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December 3, 1992


The opinion of the court was delivered by: SHARON E. GRUBIN

 SHARON E. GRUBIN, United States Magistrate Judge:

 In this action brought pursuant to 42 U.S.C. §§ 1983 and 1985, plaintiff Dennis R. Carnegie alleges that his rights under the United States Constitution and the New York common law were violated in connection with his arrest November 16, 1985. Pending are the motions for summary judgment of defendant New York City Housing Authority ("NYCHA") and defendant Port Authority of New York and New Jersey. As explained below, I respectfully recommend that your Honor grant their motions. If you adopt this recommendation, the two individual defendants would remain in the action. As all parties have submitted their pretrial order, proposed voir dire and requests to charge, the case can be set down for trial upon your decision on the instant motions.


 For the purpose of these motions, I have construed all facts and drawn all inferences in favor of plaintiff. On the evening of November 15, 1985, Port Authority police officer John Miller ("John") and his brother NYCHA police officer Robert J. Miller ("Robert") attended a benefit for the family of a deceased Port Authority police officer at One World Trade Center. Each was out of uniform and off-duty at that time. They left after six hours there, at approximately 2:00 a.m., and Robert went to get his brother's car. At the concourse level, John observed two men about 25 to 30 yards away struggling over possession of a briefcase. One grabbed the briefcase and, after John yelled, ran from the building. John ran after him, passed Robert standing by the car outside One World Trade Center and told him that the man he was chasing had robbed someone. Robert then got in the car and pursued the man. In the vicinity of Trinity Place and Rector Street, Robert got out of the car and approached plaintiff.

 Plaintiff maintains that he had nothing to do with the briefcase grabbing and that he had been working at his job at Automatic Data Processing at 14 Wall Street and had left to get something to eat when Robert confronted him. Plaintiff claims that Robert thereupon attempted to frisk him, asked him for identification but did not identify himself as a police officer, threw him to the ground and repeatedly struck him with the butt of a gun on the back of his head.

 Robert detained plaintiff until a New York City Police Department vehicle arrived at the scene. With plaintiff handcuffed inside the vehicle, John was asked whether plaintiff was the man he had been chasing, and he identified him affirmatively. Plaintiff was then taken to the First Precinct station house and charged with the crimes of petit larceny and resisting arrest. Later that morning, plaintiff was treated at the Beekman Downtown Hospital emergency room and received approximately ten stitches for his wounds. He was kept in custody until his arraignment the following day. No further prosecution of the charges was undertaken, and they were dismissed on March 13, 1986.

 On November 12, 1986, plaintiff commenced this action for compensatory and punitive damages against the two officers, NYCHA, the City of New York, and the Port Authority. On its uncontested motion, a judgment dismissing the complaint against the City of New York was entered on January 16, 1987. Plaintiff asserts four claims: (1) defendants arrested him without probable cause and used excessive force against him depriving him of his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments in violation of 42 U.S.C. § 1983; (2) by means of their false arrest and imprisonment of him and their "malicious" charges, defendants conspired to deprive him of his constitutional rights in violation of 42 U.S.C. § 1985(3); (3) defendants John and Port Authority are liable to plaintiff under 42 U.S.C. § 1986 because John did nothing to prevent plaintiff's arrest and imprisonment although he was aware the charges were false; and (4) defendants are liable to plaintiff for the common law torts of assault and battery, false arrest and imprisonment, and malicious prosecution. Defendants NYCHA and Port Authority have moved for summary judgment essentially on the grounds that they cannot be held liable under §§ 1983, 1985 and 1986 because there is insufficient evidence of an official policy or custom linked to the alleged constitutional deprivations and that this court has no pendent party jurisdiction over them on plaintiff's state law claims.



 Under Rule 56(c) of the Federal Rules of Civil Procedure a motion for summary judgment must be granted "if 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." The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must meet a burden of coming forward with "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. at 322.

 The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion." Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). But the court is to inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and to grant summary judgment where the nonmovant's evidence is merely colorable, conclusory, speculative or not significantly probative, id. at 249-50; Knight v. U.S. Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir. 1986), cert. denied, 479 U.S. 1088, 94 L. Ed. 2d 151, 107 S. Ct. 1295 (1987). To determine whether the non-moving party has met his or her burden, the court must focus on both the materiality and the genuineness of the factual issues raised by the nonmovant. As to materiality, "it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

 Once the nonmoving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to satisfy his or her ultimate burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330 & n.2 (Brennan, J., dissenting). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting ...

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