Brown v. the City of New York

Full title: RASHAWN BROWN, Plaintiff, v. THE CITY OF NEW YORK and POLICE OFFICER…

Court: United States District Court, E.D. New York

Date published: Feb 15, 2001

98-CV-5354 (ILG) (E.D.N.Y. Feb. 15, 2001)

Opinion

98-CV-5354 (ILG)

February 15, 2001

Jonathan B. Nelson, P.C., New York, NY, for Plaintiff.

Diana M. Murray, Esq., Corporation Counsel of the City of New York, New York, NY.

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

SUMMARY

Plaintiff Rashawn Brown ("Brown") seeks to recover for injuries derived from an encounter with defendant Police Officer Michael Stiso ("Stiso") on November 27, 1998. Brown claims that, in violation of federal and state laws, he was wrongfully arrested, exposed to excessive force, denied medical treatment, maliciously prosecuted, and deprived of his First Amendment right to free speech. The City of New York ("City") and Stiso (collectively "defendants") move for summary judgment on all of Brown's federal claims pursuant to Fed.R.Civ.P. 56. For the reasons that follow, defendants' motion for summary judgment as to Brown's § 1983 false arrest and malicious prosecution, denial of medical treatment, First Amendment, and municipal liability claims is granted. Defendants' motion for summary judgment as to Brown's excessive force claim and qualified immunity are denied.

BACKGROUND

Brown's lawsuit stems from what began on November 27, 1998 as a domestic dispute between Brown and Latoya Williams ("Williams") over their infant daughter who was then approximately 13 months old. At the time of the dispute, Brown had physical custody of the child. The following summary of events is taken from the defendants' statement of facts and are undisputed unless noted. Brown and his daughter were visiting the home of his friend Wilbur Green ("Green") located near Lexington Avenue and Malcolm X Boulevard in Brooklyn for the Thanksgiving holiday. After leaving his daughter in the care of adults at the Green house, Brown and a friend Kareem Pusey ("Pusey") left to walk to the local store for ice cream at 7 p.m. On their way to the store, Brown and Pusey encountered Williams and Lydia Whitted ("Whitted"). Williams angrily inquired about the whereabouts of their daughter. Brown, choosing not to discuss the matter with Williams, walked away, and Williams proceeded to the Green residence.

Anticipating resistance, Williams called the police before entering the Green house, took physical custody of the infant after a struggle with adults there, and left with the infant in her arms. Green alerted Brown to the situation and Brown returned to the Green home and met Williams on the sidewalk. Brown and Williams began angrily arguing when Brown yelled at Williams to return the child. Brown proceeded to snatch the infant's coat out of Williams' hand. At that moment, Stiso and his partner Police Officer Peter Duva arrived at the scene. Stiso directed Brown to step away from Williams and to return the child's coat because it was cold outside, but Brown repeatedly refused. Stiso then reached for the coat and a struggle ensued. The parties differ on who laid hands on other first. According to defendants' account, Brown hit Stiso "pretty hard," and then Stiso hit Brown on the forehead with the flashlight that was in his right hand. (Memo. of Law in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mot.") at 4) Stiso apparently had the flashlight in his hand throughout this episode because the street was dark. During the altercation, Stiso was struck on the head, fell to the ground and bruised his knee. Brown's version of the facts has Stiso contacting Brown first. Specifically, Stiso placed his hands around Brown's neck in a choke hold and pushed Brown against the police car. (Pl.'s Local Rule 56.1 Stmt. ¶ 14) Brown had difficulty speaking and breathing in this choke hold and then raised his forearms to dislodge Stiso's grip. (Id. ¶¶ 15-16) Stiso then reached into his belt for his flashlight and struck Brown on the head with it three times. (Id. ¶¶ 17-19)¹

1 Defendants point to testimony by Brown, Williams, and Green to the effect that Stiso only hit Brown once with the flashlight. (Id. at 14, n. 5)

After the altercation, the police arrested Brown and took him to Woodhull Medical and Mental Health Center where he was seen by a doctor who sutured a two inch laceration on his forehead. Brown states that emergency personnel were at the scene in front of the Green home and available to take him to the hospital, but Stiso drove him instead and purposely stopped at every stop sign and light rather than driving on an "emergency basis." (Id. ¶¶ 22, 25) The hospital thereafter released Brown into police custody and the police charged him with endangering the welfare of a child, assaulting an officer, harassment, and disorderly conduct. Brown was prosecuted in the Criminal Court of the State of New York, City of New York, County of Kings, but on February 25, 1998, the Criminal Court adjourned the action in contemplation of dismissal.

