Opinion
19-CV-5622 (VEC) (JLC)
04-20-2022
MICHAEL D. ANDREWS, Plaintiff, v. THE CITY OF NEW YORK, et al., Defendants.
To the Honorable Valerie E. Caproni, United States District Judge.
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Plaintiff Michael D. Andrews, proceeding pro se, commenced this action against the City of New York and Human Resources Administration Special Officer Theresa Green asserting claims of false arrest and false imprisonment, malicious prosecution, and excessive force pursuant to 42 U.S.C. § 1983 and New York common law. Andrews alleges that Defendants violated his federal constitutional rights in connection with a 2017 incident at the Human Resources Administration building in Manhattan by falsely arresting him and using excessive force in effecting his arrest.
Defendants have moved for summary judgment on all of Andrews' claims, which include federal and state false arrest, malicious prosecution, and excessive force claims, as well as any municipal liability claims against the City of New York.
For the reasons which follow, the Court recommends that Defendants' motion be granted in part and denied in part.
I. BACKGROUND
The following facts are drawn from the parties' Local Rule 56.1 Statements and summary judgment briefing and are undisputed unless otherwise noted.
A. Factual Background
On September 21, 2017, at approximately 11:00 a.m., Andrews went to the Human Resources Administration (“HRA”) building, located at 2322 Third Avenue in Manhattan, to meet with an HRA employee regarding the denial of assistance benefits. Deposition of Michael Andrews conducted on January 26, 2021 (“Andrews Dep.”), Dkt No. 63-1, at 25:3-11; Plaintiff's Opposition to Motion for Summary Judgment (“Pl. Opp.”), Dkt No. 68, at ¶ 1. After meeting with an HRA representative, Andrews took the elevator down to the rear exit of the HRA building. Andrews Dep. at 27:11-18; 29: 3-13; Pl. Opp. ¶ 2. At that time, Defendant Green and FJC Security Services, Inc. (“FJC”) Security Guard Robert Occean (“Occean”) were standing near the rear exit of the HRA building. Andrews Dep. at 29:18-30:9; Declaration of Mostafa Khairy dated November 12, 2021 (“Khairy Decl.”) Ex. B, Dkt. No. 63-2. As Andrews proceeded to exit the building, Green's back was turned towards him, and Andrews stepped on the back of her foot. Andrews Dep. at 29:18-30:9; 38:9-24. Defendants contend that Andrews also kicked Green at this time, which Andrews disputes. Khairy Decl. Ex. B; ¶ 5; Pl. Opp. ¶ 5. A struggle then ensued between Green and Andrews. Defendants' Rule 56.
Statement (“Def. Rule 56.1”), Dkt. No. 62 at ¶ 7; Pl. Opp. ¶¶ 5, 7. Defendants contend that during the struggle, Andrews punched Green with a closed fist, which Andrews disputes. Def. Rule 56.1 ¶ 8; Pl. Opp. ¶ 8. Andrews contends that Green struck him with her baton at least three times, and swung her baton at him approximately ten times. Khairy Decl. Ex. J, Dkt. No. 63-10, at 32:11-22. Andrews also took Green's baton and threw it away from her at least twice during the struggle. Khairy Decl. Ex. J at 33:19-22. Occean, who witnessed the struggle, radioed the HRA Security office for backup assistance. Def. Rule 56.1 ¶ 10.
However, there is evidence in the record that after this altercation with Andrews, Green suffered bruising and swelling to the left side of her face. Def. Rule 56.1 ¶ 30; Khairy Decl. Ex. G, Dkt. No. 63-7, at ¶ 0024; Ex. H, Dkt. No. 63-8 at ¶ 0001.
Andrews eventually left the HRA building through the rear exit and called 911. Pl. Opp. ¶¶ 9, 10; Andrews Dep. at 47:2-48:2.
Andrews then re-entered the HRA building through the front entrance. Def. Rule 56.1 ¶ 13; Pl. Opp. ¶ 13. Several HRA officers and security guards, including Green, approached Andrews near the front entrance, and another struggle ensued. Def. Rule 56.1 ¶¶ 14-23; Pl. Opp. ¶¶ 14-23. During this struggle, Green nudged Andrews' chest with her baton, after which Andrews took the baton and threw it to the ground. Def. Rule 56.1 ¶¶ 17-18; Pl. Opp. ¶ 17. Andrews also claims that Green hit him with her baton more than 10 times during the struggle, Pl. Opp. ¶ 19, and that the other HRA officers and security guards were also hitting him on his back and arms. Pl. Opp. ¶¶ 20-22. Andrews acknowledges that he fought back in order to defend himself. Andrews Dep. at 78:24-79:3. Andrews then exited the building and waited for the police to arrive. Def. Rule 56.1 ¶¶ 24, 26; Andrews Dep. at 80:8-81:19.
