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holding that where there was a factual dispute as to probable cause regarding whether plaintiff was playing his music too loudly, and a dispute as to the amount of force used, it was not appropriate to grant summary judgment on a qualified immunity defense
Summary of this case from Hartman v. County of NassauOpinion
99 Civ. 2330 (AJP)
February 3, 2000
OPINION AND ORDER
Plaintiff Stephen Greenfield, a subway musician, brings this action under 42 U.S.C. § 1983 and state law for alleged violations of his civil rights by two New York City police officers and the City of New York stemming from his arrest on February 12, 1999. Specifically, Greenfield alleges claims against Officer George Mundo for false arrest and malicious abuse of criminal process, and claims against Officer Marina Molina for excessive use of force and assault and battery. In addition, Greenfield seeks to hold the City of New York liable by alleging both that City policies caused the violations, triggering liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018 (1978), and that the City is liable as the officers' employer under the state law doctrine of respondeat superior.
Greenfield originally brought claims for malicious prosecution under state and federal law and claims against three additional police officers (Officers Lieberman, Kennedy and Rodriguez). Those claims were dismissed with prejudice by stipulation of the parties. (See Dkt. No. 16: Dole 10/29/99 Aff. ¶ 4 Ex. G: Stipulation; see also Dkt. No. 17: Def. 10/29/99 Br. at 1 n. 1.)
Defendants have moved for summary judgment on all counts; plaintiff Greenfield has cross-moved for summary judgment on his Monell claim and his claims against Officer Mundo, but concedes that there are disputed facts regarding his claims against Officer Molina. Greenfield also filed a motion in limine to exclude evidence that he has previously prosecuted and settled two similar lawsuits.
The parties have consented to decision of these motions and trial before a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 4.) For the reasons set forth below, Greenfield's and defendants' cross-motions for summary judgment are denied. Greenfield's motion in limine is granted.
FACTS
The Subway Encounter and Greenfield's Arrest
Plaintiff Stephen Greenfield is a 38-year-old subway musician with a B.A. from Columbia University. (Dkt. No. 12: Pl. 11/8/99 56.1 Statement ¶¶ 1-2; Dkt. No. 15: Def. 11/23/99 Response 56.1 Stmt. ¶¶ 1-2.) Around 1:30 p.m. on February 12, 1999, while Greenfield was playing his saxophone at the 68th Street and Lexington Avenue subway station in Manhattan, he was approached by defendant Police Officer George Mundo and told to move. (Pl. 56.1 Stmt. ¶¶ 4-5; Def. Resp. 56.1 Stmt. ¶¶ 4-5; Dkt. No. 15: Def. 10/29/99 56.1 Stmt. ¶¶ 1, 5-11.)
The parties disagree on virtually all the details of what happened next. It is undisputed, however, that Greenfield was: (1) issued a Transit Adjudication Bureau ("TAB") summons for excessive noise (Ex. 1: Greenfield Dep. 32; Ex. 2: Mundo Dep. 52-53; Ex. 7: TAB Summons); (2) told he was to be ejected from the transit system (Greenfield Dep. 36-37, 40; Mundo Dep. 59); (3) handcuffed (Greenfield Dep. 37-39; Mundo Dep. 68; Ex. 3: Molina Dep. 66-68; Def. 56.1 Stmt. ¶ 27); (4) arrested (Greenfield Dep. 39; Molina Dep. 66-68; Def. 56.1 Stmt. ¶ 26); and (5) charged with disorderly conduct and resisting arrest (see Ex. 11: Certificate of Disposition; Def. 56.1 Stmt. ¶ 30; Dkt. No. 10: Pl. 11/8/99 Resp. 56.1 Stmt. ¶ 30).
Counsel for both parties have disobeyed S.D.N.Y. Local Civil Rule 56.1, which requires a statement of facts "as to which the moving party contends there is no genuine issue to be tried." S.D.N.Y. Local Civil Rule 56.1(a). Rather than unambiguously include such a statement, counsel for defendants, Assistant Corporation Counsel Vivian Dole, has mixed undisputed facts with allegations and partisan characterizations clearly disputed by the other side in the record. Ms. Dole also improperly and confusingly included allegations made by her adversary, without making clear whether defendants were denying them. (See, e.g., Def. 56.1 Stmt. ¶ 32.) In his Rule 56.1 response papers, Greenfield's counsel, James I. Meyerson, has included loquacious and unhelpful arguments. The same is true for Greenfield's Rule 56.1 statement in support of his cross-motion and the City's response to it. Both counsel should know better.
Except where otherwise indicated, numbered exhibits are those submitted by plaintiff Greenfield and lettered exhibits are those submitted by defendants (as exhibits to the 10/29/99 Dole Aff.).
The following material facts are specifically in dispute: (1) how loudly Greenfield was playing his saxophone and whether his playing interfered with transit operations; (2) whether he followed the officers' orders; (3) whether he became disorderly or resisted arrest after the officers approached him; (4) how much force Officer Molina applied, and how much force if any was necessary, during the arrest; (5) what words were exchanged throughout the encounter; and (6) why Greenfield was arrested. Defendants contend Greenfield was playing music so loudly that Officer Mundo could not hear his radio or transit train notifications (Def. 56.1 Stmt. ¶¶ 6-7), which Greenfield denies (Pl. 56.1 Stmt. ¶¶ 16-17; Pl. Resp. 56.1 Stmt. ¶¶ 6-7). Greenfield claims that he politely questioned the police officers' activities without disobeying their orders, becoming disorderly, or creating a disturbance. (See Greenfield Dep. 24-39; Pl. Resp. 56.1 Stmt. ¶¶ 14-15.)
