Opinion
No. 03 Civ. 7319 (HB).
August 23, 2004
OPINION ORDER
Defendant City of New York, Police Officers Altman and Keith White, and Unidentified New York City Police Officers, Employees and Agents (collectively "City") move for summary judgment, dismissing all of plaintiff Marilyn Berdugo's ("Berdugo") claims. For the following reasons, defendant's motion is granted.
I. BACKGROUND
A. Factual Background
Berdugo and her boyfriend Joshua Sepulveda ("Sepulveda") became embroiled in a physical altercation on the morning of December 14, 2002. Def. 56.1 ¶¶ 1, 4. The altercation occurred at Sepulveda's apartment, located at 321 Edgecombe Avenue, Apartment 2W, New York, New York, where Berdugo had spent the nights of December 13 and December 14, 2002. Id. ¶¶ 2-3. At approximately 6:51 a.m., a neighbor of Sepulveda's called 911 to report a disturbance. Id. ¶ 9.
Police officer Keith White ("White") arrived at approximately 7:00 a.m. on December 14, 2002, and completed a Domestic Incident Report ("DIR"). Def. 56.1 ¶¶ 10-11. Emergency Medical Technicians ("EMT") also responded to the call. Id. ¶ 12. White discussed the incident with Sepulveda in the hallway, and a second officer discussed the incident with Berdugo, out of Sepulveda's earshot. Id. ¶¶ 14-16; Declaration of Jordan M. Smith, Esq. Exh. A (Berdugo Dep.) at 49:16-24. It is undisputed that during the first altercation, plaintiff scratched Sepulveda in the upper chest with her long fingernails ( id. at 45:6-46:5), leaving a red mark, visible from several feet away. Def. 56.1 ¶¶ 5-8; Berdugo Dep. at 46:22-24. Plaintiff testified that she scratched Sepulveda "[b]ecause he didn't let me go. He was beating me up. I didn't [know] what else to do . . . I have nails, you know. All I could do was scratch him." Berdugo Dep. at 99:9-14.
Plaintiff fails to provide a proper response to defendant's 56.1 Statement. While defendant offered 31 numbered paragraphs, containing the material facts, plaintiff only responded with six — none of which clearly correspond to defendant's statement. Southern District of New York ("S.D.N.Y.") Local Rule 56.1(b) requires that a party opposing summary judgment include "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried." If the non-movant fails to controvert any numbered paragraphs with "a correspondingly numbered paragraph," those numbered paragraphs will be "deemed to be admitted." Id. 56.1(c). Further, S.D.N.Y. Local Rule 56.1(d) requires that each statement of material fact by a movant or an opponent "must be followed by citation to evidence which would be admissible . . ." With apparent disregard for this Rule, plaintiff failed to cite to any evidence to support paragraphs 4-6 of her 56.1 "Reply." And, the evidence that plaintiff cites to in support of her prior three paragraphs does not fully support the propositions stated. Therefore, since plaintiff's 56.1 Opposition is substantially flawed, the material facts offered by defendant in its 56.1 Statement are deemed admitted, to the extent that the evidence defendant provides supports the propositions stated.
The EMT asked plaintiff whether she required medical attention, but plaintiff refused medical treatment, and signed a form refusing both pre-hospital care and transport to the hospital. Def. 56.1 ¶¶ 18-19. Plaintiff now claims that she did not read the refusal form, but signed it because she was scared and in need of help. Berdugo Dep. at 52:16-21. No arrests were made at this juncture. Def. 56.1 ¶ 17.
On the same morning, but after the officers and EMT had departed, plaintiff called 911 in response to learning that Sepulveda knew both the EMT personnel and White, from his time as a paramedic. Berdugo Dep. at 54:7-10; Def. 56.1 ¶¶ 21-22. Police officer Avram Altman ("Altman") responded to plaintiff's call, and prepared a second DIR, which reflects that a second incident occurred at approximately 9:00 a.m. Def. 56.1 ¶¶ 23-24. Sepulveda informed Altman and his partner that Berdugo had scratched him. Id. ¶¶ 25-26. Altman independently observed the scratch on Sevulveda's chest. Def. 56.1 ¶ 25. The officers arrested Berdugo and Sepulveda. Id. ¶ 27. Plaintiff testified that Altman told Sepulveda, "don't worry, we spoke to the other guy, he says you're good . . . we're going to help you out." Berdugo Dep. at 64:24-65:3.
