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holding that a police officer may qualify as initiating prosecution where he or she "cause[d] the initiation of criminal process," even if he or she did not actually effectuate the arrest
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04 CIV. 8570 (DLC).
June 27, 2006
Appearances
For Plaintiff: Regina L. Darby Law Offices of Regina L. Darby New York, NY.
For Defendants: Hillary Frommer Corporation Counsel City of New York New York, NY.
OPINION and ORDER
Plaintiff Forrest Phelps ("Phelps") brings this action under 42 U.S.C. § 1983 ("Section 1983") and New York law to recover damages for the alleged violations of his rights by New York City police officers in connection with his arrest in April 2004. The majority of Phelps's 20 claims are based on his contentions that the officers pursued and arrested him without probable cause and used excessive force in making the arrest. The City of New York (the "City") and the named officer defendants have moved for summary judgment. Their motion is granted in part and denied in part.
Background
The following facts are taken in the light most favorable to plaintiff unless otherwise noted. At approximately 9:45 p.m. on April 2, 2004, Phelps entered Jackie Robinson Park, located near 145th Street in Harlem. Defendant police officers Joseph Lessard ("Lessard") and Trevor Peachey ("Peachey") were patrolling the park that night and, upon seeing Phelps, called out to him in an attempt to question him about his reasons for being in the park at that hour. Phelps, thinking he was about to be robbed, ran away from the officers. Lessard and Peachey chased after him.
In the process of fleeing, Phelps tripped and fell over a wall, fracturing his left leg. Shortly thereafter, Peachey jumped over the wall, breaking his leg, as well. Lessard soon followed and assisted Peachey in handcuffing Phelps. The officers told Phelps to stand up. When he replied that he could not do so because of his broken leg, one of the officers pulled him up by his handcuffs and stated, "I don't give a fuck about your leg." Phelps then dragged himself to a park bench and pulled himself upright in an attempt to comply with the order. The officers searched Phelps and did not find any weapons, drugs, or other contraband material.
Lessard called over the police radio for assistance. Several officers soon arrived, including Sergeant Alicea ("Alicea") and defendant Krutys. Because both Peachey and Lessard had been injured when they jumped over the wall, Alicea designated Krutys as the arresting officer. Krutys spoke with Phelps and the other officers at the scene, and, at the direction of Alicea, charged Phelps with resisting arrest and disorderly conduct.
Phelps was taken by ambulance to the Harlem Hospital for treatment of his broken leg. He was admitted to the hospital and underwent surgery. Until April 6, when he was given a desk appearance ticket, Phelps was handcuffed to his bed and guarded by a uniformed officer. He remained in the hospital for approximately two-and-a-half weeks. When he was released, he was instructed to use crutches and to see a physical therapist.
The Office of the New York County District Attorney determined that Phelps would be charged with resisting arrest and criminal trespass, but not disorderly conduct. After Phelps made two court appearances, but before the trial had taken place, the charges against him were dropped.
Phelps filed this action on October 29, 2004. He claimed that under Section 1983, defendants were liable for violating his federal constitutional rights in the following ways: (1) conducting an unlawful search without probable cause; (2) using excessive force; (3) failing to intervene to prevent the unlawful conduct of the named defendants; (4) depriving him of substantive due process; (5) making a false arrest; (5) engaging in a malicious prosecution; and (6) engaging in a malicious abuse of process. Phelps made similar claims under New York State law and added charges of assault; battery; intentional infliction of emotional distress; negligence; negligent screening, hiring, and retention; and negligent training and supervision.
After fact discovery, defendants filed this motion for summary judgment on November 18, 2005. For the following reasons, it is granted in part and denied in part.
Although defendants' motion requests that the Court dismiss the complaint "in its entirety," their brief does not address the substantive due process and failure to intervene claims. They will therefore not be dismissed.
Discussion
Summary judgment may not be granted unless all of the submissions taken together "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." Rule 56(c), Fed.R.Civ.P. 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 non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant'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 the movant's pleadings. Rule 56(e), Fed.R.Civ.P.; accord Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 169 (2d Cir. 2006).