Defendants point to several inconsistencies in Andrews' testimony about how many times Green allegedly struck him with her baton. Def. Mem. at 3-4.
Several unnamed New York City Police Department (“NYPD”) officers arrived, confirmed that Andrews had called 911, and asked him to wait outside. Andrews Dep. 82:11-25. Four NYPD officers stayed with Andrews outside, while the remaining officers entered the HRA building and viewed the surveillance video of the incident. Id. at 82:20-83:16. The NYPD officers who went inside the building also interviewed HRA Sergeant Clarke and Green. Khairy Decl. Ex. C, Dkt. No. 633 at ¶ 0015; Ex. D, Dkt. No. 63-4, at ¶ 0012; Ex. E, Dkt. No. 63-5, at ¶ 0018; Ex. G, Dkt. No. 63-7, at ¶ 0023. At this point in time, the NYPD officers did not handcuff or detain Andrews. Andrews Dep. at 83:17-84:13.
One of the NYPD officers then asked Andrews if he needed medical attention, and an ambulance arrived shortly afterwards. Id. at 86:17-87:8. When he entered the ambulance, Andrews was not handcuffed and did not know he was being arrested. Andrews Dep. at 99:14-100:13. However, when Andrews arrived at Mount Sinai Hospital, he was handcuffed. Id. at 100:22-101:3. At the hospital, Andrews had x-rays taken of his left hand, elbow, and wrist. Id. at 103:17-24; see also Plaintiff's Medical Records from Mount Sinai Hospital dated September 21, 2017 (“Mount Sinai Records”), Khairy Decl. Ex. K, Dkt. No. 63-11, at ¶ 00502.
Andrews also contends that his right elbow, right hand, collar bone, chest, and back were x-rayed. Andrews Dep. 103:17-24.
Andrews' medical records note that he had swelling and redness to the left hand, back pain, and a lip laceration on his bottom lip. Mount Sinai Records at ¶ 00499. Andrews was prescribed Tylenol and Ibuprofen. Def. Rule 56.1 ¶ 41; Pl. Opp. ¶ 41; Mount Sinai Records at ¶ 00510.
After Andrews' release from the hospital, NYPD Officer Ayeola Charles transported Andrews to the 25th Precinct. Def. Rule 56.1 ¶ 42; Pl. Opp. ¶ 42. At the precinct, Andrews was given a Desk Appearance Ticket (“DAT”) with an arraignment date of November 20, 2017 at the New York County Criminal Court. Khairy Decl. Ex. L, Dkt. No. 63-12. The DAT charged Andrews with Assault in the Third Degree, Attempted Assault in the Third Degree, and Harassment in the Second Degree. Def. Rule 56.1 ¶ 44; 2017 Criminal Complaint, Khairy Decl. Ex. M, Dkt. No. 63-13. On November 20, 2017, Andrews failed to appear at his DAT arraignment, and a bench warrant was issued for his arrest. Def. Rule 56.1 ¶ 45; Khairy Decl. Ex. N, Dkt. No. 63-14.
Andrews contends that he was never issued a Desk Appearance Ticket and that NYPD Officer Charles told him he was not being charged. Pl. Opp. ¶¶ 42, 43.
On May 10, 2019, Andrews was arrested in connection with an unrelated incident involving an HRA bus driver. Def. Rule 56.1 ¶ 46; Pl. Opp. 46. When Andrews was arrested, his outstanding bench warrant for the September 21, 2017 incident appeared. Def. Rule 56.1 ¶ 48; Pl. Opp. ¶ 48. Following his arraignment on both criminal cases, Andrews was remanded into the custody of the New York City Department of Correction (“DOC”) while the New York County District Attorney decided whether to indict Andrews on Second Degree Assault charges in connection with the May 10, 2019 arrest. Def. Rule 56.1 ¶ 49; Pl. Opp. ¶ 49.
Andrews spent approximately five or six days in DOC custody until he was released. Def. Rule 56.1 ¶ 50; Pl. Opp. ¶ 50. On September 24, 2019, the District Attorney's Office dismissed all charges against Andrews. Def. Rule 56.1 ¶ 51; Pl. Opp. ¶ 51.