Later that day, while at the precinct, a female officer at Central Booking who searched plaintiff noticed bruises on her body and told Altman that plaintiff needed to be seen by the medical staff. Plaintiff testified that she had not, until this moment, realized that she was injured Berdugo Dep. at 95:20-96:9, 22. Plaintiff went to the medical room, but once there, signed a paper declining treatment that she claims Altman told her to sign. Id. at 67:6-68:21. Plaintiff appeared in court and was released from custody that same evening. Def. 56.1 ¶ 30. Plaintiff did not seek medical treatment until December 17, 2004, when she went to Beth Israel Medical Center ("BIMC"). Id. ¶ 31. Plaintiff testified that the doctor at BIMC gave her pills for her pain. She also explained that she "didn't realize [she] was so bruised up" until she went to the hospital. Berdugo Dep. at 75:4-8.
B. Procedural History
Plaintiff filed her complaint in this action on September 17, 2003. Defendant moved for summary judgment on June 4, 2004, and the Court twice granted plaintiff's requests for extensions of the dispositive motion deadline. Hence, the Court did not receive defendant's motion fully-briefed until July 23, 2004.
II. DISCUSSION
A. Standard of Review
A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ( per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). It is not the Court's role to resolve issues of fact; rather, the Court may only determine whether there are issues of fact to be tried. See Donohue, 834 F.2d at 58 (citations omitted).
B. Malicious Prosecution, False Arrest, and False Imprisonment
Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that defendants violated her Fourth Amendment rights by arresting her without probable cause. "Under New York law, false arrest is synonymous with false imprisonment . . ." Gaskins v. City of New York, 03 Civ. 0605, 2004 U.S. Dist. LEXIS 15424, at *8 (S.D.N.Y. Aug. 5, 2004) (citing DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996)). "Claims for false arrest or malicious prosecution brought under Section 1983 are essentially equivalent to state law claims for false arrest and malicious prosecution. Gentile v. City of New York, 01 Civ. 8640, 2003 U.S. Dist. LEXIS 5765, at *4 (S.D.N.Y. April 10, 2003) (citing Jocks v. Tavernier, 316 F.3d 128, 134 (2d Cir. 2003)). In order to establish a claim of false arrest or false imprisonment, a plaintiff must prove that: "(1) the defendant[s] intended to confine 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." Posr v. Doherty, 944 F.2d 91, 97 (2d Cir. 1991). "In order to state a claim for malicious prosecution, a plaintiff must establish the following elements: (1) the defendant either commenced or continued a criminal proceeding against him; (2) the proceeding terminated in plaintiff's favor; (3) there was no probable cause for the criminal proceeding; and (4) the criminal proceeding was instituted with actual malice. Gaskins, 2004 U.S. Dist. LEXIS 15424, at *9 (citing DiBlasio v. City of New York, 102 F.3d 654, 657 (2d Cir. 1996)). Therefore, "[a] finding of probable cause is a complete defense to both an action for false arrest [and false imprisonment] and an action for malicious prosecution." Gaskins, 2004 U.S. Dist. LEXIS 15424, at *9 (citation omitted).
