Opinion
97 CIV. 7152 (DLC)
September 3, 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 June 21, 2002, defendant Patricia Powers ("Powers") moved for summary judgment on the two remaining claims in this lawsuit, a federal privacy claim and a state defamation claim. Plaintiff William Reed ("Reed"), pro se, has not opposed the defendant's motion. For the reasons that follow, the defendant's motion is granted.
BACKGROUND
The facts recited in a movant's Rule 56.1 statement are deemed admitted when no opposition has been filed. LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 211 (2d Cir. 2001). Accordingly, the following facts are as described by the defendant in her Rule 56.1 statement or by the plaintiff in his deposition.
Reed was arrested by Detective Powers on March 26, 1996, after an investigation in which Powers identified him as one of the perpetrators of a February 3, 1996 armed robbery of a Bronx restaurant. At the time of Reed's arrest in 1996, Powers had been an officer with the New York City Police Department for sixteen years and a Detective for six years.
When Powers and other officers arrested Reed in his girlfriend's apartment he was wearing shorts, a tank top and boots. At his deposition, Reed stated that his shorts and tank top were "night clothes," but admitted that he was wearing underwear in addition to his shorts. He asked his girlfriend "to give me some clothes and stuff like that because I wasn't dressed. What they did was they let me put my boots on, and they — since I was handcuffed from the rear, they put my clothes in between my arm. . . . That's how they took me to the precinct." The additional clothing Reed was allowed to bring with him to the precinct included jeans, a hooded shirt and socks.
Plaintiff was taken from the apartment directly to a patrol car and transported to the 45th Precinct. At the precinct, Reed was interrogated and confessed on video to the February 3, 1996 robbery, as well as other robberies in the Bronx, Manhattan and Queens.
Reed filed the instant suit on September 25, 1997, alleging claims of unlawful arrest, deprivation of counsel, excessive force, violation of the right to privacy, and defamation. Reed pleaded guilty to two counts of first degree robbery on December 8. 1998 and on February 11, 1999, was sentenced principally to twelve and a half to twenty-five years in prison. His convictions were affirmed by the Appellate Division on February 1, 2001, and he was denied leave to appeal to the Court of Appeals on March 13, 2001.
The instant litigation was stayed until June 18, 2001, pending resolution of his state court proceedings.
On March 28, 2002, this Court granted Powers's motion for summary judgment on all but two of Reed's claims under 42 U.S.C. § 1983. Reed v. Powers, No. 97 Civ. 7152 (DLC), 2002 WL 472026, at *7 (S.D.N.Y. Mar. 28, 2002). Reed was granted leave to amend his complaint to clarify the relief he sought through a third claim of excessive force. Id. Plaintiff did not amend his complaint and his claim of excessive force was dismissed on May 15, 2002.
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 "[o]nly 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 (1986). "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) (citation omitted). 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 evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (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.
Where, as here, the nonmoving pro se party has failed to submit papers in opposition, summary judgment may be granted as long as the Court is satisfied that the undisputed facts "show that the moving party is entitled to a judgment as a matter of law," and plaintiff has received notice that failure to file an opposition may result in dismissal of his case. Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Reed was informed by the Court and by the defendant of his obligation to submit evidence in opposition to a motion for summary judgment and of the consequences of not submitting such evidence.
1. Qualified Immunity/Right to Privacy
Powers asserts that she is immune from liability for her actions during the course of Reed's arrest. "Qualified immunity shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were clearly established at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002) (citation omitted). The first step in a qualified immunity analysis is to "determine whether the plaintiff ha[s] alleged a violation of a constitutional right." African Trade Info. Ctr., 294 F.3d 355, 359 (2d Cir. 2002); see also Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002). Thus "a qualified immunity defense is established when . . . the defendant's action did not violate clearly established law." Poe, 282 F.3d at 133 (citation omitted).
Reed has not submitted sufficient evidence to show a violation of his Fourth Amendment right to privacy. The "Fourth Amendment shields arrestees from police conduct that unreasonably aggravates the intrusion on privacy properly occasioned by the initial seizure." Lauro v. Charles, 219 F.3d 202, 212 (2d Cir. 2000); see also Poe, 282 F.3d at 136-37 (citing Fourth Amendment privacy cases). A Fourth Amendment examination "requires a contextualized reasonableness analysis that seeks to balance the intrusion on privacy caused by law enforcement against the justification asserted for it by the state." Lauro, 219 F.3d at 209. Two principles therefore guide a Fourth Amendment inquiry:
Because Reed challenges the manner of his arrest, his privacy claim is properly analyzed under the Fourth Amendment. County of Sacramento v. Lewis, 523 U.S. 833, 842-43 (1998).
One, the reasonableness requirement of the Fourth Amendment applies . . . to ensure the reasonableness in the manner and scope of searches and seizures that are carried out. Two, the reasonableness of the police's actions in conducting a search or seizure must be judged, in part, through an assessment of the degree to which those actions further the legitimate law enforcement purposes behind the search or seizure.
Id. at 211 (citations and alterations omitted). The "touchstone" of a Fourth Amendment analysis "is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Maryland v. Wilson, 519 U.S. 408, 411 (1997) (citation omitted).
Reed admitted at his deposition that when he was placed under arrest and taken to the precinct, he was wearing undergarments, shorts, a tank top and boots, and that he was allowed to bring jeans and socks with him under his arm. There is, therefore, no evidence to support the claim in Reed's complaint that he was forced to travel to the precinct "unclothed." No reasonable jury could conclude that the police's actions were unreasonable in such circumstances, and the defendant is entitled to qualified immunity. Cf. Duamutef v. Hollins, 297 F.3d 108, 113 (2d Cir. 2002).
2. Defamation
An action for damages for "libel, slander, [or] false words causing special damages" must be filed within one year of the incident. N.Y. C.P.L.R. § 215(3) (2002); see also Firth v. State, 731 N.Y.S.2d 244, 245 (3d Dep't 2001), aff'd, 2002 WL 1418699 (July 2, 2002). While Reed has not identified the statements giving rise to his defamation claim, it appears that any allegedly defamatory statements would have occurred on or about March 26, 1996, the day of Reed's arrest. Reed's defamation claim was filed on September 25, 1997, more than a year after that date, and is therefore untimely.
Powers additionally maintains that the defendant has not stated a cause of action for defamation, that any allegedly defamatory statements were protected by qualified privilege, that Reed failed to file a mandatory notice of claim with the City, and that the truth of such statements would be a defense to Reed's defamation claim.