The day after the arrest, Brown filed a telephone complaint with the Civilian Complaint Review Board ("CCRB") and later gave the CCRB a sworn statement describing the events chronicled above.

The New York City Police Department brought charges against Stiso for the use of excessive force before the New York City Office of Administrative Trials and Hearings. The Administrative Law Judge heard testimony from Brown, Williams, Green, Pusey, Whitted, Stiso, Duva, and Sargent James Jones. The Administrative Law Judge recommended that the charges be dropped because "the preponderance of the credible evidence support[edl a finding that Officer Stiso's use of force was reasonable," and that "[u]nder these circumstances, some minor use of force could be characterized as appropriate and even essential to regain control." (Murray Decl., Ex. M at 7) The Police Commission adopted the recommendation and dismissed the charges against Stiso.

Brown brought this suit on August 24, 1998 and filed an amended complaint on November 15, 1999 asserting the following twelve causes of action: (1) violation of the right to be free from unreasonable searches and seizures; (2) denial of due process; (3) violation of the right to free speech and the freedom to assemble; (4) denial of liberty; (5) cruel and unusual punishment; (6) false imprisonment; (7) false arrest; (8) assault and battery; (9) malicious prosecution; (10) invasion of privacy; (11) careless, reckless, and/or negligent selecting, hiring, training supervising, assigning, and retaining of Stiso; and (12) negligence.

DISCUSSION

Defendants move for summary judgment on the following grounds: (1) the false arrest and malicious prosecution claims are barred by Brown's acceptance of an adjournment in contemplation of dismissal in the caseThe People of the State of New York v. Brown, prosecuted in Criminal Court of the State of New York, City of New York, County of Kings; (2) the force used by Stiso was "objectively reasonable;" (3) Brown was provided with the necessary medical attention; (4) the alleged federal violations were not the result of a City policy, custom, or practice; and (5) Stiso is entitled to qualified immunity.

I. Summary Judgment Standard

Summary judgment is appropriate when "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." Fed.R.Civ.P. 56(c). In order for the moving party to be successful, it must "point out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of [its] pleadings, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The Supreme Court has established a clear test for whether an issue of fact is "genuine" for the purposes of summary judgment. InAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), the Court stated that a "dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Thus, "if the [non-movant's] evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted." Id. at 249-50.

II. False Arrest and Malicious Prosecution Claims — Adjournment in Contemplation of Dismissal Not a Favorable Termination and Probable Cause for Arrest

Defendants contend that Brown's malicious prosecution and false arrest claims are barred by his acceptance of an adjournment in contemplation of dismissal ("ACD"). Turning first to Brown's malicious prosecution claim, he acknowledges that an ACD, under New York law does not constitute a favorable termination, and therefore precludes a malicious prosecution claim brought under § 1983. The leading Second Circuit case addressing this issue is Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980), in which the court stated, "[p]roceedings are 'terminated in favor of the accused' only when their final disposition is such as to indicate the accused is not guilty, Restatement (Second) of Torts § 660. . . . An adjournment in contemplation of dismissal, like a consent decree, involves the consent of both the prosecution and the accused and leaves open the question of the accused's guilt." Brown, however, argues that the ACD entered in his case was not a true ACD which would otherwise preclude his § 1983 claims because he was not present in court to give his consent. Stated another way, Brown argues that since he was not present at the court proceeding, he could not have consented to the ACD, as the New York Criminal Procedure Law § 170.55(1) requires,² and therefore a fact issue exists as to whether this disposition was a favorable termination. The following exchange occurred in Criminal Court on February 25, 1998:

2 Section 170.55 of the New York Criminal Procedure Law states in part: "[u]pon or after arraignment . . . and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be 'adjourned in contemplation of dismissal,' as prescribed in subdivision two." This Section also provides that "[u]pon application of the people, made at any time not more than six months . . . after the issuance of such order, the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in the furtherance of justice. and the action must thereupon proceed." N.Y. Crim. Proc. § 170.55(2) (McKinney's 1993).