B. Procedural History
On January 23, 2020, Andrews filed his Second Amended Complaint (“SAC”). Dkt. No. 22. On October 7, 2021, this case was referred to me for a report and recommendation on Defendants' anticipated summary judgment motion. Dkt. No. 59. On November 12, 2021, Defendants filed their motion for summary judgment.
The parties initially reported a settlement in this case, Dkt. No. 52, but were thereafter unsuccessful in finalizing their agreement. Dkt. Nos. 54-57.
Notice of Motion, Dkt. No. 61; Def. Rule 56.1; Khairy Decl.; Defendants' Memorandum of Law in Support of Motion for Summary Judgment (“Def. Mem.”), Dkt. No. 64. On December 27, 2021, Andrews filed his opposition papers, which consisted only of a Rule 56.1 statement. Pl. Opp. On January 7, 2022, Defendants filed their reply papers. Defendants' Reply Memorandum of Law (“Def. Reply”), Dkt. No. 69.
In their reply papers, Defendants contend that Andrews has failed to comply with Local Rule 56.1, and therefore all the facts set forth in Defendants' Rule 56.1 statement should be deemed admitted. Def. Reply at 2-4. “While pro se litigants are ‘not excused from meeting the requirements of Local Rule 56.1,' the Court nonetheless ‘retains some discretion to consider the substance of the [pro se party's] arguments, where actually supported by evidentiary submissions.” Feelings v. Stukes, No. 15-CV-1889 (JPO), 2017 WL 3601241, at *2 n. 1 (S.D.N.Y. Aug. 21, 2017) (quoting Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009)). Because Andrews is pro se, the Court “has conducted an assiduous review of the record' to determine if there is any evidentiary support for his assertions of fact that do not cite to evidence and to determine if there are any other material issues of fact.” Id. (quoting Geldzahler v. N.Y. Med. Coll., 746 F.Supp.2d 618, 620 n.1 (S.D.N.Y. 2010)).
II. DISCUSSION
A. Summary Judgment Legal Standard
To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. In making this determination, the Court must view all facts “in the light most favorable” to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008). If the movant meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of material fact by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
“Only disputes over facts that might affect the outcome of the suit under the governing law” will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether there are genuine issues of material fact, a court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
B. Analysis
Defendants move for summary judgment on Andrews' § 1983 and New York common law claims for false arrest, malicious prosecution, and excessive force, as well as any municipal liability claims. See Def. Mem. at 1. Section 1983 provides redress for the deprivation of federally protected rights by persons acting under color of state law. 42 U.S.C. § 1983. To prevail on a § 1983 claim, a plaintiff must establish (1) the violation of a right, privilege, or immunity secured by the Constitution or laws of the United States (2) by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978).
Moreover, the “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Nardoni v. City of N.Y., 331 F.Supp.3d 116, 122 (S.D.N.Y. 2018) (quoting Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016)). The Second Circuit has defined “personal involvement” to mean direct participation, such as “personal participation by one who has knowledge of the facts that rendered the conduct illegal, ” or indirect participation, such as “ordering or helping others to do the unlawful acts.” Id. at 122-23 (quoting Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001)).
1. False Arrest
An arrest undertaken without a warrant “must be supported by probable cause or else it violates the Fourth Amendment.” United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008). “A § 1983 claim for false arrest, resting on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause, is substantially the same as a claim for false arrest under New York law.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citations omitted); accord Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). Under New York law, a plaintiff claiming false arrest must show that “(1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged.” Savino v. City of New York, 331 F.3d 63, 75 (2d Cir. 2003); see also Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (quoting Broughton v. State of New York, 37 N.Y.2d 451, 456 (1975)). For a defendant to be liable on such a claim, personal involvement is required. See Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). “With respect to a claim for false arrest, this means that each individual must have been personally involved in the arrest in order to be held liable.” Garnett v. City of N.Y., No. 13-CV-7083 (GHW), 2014 WL 3950904, at *7 (S.D.N.Y. Aug. 13, 2014).
The Court's discussion of Andrews' false arrest claim encompasses his false imprisonment claim because “[u]nder New York law, ‘the tort of false arrest is synonymous with that of false imprisonment.'” Liranzo v. United States, 690 F.3d 78, 91 n.13 (2d Cir. 2012) (quoting Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991)).
