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denying qualified immunity to defendant-officers where plaintiff alleged "that the officers forced him to travel to the precinct unclothed after he was arrested" because the "claim involve[d] the violation of law that was clearly established"
Summary of this case from Daniels v. City of N.Y.Opinion
97 CIV. 7152 (DLC)
March 28, 2002
William Reed, #98A5921, Eastern Correctional Facility, Napanoch, NY, Plaintiff, pro se
Barbara G. Lifton, Assistant Corporation Counsel, New York, NY, Attorney for the Defendant
OPINION AND ORDER
On September 25, 1997, pro se plaintiff William Reed ("Reed") filed suit against defendant Patricia Powers ("Powers") alleging claims under 42 U.S.C. § 1983 and 1985 and New York common law. Following the affirmance of Reed's conviction on appeal, the defendant moved for summary judgment. Reed has not opposed the defendant's motion. For the reasons that follow, defendant's motion for summary judgment is granted in part and denied in part.
This suit was stayed from April 21, 1998 through June 18, 2001, during the pendency of Reed's state court criminal proceedings.
BACKGROUND
Through an investigation, Powers, a Bronx detective, identified Reed as one of two individuals responsible for the February 3, 1996 armed robbery of a diner in Bronx County. Powers and other officers arrested Reed on the morning of March 26, 1996. On April 26, 1996, the Grand Jury indicted Reed on a count of first degree robbery for the February 3, 1996 robberies.
A 1996 Grand Jury indicted Reed on multiple counts of robbery, attempted robbery, and grand larceny based on the February 3, 1996 robbery. Reed was indicted in 1997, for robberies occurring on February 19, 1996.
Reed filed the instant suit on September 25, 1997. In his complaint, Reed alleged that on March 26, 1996, Powers and others entered the apartment of his girlfriend, Sandra Bullock ("Bullock"), without a warrant. He states that Powers and the other officers took him to the precinct "unclothed," and at the precinct "beat and tortured" him during an interrogation, and denied him "access to an attorney." Reed seeks an investigation into his arrest. He has not indicated what, if any, additional relief he seeks.
Reed's complaint indicates that it was signed on August 19, 1997.
In his 1998 state court criminal proceedings, Reed moved to suppress statements he made to the police after his arrest. At a hearing, Powers and Reed each testified about the circumstances of Reed's arrest and interrogation. The New York Supreme Court's decision on Reed's motion to suppress reflects the following facts: Powers testified that she and other officers located Reed at Bullock's apartment and that Bullock allowed them entry to the apartment. Powers stated that Reed voluntarily accompanied the police outside the apartment and was then arrested and taken to the 45th Precinct. Reed maintains that Bullock did not allow the police entry to the apartment and attempted to close the door. He testified that the officers forced their way into the apartment and cursed at Bullock when she asked for a warrant. Reed maintained that they dragged him out of the bathroom, threw him against the wall, and handcuffed him. He stated that he was not allowed to dress before being forced to leave the apartment, denied agreeing to accompany the officers, and maintained that he was never informed of the reasons for the arrest.
The events subsequent to Reed's arrest were also disputed at the hearing. Reed maintained that he was never informed of his rights, that he was coerced into making statements that implicated him in the robberies by hours of questioning, and that he only made the statements because he was exhausted. Powers testified that Reed was read his Miranda rights after he was placed in an interview room. After Reed confessed to robberies that had occurred on February 19, Powers called in James Gibson ("Gibson"), the detective in charge of the investigations of those robberies. Gibson also testified at the suppression hearing and described advising Reed of his rights before Reed signed the statements about the February 19 robberies and a written waiver of his rights. The videotaped confession taken by the ADA was also introduced. The ADA began the videotape by reading Reed his rights. Reed acknowledged his waiver of these rights on the tape.
The trial court determined that Reed's first statement was taken at 2:50 p.m., and the second at 4:30 p.m. Reed's videotaped confession began at 10:00 p.m. and ended approximately one hour later.