Mr. Wess [Brown's attorney]: Judge. [Brown] doesn't seem to be here but it may be because the arraignment was 11/28, today is 2/25. If the People don't have a corrob, it would be perhaps a 30.30 [speedy trial] situation.

Ms. Vargas [People's attorney]: or a straight ACD, Judge.

The Court: One second. You are offering a straight ACD?

Ms. Vargas: Yes.

Mr. Wess: May I take that in his absence?

The Court: Yes, if there is no order.

ACD.

(Defs.' Mem. Ex I)

At oral argument, it was suggested that if an ACD is a form of sentencing, then his presence, if not waived, would be necessary. Conversely, if an ACD is understood to be an agreement between the parties, then following contract and agency principles, Brown's attorney could consent on his behalf. A closer look at the New York Criminal Procedure Law is revealing. It is true that generally, a defendant must be present at the time a sentence is pronounced and that a defendant to be sentenced to a misdemeanor or a petty offense may waive his right to be personally present. N.Y. Crim. Proc. Law §§ 380.40(1), (2) (McKinney's 1994). However, sentences are only pronounced in cases where a conviction is entered id. § 380.20, and the ACD statute states that "[t]he granting of an [ACD] shall not be deemed to be a conviction or an admission of guilt." Id. § 170.55(8) (emphasis added). The court also observes that the ACD statute is placed within the "Preliminary Proceedings" section of the Criminal Procedure Law which supports the conclusion that an ACD is not a sentence.

Since an ACD is not a sentence, the court turns to the question of whether Brown's attorney could properly consent to the ACD on Brown's behalf. The Constitution of the State of New York provides in the Bill of Rights, "[i]n any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. . . ." N.Y. Const. art. 1, § 6. In civil actions, a party may elect to appear by an attorney. N.Y. C.P.L.R. § 321(a) (McKinney's 1991). The scope of such representation was discussed in Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 502 N.Y.S.2d 479, 489, 117 A.D.2d 135, 148 (N.Y.App.Div.2d Dep't 1986), which stated:

[u]nder such circumstances [whereby a defendant elects to appear by an attorney], the attorney acts as agent for the defendant. The actions of an attorney as agent, however, are circumscribed by the rules of the law of agency. A principal is bound to a third person by acts of another when the principal has expressly given the latter authority to act on his behalf; has confirmed unauthorized acts either expressly or impliedly by words or conduct; or has apparently authorized that person to act as his agent, although the person acts either without or in excess of his actual authority. . . .

There is no evidence before the court indicating that Brown gave his express consent, nor is there evidence that once he learned of the ACD he acted to withdraw his consent. Brown cannot have both obtained the benefit of an ACD premised on his consent and now argue in his malicious prosecution case that his attorney's consent was invalid. In sum, the court finds that Brown entered into a valid ACD and that Singleton v. City of New York, 632 F.2d 185 (2d Cir. 1980), requires dismissal of his malicious prosecution claim.

Defendants rely on Roesch v. Otarola, 980 F.2d 850, 853 (2d Cir. 1992), which purported to extend Singleton to false arrest cases, for the proposition that Brown's ACD should preclude his § 1983 claim of false arrest. In reexamining its holding in Roesch, the Second Circuit reasoned that favorable termination is not an element of a false arrest claim under New York law, whereas Connecticut law, which governed the facts inRoesch, is not so clearly settled on this element. Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996). The Weyant court thus concluded,

the ruling in Roesch is no impediment to our conclusion here that a person who asserts that he has been arrested without a warrant and without probable cause — a claim that does not seek to cast doubt upon judicial proceedings and is ripe upon arrest — need not insist that a prosecution be brought against him in order that he be allowed to pursue a claim for false arrest.

Id.at 854.

Defendants additionally claim that Brown's false arrest claim is barred by the existence of probable cause for his arrest. The elements of a false arrest claim under § 1983 are substantially the same as those under state law. Posr v. Doherty, 944 F.2d 91, 96 (2d Cir. 1991). "To prove the elements of false arrest under New York law plaintiff must show: (1) the defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged." Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). An officer is privileged to make an arrest if he has probable cause to do so. See N.Y. Crim. Proc. § 140.10(1)(a) (b)("Arrest without a warrant; by police officer . . . a police officer may arrest a person [without a warrant] for a crime when he has reasonable cause to believe that such person has committed [a] crime. . . ."). Thus, the presence of probable cause is a complete defense to an action for false arrest. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 45 (2d Cir. 1991).

The test for probable cause was described in Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir. 1995), cert. denied, 517 U.S. 1189 (1996), as being "established when the arresting officer has knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested." (internal quotation marks and citations omitted). "Once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest." Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). The court may determine as a matter of law the existence of probable cause if there is no dispute as to the pertinent events and the knowledge of the arresting officer. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996).

Defendants have established that Stiso had probable cause to arrest Brown for, among other charges, endangering the welfare of a child. See N.Y. Penal Law § 260.10 (McKinney's 1983). One is guilty of endangering the welfare of a child when "[h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health. . . ." Id. The uncontroverted facts indicate that Stiso observed Brown yank the child's jacket out of Williams hands while she held the child in her arms; Stiso also made several failed attempts to persuade Brown to return the jacket; Brown refused, despite the adverse weather conditions; and Stiso encountered physical resistence when he attempted to take the jacket from Brown to return to the child. The court finds that Stiso had sufficient information to warrant a person of reasonable caution to believe that Brown committed the offense, and accordingly, the court grants defendants' motion for summary judgment on Brown's false arrest claim.

III. Excessive Force Claim and Qualified Immunity Defense

It is undisputed that Brown's claim of excessive force originates from actions he alleges defendants took in an effort to arrest him. Therefore, his claim for excessive force arises under the Fourth Amendment of the Constitution. See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding that "all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard"). A Fourth Amendment inquiry is an objective test, which requires examining the severity of the crime at issue, the immediate threat the suspect poses to the officers and others, and whether the suspect is actively resisting arrest or attempting to flee. See id. at 396.

Defendants rely on the following arguments to support their summary judgment motion: (1) the Administrative Law Judge who presided over Stiso's administrative hearing issued a Report and Recommendation, later adopted by the City, and found by a preponderance of the credible evidence that Stiso's use of force was reasonable; and (2) Brown's own accounts of the circumstances confronting Stiso and the minimal and reflexive nature of the force used demonstrate that the force was objectively reasonable. Although the Administrative Law Judge's findings are well reasoned and persuasive, her Report and Recommendation neither bind this court nor dispositively preclude this court's consideration of the facts presented. See Banks v. Person, 49 F. Supp.2d 119, 126 (E.D.N.Y. 1999) ("Under New York law, collateral estoppel will preclude re-litigation of an issue if the issue sought to be precluded is identical to the issue in the second proceeding and is one which has necessarily been decided in the prior proceeding in the context of a full and fair opportunity to litigate."). Brown did not have a fair and full opportunity to litigate the issue of excessive force at the Administrative Trial because he was merely a witness, without the occasion to present his own case, and was not a party to the proceedings. Thus the court turns to defendants' other argument.

Even adopting the perspective of a reasonably prudent police officer facing the situation confronted by Stiso, the court finds that there are triable issues of fact as to whether Stiso's use of force was objectively reasonable. Stiso and Duva first found Brown and Williams violently arguing with each other. Stiso observed Brown snatch their child's jacket out of Williams' hands while Williams held the child. Stiso repeatedly requested Brown to return the child's jacket, and Brown repeatedly refused. Although it is not clear who first made contact with the other, it is certain that the tenor of the situation escalated, Brown refused to comply with Stiso's request, Brown actively resisted Stiso's arrest, and that Stiso reflexively responded by hitting Brown in the head.