Defendants allege that Greenfield created a disturbance, refused to leave and resisted arrest. (See, e.g., Def. 56.1 Stmt. ¶¶ 14, 16, 21, 23-26.) Greenfield responds that he did not resist arrest and that Officer Molina applied pressure to a pressure point under his arm, threatened to hurt him, and scratched him. (See, e.g., Pl. 56.1 Stmt. ¶¶ 41-45, 60; Pl. Resp. 56.1 Stmt. ¶¶ 21, 31-32.) Defendants deny these allegations. (Def. Resp. 56.1 Stmt. ¶¶ 43, 44, 60.)
The parties appear to agree that during the encounter Greenfield called out his telephone number in order to induce onlookers to become witnesses. (Greenfield Dep. 41-42; Mundo Dep. 59). Defendants allege that Greenfield also yelled that he sues police officers for a living. (Mundo Dep. 66; Molina Dep. 58.)
Finally, Greenfield claims that Officer Mundo arrested him because he "protested" the summons (see, e.g., Pl. 56.1 Stmt. ¶¶ 25, 69), which defendants appear to deny (Def. Resp. 56.1 Stmt. ¶ 69).
Because of defendants' failure to properly comply with S.D.N.Y. Local Civil Rule 56.1(b), see also fn. 2 above, it is impossible for the Court to glean exactly what defendants deny about Greenfield's characterization of Officer Mundo's motive for arresting him. Greenfield's Rule 56.1 Statement alleges: "Defendant Mundo has admitted that, if the Plaintiff had not `protested' why he was being asked to move, Defendant Mundo would not have arrested the Plaintiff. . . ." (Pl. 56.1 Stmt. ¶ 69.) Defendants dispute this (Def. Resp. 56.1 Stmt. ¶ 69), even though it is supported by Mundo's deposition testimony (see Mundo Dep. 74-77).
The Summons
The summons that Officer Mundo issued alleged a violation of 21 N YC.R.R. § 1050.7(e), the provision banning "the use of any sound production device" under the Transit Authority's Rules of Conduct. (Ex. 7: Summons; see also Pl. 56.1 Stmt. ¶¶ 32-34.) On March 10, 1999, Greenfield appeared before the Transit Adjudication Bureau, which dismissed the summons as "not legally sufficient since it fails to allege that the sax played by [Greenfield] was audible to others or amplified. Nor does it allege that [Greenfield] blocked passenger flow on platform or otherwise interfered with TA operations." (Ex. 8: TAB Notice of Decision Order; Pl. 56.1 Stmt. ¶¶ 56-57.)
The Criminal Charges
On or about February 14, 1999, Greenfield was brought before the Criminal Court, charged with resisting arrest and disorderly conduct. (Dkt. No. 10: Greenfield 11/9/99 Aff. ¶ 50; Ex. 11: Certificate of Disposition; Def. 56.1 Stmt. ¶ 30; Pl. Resp. 56.1 Stmt. ¶ 30; Pl. 56.1 Stmt. ¶ 55.) The charges were adjourned in contemplation of dismissal pursuant to N.Y. CPL § 170.55. (Ex. 11; Greenfield 11/9/99 Aff. ¶ 51; Def. 56.1 Stmt. ¶ 30; Pl. Resp. 56.1 Stmt. ¶¶ 25, 30; Pl. 56.1 Stmt. ¶ 55.) Six months later, on August 12, 1999, the charges were dismissed in accordance with CPL § 170.55. (Ex. 11.)
Evidence of City Policies and Practice
Greenfield alleges the existence of three potentially relevant City policies. First, he alleges that there is a "zero tolerance" policy mandating arrest or ejection for certain "quality of life" offenses. (See, e.g., Ex. 6: Lt. Klimas Dep. 43-49; Ex. 13: Transit Div. Training Memo at 2; Pl. Resp. 56.1 Stmt. ¶¶ 36-38, 41, 44-45; Pl. 56.1 Stmt. ¶¶ 62-64, 71-72.) Second, Greenfield points to a policy granting police officers discretion as to whether to consider an arrestee for immediate release on a Desk Appearance Ticket. (See Mundo Dep. 84-89; 11/27/99 Supplemental Meyerson Aff. App.: N.Y.P.D. Patrol Guide Desk Appearance Ticket (General Procedure).) Third, Greenfield claims there is an unwritten policy of arresting individuals who protest the issuance of a summons. (See, e.g., Pl. 56.1 Stmt. ¶¶ 67, 69-70; Pl. Resp. 56.1 Stmt. ¶ 43; Mundo Dep. 75-77.)
Beyond his own arrest, the only evidence Greenfield offers to suggest that the City maintains a policy of arresting those who protest a transit summons was Officer George Mundo's deposition testimony:
Q [W]hat were the standards or criteria that you employed as to when you would let somebody get on a subway and go his or her way after issuing a summons and when you would require them to be evicted, if you will, from the subways system?
A My instructions are you issue a summons and eject.
Q That is the policy you were told to follow?
A That is what I am instructed to do.
. . . .
Q Let me understand that. Do I understand that you don't have any discretion and that once you issue a summons to a subway musician for whatever reason you deem it appropriate there is no discretion and the person must leave the system, there is no discretion to say okay, get on the train and leave?
A Yes, there is some form of discretion. . . . My instructions are you issue a summons and eject, but you can use some discretion. . . .
Q Were you given instructions about what should guide you in your discretion to not evict but to let the person leave on the train?
A If I give you a summons and you don't give me a problem, I will give you a summons, you go about your way. I give you a summons, you give me a hard time, you are going to be ejected.
Q What do you mean, a hard time?
