Opinion
95 Civ. 4331 (TPG)
May 31, 2002
OPINION
Plaintiff Paul Miro brings this civil rights action pursuant to42 U.S.C. § 1983. Plaintiff claims that his constitutional rights were violated when he was arrested on April 27, 1994.
The City of New York and police officers Barrett, Brickley, Cunnane, Rios and Cavalluzzo are the defendants in this action. Defendants move for summary judgment on the basis that there was probable cause to arrest plaintiff and that they are entitled to qualified immunity.
The motion is granted.
Facts
The following facts are found in the deposition transcripts of plaintiff and officers Jose Rios and Kevin Cunnane. They are undisputed unless otherwise noted.
Around the time of plaintiff's arrest, he and Clara Lazi shared joint custody of their two children, Joshua and Antonia, who lived with Lazi at the home of Lazi's sister Maria. On April 26, 1994, Lazi allowed plaintiff to take Joshua on a day trip to Atlantic City. Plaintiff was supposed to return Joshua to Lazi at the end of the day. Plaintiff did not do so. Nor did plaintiff call Lazi to inform her that he would not return Joshua as promised.
Instead, plaintiff petitioned the Bronx County Family Court for custody of Joshua. On April 27, 1994, plaintiff was granted temporary custody of Joshua. Plaintiff then telephoned Lazi and told her that he had been granted temporary custody of Joshua and that he therefore needed Joshua's clothes. Lazi asked plaintiff to meet her at her residence, but plaintiff refused. Plaintiff and Lazi therefore agreed to meet at Hugh Grant Circle in the Parkchester section of the Bronx, where Lazi would give plaintiff clothes for Joshua.
At Hugh Grant Circle, plaintiff noticed that Lazi was not carrying any clothes. Lazi proceeded to grab Joshua by the arm and demanded that plaintiff return Joshua to her. Plaintiff states that again he told Lazi that he now had custody of Joshua and attempted to show her a copy of the temporary custody order issued by the Family Court. Plaintiff states that Lazi did not accept the custody papers from him but instead told him again that she wanted her son back.
As Joshua's parents continued to physically struggle over Joshua, Lazi's sister Lisa Rodriguez, who was also present, intervened. Plaintiff pulled Joshua by one arm while Lazi pulled the other arm and Rodriguez pulled Joshua by his legs. Plaintiff states that he implored Rodriguez to release Joshua, but she did not. Plaintiff states that at some point during the struggle he kicked Rodriguez in the chest. Thereafter, as the struggle over Joshua continued between plaintiff and Lazi, plaintiff states that he noticed a woman in civilian clothes whom he believed to be a police officer.
Plaintiff states that the woman did not identify herself as a police officer. Plaintiff states that the woman asked him to release Joshua. Plaintiff states that he did not comply, but told the woman that he had a custody order and offered it to her. Plaintiff states that from another direction police officers appeared and within five minutes several patrol cars were at the scene.
Officer Jose Rios, one of the defendants, claims that he and officer Bonaviso, who is not a defendant, were the first officers on the scene. Rios states that while he and Bonaviso were on duty in the Parkchester area on April 27, 1994, officer Ray Diaz, who is not a defendant, informed Rios that his assistance may be necessary in apprehending a kidnaping suspect. Plaintiff states that Diaz is Lazi's friend.
Rios then observed the "tug-of-war" between plaintiff and Lazi over Joshua. Rios and Bonaviso approached them. Rios states that he ordered plaintiff to release Joshua, but plaintiff did not comply. Rios states that he repeated the order and again plaintiff refused to comply.
Plaintiff states that Lieutenant Michael Barrett and Sergeant Raymond Brickley, who are both defendants, asked him to release Joshua. Plaintiff states that he refused and instead attempted to show these officers the custody order and requested that Lazi be ordered to release Joshua.
Rios states that he and Bonaviso separated plaintiff from Joshua. Plaintiff states that this was accomplished by hitting him with a nightstick and placing him in a choke-hold which caused him to eventually release Joshua. Plaintiff also states that the officers "forced" him to the ground and put their weight onto his back with their knees while continuing to put pressure on his neck with a nightstick. Plaintiff was handcuffed. Rios states that Bonaviso with the assistance of a uniformed officer raised plaintiff off the ground so that plaintiff was standing. Plaintiff was placed in the back seat of a police car.
Defendants Kevin Cunnane and William Cavalluzzo were among the officers on the scene. Cunnane states that he was on radio duty that day and that he arrived at the scene in response to a call for help from an unidentified male police officer. Cunnane states that Cavalluzzo arrested plaintiff.
Plaintiff states that he endured considerable pain while being subdued and reacted with some resistance because of his discomfort. Plaintiff states that he pulled and grabbed the officers in an attempt to remove their knees from his back.
After plaintiff was restrained, Barrett and Brickley reviewed the custody order. Cunnane states that Barrett then asked him to drive plaintiff to the 43rd Precinct. Cunnane states that Barrett said that matters needed to be reviewed at the precinct to ensure that the right person was given custody of the child. Plaintiff was then transported to the 43rd Precinct in a police car.
Plaintiff states that Cunnane called him "a piece of shit" and a liar and used other abusive language including racial epithets when addressing him. Cunnane denies making such statements. Plaintiff also states that upon making certain "off-colored" remarks to Cunnane during the trip to the precinct, Cunnane poked him with a nightstick. Cunnane also denies poking plaintiff
Joshua, Lazi and Rodriguez were also transported from Hugh Grant Circle to the 43rd Precinct. Plaintiff was placed in a holding cell for approximately 30-60 minutes. There was apparently a discussion among the various persons involved in the incident. Plaintiff was taken out of the holding cell and shortly thereafter was allowed to leave the precinct with Joshua. This occurred after the police captain at the 43rd Precinct gave his approval. No charges were lodged against plaintiff.
