The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge:
Plaintiff Ija Wilson brought this action against the City of New York, the New York City Police Department, and Police Officer Joseph Clifford pursuant to 42 U.S.C. §§ 1983, 1985 and 1986, seeking compensatory and punitive damages for false arrest, use of excessive force, and malicious prosecution. Defendants move for summary judgment.
For purposes of this motion the court treats as true the sworn deposition testimony of plaintiff and resolves all ambiguities and draws all reasonable inferences in her favor. Montana v. First Federal Savings & Loan Assoc., 869 F.2d 100, 103 (2d Cir. 1989).
Plaintiff is a 52 year old woman, slightly over five feet tall with a hunchback. She lives in an attached house on Cherry Avenue in Flushing, New York, which has a driveway immediately adjacent to that of her neighbor.
On November 19, 1989 plaintiff's friend Inna Solomone drove to plaintiff's house to visit, and parked her car in the street across the entrance to the driveway. The car partially blocked the driveway of plaintiff's neighbor, but with his consent.
Another of plaintiff's neighbors, Mr. Gandi, came to plaintiff's house to tell her that he had called the police to complain that a car was blocking his own driveway. He wished to warn plaintiff that the police "in their enthusiasm" might ticket the car of plaintiff's friend.
Defendant Joseph Clifford and his partner, Officer James Duckham, responded to the complaint of a blocked driveway on Cherry Avenue and parked their car approximately 20 feet from plaintiff's house. Officer Clifford began issuing a summons to a car parked there.
Plaintiff, accompanied by Solomone, approached the patrol car, bent over toward Clifford, pointed toward Solomone's car, and explained that it belonged to her friend who had parked in front of her driveway with her permission.
According to plaintiff, Clifford did not respond. Plaintiff repeated her explanation. After a pause, Clifford told her that it was against the law to park in front of a driveway. Plaintiff informed Clifford that that law had been lifted several years earlier. Plaintiff's tone was, according to Solomone, "very cutesy, cute, very polite" and "very apologetic. Clifford took offense and asked plaintiff whether she was trying to teach him the law.
Plaintiff grew frustrated and annoyed. She told him she was not trying to argue with him. She merely wanted to "talk to him" and "inform him about something," but he was "on some kind of ego trip."
According to Clifford, plaintiff said "you [expletive deleted]--you better not give this car a ticket."
Solomone, not wanting to create any problems, announced that she would move her car and walked towards it. Concerned that Solomone would not find a spot nearby and would have to walk back to the house alone at night, plaintiff walked toward her and yelled to her not to move the car. Plaintiff admits that as she walked away from Clifford, she muttered an obscenity.
Solomone got into her car, and as she pulled away Clifford approached her and said he "could arrest" plaintiff for "pulling the law on me" and using obscenities. Solomone then drove away.
As plaintiff walked back to her house, Clifford yelled after her that she could get arrested for what she had done. According to Clifford, plaintiff turned around, made an obscene gesture, and shouted additional obscenities. Clifford also says in his affidavit that at this point he told plaintiff she was under arrest, and that by this point "a crowd of approximately 5 or 6 people gathered nearby."
Plaintiff's husband asked the police officers what had happened. Clifford got out of the car, pointed to plaintiff, and said she had been very rude. Plaintiff's husband identified the woman as his wife, and asked plaintiff to tell him what happened. While relating what had happened, plaintiff repeated the obscenity she had stated when she had walked away from Clifford's car. At that point, Clifford announced "that's it" and said that he was going to "teach her a lesson."
Clifford does not mention this conversation in his affidavit. He says that he tried to arrest her immediately after she reappeared outside.
When Clifford went to arrest plaintiff, Clifford's partner Officer Duckham said "you can't be serious." But Clifford reached toward plaintiff and grabbed her sweater. She panicked and started running up the stairs to her house. Clifford ran after ...