Here, there is no evidence in the record of Green's personal involvement in Andrews' arrest. Although Green attempted to detain Andrews during their initial altercation, there is no evidence that Green ever successfully confined or detained him, see Def. Rule 56.1 ¶ 11; Def. Mem. at 9, and there is no dispute that Andrews was ultimately arrested and detained by NYPD officers, whom Andrews himself had called to the scene. SAC at 6. However, in his Second Amended Complaint, Andrews alleges that Green made “false statements” in order to effect his arrest. SAC at 2, 12.
The citations to Andrews' Second Amended Complaint refer to the page numbers generated by the Electronic Case Filing System.
A person may be held liable for false imprisonment if she “causes or directs an . . . imprisonment in New York by inducing the officer to act, such as taking an active part in the arrest and procuring it to be made or showing active, officious and undue zeal to the point where the officer is not acting of his own volition.” Farghaly v. City of N.Y., No. 16-CV-6660 (NG) (ST), 2021 WL 4248844, at *7 (E.D.N.Y. Sept. 17, 2021) (quoting Curley v. AMR Corp., 153 F.3d 5, 13-14 (2d Cir. 1998)). While there is evidence in the record that Green spoke with the NYPD officers who arrived at the scene (and by at least one account sought to press charges against Andrews), Khairy Decl. Exs. C, D, E, and G, there is no evidence Green “induced, procured, or instigated” the NYPD to arrest Andrews to the point where the officers were not acting of their own volition. Farghaly, 2021 WL 4248844, at *7; see also Savarese v. City of N.Y., 547 F.Supp.3d 305, 341 (S.D.N.Y. 2021) (granting summary judgment on false arrest claim when no evidence that defendant induced arresting officer to act, procured arrest, or that arresting officers were acting under defendant's influence and not of their own volition); Nardoni, 331 F.Supp.3d at 123 (granting summary judgment on false arrest claim when defendant was not involved in plaintiff's seizure and transport to precinct and did not “order, instruct, plan, or facilitate” arrest).
Moreover, there is no evidence in the record that Green intentionally provided false information or otherwise acted in bad faith during her conversations with the NYPD officers. “[A] person cannot be held liable for false imprisonment for merely ‘seeking police assistance or furnishing information to law enforcement authorities who are then free to exercise their own judgment as to whether an arrest should be made and criminal charges filed.'” Farghaly, 2021 WL 4248844, at *7 (quoting Delince v. City of N.Y., No. 10-CV-4323 (PKC), 2011 WL 666347, at *4 (S.D.N.Y. Feb. 7, 2011)). At best, the record demonstrates that Green relayed to the officers a version of the altercations that differed from Andrews' account. This evidence, without more, is insufficient to support a false arrest claim. See Savarese, 547 F.Supp.3d at 342 (insufficient evidence to support false arrest claim when no evidence that defendant's report to police regarding incident was in bad faith and defendant simply reported his version of events to police); cf. Pukhovich v. City of N.Y., No. 16-CV-1474 (KAM) (PK), 2018 WL 4688943, at *10 (E.D.N.Y. Sept. 27, 2018) (denying summary judgment on false arrest claim when there was evidence in the record that defendant intentionally fabricated version of events relayed to arresting officers).
In addition, because the NYPD officers spoke to other HRA officers at the scene and viewed surveillance footage of the altercation, any statements made by Green were not the only evidence upon which the NYPD officers relied in determining whether to arrest Andrews. See, e.g., Farghaly, 2021 WL 4248844, at *7 (dismissing false arrest claim based on defendant's alleged false statements to the police when defendant's statements were not the only evidence upon which arresting officer relied when determining whether to arrest plaintiff). Accordingly, Andrews' false arrest claim should be dismissed.
To the extent Andrews contends that Green is liable for physically effecting his arrest during his interactions with her at the HRA building, it is undisputed that Green never successfully detained him. Def. Rule 56.1 ¶ 11; Pl. Opp. ¶¶ 10, 11. Moreover, during both the incidents at the rear exit and the front entrance, it is undisputed that Andrews walked away from both of those interactions. Def. Rule 56.1 ¶¶ 10, 11, 24; Pl. Opp. ¶¶ 10, 11, 24. This evidence negates the second element of a false arrest claim - that Andrews was aware of his confinement or otherwise thought he was not free to leave. See, e.g., Scott v. City of Mount Vernon, No. 14-CV-4441 (KMK), 2017 WL 1194490, at *18 (S.D.N.Y. Mar. 30, 2017) (“an arrest may occur even if the formal words of arrest have not been spoken provided that the subject is restrained and his freedom of movement is restricted”) (citation omitted).
