Opinion
No. 03 Civ. 1145 (GWG).
October 7, 2004
OPINION AND ORDER
In this pro se action under 42 U.S.C. § 1983, plaintiff has brought various constitutional claims based on an alleged arrest occurring on May 3, 2001. The defendants, Officer Anthony Ward and the City of New York, have moved for summary judgment. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the defendants' motion is granted.
I. BACKGROUND
A. The Complaint
Feurtado's complaint alleges that on May 3, 2001, he was "wrongfully detained" by Police Officers Anthony Ward and Annette Williams. See Complaint, filed February 20, 2003 (Docket #1), ¶¶ 6, 7. Feurtado claims that after the officers informed him that he had outstanding bench warrants for his arrest, see id. ¶ 7, he was put in handcuffs and transported to the 71st Precinct. See id. ¶ 8.
Feurtado seeks relief solely under 42 U.S.C. § 1983. He asserts that he was subjected to "unreasonable force, unlawful detention, punishment without due process, unconstitutional conditions of confinement, [and] deprivations of [his] right to observe and exercise [his] religious practices." Complaint at 1. He also asserts that he "received injuries about [his] body and was humiliated." Id. He cites the First, Fourth, Sixth and Fourteenth Amendments to the United States Constitution as bases for his claims. See id.
B. Evidence Presented on the Summary Judgment Motion
Feurtado submitted no opposition to the defendants' motion for summary judgment. Thus, he did not controvert any of the assertions contained in the defendants' statement pursuant to Local Civil Rule 56.1. The following facts are taken from that statement, each paragraph of which contains citations to evidence in the record, including affidavits of the two officers alleged to have been involved in the incident. See Defendants' Statement of Undisputed Facts Pursuant [to] Local Civil Rule 56.1, dated May 24, 2004 ("Def. Statement") (annexed to Notice of Motion, filed May 24, 2004 (Notice of Motion) (Docket #19)).
On May 3, 2001 Officer Anthony Ward was assigned to a marked New York City Police vehicle with his partner, Police Officer Mark Borenstein. See Def. Statement ¶¶ 14, 15. It is the custom and practice of Police Officers Ward and Borenstein to note arrests, arrest processing, and the issuances of summons in their memobooks. Id. ¶ 16. However, there are no entries of any arrest, arrest processing, or summons concerning Feurtado in Officers Ward and Borenstein's memobooks for May 3, 2001. See id. ¶ 17. Officers Ward and Borenstein conducted a good faith search of their records, but were unable to find anything concerning Feurtado's purported car stop, arrest, and arrest processing of May 3, 2001. See id. ¶¶ 24, 25. Neither officer has any recollection of any of the events that Feurtado alleges.See id. ¶¶ 26, 27. Furthermore, although Feurtado has maintained that his claims are against officers from the 71st Precinct, see id. ¶ 18, all arrests made within the 71st Precinct are logged in the Precinct Command Log, id. ¶ 20, and the log for May 3, 2001 contains no entry of Feurtado's arrest, see id. ¶ 23.
Additionally, the Kings County Criminal Court has no records concerning the alleged May 3, 2001 incident, see id. ¶ 28, nor is there any indication in Feurtado's criminal history record or in the Office of Court Administration of an arrest on May 3, 2001. See id. ¶¶ 32, 33. Feurtado has identified criminal court docket number "200SK066959" as involving "the arrest in question." See id. ¶ 29 (citing Memorandum Endorsement, filed February 19, 2004 (Docket #17)). However, that docket number refers to a summons issued to Feurtado on May 7, 2000 for not possessing a valid NYC Taxi and Limousine Commission license.See id. ¶ 30. Feurtado pled guilty to that summons on March 26, 2001. See id. ¶ 31.
C. Procedural History
The complaint in this matter was filed on February 20, 2003, naming as defendants the City of New York, Police Officers Anthony Ward and Annette Williams, and various unnamed John and Jane Doe police officers. See Complaint at 1. With the parties' consent, the Court thereafter dismissed the claims against Police Officer Williams and the John and Jane Doe defendants. See Order, filed August 5, 2003 (Docket #7).
After the defendants answered the complaint, discovery proceeded and the Court set several schedules for dispositive motions, each of which was adjourned at the defendants' request. Ultimately, the Court set a schedule under which the defendants were required to file all pretrial motions by May 24, 2004, and Feurtado was required to file any opposition papers by June 24, 2004. See Memorandum Endorsement, filed May 18, 2004 (Docket #18), at 2.
