judgment on Munoz’s
excessive-force claims to the extent he relies on a failure-tointervene theory of liability.
Plaintiff has presented
sufficient evidence to infer reasonably that any officer who
did not apply excessive force may be liable for failing to
intervene to stop it.
This suffices to show each officer’s
personal involvement in the constitutional violation and to
preclude summary judgment.
See Fischl v. Armitage, 128 F.3d
50, 57 (2d Cir. 1997).
Finally, the defendants move for summary judgment on
Munoz’s claims against the City of New York (the “City”).
Munoz has offered no evidence concerning municipal liability.
Munoz responds by requesting the opportunity to conduct
additional discovery and the appointment of an attorney to
assist in that effort.
While Munoz has been assisted by
counsel during a portion of this litigation, he is currently
proceeding pro se.
2016.
Fact discovery in this action closed in May
The plaintiff has offered no evidence suggesting that
any use of excessive force by the individual defendants was
carried out pursuant to any municipal policy or practice and no
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basis to find that further discovery will yield such evidence.
The arrest was made while the plaintiff was under the influence
of drugs, shouting, and displaying a weapon.
These were
challenging circumstances in which to conduct an arrest, and
the plaintiff was arrested without either his or the officers’
weapons being fired.
Partial summary judgment is therefore
appropriate with regard to Munoz’s claims against the City.
See Mitchell v. City of New York, 841 F.3d 72, 80 (2d Cir.
2016) (citing Monell v. Dep’t of Soc. Servs. of City of N.Y.,
436 U.S. 658, 694-95 (1978)).
Accordingly, it is hereby
ORDERED that the defendants’ July 15, 2016 motion for
summary judgment is granted as to the plaintiff’s claims
against the City, and it is denied as to the plaintiff’s claims
against the individual defendants.
SO ORDERED.
Dated:
New York, New York
December 30, 2016
________________________________
DENISE COTE
United States District Judge
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