2. Malicious Prosecution
Similarly, Andrews' malicious prosecution claim should be dismissed due to Green's lack of personal involvement. To demonstrate a malicious prosecution claim, a plaintiff must establish that “(1) the defendant either commenced or continued a criminal proceeding against him; (2) that the proceeding terminated in his favor; (3) that there was no probable cause for the criminal proceeding; and (4) that the criminal proceeding was instituted with actual malice.” Chavez v. Finney, No. 19-CV-4109 (RA), 2022 WL 874716, at *7 (S.D.N.Y. Mar. 23, 2022) (quoting Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991)). A plaintiff must also show “a sufficient post-arraignment liberty restraint to implicate the plaintiff's Fourth Amendment rights.” Yan v. City of N.Y., No. 09-CV-1435 (CBA) (SMG), 2011 WL 6012410, at *9 (E.D.N.Y. Nov. 30, 2011) (quoting Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 215 (2d Cir. 2000)); see also Singer, 63 F.3d at 116 (“A plaintiff asserting a Fourth Amendment malicious prosecution claim under § 1983 must . . . show some deprivation of liberty consistent with the concept of ‘seizure.'”).
“To establish that a defendant initiated or continued a criminal proceeding, a plaintiff must show ‘that the defendant played an active role in the prosecution, such as giving advice and encouragement or importuning the authorities to act.” Mingo v. Augustyn, 19-CV-211 (LJV) (MWP), 2021 WL 2446856, at *12 (W.D.N.Y. June 16, 2021) (quoting Mitchell v. Victoria Home, 434 F.Supp.2d 219, 227 (S.D.N.Y. 2006), adopted by 2022 WL 224645 (Jan. 26, 2022). “Under New York law, police officers can [also] ‘initiate' prosecution by filing charges or other accusatory instruments.” Id. (quoting Cameron v. City of N.Y., 598 F.3d 50, 63 (2d Cir. 2010). However, it has “long been settled that participating in [a plaintiff's] arrest, without more, is insufficient to establish the requisite initiation.” Pierre v. Rocco, No. 17-CV-4657 (LDH), 2021 WL 950021, at *3 (E.D.N.Y. Mar. 12, 2021) (collecting cases). “Courts have found a triable issue of fact as to the initiation element where the defendant-officer brought formal charges and had the person arraigned, filled out complaining and corroborating affidavits, swore to and signed a felony complaint, or created false information and forwarded it to prosecutors.” Alcantara v. City of N.Y., 646 F.Supp.2d 449, 457-58 (S.D.N.Y. 2009).
Here, there is no evidence in the record that Green initiated or continued criminal proceedings against Andrews. It is undisputed that the Desk Appearance Ticket and Criminal Complaint were issued by Officer Charles. Khairy Decl. Exs. L, M. Moreover, there is no evidence that Green took any of the actions that courts have found to create triable issues of fact with respect to the initiation element. Notably, Green did not provide false statements to the NYPD or the prosecutor, complete a corroborative affidavit, or provide any other form of “advice or encouragement.” See, e.g., Pierre, 2021 WL 950021, at *3-4; Alcantara, 646 F.Supp.2d at 457-58. Indeed, the record demonstrates no involvement by Green beyond the incidents at the rear exit and front entrance of the HRA building and the immediate aftermath. For these reasons, Andrews' malicious prosecution claim should be dismissed. See, e.g., Alcantara, 646 F.Supp.2d at 457-58 (granting summary judgment in favor of defendant-officers on malicious prosecution claim when defendants had not brought formal charges, filled out complaining or corroborating affidavits, swore to any felony complaint, or forwarded information to prosecutors).
Furthermore, as Defendants argue, Andrews cannot establish a sufficient deprivation of liberty, Def. Mem. at 10-12, and this provides a separate basis for dismissing Andrews' § 1983 malicious prosecution claim. Courts have found that “a plaintiff does not have a claim for . . . malicious prosecution under section 1983 if, at the time of his arrest and prosecution, he already is in custody on other charges, because there is no deprivation of liberty interests.” Arnold v. Geary, No. 09-CV-7299 (GWG), 2013 WL 4269388, at *4 (collecting cases); see also Walker v. Sankhi, 494 Fed. App'x 140, 142-43 (2d Cir. 2012) (upholding dismissal of malicious prosecution claim when “[plaintiff] could not have suffered a deprivation of liberty as a result of the Bellamy burglary charge because, throughout the pendency of that charge, he was already in custody, and remained in custody, for a completely separate burglary charge”).
