Opinion
06 Civ. 15436 (JSR) (KNF).
February 4, 2010
REPORT AND RECOMMENDATION
I. INTRODUCTION
Philip Smith ("Smith"), proceeding pro se, commenced this action, pursuant to 42 U.S.C. § 1983, alleging the New York City Police Department ("NYPD"), Police Officer Manuel Cordova ("Cordova"), Detective Forte ("Forte") and Detective Gill ("Gill"), violated his constitutional rights by shooting Smith in his back, while he was surrendering to "officers." As a result of being shot, Smith underwent kidney-removal surgery and reconstructive surgery to his stomach and intestines. The plaintiff asserts claims for excessive force, reckless endangerment, police brutality and attempted murder, for which he seeks monetary relief. Before the Court is the defendants' motion for summary judgment, made pursuant to Fed.R.Civ.P. 56. The plaintiff opposes the motion.
Smith also named as defendants Sergeant Anibal Amaya ("Amaya") and Detective Henry; however, in October 2008, an order was entered dismissing the complaint as to these defendants.
II. BACKGROUND
The following facts are undisputed:On December 17, 2003, Smith was intoxicated and possessed a gun. Shortly before 7:00 p.m., outside a building located at 3784 10th Avenue, in New York County, Smith took "D.C." hostage, at gunpoint, and told D.C. to take him to 213 Nagle Avenue, apartment 10G, where the plaintiff believed money and drugs were located, which he intended to take. Once they arrived at the Nagle Avenue location, Smith instructed D.C., at gunpoint, to knock on the door to apartment 10G. When the door opened, the two entered the apartment. Upon entering, the plaintiff forced the six occupants, at gunpoint, to strip naked. Some of the occupants escaped the apartment, at some point, causing the plaintiff "to yell that he would shoot somebody if they did not . . . return."
Smith searched for money and drugs. As he did so, Smith heard police sirens outside the building. Shortly thereafter, Smith heard police "walkie-talkies" in the hallway outside the apartment, and noticed the door to apartment 10G opening. The plaintiff pointed his gun toward the door, and realized that the individual who had opened the door — and at whom he was pointing his gun-was a police officer. Cordova and Amaya, who were outside apartment 10G, observed Smith holding a gun, and retreated from the door. Cordova and Amaya shouted commands at the plaintiff, though it is disputed whether they told the plaintiff to "drop his gun," or "put his hands on the wall." All parties contend that the "[p]laintiff claims that he 'put [his] hands on the wall' with the gun still in his hand," and Cordova fired his gun at the plaintiff. The parties agree that Forte and Gill were not involved personally in the shooting.
The defendants dispute the plaintiff's claims that: (1) "Plaintiff came out of the apartment, and showed Sergeant Amaya that he had a gun by holding it out by the barrel to clearly demonstrate that his hand wasn't on the trigger"; (2) the plaintiff informed Amaya he had a gun, and Amaya responded, "I know, just come out and put your hands on the wall"; (3) Cordova "began shouting commands but does not remember exactly what those commands were," and the plaintiff was "confused" and "followed the orders of Sergeant Amaya and put his hands on the wall thinking that he would be safe"; (4) when Smith put his hands on the wall to surrender, he held his gun so that it "was not pointed in the direction of the officers"; and (5) Cordova shot Smith "[w]hile plaintiff's back was turned and his hands [were] on the wall." The plaintiff disputes the defendants' claims that: (a) "Officer Cordova and Sergeant Amaya repeatedly ordered [the plaintiff], in a loud voice, . . . to drop the gun"; (b) in response to Cordova's and Amaya's orders, the plaintiff said nothing and did not drop his gun; and (c) at the time he fired one round in Smith's direction, Cordova believed his life was in immediate danger.
The plaintiff contends he was: (1) transported to Presbyterian Hospital, after being shot in his back; and (2) hospitalized, through February 6, 2004. During this time, the plaintiff alleges he underwent numerous surgeries to: (a) "stop[] [his] pancreas from leaking and bleeding[; (b)] remov[e] his left kidney[;] and [(c)] remov[e] . . . three and a-half to four and a-half feet of his intestines." The defendants do not discuss the extent of the plaintiff's injury, if any, in the papers submitted in support of their motion.
III. DISCUSSION
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c)(2); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), cert. denied, 524 U.S. 911, 118 S. Ct. 2075 (1998);Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006). 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) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). "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) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356. "[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 omitted). 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. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party.See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
The defendants contend they are entitled to summary judgment because: (1) Smith cannot show that excessive force was used against him; (2) the plaintiff cannot assert a claim for excessive force against Forte and Gill, because he has not shown these defendants were involved personally in using force against him; (3) the plaintiff cannot prosecute criminal offenses, which are asserted in his remaining claims; (4) Cordova is shielded from liability to Smith, under the doctrine of qualified immunity; and (5) NYPD is not a suable entity.
Excessive Force
While the plaintiff raises police brutality as a separate claim, the facts he alleges for that claim mirror those alleged for his excessive-force claim. Thus, the two claims are, essentially, the same. Therefore, it is reasonable to treat the plaintiff's police brutality claim as "subsumed within his [excessive-force claim]." Hotaling v. LaPlante, 167 F. Supp. 2d 517, 523-24 (N.D.N.Y. 2001).
The Fourth Amendment proscribes the use of excessive force by police officers. "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871 (1989) (internal quotation marks and citations omitted); see also Phelps v. Szubinski, 577 F. Supp. 2d 650, 661 (E.D.N.Y. 2008) (quotingGraham). Application of the "reasonableness" standard in this context "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 he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S. Ct. at 1872; see also Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir. 2004) (quoting Graham). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Phelps, 577 F. Supp. 2d at 661 (quoting Graham, 490 U.S. at 396, 109 S. Ct. at 1872).
The facts and circumstances surrounding the plaintiff's December 17, 2003 encounter with the officer defendants are disputed. Smith contends that, once he realized police officers were attempting to enter apartment 10G, at 213 Nagle Avenue, he followed Amaya's commands, put his hands above his head and positioned his body so that he faced a wall with his back to the police officers. Smith admits he was still holding a gun, when he put his hands above his head; however, he recalls that the gun "was not pointed in the direction of the officers as his back was turned to them," and that he held his gun "out by the barrel to clearly demonstrate that his hand wasn't on the trigger."
The defendants contend Smith posed a threat to their safety. According to the defendants, when Cordova and Amaya opened the door to apartment 10G initially, and saw the plaintiff pointing a gun at them, they felt their lives were in "immediate danger"; therefore, they retreated. Cordova reapproached the door to apartment 10G, the door to the apartment opened, Smith was observed holding a firearm in his right hand, and Cordova and Amaya directed Smith to drop his weapon. The defendants allege that Smith "said nothing and did not drop the gun," and Cordova, "believing his life was in immediate danger, fired one round in Plaintiff's direction." The defendants do not make any allegations about how Smith held his gun, or in what direction it was pointed at the time Cordova fired his gun at Smith.
In order to determine whether the force used to effect an arrest was reasonable and, thus, not a violation of the Fourth Amendment, a "factfinder must determine whether, in light of the totality of the circumstances faced by the arresting officer, the amount of force used was objectively reasonable at the time." Inasmuch as the inquiry is fact-specific, "granting summary judgment against a plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could conclude that the officers' conduct was objectively unreasonable." Amnesty America, 361 F.3d at 123.
As noted above, when a summary judgment motion is being considered, a court is required to view the evidence in the light most favorable to the party against whom summary judgment is sought. Moreover, the court must draw all reasonable inferences in the non-moving party's favor. Applying that rule here, the Court finds that Smith's allegations are sufficient to create issues of fact respecting the objective reasonableness of the degree of force used by Cordova, on December 17, 2003. The plaintiff's excessive-force claim requires credibility determinations to be made. Such determinations are typically the province of a jury, see Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994); this militates against granting summary judgment to the defendants on the plaintiff's excessive-force claim. See Amnesty, 361 F.3d at 124; Breen v. Garrison, 169 F.3d 152, 153 (2d Cir. 1999).
The Court is mindful that Cordova has asserted the affirmative defense of qualified immunity, with respect to Smith's excessive force claim. As explained above, whether the force used in effecting an arrest is excessive, turns on its reasonableness. Therefore, "[s]ummary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness." Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999); see Hemphill v. Schott, 141 F.3d 412, 418 (2d Cir. 1998).
Personal Involvement
"In this Circuit, personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (citing Mukmuk v. Commissioner of Dept. of Correctional Services, 529 F.2d 272, 275 [2d Cir. 1976]). A § 1983 complaint must contain allegations that a defendant is "directly and personally responsible for the purported unlawful conduct." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (citing Black v. United States, 534 F.2d 524, 527-528 [2d Cir. 1976]); see also, Lee v. State of New York Dept. of Correctional Services, No. 97 Civ. 7112, 1999 WL 673339, at *15 (S.D.N.Y. Aug. 30, 1999). The defendants contend Smith has not asserted an excessive-force claim against Forte and Gill, owing to his failure to show that these defendants were involved personally in using force against him.
The plaintiff has not made any factual allegations concerning the personal involvement of Forte and Gill, in the use of force against him, on December 17, 2003. Moreover, Smith concedes that these defendants were not involved personally in the shooting. Since personal involvement in the alleged deprivation of rights is a prerequisite to an award of damages under § 1983, granting the defendants' motion for summary judgment, as it relates to these two defendants, on the issue of excessive force, is warranted.
Plaintiff's Reckless Endangerment and Attempted Murder Claims
In addition to making an excessive-force claim, the plaintiff has asserted claims for reckless endangerment and attempted murder, which are criminal offenses. See New York Penal Law §§ 120.20, 120.25, 125.25, 110.00. However, an individual cannot bring a private cause of action for alleged criminal violations. See, e.g., Rzayeva v. United States, 492 F. Supp. 2d 60, 84 (D. Conn. 2007) (finding that an individual could not raise claims for murder and conspiracy to commit murder, because "private citizens do not have a private cause of action for criminal violations"). Therefore, the defendants are entitled to judgment, as a matter of law, on these claims.
NYPD's Amenability to Suit
In its most pertinent part, the New York City Charter provides that: "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." New York City Charter Ch. 17 § 396.
Defendant NYPD, is an agency of the city of New York. "Governmental agencies have only those powers which are conferred expressly or by necessary implication; power is not to be inferred, and the principle of strict construction should be applied in interpreting statutory grants of power." Yonkers Comm'n on Human Rights v. City of Yonkers, 654 F. Supp. 544, 551 (S.D.N.Y. 1987) (quotations and citations omitted). Accordingly, perforce of the above-referenced provision of the New York City Charter, NYPD, an agency of the city of New York, lacks the capacity to be sued. See 5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 284 (S.D.N.Y. 2009). Therefore, Smith may not maintain this action against NYPD.
IV. RECOMMENDATION
For the reasons set forth above, the defendants' motion for summary judgment, Docket Entry No. 39, to the extent it pertains to NYPD, the plaintiff's reckless endangerment and attempted murder claims, as well as the claims asserted against Forte and Gill, should be granted. However, the motion should be denied, with respect to the excessive-force claim the plaintiff asserted against Cordova.
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N.B. All unpublished decisions to which citation has been made are being provided to the defendant with a copy of this order.
V. 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 fourteen (14) 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 Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (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, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).