Opinion
Case No. 01-CV-424 (JB) (JMA)
April 24, 2003
HAROLD NANCE, Brooklyn, NY, Pro Se
MICHAEL D. HESS, ESQ., Corporation Counsel of the City of New York, LIORA JACOBI, ESQ., Assistant Corporation Counsel, New York, NY, for Defendants
MEMORANDUM AND ORDER
Plaintiff Howard Nance ("Nance"), proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 and state law for defendants' alleged violations of his Fourth and Fourteenth Amendment rights stemming from events occurring on November 5, 2000. Defendants move for summary judgment pursuant to Fed.R.Civ.P. 56, seeking dismissal of the entire complaint, and have provided Nance with the required Local Rule 56.2 notice to pro se litigants. In response, Nance has advised the Court that he relies on his complaint in lieu of submitting opposition papers. See Reply, Jan. 15, 2003. For the reasons that follow, the complaint is dismissed, with prejudice, except with regard to Nance's excessive force and return of property claims.
I
Nance's complaint is a cryptic hand-written litany of grievances against defendant New York City Police Department ("NYCPD") and various unnamed male police officers, all of whom he implicates in his claims of false arrest, excessive force in respect thereto, malicious prosecution, deliberate indifference to his medical needs, and failure to return seized property. The complaint does not allege the nature of the requisite personal involvement of defendant P.O. Roxanne McKay-Chung ("McKay-Chung"), see Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); presumably, it is premised on the fact that, as reflected in the submissions of the defendants, she signed several arrest reports. See Decl. of Liora Jacobi, Exs. B, D, E.
Nance's complaint is subject to dismissal in its entirety because the NYCPD is not a suable entity, see Wilson v. City of New York, 800 F. Supp. 1098, 1102 (E.D.N.Y. 1992), McKay-Chung's signing of arrest reports may not be a sufficient personal involvement to legally implicate her in any of the claims, and the male police officers who arrested Nance are as yet unnamed and unserved. In light of Nance's pro se status, however, consideration should be given to affording him the opportunity to cure these defects, unless it would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). In assessing the viability of Nance's claims in the face of a summary judgment motion, the Court, in discerning whether there are genuine unreconciled material facts, accepts the uncontested statement of facts set forth in defendants' Local Rule 56.1 Statement of Material Facts, as supported by accompanying documentary evidence, see Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003), and Nance's sworn deposition testimony. See Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) ("[W]hile a court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement.") (internal citation omitted).
II
A. False Arrest and Malicious Prosecution Claims
Based on the uncontested documentary evidence, Nance's false arrest and malicious prosecution claims, even if they had been properly brought against named parties, are meritless and not subject to resuscitation by further proceedings; hence, they are dismissed with prejudice.
False arrest claims actionable under both 42 U.S.C. § 1983 and New York state law are subject to the "complete" defense of probable cause. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); see also Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992) (setting forth elements for false arrest claims). "[P]robable cause to arrest 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, 101 F.3d at 852. Here, the officers had probable cause to arrest Nance on an outstanding warrant, as well as for marijuana possession, because (1) Nance was blocking a subway entry gate; (2) he had not paid his fare; (3) the police appropriately issued a summons for the infraction and consequently ran a warrant search; (4) the police discovered an outstanding arrest warrant; (5) Nance was arrested on that outstanding warrant; and (6) during the search incident to arrest, the police discovered marijuana. See Smith v. Ohio, 494 U.S. 541, 543 (1990) (per curiam) ("[S]earch incident to arrest permits the police to search a lawfully arrested person and areas within his immediate control.").
Nance's malicious prosecution claim is meritless because the underlying proceedings did not terminate in his favor. See Posr v. Court Officer Shield 201, 180 F.3d 409, 417 (2d Cir. 1999) (elements of claim are: "(1) that the defendant initiated a prosecution against the plaintiff, (2) that the defendant lacked probable cause to believe the proceeding could succeed, (3) that the defendant acted with malice, and (4) that the prosecution was terminated in the plaintiffs favor"). Nance was given an "adjournment in contemplation of dismissal" ("ACD") that required him to perform community service and to attend an alcohol treatment program. An ACD is not a favorable determination of the underlying criminal proceeding. See Murphy v. Lynn, 118 F.3d 938, 949 (2d Cir. 1997).