The court denied Reed's motions to suppress on April 7, 1998. The court found that Bullock gave voluntary consent to the police's entry to her apartment, that Reed consented to accompany the officers, that Reed was adequately informed of his rights, and that his confession and statements were not coerced. In making these determinations, the court found that Reed's testimony at the hearing was not credible and also relied on his demeanor during the taped confession. The court noted that Bullock did not appear to testify at the hearing, that Reed had made no mention of or reference to the entry into the apartment or his arrest during the taped interview, that each written statement and the videotaped confession was prefaced with a waiver, and that Reed appeared calm and cooperative on the video. The court found the testimony of both Powers and Gibson to be extremely credible.
The court also found that the lineup in which Reed was identified on June 25, 1997, was not unconstitutionally suggestive.
On December 8, 1998, Reed pleaded guilty to two counts of first degree robbery. He was sentenced to twelve and a half to twenty-five years in prison on February 11, 1999. Reed appealed his conviction and sentence on February 24, 1999. The Appellate Division denied his appeal on February 1, 2001, finding that the suppression motion was properly denied and that "[t]here is no basis upon which to disturb the court's credibility determinations, which are supported by the record." People v. Reed, 719 N.Y.S.2d 854, 854 (1st Dep't 2001). The Court of Appeals denied Reed leave to appeal on March 13, 2001.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002) (quotingAnderson, 477 U.S. at 248). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all facts in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 465 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e);see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
In his complaint, Reed alleges four federal claims and one state law claim: unlawful arrest, deprivation of the right to privacy, denial of the right to counsel, excessive force, and defamation. The defendant argues that Reed's four federal claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). Heck bars a Section 1983 claim when it would necessarily imply the invalidity of the underlying conviction. Covington v. City of N.Y., 171 F.3d 117, 122 (2d Cir. 1999). The defendant asserts that the defamation claim must be dismissed for failure to plead compliance with the state's notice of claim requirements.
1. Constitutional Claims
Three of Reed's four Section 1983 claims were raised in his motion to suppress filed in state court: his unlawful arrest, deprivation of counsel, and privacy claims. Reed argued in his suppression motion that the police entered his apartment without Bullock's consent, that the police did not allow him to get dressed before they took him to the precinct, and that he was not informed of his Miranda rights. The fourth Section 1983 claim was not raised before the trial court. While Reed argued in state court that the police used excessive force at the time of arrest, here he contends that they used excessive force at the precinct.
To determine whether Reed's claims are barred under Heck, it is necessary "to examine the relationship between the criminal conviction and each of the plaintiff's civil claims. Heck v. Humphrey does not require dismissal of any claim whose adjudication in favor of the plaintiff would not necessarily invalidate his conviction." Jackson v. Suffolk County Homicide Bureau, 135 F.3d 254, 256 (2d Cir. 1998). Heck held that a claim for monetary damages premised on an unlawful conviction was not cognizable under Section 1983 when "establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction." Heck, 512 U.S. at 481-82. This holding applied "the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." Id. at 486. If the plaintiff advances Section 1983 claims that attack the fact of a final conviction or length of a sentence, the "strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction" requires the dismissal of those claims.Id.
If the gravamen of the suit seeks recovery for the "injury of being convicted" through the wrongful conduct of the defendant, then the Heck doctrine applies even if the specific Section 1983 claim would not necessarily implicate the lawfulness of the conviction. Id. at 487 n. 7. This is relevant when doctrines, such as inevitable discovery or harmless error, would save the conviction even though there was a violation of the criminal defendant's constitutional rights. Id.
When the plaintiff's state court conviction is final, the relevant inquiry is not whether the state court could uphold the conviction on other grounds, but whether the plaintiff's success would imply that the conviction is invalid. Compare Jackson, 135 F.2d at 257 (requiring a stay of, inter alia, an excessive force claim pending the appeal from conviction), with Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999) (claim that evidence was withheld barred by Heck when state court conviction was final).
