United States District Court, Southern District of New York
January 3, 1991
JOSHUA LINER, PLAINTIFF,
BENJAMIN WARD, POLICE COMMISSIONER; HARRY BROOK, SHIELD 2889; AND SERGEANT O'NEAL, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Defendant Harry Brook ("Officer Brook") moves for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. On July 31, 1989, this Court rendered a decision in
this pro se action granting defendants' motion for summary
judgment under Fed.R.Civ.P. 56 as to Sergeant O'Neal,
Commissioner Ward and the City of New York, but denying it as
to Officer Brook. 1988 WL 88700, 1989 U.S.Dist. LEXIS 8797.
The grounds for denial of Officer Brook's motion was the
allegation of plaintiff Joshua Liner ("Liner"), supported by
several pages of the record in a state court
suppression hearing after which Liner was convicted in a trial
by jury. The relevant allegation was that the trial judge had
found Liner had been seized or arrested without probable cause
by Officer Brook in violation of Liner's constitutional rights
under the Fourth Amendment, under Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1967). Transcript of Hearing
("Tr."), 41, 72-74, 98, 99. Subsequent to this Court's decision
on the motion for summary judgment, Officer Brook's counsel
made several requests of Liner for production of all the pages
of the transcript of the suppression hearing and provided funds
for the photocopy of the transcript, to no avail. Finally,
defendant obtained the complete transcript from the
stenographic reporting system of the New York State Courts.
Thereafter, during a telephone pre-trial conference, the Court
permitted this motion to be brought.
For the reasons stated below, Officer Brook's motion for
summary judgment is granted.
The complete transcript of the suppression hearing reflects
that, after several adjournments at which Officer Brook and the
complaining witness testified, the court stated to the
prosecutor "I will permit you to introduce the proceeds of the
alleged robbery. I think that probable cause having been
established to arrest the defendant [Liner], the money would
have been inevitably discovered and therefore it would come in
under the Fitzpatrick theory of inevitable discovery." Tr. 103.
Accordingly the Court finds that the trial judge in the state
proceedings altered the earlier finding, cited by Liner, of an
improper arrest or a seizure under Terry v. Ohio, supra.
Thereafter, on June 25, 1985, Liner was convicted of robbery in
the third degree. On appeal, the Appellate Division, First
Department, held that the actions of defendant were lawful and
that defendant had an articulable basis to stop and detain
Liner based on his observations, under the ruling in People v.
Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861 (N Y
1986). People v. Liner, 133 A.D.2d 555, 556, 519 N.Y.S.2d 548,
549 (1st Dep't 1987). Accordingly, there remains no genuine
issue of material fact pertaining to Liner's claim of false
arrest. In view of these findings and the conviction of the
plaintiff, there is no Section 1983 cause of action on this
charge. Cameron v. Fogarty, 806 F.2d 380, 387-88 (2nd Cir.
1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1894, 95 L.Ed.2d
501 (1987). Cf. also Allen v. McCurry, 449 U.S. 90, 101 S.Ct.
411, 66 L.Ed.2d 308 (1980) (collateral estoppel applies to
Section 1983 action); Lee v. Winston, 717 F.2d 888, 892 (4th
Cir. 1983); Rullo v. Rodriguez, 604 F. Supp. 366, 370 (S.D.N Y
Liner also makes a claim for use of excessive force. The
Appellate Division, First Department, which heard Liner's
appeal and upheld his conviction, specifically found based on
the record that during the period Liner was stopped, frisked
and transferred back to the scene of the crime, Liner "was not
handcuffed, there was no show of force and no information was
elicited from him during that period." People v. Liner, 519
N YS.2d at 549. The court relied heavily on the close factual
similarity with the facts in People v. Hicks, supra, 68 N.Y.2d
at 68, 508 N.Y.S.2d 163, 500 N.E.2d 861, in which the New York
Court of Appeals found the defendant's federal constitutional
The plaintiff is estopped from relitigating this issue in a
section 1983 action, Allen v. McCurry, supra, i.e. the finding
of the Appellate Division that there was no show of force
during the stop and frisk, detention and return for
identification by the complainant. The claim which Liner seeks
to contest in this Court relates to the same time period. Liner
claims that when Officer Brook detained him, he was "placed in
hand restraints", Plaintiff's Memorandum of Law at 10, and
"repetitiously slammed . . . up against a car-vehicle",
Affidavit of Joshua Liner, August 10, 1990, at 2, as a result
of which he has been "taking an assortment of pain medications,
motrine, advil, extra strength tynoels [sic]", id, and other
medication listed in medication
order sheets from Rikers Island Health Services. Plaintiff's
Exhibit C. Liner states he did not have a full and fair
opportunity to litigate the issue in the earlier case, citing
Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59
L.Ed.2d 210 (1979), and Davidson v. Capuano, 792 F.2d 275 (2nd
Although the trial record which the Appellate Division
reviewed was not submitted on this motion, the suppression
hearing transcript reveals that the issue of whether any force
was applied did arise during the hearing as well as the issue
of whether Liner had been arrested. At no time during the
hearing, in which Liner participated fully with the assistance
of a legal adviser, Mr. Seligman, did Liner claim to have been
"placed in hand restraints" and at no time did Liner claim he
had been "slammed up against a car." Such issues were clearly
relevant to the issues being heard. Although Liner did claim
that the officers had roughly handled him in the car, Tr.
65-68, this was clearly at a time subsequent to his present
allegations and, in any event, he did not claim he had suffered
Mr. Liner was very knowledgeable about the case law relating
to illegal arrests, citing a number of relevant authorities,
and sought with some, but not ultimate, success to have the
indictment dismissed on this ground. The placing of handcuffs
on Liner and the slamming of Liner against a car would have
been significant facts which would have caused the Court to
find an arrest of Liner had occurred and not to find a
detention for investigation. This was made clear by Supreme
Court Justice Becker in the various decisions he made during
the pre-trial hearings. On a reading of the entire transcript
of the pre-trial hearings, the Court finds Liner did have a
full and fair opportunity to litigate the issue he seeks to
raise now and that collateral estoppel applies to Liner's cause
of action against Officer Brook on the issue of the use of
excessive force. Allen v. McCurry, supra.
The plaintiff's remaining allegations of rude, inconsiderate
and insulting language by a police officer while effecting an
arrest are insufficient and do not give rise to a
constitutional violation. See Batista v. Rodriguez,
702 F.2d 393, 398 (2nd Cir. 1983). Accordingly Officer Brook's motion
for summary judgment is granted. Plaintiff's cross-motion for
summary judgment is denied.
IT IS SO ORDERED.
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