Here, there is no dispute that (1) Andrews was given a DAT in connection with the September 21, 2017 incident; (2) he failed to appear for arraignment on November 20, 2017; and (3) a bench warrant was subsequently issued for his arrest. Def. Rule 56.1 ¶¶ 43-45. On May 10, 2019, Andrews was arrested in connection with an unrelated incident involving an HRA bus driver, and at that time his outstanding bench warrant stemming from the September 21, 2017 incident came to light. Id. ¶¶ 46, 48. The following day, Andrews was arraigned on both the September 2017 and May 2019 charges and was remanded into custody pending the District Attorney's Office's decision on whether to indict Andrews on Second Degree Assault charges for his May 2019 arrest. Def. Rule 56.1 ¶ 49; Pl. Opp. ¶ 49.
Andrews was in custody at Riker's Island for approximately five or six days before being released, Def. Rule 56.1 ¶ 50; Pl. Opp. ¶ 50, and all the charges against him were dismissed on September 24, 2019. Def. Rule 56.1 ¶ 51; Pl. Opp. ¶ 51.
Accordingly, Andrews was simultaneously prosecuted for both criminal matters, and therefore cannot have suffered a deprivation of liberty interests solely due to the 2017 assault charge. There is no evidence that Andrews' incarceration or court appearances resulted solely from the 2017 assault charge or that his incarceration would have been different if not for the September 2017 assault charge. See, e.g., Smith v. Webber, No. 17-CV-1164 (PKC), 2020 WL 888016, at *7-8 (E.D.N.Y. Feb. 24, 2020) (granting summary judgment for defendant on malicious prosecution claim when plaintiff failed to provide evidence suggesting that his incarceration would have been different if not for the challenged robbery charge); Othman v. City of N.Y., No. 13-CV-4771 (NGG) (SJB), 2018 WL 1701930, at *14 (E.D.N.Y. Mar. 31, 2018) (granting summary judgment for defendant on malicious prosecution claim when plaintiff could not show that alleged deprivation of liberty resulted “solely” from challenged charge). Therefore, Andrews' malicious prosecution claim should be dismissed.
3. Excessive Force
“[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof.” Scott v. City of N.Y., No. 19-CV-6289 (JPO), 2022 WL 846929, at *3 (S.D.N.Y. Mar. 22, 2022) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “Determining whether the force used to effect a particular seizure is ‘reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.” Id. Section 1983 excessive force claims arising out of an arrest “are governed by this objective reasonableness standard of the Fourth Amendment.” Id. (citing Esmont v. City of N.Y., 371 F.Supp.2d 202, 214 (E.D.N.Y. 2005)); see also Bell v. City of N.Y., No. 19-CV-5868 (NRB), 2022 WL 870589, *4 (S.D.N.Y. Mar 21, 2022) (“To establish a claim of excessive force, a plaintiff must show that the force used by the officer was, in light of the facts and circumstances confronting him, objectively unreasonable under Fourth Amendment standards.”).
“[O]bjective reasonableness turns on the facts and circumstances of each particular case.” Quiller v. City of N.Y., No. 16-CV-3205 (RJS), 2018 WL 3418777, at *3 (S.D.N.Y. July 13, 2018) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015)). While not “every push or shove” rises to the level of excessive force, “[w]hether the constitutional line has been crossed” depends on factors such as
the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.Husbands ex rel. Forde v. City of N.Y., No. 05-CV-9252 (NRB), 2007 WL 2454106, at *10 (S.D.N.Y. Aug. 16, 2007) (quoting Robinson v. Via, 821 F.2d 913, 923 (2d Cir. 1987)).
Defendants contend that Andrews' excessive force claim should be dismissed because (1) the force Green used in attempting to detain Andrews was reasonable and justified under the circumstances, given that the altercations began because Andrews kicked Green in the leg and then punched her in the face with a closed fist; (2) Andrews' excessive force allegations are incredible given the medical evidence in the record; and (3) any injuries Andrews sustained were de minimis. Def. Mem. at 13-19.