A. Unlawful Arrest
Reed's claim that Powers and other officers entered Bullock's apartment without her consent necessarily implicates the validity of Reed's conviction. Absent an exception such as consent, "the police must obtain a warrant before they enter a home to conduct a search or otherwise intrude on an individual's legitimate expectation of privacy." United States v. Gori, 230 F.3d 44, 50 (2d Cir. 2000), cert. denied, 122 S.Ct. 62 (2001); see also Anobile v. Pelligrino, No. 99-9043, ___ F.3d ___, 2001 WL 1804660, at *12 (2d Cir. Mar. 6, 2002); Kerman v. City of N.Y., 261 F.3d 229, 235 (2d Cir. 2001); United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995). If an arrest is illegal, "a subsequent confession may be inadmissible as a `fruit' of that illegal arrest." United States v. Morales, 788 F.2d 883, 885 (2d Cir. 1986) (citation omitted)
The trial court in this case found that Powers and the other officers had Bullock's consent to enter the apartment, Reed had voluntarily left the apartment with the officers, and the arrest had taken place once Reed was outside the apartment. Based on these findings, the court determined that Reed's arrest was lawful and his confession admissible. The trial court's denial of Reed's motion to suppress his confession was upheld on appeal. In support of his Section 1983 unlawful arrest claim, Reed advances the very same arguments that were addressed by the trial court in the suppression motion, and a determination by this Court that the entry was unlawful would necessarily imply the invalidity of the trial court's decision not to suppress the confession.
Although Reed does not indicate what kind of damages he is seeking, the only damages he could recover for an allegedly unconstitutional entry and arrest would be for the resulting conviction. In such a case, "establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction." Heck, 512 U.S. at 481-82; see also Townes v. City of N.Y., 176 F.3d 138, 148 (2d Cir. 1999) (noting that victims of unreasonable searches and seizures "cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution")
Whatever impact a plea of guilty might have on an analysis of the Heck issue when a plea is entered in federal court, where all non-jurisdictional objections are waived through the entry of a plea,United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001), it is clear that the Heck analysis applies with full force to Reed's plea. Under New York law, "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty." N.Y. Crim. Proc. Law § 710.70(2) (McKinney 1995). Consequently, Reed did not waive his challenges to his conviction when he entered a plea of guilty. See, e.g., New York v. Velez, 722 N.Y.S.2d 374, 374 (1st Dep't 2001); New York v. Thomas, 428 N.Y.S.2d 20, 24 (2d Dep't 1980)
B. Privacy
Reed also argues that the police deprived him of his right to privacy by taking him to the station while he was unclothed. There is "a right to privacy in one's unclothed or partially unclothed body, regardless of whether that right is established through the auspices of the Fourth Amendment or the Fourteenth Amendment." Poe v. Leonard, No. 00-9024, 282 F.3d 123, 2002 WL 237411, at *12 (2d Cir. Feb. 19, 2002). This claim is not barred by Heck because a finding that Reed's right to privacy had been violated would not necessarily implicate the validity of his conviction. Jackson, 135 F.3d at 256 (defendant photographed in nude following arrest); see also Huang v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) (Heck doctrine does not apply where the federal habeas doctrine would not address the Section 1983 claim); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999) (same), cert. denied, 121 S.Ct. 2577 (2001); Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (same)
C. Right to an Attorney
Reed claims that he was denied access to an attorney. Had Reed been denied his Fifth Amendment right to counsel, his confession should have been suppressed. United States v. Thompson, 35 F.3d 100, 103 (2d Cir. 1994). An erroneous denial of Reed's motion to suppress would invalidate his conviction. Consequently, Reed's claim that he was denied his right to counsel necessarily implies the invalidity of his plea and is barred by Heck.
Although it is unclear from the complaint whether Reed claims that the police interrogated him after he requested counsel or that they failed to inform him of his right to an attorney, either occurrence would have precluded introduction of the confession as substantive evidence.