B. Excessive Force Claim
Nance claims that he was subjected to excessive force while being transported from the subway station to the police precinct. See Compl. ¶ 21. "The Fourth Amendment, which protects against unreasonable seizures, governs a claim that excessive force was used in connection with an arrest." Mickle v. Morin, 297 F.3d 114, 120 (2d Cir. 2002) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)). The standard, as established by Graham, is one of objective reasonableness under the totality of the circumstances. See Graham, 490 U.S. at 396; see also Soares v. State of Conn., 8 F.3d 917, 921 (2d Cir. 1993). "Proper application" of the standard "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396-97. "[A]n officer's good intentions [will not] make an objectively unreasonable use of force constitutional." Id. However, as the Court cautioned in Graham, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Id. at 397. Finally, if the force used was unreasonable or excessive, the plaintiff may recover damages "even if the injuries inflicted were not permanent or severe." Robinson v. Via, 821 F.2d 913, 924 (2d Cir. 1987).
Whether there are sufficient facts supportive of Nance's excessive force claim to survive summary judgment, assuming the allegedly recalcitrant police officers had been named and served, is a close call, but given Nance's pro se status and drawing all inferences in his favor from his sworn deposition testimony, the Court will afford him the opportunity to pursue it.
Nance's deposition is annexed as Exhibit A to the Declaration of Liora Jacobi. He testified as follows: At the time of his arrest, he suffered from preexisting back and leg injuries that required him to walk with canes. Dep. at 20-26. After he was arrested, the police officers helped him move from a bench where he had been sitting into a police car because "[t]hey could see that [he] had trouble walking." Id. at 46. Nance explained the manner in which he was handcuffed, taken to, and placed into the police car:
Q. Other than putting the cuffs on you, is it your testimony that none of the other officers used force on you?
A. Right. Except for when they put me in the car. That was done forcefully. They were shoving me and pushing me.
Q. That caused injuries?
A. Yes. To my wrist and my leg.
Q. How was your wrist messed up?
A. The handcuffs were digging into my wrists and they were pulling my arms. I was on the ground.
Q. Your leg got bent from that?
A. Yes. That was making it hurt again.
Q. At any time, did you ever fall down?
A. Yes. When they were getting me in the car; and they dragged me from the bench to the car, by my arms; and they were yanking me and trying to make me run. . . . I had to fall to the ground because I couldn't walk that fast. One knee was down, and one knee was dragging. That's why I was hopping. Then, both knees were touching the ground. And, when they pulled me out, I was on the ground. And, the rest of me was on the ground.
Q. Were your knees injured?
A. Yes. I got bruises and cuts and abrasions and everything; and scratches on my legs and my feet.
Q. Did you tell anyone you had bruises and scratches?
A. Yes. I asked to go to the hospital. But they wouldn't take me there.
Q. Who did you ask?
A. I asked the Sergeant.
Q. What did he say?
A. He didn't say nothing to me. He wasn't concerned about that.
Q. When you were being carried from the bench to the patrol car, you say you fell, and one of your knees hit the ground?
A. No, I didn't fall. They were dragging me and I couldn't put the weight on my legs. That happens if you got a leg that couldn't do nothing. . . . I just tried to walk with one leg.
Q. That was because you had a bad leg?
A. They were pulling me too fast. It takes a little time for me to adjust to that sort of thing.Id. at 51-53.
Nance testified that once inside the police car, "I was laying on the floor on my side, and couldn't stretch my legs that good. I couldn't even turn over." Id. at 46. Regarding the handcuffs, Nance testified that, although they were removed about ten minutes after he arrived at the police station, see id. at 48, he had complained that they were too tight; consequently, they caused cuts and bruises. See id. at 46-47. Although he had asked the Sergeant to take him to the hospital, to no avail, Nance testified that a woman at Central Booking told the officers "to give [him] some medical treatment." Id. at 69.