The defendants timely filed the instant motion for summary judgment pursuant to Fed.R.Civ.P. 56. See Notice of Motion. The motion included a statement pursuant to Local Civ. R. 56.1 listing material facts not in dispute. See Def. Statement. The motion also included the notice required by Local Civ. R. 56.2 warning Feurtado of the consequences of a failure to respond.See Defendants' Local Civil Rule 56.2 Notice [t]o Pro Se Litigant Opposing Motion [f]or Summary Judgment, dated May 24, 2004 (annexed to Notice of Motion). The notice reminded Feurtado that any failure to submit opposition papers would mean that the facts stated in the defendants' statement pursuant to Rule 56.1 would be deemed admitted. Id. at 2. In addition, it warned Feurtado that "THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own papers as required by Rule 56(e)." Id. at 1 (capitalization in the original).
The notice states in pertinent part:
THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own papers as required by Rule 56(e). . . . Rule 56 provides that you may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendants and raising issues of fact for trail [sic]. . . . If you do not respond to the motion for summary judgment on time . . . the Court may accept defendants' factual assertions as true. Judgment may then be entered in defendants' favor without a trial. . . . Please be advised you must also respond to defendants' Local Civil Rule 56.1 statement. The Court will deem true all statements contained in the Local Civil Rule 56.1 statement unless controverted.Id. at 1-2 (capitalization in original).
The defendants' Notice of Motion repeated the Court's deadline for the filing of Feurtado's papers. See Notice of Motion at 1 (" PLEASE TAKE FURTHER NOTICE that plaintiff's opposition, if any, is due on or before June 24, 2004") (capitalization and emphasis in original). Feurtado filed no opposition papers on June 24, 2004 nor did he request that the deadline be extended. Subsequently, the defendants wrote to the Court noting that Feurtado had failed to respond and asking that their motion be deemed fully submitted — a request that the Court granted. See Memorandum Endorsement, filed July 2, 2004 (Docket #21), at 2. Feurtado raised no objection to that Order. To date, he has filed no papers in opposition to the defendants' motion and has not otherwise contacted the Court.
II. LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of material fact "may reasonably be resolved in favor of either party" and thus should be left to the finder of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Id. at 255 (citingAdickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, the non-moving party "must come forward with `specific facts showing there is a genuine issue for trial,'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (alteration in original), and "may not rely on conclusory allegations or unsubstantiated speculation." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); accord Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 42 (2d Cir. 1986), cert. denied 479 U.S. 1088 (1987). Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (quoting Celotex, 477 U.S. at 322) (internal quotations omitted). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
The Second Circuit has held that pro se litigants must be given express notice of the ramifications of failing to respond to an opponent's motion for summary judgment. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280-81 (2d Cir. 1999). As noted, Feurtado was served with the appropriate notice but nonetheless failed to file any opposition papers. Of course, the fact that Feurtado is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment."Fitzpatrick v. N.Y. Cornell Hosp., 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003) (citing cases); accord Johnson v. N.Y. Hosp., 1998 WL 851609, at *8 (S.D.N.Y. Dec. 9, 1998) (citing cases), aff'd, 189 F.3d 461 (2d Cir. 1999).
III. DISCUSSION
The defendant's motion for summary judgment is based on the following grounds: (1) Feurtado has failed to show that defendant Police Officer Ward was personally involved in the incident alleged in the complaint; and (2) Feurtado's municipal liability claim fails as a matter of law. See Memorandum of Law in Support of Defendants City of New York and Anthony Ward's Motion for Summary Judgment, filed May 24, 2004 ("Def. Mem.") (Docket #20), at 2.
While defendants have moved to dismiss Feurtado's "state law claims," Def. Mem. at 2, 11-12, Feurtado's complaint seeks relief only under 42 U.S.C. § 1983. Complaint ¶¶ 1, 13. Even if the complaint were liberally construed as raising state law claims, defendants are correct that those claims would have to be dismissed as untimely under N.Y. Gen. Municipal Law § 50-i, which requires any state law claim against the City or its employees acting within the scope of their employment to have been brought within a year and 90 days of the date the claim arose. Feurtado's claims arose on the date he was arrested, May 3, 2001, see Complaint at 1, but this action was not filed until Feburary 20, 2003. Because the complaint was not brought within the requisite time period, any state law claims would have to be dismissed.See, e.g., Barnett v. Dillon, 890 F. Supp. 83, 87 (N.D.N.Y. 1995).