Brown counters by asserting that Stiso intended to arrest Brown for merely refusing to return the infant's coat to Williams, that Stiso intended to use excessive force on Brown and that only later did Stiso devise to arrest Brown on the misdemeanor of endangering the welfare of a child.³ Brown also suggests that Stiso's use of force was excessive because Stiso arrested Brown on the mere misdemeanor of endangering the welfare of a child. See N.Y. Penal Law § 260.10 (McKinney's 1983). The parties' varying accounts of who struck who first, how tightly Stiso grabbed Brown around the neck, the circumstances of Brown's use of force to remove Stiso's grasp, and Stiso's use of the flashlight to hit Brown raise genuine issues of fact for trial. Viewing Brown's version of the facts in a light most favorable to him, a factual dispute does exist as to whether Stiso used excessive force and unreasonably caused injury to the plaintiff.

3 Stiso's subjective intent is irrelevant to the issue before the court, that is, the objective reasonableness of Stiso's use of force.

The parties also dispute whether Stiso is entitled to a qualified immunity defense to Brown's excessive force claim. In general terms, the qualified immunity defense "hold[s] that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). To overcome the qualified immunity defense, a plaintiff must first "allege a violation of a clearly-established constitutional or statutory right [and s]econd, qualified immunity will be denied only if a reasonable official should have known that the challenged conduct violated that established right." Thomas v. Roach, 165 F.3d 137, 142-43 (2d Cir. 1999). Since Brown has plainly alleged a Fourth Amendment violation, Stiso has qualified immunity only if it were objectively reasonable for him to believe that his conduct did not violate the Fourth Amendment. See id. at 143. In an excessive force case, a material issue of fact as to whether an officer used excessive force precludes summary judgment on a qualified immunity defense. Id. ("[T]he district court should not have granted summary judgment to the defendants on qualified immunity grounds unless it concluded that the only result a fair jury could reach is that reasonable police officers could disagree about whether the force used against [plaintiff] was excessive.") Consequently, the court denies defendants' motion for summary judgment as to Brown's excessive force claim and Stiso's qualified immunity defense.

IV. Denial of Medical Attention

To establish a claim of denial of medical treatment, a plaintiff must show both that an official denied him treatment needed to remedy a serious medical condition and that he did so because of his deliberate indifference to that need. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). A serious medical condition is one that "contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).⁴ 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. See Weyant, 101 F.3d at 856. Therefore, Brown must show "something more than mere negligence"; but proof of intent is not required, because the deliberate indifference standard "is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer, 511 U.S. at 835.

4 Chance discusses the denial of medical care in the prisoner context. The Fourteenth Amendment's Due Process Clause, applicable here, and the Eighth Amendment's prohibition of cruel and unusual punishment have been interpreted to prohibit the same acts discussed above. See Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (finding pre-trial detainees to be entitled to the same protections under the Due Process Clause).

Brown fails to satisfy either element of this claim. First, Brown cannot be understood to have suffered a "serious medical condition" as required by Farmer. Brown insists that he was bleeding heavily and that his clothes were drenched in blood. (See Murray Decl., Ex. A at 13-14 ("Q: Were you aware of the condition of your head? A: Yeah, I had on a tan shirt with a cream jacket and the front of it was just filled with blood.")) Brown also relies on Stiso's admission that Brown was "pretty messed up." (Nelson Decl., Ex. B at 11) His medical records, however, indicate that the triage nurse at Woodhull Medical and Mental Health Center classified his condition as "High Priority," the mid-level category between the low of "Routine" and the high of "Emergent." (Murray Decl., Ex D) Furthermore, the treating doctor noted in the medical record that Brown presented with a lacerated forehead with "minimal bleeding." (Id.) Even if there were a triable issue of fact as to the extent of Brown's medical condition, Brown cannot demonstrate deliberate indifference on the part of defendants. Brown claims that Stiso was aware of Brown's injuries, permitted Brown to stand handcuffed for fifteen minutes while he was bleeding and in pain, and Stiso drove to the hospital, observing every traffic signal, instead of permitting medical personnel already present at the scene to treat Brown. All of this, Brown claims, demonstrates Stiso's intentional acts to delay Brown's treatment to further his injuries and pain.

