Opinion
04 Civ. 10112 (KMW) (KNF).
September 25, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION AND BACKGROUND
Rafael Perez ("Perez") brings this action, pursuant to 42 U.S.C. § 1983 ("Section 1983"), against Correction Officers R. Hewitt, Jeff White ("White"), W. White, Singleton, F. Carabello, M. Blot and Aponte, alleging his constitutional rights were violated when the defendants: (1) initiated and continued criminal proceedings against him without probable cause to do so, because of malice; (2) used excessive force against him; (3) abused process maliciously by initiating proceedings against him, falsely and without probable cause; and (4) imprisoned him falsely. Before the Court is the defendants' motion for partial summary judgment, made pursuant to Fed.R.Civ.P. 56. Section 1983 is a vehicle a plaintiff may use to assert a violation of constitutional rights as the result of conduct performed by persons acting under color of state law.
According to the defendants, W. White was never served with the complaint and had not requested representation from the Office of the Attorney General.
The defendants contend: (a) the plaintiff's excessive force claim against White, Singleton and Aponte should be dismissed for lack of personal involvement; and (b) the plaintiff's malicious prosecution, false imprisonment and abuse of process claims should be dismissed because he was not prosecuted criminally following the alleged use of force. The plaintiff opposes the motion with a memorandum of law contending: (a) the documents provided by the defendants to establish it is undisputed that White, Singleton and Aponte were not involved personally in the event(s) that gave rise to this action are not in admissible form; (b) his false imprisonment claim is valid because the use of excessive force resulted in confinement; and (c) the plaintiff's malicious prosecution and abuse of process claims are valid because the defendants "embarked on a campaign of malicious prosecution which lead to disciplinary changes" and he was forced to attend disciplinary hearings.
On December 26, 2001, while he was an inmate at Sing Sing Correctional Facility in Ossining, New York, Perez alleges, he was taken to or near the "strip frisk wall," in the center gate area of the HBC Housing Unit, and assaulted by the defendants who kicked and battered him on the floor. Perez asserts that, prior to this incident, he complained to prison officials about threatening, harassing and retaliatory conduct engaged in by the defendants, but his complaints were ignored. As a result of the assault, Perez alleges, he sustained severe bodily injuries, including, among other things, multiple blunt trauma to the face and left chest wall, multiple lower rib fractures associated with pulmonary contusion and a collapse of his left lung.
II. DISCUSSION
Summary Judgment
Fed.R.Civ.P. 56(c) 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 that 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." "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.' An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quotingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). When considering a motion for summary judgment "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citations omitted).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). Once the moving party has satisfied its burden, the non-moving party must come forth with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis in the original). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id., at 256, 106 S. Ct at 2514. "The moving party is 'entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
Fed.R.Civ.P. 56(e) provides the standard with which the evidence submitted in support of or in opposition to the motion for summary judgment must comply:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.Excessive Force Claim Against White, Singleton and Aponte
In support of the instant motion, the defendants submitted: (1) a statement, pursuant to Local Rule 56.1, in numbered paragraphs 1-7, of the material facts to which they contend no genuine issue exists to be tried; and (2) a declaration from their counsel containing (i) a copy of the plaintiff's May 16, 2006 deposition transcript, identified as Exhibit A to their counsel's declaration, (ii) a copy of the employment attendance records of White, Singleton and Aponte, for the period December 2000 through December 2001, identified as Exhibit B to their counsel's declaration, (iii) a copy of the unusual incident report pertinent to the December 26, 2001 event that occasioned this litigation, identified as Exhibit C to their counsel's declaration, and (iv) a copy of the Superintendent Hearing Disposition sheet for the disciplinary hearing ending January 16, 2002, that was convened as a result of the plaintiff's alleged encounter with the defendants on December 26, 2001, identified as Exhibit D to their counsel's declaration. In their Local Rule 56.1 statement, paragraphs 1-6, the defendants contend no genuine issue exists to be tried regarding the following material facts: White, Singleton and Aponte were not working at Sing Sing Correctional Facility on December 26, 2001, and had no involvement in using force against the plaintiff on that date. The defendants make citation to Exhibit B, submitted with their counsel's declaration, to support that contention. The plaintiff's only submission in opposition to the motion is a memorandum of law.
Exhibit B consists of unsigned, unsworn, uncertified copies of employee attendance records for White, Singleton and Aponte, and, as such, does not comply with the requirements of Fed.R.Civ.P. 56(e) because it is not admissible evidence in the format in which it was submitted in support of the instant motion. "[W]here the movant 'fail[s] to fulfill its initial burden' of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied, 'even if no opposing evidentiary matter is presented,' for the non-movant is not required to rebut an insufficient showing." Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d Cir. 2003) (citation omitted). Therefore, since the evidence submitted by the defendants does not establish the absence of a genuine issue concerning the plaintiff's use of force claim against defendants White, Singleton and Aponte, they are not entitled to summary judgment on this claim. Although paragraphs 1-6 of the defendants' Local Rule 56.1 statement and Exhibit B, to which those paragraphs refer, would not be admissible as evidence, the Court can consider the remaining material that is admissible. See United States v. Alessi, 599 F.2d 513, 514-15 (2d Cir. 1979). The only other evidence that is admissible, for the purpose of the instant motion, is paragraph 7 of the Local Rule 56.1 statement and the plaintiff's sworn deposition testimony.
Malicious Prosecution, Abuse of Process and False Imprisonment Claims
The defendants contend, in paragraph 7 of their Local Rule 56.1 statement, no genuine issue exists to be tried regarding the following fact: "Defendants have never initiated criminal proceedings against plaintiff either following the December 26, 2001 use of force or at any other time." In support of their contention, the defendants make citation to the plaintiff's deposition testimony, identified as Exhibit A to their counsel's declaration, in which he stated he never had any criminal complaints filed against him regarding his behavior while he was in the custody of the New York State Department of Correctional Services. The plaintiff's deposition transcript is certified by a registered professional court reporter and notary public for the State of New York and, as such, is admissible for the purposes of the instant motion. However, the unusual incident report, identified as Exhibit C to the declaration of the defendants' counsel, and the Superintendent's Hearing Disposition, identified as Exhibit D to that declaration, are both inadmissible as evidence because they are neither sworn documents nor certified copies of those documents.
The defendants seek summary judgment on the plaintiff's claims of malicious prosecution, abuse of process and false imprisonment based on the plaintiff's statement, at his deposition, that he had never been criminally prosecuted while in the custody of state prison officials. If, as the plaintiff testified, he has never been criminally prosecuted in the circumstances described above, he will be unable to establish a Section 1983 claim premised on a violation of his constitutional rights arising out of conduct he attributes to the defendants that never occurred. The defendants have met their burden of showing that no genuine issue of material fact exists in respect to the claims of malicious prosecution, abuse of process and false imprisonment. However, the plaintiff has failed to meet his burden by coming forth with admissible evidence showing that a genuine issue exists for trial concerning these claims. An unsworn memorandum of law submitted by the plaintiff is not sufficient to raise a genuine issue of fact on a motion for summary judgment. Accordingly, the defendants are entitled to summary judgment on the plaintiff's claims of malicious prosecution, abuse of process and false imprisonment.
III. RECOMMENDATION
For the reasons set forth above, the Court recommends that the defendants' motion for summary judgment be denied in part and granted in part.
IV. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).