I. False Arrest
Phelps brings claims for false arrest under the Fourth Amendment and New York law. Because allegations of unconstitutional false arrest are analyzed by "look[ing] to the law of the state in which the arrest occurred," Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006) (citation omitted), the elements of Phelps's two claims are identical: (1) the defendants 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. Curry v. City of Syracuse, 316 F.3d 324, 335 (2d Cir. 2003). When a plaintiff has been arrested by a police officer, "the existence of probable cause is an absolute defense to a false arrest claim." Jaegly, 439 F.3d at 152.
Plaintiff also brings a separate claim for unlawful imprisonment under New York law. The elements of this claim are, however, identical to those of false arrest. Broughton v. State, 37 N.Y.2d 451, 456 (1975). Therefore, they will be treated as a single claim.
The requirement of probable cause does not create a high bar for law enforcement. It exists anytime "authorities have 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." Boyd v. City of New York, 336 F.3d 72, 75-76 (2d Cir. 2003) (citation omitted). Probable cause does not inquire into the arresting officers' subjective motivations, but rather asks "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them." Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (citation omitted).
Officers Lessard and Peachey argue that the arrest of Pehlps was justified by Lessard's belief "that plaintiff was committing the crime of trespass in the officers' presence." Defendants, however, have submitted no evidence regarding the basis of this belief. In his affidavit, Lessard states simply, "In April 2004, Jackie Robinson Park closed at dusk." Peachey has not submitted an affidavit at all. The officers, then, have pointed to no conversations with other law enforcement personnel, no signs displayed on park grounds, nor any previous experience with the operating hours of New York City Parks that would allow a fact-finder to determine that their actions were "objectively reasonable." By contrast, plaintiff's testimony that a sign reading "Park closes at 10 p.m." was posted at the entrance of the park in April 2004 is evidence that Lessard's belief that Phelps was trespassing was not, in fact, reasonable.
Although Phelps was charged with disorderly conduct and resisting arrest, Lessard and Peachey do not argue here that probable cause existed for those charges. Their defense is based solely on Phelps's alleged trespass. Since the existence of probable cause is based on the facts known at arrest rather than the "offense invoked by the arresting officer," the defendants are free to frame their argument in this fashion. Jaegly, 439 F.3d at 153.
Officer Krutys states in his affidavit that he spoke with a Parks Department employee who informed him that the park had closed at dusk on the night of Phelps's arrest. This conversation is, of course, hearsay, and in any event, sheds no light on the reasonableness of Lessard and Peachey's belief about the closing time of the park when the pursuit and arrest occurred. Whether there is probable cause is determined from the facts known to the arresting officer "at the time of the arrest." Jaegly, 439 F.3d at 153.
As noted above, because defendants have moved for summary judgment, they bear the burden of demonstrating that no rational trier of fact could find that they lacked probable cause to arrest Phelps. The only evidence in the record, however, supports the opposite conclusion. As a result, there is a disputed question of fact with respect to whether Lessard and Peachey had probable cause to arrest Phelps. Their motion for summary judgment on these claims is therefore denied.
Krutys, however, argues that he had probable cause to affect Phelps's arrest because, although he lacked first-hand knowledge of the relevant events, he relied on the statements of Lessard and Peachey, and the instructions of Sergeant Alicea. Krutys invokes the collective knowledge doctrine, which holds that "an arresting officer might not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but may nonetheless act reasonably in relying on information received by other law enforcement officials." United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001). The rationale behind the doctrine is that "in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superiors or associates."Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003). Although the doctrine is typically used to establish probable cause for the purpose of admitting evidence at trial, it is equally applicable here. As the Supreme Court has recognized, police officers called upon to aid other officers in making an arrest are entitled to assume that the officers requesting aid have acted properly. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568 (1971). Krutys's motion with respect to the false arrest charges is therefore granted.