Defendants are correct that Brown lacks evidence of "deliberate indifference." Brown was undeniably injured and bleeding from his forehead, but there is no evidence that Stiso acted with reckless disregard for any risk posed by Brown's medical condition or that Stiso ignored Brown's injury to the point Brown's condition was permitted to degenerate to a life threatening level. That Brown feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim. See Chance, 143 F.3d at 703. In sum, the court grants defendants' motion for summary judgment as to Brown's claim for denial of medical attention.

V. First Amendment Claim

Brown asserts that he was exercising his First Amendment right to free speech when he expressed his opinion that Stiso was acting improperly by demanding that Brown return the child's coat and by permitting Williams to retain custody of their child. Thus, Brown continues, defendants retaliated against him for expressing this "opinion" when they falsely arrested and falsely imprisoned him which consequently chilled the exercise of his First Amendment rights. A plaintiff asserting government conduct in retaliation for the exercise of free speech must demonstrate that: "(i) he has an interest protected by the First Amendment; (ii) the defendant's actions were motivated by or substantially caused by the plaintiff's exercise of that right; and (iii) the defendant's action effectively chilled the exercise of the plaintiff's First Amendment rights." Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). Defendants contend that Brown's First Amendment claim is barred by the existence of probable cause for his arrest, that Brown cannot establish that his words were protected speech, and that Brown cannot demonstrate that defendants chilled his First Amendment activities.

The Second Circuit has held that a First Amendment claim for retaliation cannot be sustained where there is probable cause for arrest. See Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (upholding the dismissal of First Amendment retaliation claim: "if the officer . . . had probable cause . . . then we will not examine the officer's underlying motive in arresting and charging the plaintiff'),cert. denied, 517 U.S. 1189 (1996). Having already found that probable cause existed for Stiso to arrest Brown, see supra Section II, the motion to dismiss Brown's First Amendment claim is hereby granted.

VI. Municipal Liability

In his Complaint, Brown alleges that the City was "careless, reckless, and/or negligent in the selection, hiring, training, supervision, assigning and retention of Defendants STISO . . . which caused and/or contributed to the events complained of." (Compl., ¶ 81) Defendants move to dismiss this claim because Brown can assert no facts to support such a claim. To establish the City's liability under § 1983 for unconstitutional acts by its employees, Brown must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478-79 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 818 (1985); Monell v. Department of Social Services, 436 U.S. 658, 690, 694 (1978). At oral argument, Brown conceded that his claims against the City should be dismissed because he could not set forth facts to support a finding of a municipal policy or custom. Accordingly, the court grants defendants' motion for summary judgment on Brown's municipal liability claim.

VII. State Law Claims

Defendants request the court to decline jurisdiction if it grants summary judgment in their favor on all of Brown's federal claim. See Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988) ("when the federal law claims have dropped out of the lawsuit in its early stages and only state law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice");Baylis v. Marriott Corp., 843 F.2d 658 665 (2d Cir 1988) ("when all basis for federal jurisdiction have been eliminated from a case so that only pendent state claims remain, the federal court should ordinarily dismiss the state claims"). Since the court finds triable issues of fact in Brown's excessive force claims, Brown's state law claims are still properly before this court.

CONCLUSION

For all of the foregoing reasons, defendants' motion for summary judgment as to Brown's § 1983 false arrest and malicious prosecution claims, denial of medical treatment, First Amendment, and municipal liability claims is granted. Furthermore, defendants' motion for summary judgment as to Brown's excessive force claim and qualified immunity are denied.

SO ORDERED.