"In general, probable cause 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 v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). "Whether or not an officer had probable cause to make an arrest is a question of what the officer knew at the time of the arrest and whether she or he was reasonable in relying on that knowledge." Gaskins, 2004 U.S. Dist. LEXIS 15424, at *10 (citation omitted). In this case, Altman had probable cause to arrest Berdugo because Sepulveda's complaint that Berdugo had scratched him was corroborated by the scratch on Sepulveda's chest, noted by Altman, and visible from several feet away. See Gentile, 2003 U.S. Dist. LEXIS 5765, at *5-6 (holding that there was probable cause to arrest plaintiff because the complainant's report matched her physical injuries). Plaintiff fails to establish a material issue of disputed fact as to whether probable cause existed. That plaintiff alleges that she was in fact the victim, and only scratched Sepulveda in self-defense does not negate the fact that the officers had probable cause to arrest plaintiff. Notably, although not controlling, the same officer also arrested Sepulveda on account of plaintiff's allegations. Further, plaintiff's allegation that Altman had an ulterior motive to arrest her, namely to retaliate against the complaint that she made against White, does not alter the fact that Altman still had probable cause to make the arrest. "If the officer either had probable cause or was qualifiedly immune from subsequent suit (due to an objectively reasonable belief that he had probable cause), then we will not examine the officer's underlying motive in arresting and charging the plaintiff." Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (citation omitted). Therefore, plaintiff's allegation of Altman's retaliatory motive, albeit unsubstantiated, is immaterial to this Court's finding that Altman had probable cause to arrest plaintiff. Because a finding of probable cause is a complete defense to plaintiff's claims of false arrest, false imprisonment, and malicious prosecution ( Gaskins, 2004 U.S. Dist. LEXIS 15424, at *9 (citation omitted)), defendant's motion for summary judgment on these three claims is granted.
C. Falsification of Paperwork
Plaintiff also alleges that White falsified the DIR by documenting that plaintiff suffered no injuries, when in fact, plaintiff suffered severe bruising. This allegation, even if true, does not suffice to establish a constitutional violation of plaintiff's Due Process rights. "In order to state a cause of action under § 1983, plaintiff must establish inter alia [sic], that he has been deprived of rights guaranteed by the Constitution or laws of the United States." Jackson v. Johnson, 90 Civ. 0661, 1990 U.S. Dist. LEXIS 14286, at *11 (S.D.N.Y. Oct. 24, 1990) (citing Maine v. Thiboutot, 448 U.S. 1 (1980)). In this case, such a constitutional deprivation would have ensued if plaintiff had been arrested in reliance on a falsified DIR. However, plaintiff has presented no evidence to establish (1) that White's report that plaintiff suffered no injuries was falsified, rather than simply his reasonable belief at the time, and (2) that even if White knowingly falsified the report, that Altman arrested plaintiff in reliance on this report.
Although plaintiff makes this claim in her complaint, she fails, in her summary judgment opposition, to address defendant's arguments. Therefore, it appears that that plaintiff is not opposing the dismissal of this claim. Nevertheless, in the event that plaintiff still wishes to pursue this claim, the Court will analyze its viability.
Instead, plaintiff admitted that she did not even realize that she had any injuries until the evening of the incident, when an officer at Central Booking, charged with searching plaintiff, noticed bruising on plaintiff's arm. Hence, it belies reason for plaintiff now to argue that White's account, bearing striking resemblance to plaintiff's belief at the time, was intentionally false. Second, even if White falsified the report, he declined to arrest plaintiff. Plaintiff was only arrested after Altman arrived on the scene, wrote a second DIR, in which he documented both that plaintiff scratched Sepulveda and that Sepulveda "hit her and grabbed herr [sic] rma [sic]." Smith Decl. Exh. D (DIR, Altman, 12/14/02). As discussed supra, Altman had probable cause to arrest plaintiff based on Sepulveda's report and corroborating injuries. Therefore, "plaintiff's allegation concerning the falsification of the report fails to state a claim since, even assuming that the report was falsified, it does not appear that this caused plaintiff any harm let alone the deprivation of a constitutional right." Jackson, 1990 U.S. Dist. LEXIS 14286, at *11 (citation omitted). Defendant's motion for summary judgment, dismissing plaintiff's due process claim, based on White's alleged falsification of the first DIR, is granted.