Reed's opposition to the stay of this action pending the completion of the state court criminal proceedings, may be read to indicate that his claim that he was denied his right to counsel relates to a delay between his arrest and the filing of the criminal complaint. It does not appear that Reed raised this argument before the state court. To the extent that his success on this claim would imply the invalidity of his conviction, it is barred under Heck. There are no damages identified as arising from this alleged violation other than the damage of having been convicted.
D. Excessive Force
Reed maintains that he was beaten and tortured at the precinct station. There are two possible interpretations of this claim — either Reed is seeking damages for injuries he suffered or he is seeking damages for a wrongful conviction based on a coerced confession. A claim based on the latter theory is clearly barred by Heck and must be dismissed. In the unusual circumstances presented here — where the excessive force claim is linked directly to a coerced confession claim, but not raised in the criminal proceeding, and where the theory of recovery is not clearly identified — it is not as clear that Heck applies. In these circumstances it is appropriate to allow the plaintiff an opportunity to amend his pleading so that his Section 1983 claim can be analyzed properly.
While Reed did argue in his suppression motion that his confession was coerced, the factual allegations underlying the claim in state court were that the police had questioned him for hours without interruption and that he had made his statements because he was exhausted.
2. Section 1985 Claims
Reed has also asserted claims under Section 1985. To the extent that Reed maintains that the defendant and other officers conspired to deprive him of his right to counsel, to effect his unlawful arrest, or to use excessive force to coerce his confession, the success of these claims would imply the invalidity of his conviction and are similarly barred byHeck. Amaker, 179 F.3d at 51-52.
3. Defamation
The defendant argues that Reed's claim of defamation should be dismissed because he failed to file a notice of claim with the City. In federal court, state law notice of claim requirements apply to pendent state law claims such as Reed's claim of defamation. Hardy v. N.Y. City Health Hosps. Corp., 164 F.3d 789, 793 (2d Cir. 1999). Under New York General Municipal Law Sections 50-e and 50-i, a plaintiff may not maintain a tort claim against a municipality unless that claim has been preceded by a notice of claim served upon the municipality within ninety days of the time the cause of action arose. See N.Y. Gen. Mun. Law §§ 50-e, -i (McKinney 1999). A plaintiff required to file a notice of claim fails to state a cause of action if he does not plead the following in the complaint: "that (1) the plaintiff has served the notice of claim; (2) at least thirty days have elapsed since the notice was filed (and before the complaint was filed); and (3) in that time the defendant has neglected to or refused to adjust or to satisfy the claim." Hardy, 164 F.3d at 793.
While the notice of claim requirement is applicable to certain claims against municipal employees, it does not, however, apply to all such claims, and the defendant has not shown that there is no issue of fact with respect to its applicability to Reed's defamation claim against Powers. Section 50-e(1) does not itself create an obligation to file a notice of claim, but sets a ninety-day time limit for filing the notice "[i]n any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action . . . against a public corporation . . . or any . . . employee thereof." N.Y. Gen. Mun. Law § 50-e(1)(a). Section 50-i, the source of the obligation to file a notice of claims against the City, does not on its face extend to claims against City police officers. See id. § 50-i(1).