A I sue cops for a living, . . . his questioning my authority on the job that I am doing. I have been doing my job for over 13 years. I know my job. If he is going to question it and give me a hard time about it yes, I will give him the summons for whatever he did and put him upstairs. If he refuses to be removed I will remove him to the best of my ability and maybe arrest.
Q . . . If in fact Mr. Greenfield hadn't protested what you were doing, and said what you have described he said, but simply just took the summons, is it my understanding you would have then let him go on the subway and go on his way?
A I probably wouldn't have given him a summons, ejected him or arrested him.
. . . .
Q . . . [L]et's assume you decided I've got to give you the summons and he hadn't engaged in the exchange that you described, but simply just took the summons and said okay. You would have then let him go on the subway?
A Yes.
Q Rather than to say, you've got to leave?
A Yes.
Q You understood the policy of the police department gave you that authority?
A Yes, sir.
Q Is it your understanding that the policy of the police department or the practice as you understood it from the training in-service and otherwise that you got was if an individual protested in some form or fashion your authority to issue the summons and you issued the summons you should then eject the person?
A Yes, sir.
(Mundo Dep. 74-77, emphasis added.)
ANALYSIS
I. SUMMARY JUDGMENT STANDARDS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
See also, e.g., Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Vanguard Municipal Bond Fund v. Cantor, Fitzgerald L.P., 40 F. Supp.2d 183, 188 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton Indus., Inc., 91 Civ. 0918, 1996 WL 421449 at *7 (S.D.N.Y. April 25, 1996) (Peck, M.J.), report and rec. adopted by 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S. Ct. at 2513; see also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Vanguard v. Cantor, Fitzgerald, 40 F. Supp.2d at 188; Douglas v. Victor Capital, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6. The Court draws all inferences in favor of the nonmoving party — here, Greenfield with respect to defendants' motion and defendants with respect to Greenfield's motion — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987); Hernandez v. New York City Law Dep't, 1997 WL 27407 at *7; Burger v. Litton, 1996 WL 421449 at *7. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine the existence of any disputed issues of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S. Ct. 1570 (1987); Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510; see also, e.g., Vanguard v. Cantor, Fitzgerald, 40 F. Supp.2d at 189; Douglas v. Victor Capital, 21 F. Supp.2d at 388. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Shaw v. City of New York, 95 Civ. 9325, 1997 WL 187352 at *2 (S.D.N Y April 15, 1997) (Peck, M.J.); Ruiz v. Selsky, 1997 WL 137448 at *3.
II. THE CROSS-MOTIONS FOR SUMMARY JUDGMENT ON GREENFIELD'S CLAIMS AGAINST OFFICERS MUNDO AND MOLINA ARE DENIED
To state a claim under Section 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States by a person acting under color of state law. 42 U.S.C. § 1983; see, e.g., West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988); Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991); Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990), cert. denied, 502 U.S. 809, 112 S. Ct. 52 (1991); Sprint Spectrum L.P. v. Mills, 65 F. Supp.2d 161, 163 (S.D.N.Y. 1999); McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 696 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.).
Greenfield claims that Officer Mundo violated his federal constitutional rights by arresting him without probable cause and maliciously abusing criminal process against him. (See, e.g., Compl. ¶ 89; Dkt. No. 11: Pl. 11/15/99 Br. at 16-24.) Greenfield also alleges that Officer Mundo committed the state common law torts of false arrest and malicious abuse of criminal process. (E.g., Compl. ¶ 92.) Similarly, Greenfield alleges both a Fourth Amendment excessive force claim and state law assault and battery claim against Officer Molina. (Compl. ¶ 89; Pl. 11/15/99 Br. at 8-16.)
The Second Circuit has instructed that the elements of the state torts and the constitutional violations required to impose § 1983 liability are the same. E.g., Posr v. Doherty, 944 F.2d 91, 94-95, 96, 100 (2d Cir. 1991) (pairing federal excessive force claim with New York state assault and battery claim, federal unlawful arrest with state false arrest, and federal malicious prosecution with state malicious prosecution "was appropriate since, except for § 1983's requirement that the tort be committed under color of state law, the essential elements of the two claims in each pair were substantially identical"); accord, e.g., Singer v. Fulton County Sheriff, 63 F.3d 110, 114 (2d Cir. 1995), cert. denied, 517 U.S. 1189; 116 S. Ct. 1676 (1996); Shaw v. City of New York, 95 Civ. 9325, 1997 WL 187352 at *3 (S.D.N.Y. April 15, 1997) (Peck, M.J.); Woo v. City of New York, 93 Civ. 7007, 1996 WL 457337 at *7 (S.D.N.Y. Aug. 14, 1996) (Peck, M.J.) (citing Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995)). This Opinion, therefore, will consider the federal and state claims together.
As the Second Circuit also has previously held, "[t]here is no question that the rights at issue in this case — to be free from false arrest, malicious prosecution, and excessive force — were clearly established at the time of the incident." Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995). The availability of qualified immunity, therefore, turns on whether "it was objectively reasonable for [defendants] to believe that their actions did not violate those rights." Id. As discussed below under each claim, disputed fact issues also preclude defendants' qualified immunity summary judgment motion.
Defendants did not move for summary judgment on the false arrest or malicious abuse of process claims based on grounds of Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372 (1994), and thus the Court need not and does not address that possible issue. See, e.g., McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 702-03 (S.D.N.Y. June 10, 1999) (Wood, D.J. Peck, M.J.).
"It is now far too late in our constitutional history to deny that a person has a clearly established right not to be arrested without probable cause." Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir. 1994); accord, e.g., Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997). If the arresting officer had probable cause, however, that defeats a false arrest claim. See, e.g., Covington v. City of New York, 171 F.3d 117, 121 (2d Cir.), cert. denied, 120 S. Ct. 363 (1999); Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) ("There can be no federal civil rights claim for false arrest where the arresting officer had probable cause."); Bernard v. United States, 25 F.3d 98, 102, 104 (2d Cir. 1994) ("the existence of [probable cause] is a complete defense to an action for false arrest"); Shaw v. City of New York, 95 Civ. 9325, 1997 WL 187352 at *3 (S.D.N.Y. April 15, 1997) (Peck, M.J.); Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F. Supp. 351, 354 (S.D.N.Y. 1992) ("under New York law, `probable cause serves as a complete defense to the charges of false arrest and malicious prosecution'"), aff'd, 993 F.2d 1534 (2d Cir.), cert. denied, 510 U.S. 817, 114 S. Ct. 68 (1993).
In this case, the facts concerning whether or not the officers had probable cause to arrest Greenfield — e.g., how loud Greenfield was playing his instrument and whether he cooperated with or obstructed and ultimately resisted arrest — are hotly disputed. (See pages 3-4 above.) The parties' cross-motions for summary judgment on the federal and state false arrest claims are denied.
Greenfield claims three aspects to his false arrest claim — lack of probable cause to issue the summons, forcibly removing Greenfield from the subway system, and actual custodial arrest rather than issuance of a Desk Appearance Ticket. (See Greenfield 11/15/99 Br. at 16-18; see also Def. 11/23/99 Reply Br. at 3.)
These same factual disputes also preclude summary judgment for defendants on qualified immunity grounds. See, e.g., Weyant v. Okst, 101 F.3d 845, 857-58 (2d Cir. 1996) (denying summary judgment for defendants on qualified immunity grounds where facts relevant to the reasonableness of officers' actions during an arrest were in dispute); Golino v. City of New Haven, 950 F.2d 864, 870-72 (2d Cir. 1991), cert. denied, 505 U.S. 1221, 112 S. Ct. 3032 (1992); Sorensen v. City of New York, 98 Civ. 3356, 1999 WL 511923 at *3 (S.D.N.Y. July 20, 1999) ("Where, as here, there are material factual issues to be resolved the issue of qualified immunity must await trial."); Yanez v. City of New York, 29 F. Supp.2d 100, 109-10 (E.D.N.Y. 1998) ("pre-trial resolution of the qualified immunity defense may be defeated by a factual dispute"); see also, e.g., Weaver v. Brenner, 40 F.3d 527, 533, 537 (2d Cir. 1994) ("Since defendants hotly dispute plaintiff's allegations, a factual determination of their conduct is needed to resolve the issue of qualified immunity. Thus, the order denying summary judgment on this issue is not final" and therefore no appellate jurisdiction exists.); Oliveira v. Mayer, 23 F.3d 642, 648-50 (2d Cir. 1994) (district court's grant of summary judgment for plaintiffs on qualified immunity in a false arrest claim was inappropriate where facts relevant to the reasonableness of officers' actions were in dispute), cert. denied, 513 U.S. 1076, 115 S. Ct. 721 (1995).
B. Malicious Abuse of Criminal Process
The Second Circuit recognizes claims brought in New York under § 1983 for malicious abuse of criminal process. Cook v. Sheldon, 41 F.3d 73, 79-80 (2d Cir. 1994) ("section 1983 liability may lie for malicious abuse of criminal process"); accord, e.g., Lanbensky v. Rozzi, No. 98-7512, 173 F.3d 845 (table), 1999 WL 146292 at *1 (2d Cir. March 15, 1999); Wall v. Cetran, No. 95-7734, 100 F.3d 943 (table), 1996 WL 47974 at *1-2 (2d Cir. Feb. 5, 1996); Willner v. Town of North Hempstead, 977 F. Supp. 182, 191 (E.D.N.Y. 1997); Chamberlain v. Lishansky, 970 F. Supp. 118, 121 (N.D.N.Y. 1997); Noel v. Houtman, No. 94-CV-1647, 1997 WL 176316 at *5 (N.D.N.Y. April 8, 1997) (Pooler, D.J.); Duamutef v. Morris, 956 F. Supp. 1112, 1115, 1116 (S.D.N.Y. 1997).
The tort of malicious abuse of criminal process is separate but a "close cousin" to the more familiar state and § 1983 claims for malicious prosecution. See, e.g., Cook v. Sheldon, 41 F.2d at 79-80. The Court notes, however, that unlike a malicious prosecution claim, there is no requirement in a malicious abuse of criminal process claim that the prosecution end in plaintiff's favor. See, e.g., Duamutef v. Morris, 956 F. Supp. 1112, 1116-18 (S.D.N.Y. 1997), citing Heck v. Humphrey, 512 U.S. 477, 495, 114 S. Ct. 2364, 2377-78 (1994) (Souter, J., dissenting).
Under New York law, a malicious abuse of criminal process claim "lies against a defendant who (1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process." Cook v. Sheldon, 41 F.3d at 80; accord, e.g., Lanbensky V. Rozzi, 1999 WL 146292 at *1; Chamberlain v. Lishansky, 970 F. Supp. at 120; Noel v. Houtman, 1997 WL 176316 at *5; Bordeaux v. Lynch, 958 F. Supp. 77, 83 (N.D.N.Y. 1997) (Pooler, D.J.); Brawer v. Carter, 937 F. Supp. 1071, 1081-82 (S.D.N.Y. 1996); Lopez v. Lynch, 901 F. Supp. 684, 691-92 (S.D.N.Y. 1995). "While malicious prosecution concerns the improper issuance of process, `[t]he gist of abuse of process is the improper use of process after it is regularly issued.'" Cook v. Sheldon, 41 F.3d at 80; accord, e.g., Wilner v. Town of North Hempstead, 977 F. Supp. at 191; Noel v. Houtman, 1997 WL 176316 at *5; Brawer v. Carter, 937 F. Supp. at 1082; Lopez v. City of New York, 901 F. Supp. at 691 n. 6.