A. Feurtado's Claims of Constitutional Violations by Officer Ward
As noted, Feurtado asserts several constitutional claims relating to his arrest. To state a claim under 42 U.S.C. § 1983, a plaintiff must show that there has been a denial of a right, privilege, or immunity secured by the Constitution or laws of the United States, and that the deprivation of such right occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not in and of itself create any substantive rights; rather, a plaintiff bringing a section 1983 claim must demonstrate a violation of an independent federal constitutional or statutory right. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979).
Officer Ward bases his motion for summary judgment on the ground that "personal involvement" by a state actor is "a prerequisite to an award of damages under [s]ection 1983" and Feurtado has no evidence showing that Officer Ward was personally involved in the alleged incident. See Def. Mem. at 5 (citingJohnson v. Wright, 234 F. Supp. 2d 352, 362-63 (S.D.N.Y. 2002)). In other words, Officer Ward's argument is essentially that Feurtado did not have any contact with Officer Ward on the date in question and thus, afortiori, Officer Ward could not have committed any constitutional violations against Feurtado.
Under Celotex, where a party bears the burden of proof on an issue, it is sufficient for the party moving for summary judgment to "point out to the district court . . . that there is an absence of evidence to support the nonmoving party's case."Celotex, 477 U.S. at 325. A party may use a memorandum or brief to point to the absence of evidence, and thereby shift to the nonmovant the obligation to come forward with admissible evidence supporting its claim. See, e.g., Webster v. City of New York, ___ F. Supp. 2d. ___, 2004 WL 1924665, at *19-*20 (S.D.N.Y. Aug. 27, 2004) (a "conclusory assertion in [the defendants'] memorandum of law that plaintiffs have no evidence to prove their case" was deemed to be sufficient to require plaintiffs to provide evidence of a Monell violation in order to avoid summary judgment); see generally Foley v. International Broth. of Electrical Workers Local Union 98, 91 F. Supp. 2d 797, 813 (E.D. Pa. 2000); Calhoun v. City of Keego Harbor, 771 F. Supp. 1473, 1475-76 (E.D. Mich. 1991). Officer Ward has done just that by contending that "plaintiff has not provided any evidence indicating that defendant Ward was either directly or indirectly involved in the allegations set forth in the complaint." Def. Mem. at 6; see also Def. Statement ¶ 34 (stating that "there is no indication from the record that the allegations set forth in plaintiff's complaint even occurred"). Because Feurtado bears the burden of proving his claims under section 1983, see, e.g., Miner v. City of Glens Falls, 999 F.2d 655, 660 (2d Cir. 1993), Officer Ward's pointing to the absence of evidence that he had any contact with Feurtado required Feurtado to furnish admissible evidence in support of his claim. See e.g., Feurtado v. City of New York, 2004 WL 2211663, at *5-*6 (S.D.N.Y. October 4, 2004). Feurtado has submitted no evidence whatsoever and thus summary judgment must be entered on his claim against Officer Ward.
B. Municipal Liability
Feurtado's complaint alleges that the City "created and fostered an atmosphere where police officers believed that they could apply unlawful force to citizens and conceal their misconduct through bogus charges," and that the City "failed to train officers on the proper use of force." Complaint ¶ 11. As a result, Feurtado contends that the officers were "encouraged to violate [his] constitutional rights." Id. Thus, it appears that Feurtado is asserting a claim under Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 663 (1978). In the absence of proof of a constitutional violation by an individual defendant, however, there is no basis for finding liability on the part of the municipality employing that individual. See, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("if the [individual police officer] inflicted no constitutional injury on [plaintiff], it is inconceivable that [municipal entities] could be liable to [plaintiff]"); Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir. 2004) (concluding that, where police officers acted properly, "the County is . . . entitled to summary judgment in its favor"); Curley v. Vill. of Suffern, 268 F.3d 65, 71 (2d Cir. 2001) ("a municipality cannot be liable for inadequate training or supervision when the officers involved in making an arrest did not violate the plaintiff's constitutional rights") (citing Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir. 1999)); Amato, 170 F.3d at 320 ("if a plaintiff fails to show that a constitutional violation occurred in the suit against the individual official, the corresponding cause of action against the municipality will be mooted since a claim of negligent training is only actionable where some constitutional violation actually occurred") (citing Heller, 475 U.S. at 799). CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted. The Clerk is requested to enter judgment and to close this case.
SO ORDERED.