Plaintiff states that at the precinct he was informed by Brickley that he was being held because Lazi claimed that he had violated a protection order. Although the testimony furnished to the court does not indicate how the police learned about this alleged violation, plaintiff states that Lazi had accused him of sexually molesting Lazi's sixteen year old daughter, whose father is not plaintiff. This apparently resulted in a criminal case. Plaintiff states that he was acquitted, but while the action was pending, a protection order was issued against him and then rescinded.
Plaintiff states that as a result of his arrest he suffered physical difficulties including vision problems, dizziness, skin abrasions, a chipped tooth, and back problems and therefore had to go to the hospital on April 28, 1994.
Discussion
To grant summary judgment the court must determine that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56(c) . The court's responsibility is not to resolve disputed issues of fact, Donahue v. Windsor Lock Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there are any factual issues to be tried, while resolving ambiguities and drawing inferences against the moving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
42 U.S.C. § 1983 provides that "[e]very person who, under color of [state law] . . . subjects, or causes to be subjected, any . . . person within the jurisdiction [of the United States] to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity. . . ."
Plaintiff claims that there was no probable cause to arrest him and that he was arrested solely because he asked the officers to read the custody order. Plaintiff also claims that the police used excessive force while restraining and transporting him. Plaintiff therefore asserts that his arrest violated his First Amendment right to speak freely and petition the City; his Fourth Amendment protection against unreasonable seizure; his Sixth Amendment right to be informed of the charges against him; and his Fourteenth Amendment right to due process.
Plaintiffs Arrest
A claim for false arrest or false imprisonment as an unconstitutional deprivation of civil rights under § 1983 may be established only if there was no probable cause to support plaintiffs arrest and detention.Pierson v. Ray 386 U.S. 547 (1967); Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42 (2d Cir. 1985).
Probable cause to arrest depends upon whether at the moment the arrest was made the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. Miloslavsky v. AES Eng'g Soc'y, Inc., 808 F. Supp. 351, 354 (S.D.N.Y. 1992), aff'd, 993 F.2d 1534 (2d Cir. 1993). See also United States v. Place, 660 F.2d 44, 47 (2d Cir. 1981). A finding of probable cause should be made upon the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230 (1983).
Probable cause "is a complete defense to an action for false arrest."Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). If there are no material facts in dispute "as to the pertinent events and the knowledge of the officers," the question of probable cause may be determined as a matter of law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).
In the present case, defendants are relying largely on the admissions of plaintiff in his deposition for a basis to obtain summary judgment. In opposing the motion, plaintiff has submitted excerpts from the depositions of officers Rios and Cunnane. However, defendants still rely mainly upon plaintiff's deposition testimony.
No formal charges were made against plaintiff. There is no deposition testimony or affidavit from a police officer specifying the grounds for plaintiff's arrest. Despite all this, it is clear beyond any real question that the police were justified in acting as they did. They observed a fight in which plaintiff and Lazi were each pulling upon Joshua. The police were justified in ordering plaintiff (the male) to release Joshua. Plaintiff refused to obey this lawful police order and continued fighting over Joshua. The police then were surely within their province in forcibly separating plaintiff from Joshua and in subduing plaintiff. It will be assumed that plaintiff kept telling the police that he had a custody order. Nevertheless, plaintiff had no right whatsoever to continue fighting in defiance of the order of the police to desist. After plaintiff was subdued, the police acted entirely reasonably in taking plaintiff to the precinct and in gathering the other individuals there also. It was also reasonable for the officers to obtain the approval of their captain before releasing plaintiff. Plaintiff was at the precinct for a little over an hour at the most.
The conclusion is that there is no valid claim for false arrest or false imprisonment or for violation of plaintiffs constitutional rights on these grounds period. This is clear from plaintiffs own admissions. Since plaintiff was not prosecuted and was held only briefly for obvious purposes, there was no deprivation of any Sixth Amendment right to be informed of any charges against him. There is no validity to the First Amendment claim. There is no triable issue of fact on these points.
Use of Force
A claim for use of excessive force as an unconstitutional deprivation of civil rights under § 1983 may be established only if the force used was excessive or unreasonable in light of the circumstances. Graham v. Connor, 490 U.S. 386, 395-96 (1989).
Plaintiffs own version of the facts demonstrates that the police needed to use force to separate plaintiff from the fight and to subdue him. There is no indication that this force involved brutality or exceeded the bounds of reason. Under these circumstances, it is not the province of a court to fine-tune in hindsight the exact degree of force to be used. The officers here were doing their obvious duty and should not be required to answer in court for what they did in performing that duty.
Plaintiff also claims that Cunnane poked him once with a nightstick after plaintiff made certain remarks to Cunnane. Even if Cunnane did poke plaintiff, given the circumstances particularly plaintiffs combative nature, one poke with a nightstick is not an excessive use of force.
As a separate basis for an excessive force claim, however, plaintiff alleges that Cannane used abusive language, including racial slurs, when addressing him. However, an arresting officer's use of racial epithets does not constitute a basis for a § 1983 claim. See Wade v. Fisk, 575 N.Y.S.2d 394 (3rd Dep't 1991). Additionally, mere verbal abuse, and even vile language, does not give rise to a cognizable claim under § 1983. Beal v. City of New York, 1994 WL 163954 6 (S.D.N.Y. April 22, 1994). Plaintiff's claim of excessive force is without merit, and there is no triable issue of fact.
The above conclusions about the individual defendants mean that there is no liability as to the City also.
Conclusion
Defendants' motion for summary judgment dismissing the action is granted.
SO ORDERED