Greenfield's malicious abuse of criminal process claim turns on facts still in dispute: the parties disagree as to Officer Mundo's intentions and purposes in arresting Greenfield after he protested the issuance of the summons. From the evidence before the Court, a reasonable jury could conclude either that Officer Mundo's action was proper, or that he arrested Greenfield (rather than simply issuing a summons) to punish the exercise of Greenfield's constitutionally protected right to free speech. Cf. Cook v. Sheldon, 41 F.3d at 80 (no summary judgment on malicious abuse of criminal process claim where plaintiff alleged that police had him arraigned because he recommended that a co-defendant not speak without a lawyer); Brawer v. Carter, 937 F. Supp. at 1082 (no summary judgment on abuse of criminal process claim where plaintiff presented evidence that defendant arrested him to interfere with his custody dispute with plaintiff's ex-wife to gain the ex-wife's favor).
Therefore, the parties's cross-motions for summary judgment on the federal and state malicious abuse of process claims are denied. These same factual disputes also preclude summary judgment for defendants on the basis of qualified immunity.
C. Excessive Force
"In Graham v. Connor, the Supreme Court held that `all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard.' 490 U.S. [386] at 395, 109 S. Ct. [1865] at 1871 [1989]. Determining whether the force used during an arrest is `reasonable' requires balancing the `nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995) (citing cases).
With respect to Greenfield's excessive force claims against Officer Molina, the parties disagree not only on the nature of Greenfield's conduct and whether it gave rise to the need for any force, but also on the amount of force used by Officer Molina. Defendants deny using excessive force. (See, e.g., Def. 56.1 Stmt. ¶¶ 14, 16, 21, 23-26; Def. Resp. 56.1 Stmt. ¶¶ 43, 44, 60.) On the other hand, Greenfield testified that Officer Molina unnecessarily bent back his left thumb, pressed her own thumb into a pressure point under his left arm, and cut his knuckles, although he gave no physical resistance whatsoever. (Greenfield Dep. at 37-39; see also, e.g., Pl. 56.1 Stmt. ¶¶ 41-45, 60; Pl. Resp. 56.1 Stmt. ¶¶ 21, 31-32.) These disputed versions of the events prevent determination on summary judgment as to the "reasonableness" of Officer Molina's actions for Fourth Amendment purposes and also the "objective reasonableness" of the force used for qualified immunity purposes, i.e., whether "the force used was so excessive that no reasonable officer would have made the same choice." Lennon v. Miller, 66 F.3d at 425-26; accord, e.g., Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999); Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999) ("The issue of excessive force also was for the jury, whose unique task it was to determine the amount of force used, the injuries suffered and the objective reasonableness of the officer's conduct. The parties' versions of the material facts differ markedly on these issues."); Kerman v. City of New York, 96 Civ. 7865, 1999 WL 509527 at *7 (S.D.N.Y. July 19, 1999); Klendshoj v. City of Buffalo Police Dep't, No. 97-CV-884, 1998 WL 1051792 at *4 (W.D.N.Y. Dec. 17, 1998); Singleton v. City of Newburgh, 1 F. Supp.2d 306, 313-16 (S.D.N.Y. 1998); Oliver v. Cuttler, 968 F. Supp. 83, 88 (E.D.N.Y. 1997); Morales v. United States, 961 F. Supp. 633, 637 (S.D.N.Y. 1997); see also Finnegan v. Fountain, 915 F.2d 817, 822-24 (2d Cir. 1990) (permitting qualified immunity defense in excessive force claims).
The parties' cross-motions for summary judgment on the federal claim of excessive force and the state assault and battery claim are denied, as is defendants' qualified immunity summary judgment motion.
III. THE CROSS-MOTIONS FOR SUMMARY JUDGMENT ON GREENFIELD'S CLAIMS AGAINST NEW YORK CITY ARE DENIED
A. Greenfield's Monell Claim
It is well established that a municipality may not be held liable under § 1983 for alleged unconstitutional actions by its employees below the policy-making level solely upon the basis of respondeat superior. E.g., Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978); DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998); Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991); McAllister v. New York City Police Dep't, 49 F. Supp.2d 688, 703-04 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.).
See also, e.g., Palmer v. City of Yonkers, 22 F. Supp.2d 283, 290 (S.D.N.Y. 1998); Smith v. Montefiore Med. Ctr., 22 F. Supp.2d 275, 282-83 (S.D.N.Y. 1998); Brodeur v. City of New York, 96 Civ. 9421, 1998 WL 557599 at *8-9 (S.D.N.Y. Sept. 2, 1998); Covington v. City of New York, 94 Civ. 4234, 1998 WL 226183 at *3 (S.D.N.Y. May 4, 1998); Johnson v. Rikers Island Hosp., 95 Civ. 10778, 1998 WL 91078 at *4 (S.D.N.Y. March 3, 1998); King v. Department of Correction, 95 Civ. 3057, 1998 WL 67669 at *3 (S.D.N.Y. Feb. 18, 1998); Ramon v. Morace, 97 Civ. 341, 1997 WL 777844 at *9 (S.D.N.Y. Dec. 16, 1997); Woo v. City of New York, 93 Civ. 7007, 1996 WL 457337 at *4 (S.D.N.Y. Aug. 14, 1996) (Peck, M.J.) (and cases cited therein).