Under these circumstances, a reasonable fact-finder could conclude, if Nance's testimony is to be credited, that the officers were aware that Nance was disabled, that he was not resisting arrest, and that there was no need to drag him into the car, constrain him on the floor, and treat him in such a way as to cause multiple cuts and bruises on his body.
Nor would the police officers be entitled to qualified immunity. See Mickle v. Morin, 297 F.3d 114, 122 (2d Cir. 2003) ("Where the circumstances are in dispute, and contrasting accounts present factual issues as to the degree of force actually employed and its reasonableness, a defendant is not entitled to judgment as a matter of law on a defense of qualified immunity.") (internal quotations omitted).
While Nance has a viable excessive force claim against the arresting police officers, the Court will not permit the City of New York to be substituted for the NYCPD in regard to this claim since, based upon Nance's deposition testimony and the uncontroverted documentary evidence, there is no basis to implicate the municipality under Monnell v. Dept. of Social Servs., 436 U.S. 658, 690-91 (1978).
Because the arresting police officers have not been named or served, the Court will remand this matter to the assigned Magistrate Judge to aid plaintiff, through discovery or otherwise, in ascertaining their identities and effecting service. See Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997). The Magistrate Judge may also wish to now actively explore settlement prospects since it does not appear that plaintiff's injuries warrant substantial damages.
C. Deliberate Indifference to Medical Needs Claim
Although Nance testified about his need for medical assistance, his deposition establishes that his injuries were not significant. His primary concern at the police station was to retrieve his pills for some undisclosed condition. See Dep. at 70-71. However, he testified that he was never told that he could not have his pills, see id. at 70; moreover, he made no effort to retrieve them until days after he was released. See id. at 71. Although Nance claims in his complaint that he was admitted to St. Mary's Hospital on November 20, 2000 to receive treatment for the injuries he suffered at the time of his arrest, see Compl. ¶ 19, that was fifteen days after his arrest. Nonetheless, medical records from St. Mary's show that he was not admitted until December 13, 2000, and the reason for his hospitalization was to treat an unrelated ulcer to his left foot, for which he had previously been treated in December 1999. See Decl. of Liora Jacobi, Ex. I (medical records).
Deliberate indifference to a detainee's serious medical needs is actionable under § 1983 if the plaintiff can prove that his inadequate medical care was more than merely negligent. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Weyant v. Okst, 101 F.3d at 856 ("The rights of one who has not been convicted are protected by the Due Process Clause; and while the Supreme Court has not precisely limned the duties of a custodial official under the Due Process Clause to provide needed medical treatment to a pretrial detainee, it is plain that an unconvicted detainee's rights are at least as great as those of a convicted prisoner."). A "serious" medical need either is a "condition of urgency, one that may produce death, degeneration, or extreme pain," Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citation omitted), or arises if "the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citation omitted). "Deliberate indifference . . . may be shown by evidence that the official acted with reckless disregard for the substantial risk posed by the detainee's serious medical condition." Weyant, 101 F.3d at 856.
Nance's claim of deliberate indifference to his medical needs is unsupported by the facts. They clearly were not "serious," as evidenced by his failure to seek medical care for more than a month after the arrest, and then only for treatment of a pre-existing condition. Based on Nance's deposition admissions and the documentary evidence, any amendment would be futile; hence the claim is dismissed with prejudice.
D. Failure to Return Property Claim
In an exhibit attached to his complaint, Nance claims that the police officers seized property from him that has not been returned. See Compl., Ex. R. He identifies this property in his deposition as "my food-magnifying glass, my scarf, my belt, my shoelaces, and a few other things." Dep. at 53. To the extent that there may be any property that the authorities have not returned to him, the complaint shall be deemed amended to substitute the City of New York for the NYCPD, to assert such a claim. Presumably, any such remaining property will forthwith be returned, so that this aspect of the litigation will quickly be rendered nugatory.
CONCLUSION
The complaint is dismissed in its entirety, with prejudice, except for the excessive force and return of property claims, which are referred to the Magistrate Judge for further proceedings in accordance with this decision.