D. Deliberate Indifference to Plaintiff's Medical Needs
Plaintiff also asserts that she was denied medical treatment at the precinct, in contravention of her Eighth Amendment right for medical care. In order to establish a constitutional violation of medical care, an arrestee must prove "deliberate indifference to [her] serious medical needs." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The deprivation of care must be objectively serious ( Hathaway, 37 F.3d at 9 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)) and the actor must act with "more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 9 (citing Farmer v. Brennan, 114 S. Ct. 1970, 1978 (1994)). "As to the first prong, it is well established that more than discomfort or minor injury is required in order for a plaintiff to demonstrate a serious medical need." Kendall v. Kittles, 03 Civ. 628, 2004 U.S. Dist. LEXIS 15145, at *16 (S.D.N.Y. 2004) (citing Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)).
Although plaintiff makes this claim in her complaint, she fails, in her summary judgment opposition, to address defendant's arguments. Plaintiff also fails to offer any discussion of or evidence to support this claim in her 56.1 Opposition. Therefore, it appears that plaintiff is not opposing the dismissal of this claim. Nevertheless, in the event that plaintiff still wishes to pursue this claim, the Court will analyze its viability.
Although the only discussion of this claim by plaintiff is in her complaint, where her assertions are bare and conclusory, it appears that plaintiff is asserting that she was denied medical treatment at the precinct, following her arrest. However, plaintiff's injury, bruising, is exactly the type of minor injury for which the Eighth Amendment does not require prompt medical treatment. See, e.g., Malloy v. New York, 93 Civ. 0271, 1995 U.S. Dist. LEXIS 1699, at *5 (S.D.N.Y. Feb. 14, 1995) ("Plaintiff also fails to satisfy the second prong of this test — serious medical need; the kick to his leg did no more than raise a lump. Although this type of injury might well be temporarily painful, it is not of the level of seriousness required to sustain an Eighth Amendment claim for medical mistreatment."). Not only was plaintiff unaware that she had bruises on her arm until an officer at Central Booking informed her of the fact, but she declined EMT medical treatment at the scene, and again at the precinct. Further, once released from custody, on December 14, 2002, plaintiff did not seek medical treatment until December 17, 2004. Therefore, defendant's motion for summary judgment, dismissing plaintiff's claim of inadequate medical treatment, is granted.
That plaintiff argues that Altman persuaded her to sign a form at the precinct, declining further medical care, is irrelevant since plaintiff's injury, bruising, is not of the gravity required for an Eighth Amendment deprivation.
E. Municipal Liability
Plaintiff also asserts that the City of New York is liable as a municipal entity for its failure to train its police officers. While plaintiff does not specify exactly what training the City should have offered and does not explain the goals of further training, the Court assumes that plaintiff's claim points to the failure of the officers to arrest Sepulveda initially, and the officers' faulty decision to arrest the plaintiff.
"It is only when the municipality itself commits the misdeed, that is, `when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.'" Walker v. New York, 974 F.2d 293, 296 (2d Cir. 1992) (citing Monell v. N.Y.C. Dep't of Social Servs., 436 U.S. 658, 694 (1978)). As plaintiff properly recites, the Walker Court promulgated three requirements, that must be pled in order to posit municipal liability. "First, the plaintiff must show that a policymaker knows to a moral certainty that her employees will confront a given situation . . . Second, the plaintiff must show that the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation . . . Finally, the plaintiff must show that the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights." Walker, 974 F.2d at 297-98 (internal quotations and citations omitted).
While plaintiff correctly recites the test, she then merely states, in a conclusory fashion, without citation to any evidence or discussion of any particular policies or customs of the City's, that "when applying the three step test promulgated inWalker, municipal liability attaches due to several of the police's activities." Pl. Opp. at 6. This conclusory statement, without more, is insufficient as a matter of law to establish that a material issue of disputed fact exists as to whether (1) a policymaker in the City knew that its officers would confront a domestic violence situation akin to plaintiff's and defendant's, (2) the officers could have been trained in such a fashion as to ease the difficulty of determining how to handle the situation encountered with plaintiff and defendant, and that the officers' decisions in this case and other similar cases will frequently lead to a deprivation of constitutional rights. Therefore, defendant's motion for summary judgment, dismissing plaintiff's municipal liability claim, is granted.
III. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is granted. The Clerk is instructed to close this motion and remove the case from my docket.IT IS SO ORDERED.