Rather, in order to hold a municipality liable under § 1983 for the unconstitutional acts of its employees, the plaintiff must plead and prove that the violation of constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-83, 106 S. Ct. 1292, 1297-300 (1986); Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983); McAllister v. New York City Police Dep't, 49 F. Supp.2d at 704; Woo v. City of New York, 93 Civ. 7007, 1996 WL 457337 at *4 (S.D.N.Y. Aug. 14, 1996) (Peck, M.J.); Covington v. City of New York, 916 F. Supp. 282, 288 (S.D.N.Y. 1996) (Peck, M.J.).
See also, e.g., Gonzalez v. City of New York, 97 Civ. 2246, 1998 WL 382055 at *2 (S.D.N.Y. July 9, 1998); Muniz v. New York, 96 Civ. 5931, 1997 WL 576033 at *2 (S.D.N.Y. Sept. 15, 1997); Palacios v. Correctional Officer John Doe, 95 Civ. 6855, 1997 WL 458816 at *1 (S.D.N.Y. Aug. 12, 1997).
Any analysis of an allegation of municipal liability under § 1983 begins with "the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203 (1989); accord, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 123, 112 S. Ct. 1061, 1067 (1992); Watkins v. City of Buffalo, No. 95-CV-0816, 1999 WL 1068239 at *5 (W.D.N.Y. Nov. 12, 1999); McAllister v. New York City Police Dep't, 49 F. Supp.2d at 704 (citing cases); Sundbye v. Ogunleye, 3 F. Supp.2d 254, 266 (E.D.N.Y. 1998); Graham v. Fries, No. 93-CV-3371, 1996 WL 1057212 at *9 (E.D.N.Y. Oct. 16, 1996); see also City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436 (1985) ("At the very least, there must be an affirmative link between the policy and the particular constitutional violation alleged.").
While Greenfield appears to assert three different alleged City policies — zero tolerance for quality-of-life offenses, the DAT policy, and an alleged policy of arresting those who protest the receipt of a summons — only the latter policy, if proved, is causally connected to his injuries sufficiently to give rise to Monell liability.
Under New York law, a "defendant has no constitutional or statutory right to a DAT, and a police officer who has arrested a defendant for a misdemeanor may choose instead to retain custody of the defendant until his arraignment in a local Criminal Court." People v. Bracken, 129 Misc.2d 1048, 1050, 494 N.Y.S.2d 1021, 1023 (Crim.Ct. Kings Co. 1985) (citations omitted); see also, e.g., Mistretta v. Prokesch, 5 F. Supp.2d 128, 137 (E.D.N.Y. 1998) ("The issuance of an appearance ticket to a person arrested without a warrant is committed to the sound discretion of the police and is not mandatory unless the officer is unable to bring the defendant before the court with reasonable promptness."); People v. Stone, 128 Misc.2d 1009, 1011, 491 N.Y.S.2d 921, 924 (Crim.Ct. Richmond Co. 1985) ("An appearance ticket (DAT) is a substitute procedure for an arrest without a warrant. . . . The issuance of a DAT is at the discretion of the arresting police officer. The defendant has no right to receive a DAT."); 31 N.Y. Jur.2d Criminal Law § 201 (1995) ("a defendant has no constitutional or statutory right to an appearance ticket"). Greenfield does not present any theory under which the existence of the DAT policy could be said to have caused him any constitutional injury.
Greenfield describes the "quality of life" policy as follows: "under the City's `zero tolerance' quality of life offense policy, an Officer is required to issue a summons and forcibly eject an offending individual from the subway system where that individual has committed a quality of life offense although the policy apparently allows the Officer to permit an individual to leave on the subway, rather than be forcibly evicted, where and when it is apparent that the individual is prepared to leave and has otherwise taken the summons." (Greenfield 11/15/99 Br. at 26.) As is apparent from the very next page of Greenfield's brief, he does not challenge that policy, except to say there was no probable cause here. Rather, he predicates liability on what he calls the "exception to the exception": the alleged policy of ejecting where the individual "protests" the summons (id. at 27).
Officer Mundo clearly testified that if he gave someone a summons and the person protested ("gave [Mundo] a hard time"), Officer Mundo would eject or arrest the person; Officer Mundo also testified that it was Police Department policy to eject someone who protested receiving a summons. (Mundo Dep. 74-77, quoted on pages 6-7 above.) Even without more, that aspect of the Monell claim remains for trial, although damages might be limited to the $1.50 subway fare. In addition, taking the testimony in the light most favorable to plaintiff Greenfield, Officer Mundo's deposition at least tenuously supports the inference that Police Department policy allowed an officer to arrest someone who protested a summons. Since Greenfield's claims against the officers (Point II above) and his respondeat superior claim against the City (see Point III.B below) remain for trial, there is no reason to grant the City summary judgment on any aspect of Greenfield's Monell claim regarding the alleged policy of arresting those who protest a summons.
On the other hand, because Office Mundo's testimony as to the scope of Department policy is unclear (for example, does the policy merely allow an officer the discretion to eject or arrest a protestor where circumstances warrant, which on its face may be appropriate, or does it require the officer to eject or arrest at even the mildest protest?), Greenfield's cross-motion for summary judgment on the Monell claim also is denied.
The parties' cross-motions for summary judgment on Greenfield's Monell claim are denied.