First, construing all reasonable inferences in favor of Andrews as the nonmoving party, there are genuine disputes of material fact regarding how the altercations began and unfolded. While Defendants contend that Andrews initiated the first altercation by kicking Green, Andrews states only that he stepped on the back of Green's foot and denies kicking her. Andrews Dep. 29:18-30:9; 35:4-15; Pl. Opp. ¶¶ 5, 6. Moreover, while Defendants contend that Andrews punched Green in the face with a closed fist during the initial altercation, Andrews denies doing so and states only that he put up his hands in self-defense and pushed Green in selfdefense with a closed fist. Andrews Dep. 63:5-18; Khairy Decl. Ex. J at 32:23-33:13; Pl. Opp. ¶ 8. Factual disputes regarding which party initiated an altercation that resulted in the use of force are “ordinarily left to a jury.” Quiller, 2018 WL 3418777, at *3 (denying summary judgment on excessive force claim when parties presented “two competing narratives” about use-of-force incidents, including which party was initial aggressor). If a jury credited Andrews' version of how the altercations began and unfolded, it could very well find that under those circumstances, the fact that Green struck Andrews with a baton several times during her attempt to detain him was unreasonable under the circumstances.
Second, while Defendants contend that Andrews' allegations are “directly contradicted by medical evidence, ” Def. Mem. at 16, the medical evidence in the record is consistent with at least some of Andrews' account. Andrews contends that Green struck him with a baton in the chest, arms, and back, Andrews Dep. 78:6-10; Pl. Opp. ¶ 8; Khairy Decl. Ex. J at 32:23-33:7, and a reasonable jury could find that this testimony is corroborated by medical records indicating that Andrews had swelling and redness in his left hand and back pain. Mount Sinai Records at ¶ 00499. Therefore, contrary to Defendants' contention, this is not a case “in which there is no objective evidence whatsoever to support a party's claims other than his own self-serving, ‘contradictory and incomplete' testimony.” Quiller, 2018 WL 3418777, at *4 (quoting Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 100, 105 (2d Cir. 2011)); cf. Smith v. City of N.Y., No. 18-CV-5079 (MKV), 2021 WL 4267525, at *7 (S.D.N.Y. Sept. 20, 2021) (dismissing excessive force claim when “medical records directly and irrefutably” contradicted plaintiff's account, none of his alleged injuries were documented by medical staff, his condition was inconsistent with the severe beating alleged, and plaintiff himself denied injury and trauma). Although Defendants may well prevail on this claim at trial after highlighting any purported discrepancies between Andrews' account and the Mount Sinai medical records, the ultimate determination on how the altercations at the HRA building began and unfolded is for the jury, rather than the Court on summary judgment.
Lastly, while a “de minimis use of force will rarely suffice to state a constitutional claim, ” the “core judicial inquiry is not whether the plaintiff suffered some arbitrary quantity of harm, but rather whether he suffered a nontrivial use of force that was applied . . . maliciously and sadistically to cause harm.” Quiller, 2018 WL 3418777, at *4 (citation omitted); see also Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (“To conclude, as the District Court did here, that the absence of ‘some arbitrary quantity of injury' requires automatic dismissal of an excessive force claim improperly bypasses this core inquiry.”). In this case, as discussed above, the Mount Sinai medical records indicate that Andrews had swelling and redness in his left hand and back pain. Mount Sinai Records at ¶ 00499. Although these purportedly minimal injuries, coupled with the alleged inconsistencies in Andrews' testimony about how many times Green struck him with her baton, provide “ammunition for cross-examination, they do not provide a basis for . . . dismissal of [his] excessive force claim as a matter of law.” Szabo v. Parascandolo, No. 16-CV-3683 (PKC) (LB), 2019 WL 481925, at *6 (E.D.N.Y. Feb. 7, 2019) (collecting cases); see also Adedeji v. Hoder, 935 F.Supp.2d 557, 567 (E.D.N.Y. 2013) (“The slightness of injury suffered as a result of the challenged use of force . . . does not preclude a finding that such force was objectively unreasonable.”). Accordingly, Defendants' motion as to Andrews' excessive force claim should be denied.
4. Monell Liability
A municipality or municipal corporation is liable under § 1983 if “the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks omitted). The language of § 1983 makes clear that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort, ” and therefore “a municipality cannot be held liable solely because it employs a tortfeasor.” Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). In order to succeed on a claim against a municipality under § 1983, a plaintiff must show: “(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy [or custom] of the municipality caused the constitutional injury.” Cowan v. City of Mount Vernon, 95 F.Supp.3d 624, 636 (S.D.N.Y. 2015) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008)).