II. Unlawful Search and Seizure
Phelps argues that he was subjected to unlawful stop, search, and seizure in violation of the Fourth Amendment and New York State law. A police officer, of course, may approach any person without reasonable suspicion or probable cause; and that person may ignore the officer and go about his business. Illinois v. Wardlow, 528 U.S. 119, 125 (2000). In order to "stop and briefly detain a person for investigative purposes," however, the officer must have "a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause." United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (citation omitted) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Similarly, to justify a search for weapons, the officer must possess "suspicion [that the suspect is armed] supported by specific reasonable inferences which the officer is entitled to draw from the facts in light of his experience." United States v. Casado, 303 F.3d 440, 444 (2d Cir. 2002) (citation omitted) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
Lessard and Peachey claim that they had reasonable suspicion to pursue and detain Phelps because he was trespassing in the park and because he fled from them unprovoked. See generally Wardlow, 528 U.S. at 125. As discussed above, defendants have provided no evidence with which to determine the reasonableness of their belief that Phelps was trespassing. In addition, there is some dispute as to whether Phelps fled unprovoked. Lessard and Peachey claim that they identified themselves as police officers, while Phelps states that they simply yelled "Yo! Yo!" in a manner that suggested to him that he was in danger of being robbed. Lessard also claims that he saw Phelps place his hand inside his jacket pocket, which he believed indicated that Phelps was carrying a gun. Although such a movement might provide an officer with reasonable suspicion to justify a search for weapons, Phelps claims that he did not place his hand in his pocket. Because there are disputed issues of material fact regarding both claimed bases for Lessard and Peachey's pursuit and search of Phelps, their motion is denied.
There is no allegation, however, that Krutys had any involvement in any of these events. Because "a plaintiff must establish a given defendant's personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity under § 1983," Patterson v. County of Oneida, 375 F.3d 206, 229 (2d Cir. 2004), Krutys's motion is granted.
III. Malicious Prosecution
Phelps brings malicious prosecution claims pursuant to New York common law and under Section 1983 for his prosecution for trespass and resisting arrest. The common law tort of malicious prosecution under New York State law requires proof of four elements: (1) the initiation or continuation of criminal process against the plaintiff; (2) termination of the proceeding in plaintiff's favor; (3) the lack of probable cause for commencing the proceeding; and (4) actual malice as the motivation for the defendant's actions. Rounseville v. Dahl, 13 F.3d 625, 628 (2d Cir. 1995). Because Phelps was not indicted, but only charged with misdemeanor violations, a presumption of probable cause does not apply. See Boyd, 336 F.3d at 76. A malicious prosecution claim brought pursuant to Section 1983 requires the plaintiff to allege and prove the same elements as the state law claim, and, as an additional element of his claim, "some post-arraignment deprivation of liberty that rises to the level of a constitutional violation." Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995). Being compelled to attend criminal proceedings, as Phelps was, suffices as a post-arraignment deprivation of liberty. Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003).
Here, Lessard and Peachey argue that they did not "initiate" the prosecution because neither one "completed the arrest paper work . . . nor spoke with anyone from the [prosecutor's] office about plaintiff's prosecution." For a police officer to be held responsible for malicious prosecution, however, his role need not be so direct. Instead, his actions must cause the initiation of criminal process against the plaintiff. See, e.g., Sykes v. James, 13 F.3d 515, 520 (2d Cir. 1993). For example, a police officer can be held liable for malicious prosecution on the basis of his application for an arrest warrant or because he serves as the "complaining witness." White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988). A reasonable juror could find that Lessard and Peachey's statements to Krutys caused Phelps to be arrested and ultimately charged; therefore, their actions could be deemed to have initiated the prosecution.
Lessard and Peachey have failed to carry their burden of establishing an absence of disputed material fact with respect to the remaining prongs, as well. For the termination of a proceeding to be in the plaintiff's favor, the plaintiff must merely show a termination of the proceeding that is "not inconsistent with innocence." Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir. 2004). The dismissal of the charges against Phelps before trial certainly meets this standard. Defendants have not even attempted to show that they had probable cause to charge Phelps with resisting arrest, and have not shown for the reasons already explained that probable cause existed for the trespass charge. As for the final element, a "lack of probable cause creates an inference of malice." Boyd, 336 F.3d at 78. Therefore, Lessard and Peachey's motion with respect to the malicious prosecution claims is denied.
Krutys, however, has established that he could not reasonably be found liable for malicious prosecution. In his affidavit, he states that he relied almost entirely upon the statements of Lessard and Peachey, and the instruction of Sergeant Alicea in making the arrest and in giving testimony to the prosecutors. Plaintiff has provided no evidence that would suggest that Krutys was motivated by malice or had knowledge of the alleged falsehood of any of the other officers' statements. Therefore, Krutys's motion with respect to this claim is granted.