B. Respondeat Superior on the State Law Claims
Greenfield also seeks to hold the City liable as the employer of Officers Mundo and Molina under the state law doctrine of respondeat superior. (Compl. ¶ 101). "'Although respondeat superior [does] not apply to the § 1983 claims, "[p]laintiff's common-law causes of action may proceed on a theory of respondeat superior."'" Woo v. City of New York, 93 Civ. 7007, 1996 WL 457337 at *11 (S.D.N.Y. Aug. 14, 1996) (Peck, M.J.) (quoting Mendoza v. City of Rome, New York, 872 F. Supp. 1110, 1119 (N.D.N.Y. 1994) (quoting Johnson v. Town of Colonie, 102 A.D.2d 925, 925, 477 N.Y.S.2d 513, 514 (3d Dep't 1984))).
In order for the City to be liable under the doctrine of respondeat superior for the conduct of Officers Mundo and Molina, Greenfield must show that each officer was acting "'in furtherance of the duties he owes to his employer'" and that "'the employer is, or could be, exercising some control, directly or indirectly, over the employee's activities.'" Woo v. City of New York, 1996 WL 457337 at *11 (quoting Perez v. City of New York, 94 Civ. 2061, 1996 WL 103836 at *2 (S.D.N.Y. 1996) (citing Lundberg v. State of New York, 25 N.Y.2d 467, 470, 306 N.Y.S.2d 947, 950 (1969))). If Officers Mundo's and Molina's "'"conduct is brought on by a matter wholly personal in nature, the source of which is not job-related, his actions cannot be said to fall within the scope of his employment."'" Woo v. City of New York, 1996 WL 457337 at *11 (quoting Perez v. City of New York, 1996 WL 103836 at *2 (quoting Stavitz v. City of New York, 98 A.D.2d 529, 531, 471 N.Y.S.2d 272, 274 (1st Dep't 1984))).
The City's liability for Officers Mundo's and Molina's conduct under a respondeat superior theory depends on whether Officer Molina's alleged assault and battery and Officer Mundo's alleged false arrest and malicious abuse of process were "'in the course of the officer's employment or outside it, to accomplish a purpose foreign to it.'" Woo v. City of New York, 1996 WL 457337 at *12 (quoting Perez v. City of New York, 1996 WL 103836 at *2 (quoting Mott v. Consumers' Ice Co., 73 N.Y. 543, 547 (1878))). If the officers' actions are found to be improper, the jury will need to decide whether the officers took such action pursuant to their obligations to the Police Department or for personal reasons. Since there are disputed facts surrounding these issues, they should go to the jury. See, e.g., Gallose v. Long Island Railroad Co., 878 F.2d 80, 84 (2d Cir. 1989) ("Normally, whether an employee is acting within the scope of employment is a question `to be resolved by the jury from all the surrounding circumstances.'") (quoting Powers v. New York Central R.R., 251 F.2d 813, 816 (2d Cir. 1958)); Woo v. City of New York, 1996 WL 457337 at *12 (whether officer acted within scope of his employment or because of personal traffic confrontation is disputed fact for jury to determine); Perez v. City of New York, 1996 WL 103836 at *3-4 (summary judgment denied as to respondeat superior claim against City because fact dispute existed as to whether police officer acted in furtherance of any duty he owed the City or for purely personal reasons); Frazier v. State of New York, 64 N.Y.2d 802, 803, 486 N.Y.S.2d 919, 920 (1985) (same); Tenczar v. Richmond, 172 A.D.2d 952, 953, 568 N.Y.S.2d 232, 233 (3d Dep't 1991) ("Because an employee's `scope of employment' is heavily dependent on factual considerations, the question is ordinarily one for the jury.").
The City's summary judgment motion on the respondeat superior claim is denied.
Defendants also argued that if all of Greenfield's federal claims were dismissed, the Court should dismiss Greenfield's state law claims under 28 U.S.C. § 1367(c)(3) (permitting district courts to decline supplemental jurisdiction where claims providing original jurisdiction are dismissed). (Def. Br. at 22-23.) However, as discussed above, the federal claims remain in the case; jurisdiction over all of Greenfield's state law claims thus is proper under 28 U.S.C. § 1367(a) (permitting the exercise of supplemental jurisdiction over claims forming the same case or controversy as the claims providing original jurisdiction). See, e.g., Javid v. Scott, 913 F. Supp. 223, 229 (S.D.N.Y. 1996) (exercising supplemental jurisdiction over state tort claims in a § 1983 action).
V. GREENFIELD'S MOTION IN LIMINE IS GRANTED BECAUSE THE PARTIES' STIPULATIONS SETTLING THE PRIOR CASES LIMIT THE USE OF EVIDENCE OF PRIOR LAWSUITS
Greenfield has moved in limine for "an Order limiting the Defendants from introducing before the jury, via testimonial inquiry of the plaintiff or otherwise, evidence of the fact that, prior to this litigation, Plaintiff had previously instituted and settled two other litigations against the Defendant City of New York and New York City Police Officers other than those named as Defendants herein regarding alleged police misconduct." (Greenfield 11/4/99 Motion in Limine at 1.) Greenfield claims that admission of the statements would be "highly prejudicial" (id. at 4), and, in any event, admission is precluded by a statement contained in the settlement stipulation of each lawsuit (id. at 5). Defendants counter that they should be permitted to introduce evidence of Greenfield's prior litigations in order to show "plaintiff's motive and intent for his actions on the day in question" (Dkt. No. 23: Def. 12/2/99 Motion in Limine Br. at 6) and in order to cross-examine him on his injuries (id. at 8-9). They argue that the statements that Greenfield claims bar evidence of the prior litigations only bar use of the written stipulations themselves, but not the facts of the settlement. (Id. at 7.)Both settlement stipulations contain virtually identical language precluding use in other litigation:
4. Nothing contained herein shall be deemed to be an admission by any of the defendants that they have in any manner or way violated plaintiff's rights, or the rights of any other person or entity, as defined in the constitutions, statutes, ordinances, rules or regulations of the United States, the State of New York, or the City of New York or any other rules, regulations or bylaws of any department or subdivision of the City of New York. This stipulation shall not be admissible in, nor is it related to, any other litigation or settlement negotiations.
5. Nothing contained herein shall be deemed to constitute a policy or practice of the City of New York.
(Motion in Limine Appendix: 4/30/99 Stipulation, emphasis added; see also 12/30/98 Stipulation)
On its face, this language precludes any use in a subsequent litigation of the stipulation documents themselves and, obviously, of the terms of the settlement. It is also apparent that this language was included to prevent future litigants from using the settlements against the City to prove a Monell claim of City policy. See Pollard v. City of New York, 96 Civ. 5829, 1997 WL 626395 at *2 (S.D.N.Y. Oct. 9, 1997) (invoking identical language to preclude plaintiff's use of his prior claim against New York City to show a pattern of violations to prove municipal policy under Monell). Since the outcome of the prior suits could not be used to show a pattern of behavior by the City, it would be unfair to permit the City to use it to show a pattern of behavior by Greenfield.
Moreover, the Second Circuit is clear that under Rule 404(b) of the Federal Rules of Evidence, evidence of prior litigation cannot be admitted solely for the purpose of proving that a plaintiff has a character trait for litigiousness and acted in conformity with that trait in the present lawsuit. See, e.g., Outley v. City of New York, 837 F.2d 587, 591-95 (2d Cir. 1988) (reversing judgment for defendants where trial court erroneously admitted evidence showing that plaintiff brought prior suits and permitted defendants' argument that plaintiff was "a perpetual litigant"); Raysor v. Port Authority, 768 F.2d 34, 40 (2d Cir. 1985) (excluding questions about past lawsuits because plaintiff's "litigiousness may have some slight probative value, but that value is outweighed by the substantial danger of jury bias against the chronic litigant"), cert. denied, 475 U.S. 1027, 106 S. Ct. 1227 (1986); Young v. Calhoun, 85 Civ. 7584, 1995 WL 169020 at *6 (S.D.N.Y. April 10, 1995) (excluding evidence of litigiousness, unless defense could show that prior lawsuits were fraudulent).
Rule 404(b) of the Federal Rules of Evidence states that:
Other crimes, wrongs, or acts. Evidence of other . . . acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
See also, e.g., Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 495-96 (7th Cir. 1998) (to be admissible, evidence of prior litigation "must tend to show something other than a plaintiff's tendency to sue"); O'Hare Truck Serv., Inc. v. City of Northlake, No. 93 C 5860, 1999 WL 528485 at *1-2 (N.D. Ill. July 13, 1999); Eng v. Scully, 146 F.R.D. 74, 79 (S.D.N.Y. 1993) (evidence of prior litigations inadmissible "to show plaintiff's experience as a witness" because of danger of unfairly "painting him as a litigious character").
Defendants respond that they "seek to introduce evidence of plaintiff's prior lawsuits not to show that plaintiff is litigious in nature but, rather, to show that plaintiff acted in a particular manner in order to be arrested and sue defendants." (Def. Motion in Limine Br. at 7.) Defendants argue that this is a permissible use under Federal Rules of Evidence 404(b) to prove "motive." (Def. Motion in Limine Br. at 6.) This argument fails for two reasons. First, Greenfield's "motive" for acting as he did is irrelevant to the issues to be determined at trial. No showing of bad motivation on Greenfield's part would give Officer Mundo license to arrest him without probable cause, nor is Greenfield's motive relevant to whether the force Officer Molina used was objectively unreasonable under the circumstances. Cf., e.g., Senra v. Cunningham, 9 F.3d 168, 172 (1st Cir. 1993) (plaintiff's motivation for leaving the scene of an accident was irrelevant to the issue of false arrest because it was sufficient for the defense to prove the plaintiff left the scene). Finally, Greenfield's motive is not relevant to any of the elements of malicious abuse of criminal process or the questions raised by the respondeat superior claim.
Second, even if Greenfield's "motive" were relevant, the City, by its stipulations, has unambiguously precluded itself from using evidence of the outcome of the prior lawsuits. But in order to show that Greenfield's motivation was to make money through a lawsuit, the City would need evidence that Greenfield benefitted from the prior lawsuits. If the jury was told only that Greenfield instituted previous lawsuits, but not that he obtained monetary settlements from them, any value such evidence might have in illuminating Greenfield's motives on February 12, 1999 would be gone. The jury would be left only with the highly prejudicial inference that Greenfield is a "chronic litigant."
Greenfield's motion in limine is granted.
The City also claims that it might need to inquire about Greenfield's past injuries (from the prior arrests that were the basis for the prior lawsuits) in order to cross-examine Greenfield on the extent of his present injuries. (Def. Motion in Limine Br. at 8-9.) Nothing in the Court's ruling on the motion in limine prevents the City from asking Greenfield relevant questions about prior injuries; to do so, it need not (and may not) inquire about the prior lawsuits and their settlement, unless, of course, Greenfield opens the door to such further questions.
The Court also notes that plaintiff Greenfield's motion in limine does not seek to bar defendants from testifying, as Officers Molina and Mundo stated at their depositions, that when Greenfield was arrested, he shouted that he makes a living suing the police. (Greenfield Motion in Limine at 2-4.) The Court's ruling does not preclude such evidence.
CONCLUSION
For the reasons set forth above, the parties' cross-motions for summary judgment are denied. Greenfield's motion in limine to preclude evidence of Greenfield's prior lawsuits against the City is granted.The parties are to contact the Court immediately upon receipt of this Opinion and Order to schedule the date for trial.
SO ORDERED.