To satisfy the requirement of an official policy or custom, a plaintiff must allege either
(1) a formal policy officially endorsed by the municipality;
(2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Brandon v. City of N.Y., 705 F.Supp.2d 261, 276-77 (S.D.N.Y. 2010) (citations omitted). A plaintiff cannot show a “policy” or “custom” sufficient to impose municipal liability merely by providing “[p]roof of a single incident of unconstitutional activity . . . unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy.” Jones v. City of N.Y., No. 18-CV-1937 (VSB), 2020 WL 1644009, at *6 (S.D.N.Y. Apr. 2, 2020) (quoting City of Oklahoma v. Tuttle, 471 U.S. 808, 823-24 (1985)); see also Cowan, 95 F.Supp.3d at 637 (“Generally, a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.” (internal quotation marks omitted)). Furthermore, the causation prong requires a plaintiff to “prove a causal link between the policy, custom or practice and the alleged injury in order to find liability against a municipality.” Brandon, 705 F.Supp.2d at 277; see also City of Canton v. Harris, 489 U.S. 378, 385 (1989).
Here, Andrews' claim against the City of New York should be dismissed under the Monell doctrine. Andrews has not alleged or submitted any evidence that his arrest and prosecution were the result of a city custom or policy, and therefore Defendants' motion should be granted as to the City. See, e.g., Harris v. City of N.Y., No. 13-CV-7788 (LGS), 2016 WL 427908 at *5 (S.D.N.Y. Feb. 3, 2016) (dismissing plaintiff's Monell claim at summary judgment stage when plaintiff failed to submit evidence that his arrest and prosecution resulted from city custom or policy).
5. Notice of Claim
It is well-settled that state notice of claim requirements apply to state law claims brought in federal court. See Felder v. Casey, 487 U.S. 131, 151 (1988); Parise v. N.Y.C. Dep't of Sanitation, 306 Fed. App'x 695, 697 (2d Cir. 2009); Hardy v. N.Y.C. Health & Hosp. Corp., 164 F.3d 789, 793 (2d Cir. 1999). “Under New York law, service of a notice of claim upon a municipality or municipal corporation is a condition precedent to maintaining a tort action against the municipality or municipal corporation, or any of its officers, agents or employees acting within the scope of their employment.” Taylor v. Ridley, 904 F.Supp.2d 222, 234 (E.D.N.Y. 2012) (quoting N.Y. Gen. Mun. L. §§ 50-e; 50-i(1)); see also Davidson v. Bronx Municipal Hospital, 64 N.Y.2d 59, 61 (1984) (“Service of a notice of claim . . . is a condition precedent to a lawsuit against a municipal corporation.”).
“The notice of claim must be served within 90 days after the claim arises, N.Y. Gen. Mun. L. § 50-e(1)(a), and a plaintiff must commence any tort action seeking damages for personal injury against the municipality or municipal corporation, its officers, agents, servants or employees, within one year and 90 days “after the happening of the event upon which the claim is based.” Taylor, 904 F.Supp.2d at 234. “Notice of claim requirements ‘are construed strictly by New York state courts . . . [and a] [f]ailure to comply with [those] requirements ordinarily requires a dismissal for failure to state a cause of action.” Id. at 234 (quoting Hardy, 164 F.3d at 793-94).
In this case, it is undisputed that Andrews did not file a notice of claim until January 15, 2020. Khairy Decl. Ex. Q; but see Andrews Dep. 165:18-23 (stating that Andrews filed notice of claim in 2019). Because the notice of claim was not timely filed and therefore did not comply with the requirements under New York law, Defendants' motion for summary judgment seeking dismissal of any state law claims should be granted. See Taylor, 904 F.Supp.2d at 234-35 (collecting cases).
Andrews contends that he tried to retrieve the surveillance video of the incident and Green's information in 2017, but that the Department of Investigations “must have let the timeframe [run] out” and then “tried to manipulate [Andrews] and tell [him] to just let it go.” Andrews Dep. 166:11-167:4. There is no support for this allegation in the record, and it does not alter the fact that Andrews, by his own admission, did not file a notice of claim until 2019 at the earliest.
III. CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment should be granted as to Andrews' Section 1983 false arrest and malicious prosecution claims, any claims arising under New York state law, and any municipal liability claims against the City of New York, and denied with respect to Andrews' Section 1983 excessive force claim.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni. If Andrews does not have access to cases cited herein that are reported on Westlaw, he should request copies from counsel for the Defendants. Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).