IV. Malicious Abuse of Process
To show malicious abuse of process under New York law or Section 1983, Phelps must demonstrate that the defendants "(1) employ[ed] regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse of justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process."Savino, 331 F.3d at 76. Lessard and Peachey claim that they cannot be held liable for malicious abuse of process because they did not personally employ process against plaintiff. They point to no relevant authority, however, for this proposition. Officers who promote or facilitate an arrest and prosecution may be liable for abuse of process. See id. at 77. Furthermore, the absence of probable cause is probative of the lack of justification for the officers' actions and the existence of a collateral objective. Therefore, Lessard and Peachey's motion with respect to the malicious abuse of process claims is denied. Because Krutys had no personal involvement in the relevant events, his motion regarding these claims is granted. See Patterson, 375 F.3d at 229.
V. Excessive Force
Phelps claims that the officers used excessive force in violation of the Fourth Amendment. Police officers' application of force is excessive, in violation of the Fourth Amendment, "if it is objectively unreasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). "[N]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers violates the Fourth Amendment." Maxwell, 380 F.3d at 108 (citation omitted).
Phelps does not specify the Amendment under which he brings this claim. This Circuit has held, however, that,
[E]xcessive force claims must be analyzed under the rubric of the constitutional right that is most directly implicated by the facts giving rise to the claim. . . . [W]here the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment.Nimely v. City of New York, 414 F.3d 381, 390 n. 7 (2d Cir. 2005) (citation omitted). Therefore, Phelps's claim will be analyzed under the Fourth Amendment "reasonableness" test.
Lessard and Peachey suggest that they cannot be liable for use of excessive force, since "no force was used against [Phelps]." This argument is rejected. First, Phelps has alleged that the officers used direct physical force. Second, even if Phelps's claim were based solely on the officers' ordering him to stand up while he was clearly injured and causing him to crawl to the bench, this may constitute "force" within the meaning of the constitutional protections. When Phelps heard these orders, he knew that Lessard and Peachey were police officers, and, presumably, that they were carrying guns. Phelps had no choice but to comply. Therefore, their commands were the equivalent to physically forcing Phelps to stand and dragging him over to a bench while his leg was visibly injured. Because reasonable jurors could differ as to whether these actions were reasonable under the circumstances, Lessard and Peachey's motion with respect to the excessive force claim is denied.
At his deposition, Phelps described being "pulled . . . up by the handcuffs and the back" by one of the officers. "I told him I couldn't go nowhere. He told me, `I don't give a F,' and I fell back down."
There is no allegation, however, that Krutys had any involvement in any of these events. Therefore, his motion regarding this claim is granted.
VI. Remaining State Law Claims
A. Assault and BatteryUnder New York law, an assault is "an intentional placing of another person in fear of imminent harmful or offensive contact."Girden v. Sandals Intern., 262 F.3d 195, 203 (2d Cir. 2001). And a "valid claim for battery exists where a person intentionally touches another without that person's consent."Wende C. v. United Methodist Church, 4 N.Y.3d 293, 298 (2005). If Lessard and Peachy frisked, handcuffed, and otherwise touched Phelps without probable cause, their actions could constitute assault and battery. Their motion for summary judgment is therefore denied. Because there is no evidence, however, that Krutys had or threatened any physical contact with Phelps, his motion is granted.
B. Intentional Infliction of Emotional Distress
To prevail on a claim for intentional infliction of emotional distress under New York law, a plaintiff must show: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Plaintiffs do not easily succeed on such claims. "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Id. (citation omitted). Furthermore, the New York Court of Appeals has indicated that it is unlikely to recognize claims for intentional infliction of emotional distress where other tort remedies are available. Fischer v. Maloney, 43 N.Y.2d 553, 557-58 (1978). Given that other tort remedies are available to Phelps here, and that the officers' conduct does not "go beyond all possible bounds of decency," their motion with respect to this claim is granted.
C. Negligent Screening, Hiring, Retention, Training, and Supervision
Phelps brings claims for negligent screening, hiring, retention, training, and supervision. To succeed on these claims, a plaintiff must show specifically how the employer's practices were insufficient. See, e.g., Carter v. Port Authority of New York and New Jersey, No. 03 Civ. 8751 (DLC), 2004 WL 2978282, at *5 (S.D.N.Y. Dec. 20, 2004) (holding that a negligent hiring claim requires a showing that the employer "hired or retained the employee with knowledge of the employee's propensity for the sort of behavior which caused the injured party's harm" and that a negligent training claim requires the plaintiff to show "deficiencies in the training of employees that, if corrected, could have avoided the alleged harm"). Phelps has provided no evidence regarding the City's hiring practices, the defendants' previous employment histories, or the New York City Police Department's training program that would allow a fact-finder to conclude that the City acted negligently in hiring, retaining, training, or supervising Lessard, Peachey, or Krutys.
D. Negligence
Phelps brings a claim for negligence, alleging in his complaint that his injuries were "caused by the recklessness and negligence of the defendant City of New York and its employees and agents." In their brief supporting the instant motion, defendants argue that Phelps cannot bring a claim for negligence because he alleges that the officers' conduct was deliberate. In response, Phelps suggests that his negligence claim is based solely on the officers' "fail[ure] to identify themselves during their approach and pursuit." If the officers had identified themselves as members of the police force, he argues, a jury could find that "it is more likely than not that he would have ceased running."
To demonstrate that a defendant acted with negligence under New York law, a plaintiff must show "1) the existence of a duty flowing from defendant to plaintiff; 2) a breach of this duty; 3) a reasonably close causal connection between the contact and the resulting injury; and 4) actual loss, harm or damage." Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 79 (2d Cir. 1997) (citation omitted). Defendants have not clearly indicated which of these showings they believe plaintiff cannot make. In any event, a reasonable juror could conclude that a police officer who approaches someone in a park after dark should make his identity known, and that if he does not, the person he is approaching is likely to run, putting himself at risk of injury. Lessard and Peachey's motion is therefore denied with respect to the negligence claim. Because Krutys had no involvement in these events, however, his motion is granted.
VII. Qualified Immunity
Qualified immunity for claims brought through Section 1983 arises when an official's conduct did not violate "clearly established law." Pena v. DePrisco, 432 F.3d 98, 102 (2d Cir. 2005) (citation omitted). To determine whether qualified immunity applies, a court must consider:
(1) whether the right in question was defined with reasonable specificity; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.Id. at 115 (citation omitted).
The defendants contend that they are entitled to qualified immunity on some of the federal claims because it was reasonable for Lessard to believe that the park was closed "based on his knowledge and experience." There can be no dispute that the prohibitions against arrest without probable cause, malicious prosecution, and malicious abuse of process are clearly established under the law. In the absence of any evidence whatsoever regarding Lessard's basis for believing that the park closed at dusk, however, the officers cannot be granted qualified immunity for their conduct.
VII. Municipal Liability
In order to establish municipal liability under Section 1983, "a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy." DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (citation omitted). Although this rule "does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation," it does require a plaintiff to show more than what Phelps alleges here. Id. "[A] single incident . . . especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy." Id. (citation omitted). Phelps's bare assertion that the City had a policy of "unlawfully stopping, searching, and seizing innocent individuals of African American descent and then committing perjury and/or manufacturing evidence in an effort to convict such individuals" is insufficient to establish municipal liability under Section 1983. Therefore, the City's motion with respect to all remaining federal claims is granted.
As to municipal liability for the state law claims, however, Phelps has pled a theory of respondeat superior.
The doctrine of respondeat superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment, and pursuant to this doctrine, the employer may be liable when the employee acts negligently or intentionally, so long as the tortious conduct is generally foreseeable and a natural incident of the employment. Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999). The City has not argued, much less shown, that the officers were acting outside the scope of their employment. Therefore, the City's motion is denied with respect to all surviving state law claims against the individual defendants.Conclusion
For the foregoing reasons, the motion of the City, Lessard, and Peachy is granted with respect to the New York state law claims of intentional infliction of emotional distress; negligent screening, hiring, and retention; and negligent training and supervision. In addition, the City's motion is granted with respect to all federal law claims. Krutys's motion is granted with respect to all claims except the substantive due process and failure to intervene claims.
Because, as noted above, defendants did not address the substantive due process and failure to intervene claims in their brief, the claims, even against Krutys, cannot be dismissed at this stage.
SO ORDERED.