It appears that Section 50-k is the source of the duty to file a notice of claim when suing City employees. Section 50-k, entitled "Civil actions against employees of the city of New York," provides for the defense and indemnification of City employees for certain tort claims. Indemnification is limited to acts that
occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and w[ere] not in violation of any rule or regulation of his agency at the time the alleged damages were sustained; the duty to indemnify . . . shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee.Id. § 50-k(3) (McKinney 1999) (emphasis supplied). Section 50-k(6) then provides that "no action or proceeding instituted hereunder . . . shall be prosecuted or maintained against the city or any agency or an employee unless notice of claim shall have been made and served upon the city in compliance with section fifty-e of this chapter." Id. § 50-k(6). Although Section 50-k(6) does not specify what constitutes an action "instituted hereunder," that provision is best understood to apply only to claims against a City employee for which the employee has a right to indemnification. Int'l Shared Servs., Inc. v. County of Nassau, 634 N.Y.S.2d 722, 724 (2d Dep't 1995); Bardi v. Warren County Sheriff's Dep't, 603 N.Y.S.2d 90, 92 (3d Dep't 1993); see also Hemrie v. City of N.Y., 96 Civ. 213 (DLC), 2000 WL 1234594, at *2-3 (S.D.N.Y. Aug. 31, 2000). It is well established that a plaintiff suing a New York City employee must serve a notice of claim on the City if, at the time the alleged injury occurred, the employee was acting within the scope of his duty such that the City may be required to indemnify the employee. See, e.g., Silverman v. City of N.Y., 98 Civ. 6277 (ILG), 2001 WL 218943, at *8 (E.D.N.Y. Feb. 2, 2001); Ortega v. City of N.Y., 95 Civ. 7206 (LMM), 2000 WL 358459, at *2 (S.D.N Y Apr. 7, 2000); Sussman v. N.Y. City Health Hosp. Corp., 94 Civ. 8461 (DBS), 1997 WL 334964, at *17 (S.D.N.Y. June 16, 1997) D'Angelo v. City of N.Y., 929 F. Supp. 129, 135 (S.D.N.Y. 1996); Alifieris v. Am. Airlines, Inc., 63 N.Y.2d 370, 377 (1984) (interpreting Section 50-j); cf. Shakur v. McGrath, 517 F.2d 983, 985 (2d Cir. 1975) (notice of claim required in suit against employee doctors and the City "as their indemnitor").
The defendant has not cited or discussed Section 50-k(6) or shown that Powers may be entitled to indemnification by the City. Accordingly, summary judgment on the defamation claim based on Reed's failure to plead the filing of a notice of claim is not available without a further showing.
4. Qualified Immunity
The defendant argues that any of Reed's federal claims that remain should be dismissed on qualified immunity grounds. Officials who are sued in their individual capacity are immune from suit in three situations: "(1) if the conduct at issue is not prohibited by federal law; (2) even if the conduct was prohibited, if the plaintiff's right was not clearly established at the time of the conduct; or (3) if the defendant's conduct was objectively legally reasonable in light of clearly established law."Anobile, 2001 WL 1804660, at *14. Reed's remaining federal claim is a violation of privacy.
Reed alleges that the officers forced him to travel to the precinct unclothed after he was arrested. This claim involves the violation of law that was clearly established on March 26, 1996. Poe, 2002 WL 237411, at *12 (describing cases decided between 1980 and 1992 that recognized the existence of a "right to privacy in one's unclothed body" under the Fourth and Fourteenth Amendments). The defendant has not submitted any admissible evidence with regard to the question of whether Powers's conduct was objectively reasonable in light of this law. She relies solely on the state court opinion denying the motion to suppress. She does not explain how that opinion would be admissible in a federal trial of Reed's claims. Even if admissible, the opinion of the trial court does not address the issues at stake in Reed's privacy claim. Because material issues of fact remain as to the objective reasonableness of Powers's actions, the defendant's motion for summary judgment on the issue of qualified immunity is denied.
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted as to the plaintiff's claims that he was unlawfully arrested and denied his right to counsel. To the extent that Reed seeks damages for his conviction through an excessive force claim, this allegation is also dismissed. These claims are dismissed without prejudice, to allow Reed an opportunity to pursue them if his underlying state conviction is "expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus." Amaker, 179 F.3d at 52 (citation omitted). The defendant's motion is denied as to the plaintiff's remaining claims of deprivation of privacy and defamation.
A scheduling order issued with this Opinion will provide the plaintiff with the opportunity to amend his complaint to clarify what relief he is seeking through this lawsuit and in particular through his excessive force claim.
To the extent that the plaintiff is not seeking any damages, but is instead seeking only an investigation into the defendant's conduct, the entire suit would have to be dismissed.
SO ORDERED: