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July 27, 1994

DAN LANDY, Plaintiff, against DON IRIZARRY, DANIEL LAFFERTY, and SAM CHIMON, Defendants.

The opinion of the court was delivered by: THEODORE H. KATZ


 TO: Hon. Kimba M. Wood, United States District Judge.

 FROM: Theodore K. Katz, United States Magistrate Judge.

 This Section 1983 action was referred to me for all pretrial purposes, including dispositive motions. Plaintiff pro se claims that he was unlawfully arrested, that excessive force was used in the course of his arrest, and that he was denied necessary medical treatment for injuries he suffered during the arrest. Plaintiff seeks damages for his physical injuries and the pain and suffering alleged to have resulted from denial of medical treatment. (Complaint P V.) Defendants Irizarry and Lafferty have filed a Motion for Summary Judgment and Plaintiff has filed a Cross-Motion for Summary Judgment. *fn1" Defendant Chimon has never been served with process and has not answered or otherwise appeared in the action. For the reasons set forth below, I recommend that Plaintiff's Cross-Motion be denied and Defendants' Motion be granted, and that the Complaint be dismissed without prejudice as to Defendant Chimon.


 This action arises out of events surrounding Plaintiff's arrest on October 26, 1990. In the early evening of that day, Plaintiff entered an apartment building at 120 West 70th Street, New York, New York. (Pl.'s Dep. at 58.) *fn2" There he encountered a resident, Elise Cohen, on an upper floor. (Pl.'s Dep. at 65-66.) Ms. Cohen started screaming loudly for help, and Plaintiff descended the staircase. (Pl.'s Dep. at 65-66; Irizarry Decl. P 2.) The screams alerted several tenants who opened their doors to see what was afoot. (Pl.'s Dep. at 66; Irizarry Decl. P 2.) One of these tenants was off-duty New York City Police Lieutenant Dorian Irizarry. Lieutenant Irizarry saw Plaintiff walking down the stairs, and he asked Plaintiff what was going on. (Id.) Plaintiff replied, "I don't know." (Id.) Irizarry then asked Plaintiff to wait a minute, to which Plaintiff reacted by "trotting" to the door. (Pl.'s Dep. at 67, 78; Irizarry Decl. P 2.) Irizarry contends that he then yelled, "Police, don't move." (Irizarry Decl. P 3.) Plaintiff claims that Irizarry did not identify himself as an officer until later. *fn3" Irizarry also claims that two tenants came running down the stairs and said words to the effect of stop him, he attacked Elise." *fn4" (Irizarry Decl. P 3.) Irizarry then attempted physically to restrain Plaintiff from leaving the building. Irizarry claims he tried to block the door; Plaintiff claims Irizarry grabbed him from behind. (Pl.'s Dep. at 78-79, 81; Irizarry Decl. P 3.)

 A struggle ensued, spilling out onto the sidewalk. (Pl.'s Dep. at 83-89; Irizarry Decl. P 5.) At least one of the other tenants came to help Irizarry in the struggle. *fn5" According to Plaintiff, Irizarry was trying to handcuff him as they struggled on the ground. Irizarry told him he was going to jail. (Pl.'s Dep. at 88, 148-149.)

 During the struggle, Irizarry noticed that Plaintiff had what appeared to be a gun. (Pl.'s Dep. at 116; Irizarry Decl. P 5.) Plaintiff concedes that he was in possession of a knife shaped like a gun. (Pl.'s Dep. at 116.) After seeing this weapon, Irizarry told the other person(s) to get off of Plaintiff; when they complied, Plaintiff started to get up. (Pl.'s Dep. at 83, 85-88; Irizarry Decl. P 5.)

 Moments later, New York City Police Officer Daniel Lafferty appeared on the scene. (Pl.'s Dep. at 105; Irizarry Decl. P 6.) After Irizarry told him what had happened, Lafferty took Plaintiff into custody and transported him to the 20th Precinct. (Id.) Later at the stationhouse, Ms. Cohen identified Plaintiff. (Pl.'s Dep. at 105; Irizarry Decl. P 6.)

 Plaintiff contends that he received a "hole in the head [that] wouldn't stop bleeding" from Irizarry "jamming the barrel of his gun behind his left ear." (Complaint P IV.A.) He further claims he was sent to Bellevue Hospital for treatment the day after his arrest. (Pl.'s 3(g) Statement P 7.) Plaintiff also contends that he was kicked by Officer Irizarry during the struggle. (Pl.'s Dep. at 83, 85, 87.) Defendant Irizarry denies that he either hit Plaintiff with his gun or kicked Plaintiff. (Irizarry Decl. P 5.)

 Because of his injuries, Plaintiff alleges that he asked police officials to be taken to a hospital for medical treatment, (Complaint P IV), and he was told, at least twice, that he would receive medical care after his arraignment, which would be shortly (Pl.'s Dep. at 144-147). It is not clear when and to whom these requests were made. In his 3(g) Statement, Plaintiff stated Sam Chimon, supposedly a fellow officer with Lafferty at the 20th Precinct, failed to give him medical treatment. None of the other Defendants are specifically identified in the Complaint or Plaintiff's 3(g) Statement in connection with the alleged denial of Plaintiff's request for medical care.

 Plaintiff was charged with the crimes of burglary in the first degree, an attempt to commit the crime of kidnapping in the second degree, and criminal possession of a weapon in the third degree (two counts). These charges were dismissed on April 14, 1992, pursuant to New York C.P.L. § 30.30, on the ground that Plaintiff had not been afforded a speedy trial. (Pl.'s Dep. at 24; People v. Landy, No. 13037/90, N.Y. S. Ct., Memorandum Decision (May 20, 1992)).

 Plaintiff filed the Complaint in this action on August 11, 1992, naming as defendants Lieutenant Irizarry, Officer Lafferty, and Sam Chimon. Plaintiff claims that Lieutenant Irizarry used excessive force and unlawfully arrested him. Plaintiff also claims that Officer Lafferty conspired with Irizarry to unlawfully arrest him. Plaintiff alleges that Sam Chimon refused him medical treatment.


 I. Failure to Serve Defendant Chimon

 Defendants Lafferty and Irizarry were properly served and acknowledged receipt of the Summons and Complaint on September 25, 1992. Defendant Chimon, however, was not located by the U.S. Marshal's Service, which noted on the Process Receipt and Return that New York City Police Department personnel had no listing of him. In a letter to Plaintiff from the Court, dated September 10, 1992, Plaintiff was advised of the time limit for service, pursuant to then Rule 4(j), Fed. R. Civ. P., and that if service was not effected within the 120-day period, that I would recommend dismissal of the Complaint as to Defendant Chimon. In another letter, dated April 15, 1994, I specifically advised Plaintiff: (1) of his obligation under newly enacted Rule 4(m), Fed. R. Civ. P., to serve the Summons and Complaint within 120 days of the Complaint's filing, which would have been by December 9, 1992; (2) that the docket did not reflect that such service had occurred; and (3) that I would recommend to the district judge (Hon. Kimba M. Wood) that the action be dismissed as to Defendant Chimon if Plaintiff did not show good cause by May 6, 1994 for the failure of service. Plaintiff responded to that letter with an Affidavit, dated May 3, 1994, stating that "Sam Chimon McCio" worked at the 20th Precinct and he had not failed to serve him. Plaintiff attached to his Affidavit an otherwise blank piece of paper containing three photocopied signatures which Plaintiff claims "shows that each defendant knew one another, and knew about the acts that they have committed against the Plaintiff." *fn6" Plaintiff did not produce any proof of service of the Summons and Complaint upon Defendant Chimon and the docket does not evidence that service was effected.

 Rule 4(m), Fed. R. Civ. P., which took effect on December 1, 1993, retained much of the language of former Rule 4(j), particularly as it relates to a party's having to show "good cause" for the failure to serve the Summons and Complaint within 120 days of filing. However, in contrast to the former rule, it is explicit that where a party does show "good cause" for his failure, the Court must extend the time for service for an appropriate period. If "good cause" is not shown, the Court may either dismiss the action or order that service be effected within a specified period of time. *fn7"

 Where, as in this action, Plaintiff is proceeding pro se in forma pauperis and has been forced to depend upon the U.S. Marshals for execution of service, care must be taken not to penalize him for the failings of the U.S. Marshal. See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986); Korkala v. National Sec. Agency/Cent. Sec. Serv., 107 F.R.D. 229 (E.D.N.Y. 1985); Friday v. U.S. Dep't of Justice, No. 93-283- FR, 1994 WL 48956 (D. Or. Feb. 7, 1994). Here, however, it is not the Marshal's Service which is responsible for the failure to serve Defendant Chimon. The Process Receipt and Return Form executed by the Marshal's Service indicates that service was unsuccessful because the personnel department at the NYCPD did not have a Sam Chimon listed as an officer, as stated by the Plaintiff.

 Plaintiff has failed to offer any further justification for his failure to serve Defendant Chimon or to assist the Marshal's Service in effecting service, other than that he initially provided the Marshal's Service with information he thought was correct. This assertion, absent any further action by Plaintiff over the nearly two years since he received information, advice, and warning from the Court, does not constitute "good cause" for the failure to effect service. Even allowing for Plaintiff's pro se status, given the time he has had to address the problem it cannot be reasonably concluded that he has been diligent or made a good faith effort to do so. Cf. Delicata v. Bowen, 116 F.R.D. 564 (S.D.N.Y. 1987) (without deciding whether prejudice to Defendant resulting from failure to effect timely service is ever a relevant consideration in dismissal pursuant to Rule 4, court precluded any such concern where Plaintiff had not been diligent in attempting service); Gordon v. Hunt, 116 F.R.D. 313, 318-25 (S.D.N.Y.), aff'd, 835 F.2d 452 (2d Cir. 1987), cert. denied, 486 U.S. 1008, 108 S. Ct. 1734, 100 L. Ed. 2d 198 (1988). I therefore recommend that the action be dismissed without prejudice as to Defendant Chimon.

 II. Summary Judgment Respecting Defendants Irizarry and Lafferty

 Defendants Irizarry and Lafferty move for summary judgment on the grounds that (1) probable cause existed to arrest Plaintiff; (2) any force used by Defendant Irizarry during the arrest was reasonable under the circumstances; (3) Defendant Irizarry is immune from suit under the doctrine of qualified immunity; and (4) Defendant Lafferty is entitled to summary judgment because his only involvement in the incident was transporting Plaintiff to the 20th precinct. In his Cross-Motion for Summary Judgment, Plaintiff asserts that the facts lead to the opposite conclusion with respect to each of the Defendants' contentions.

 A. Summary Judgment Standard

 A party is entitled to summary judgment if he can show that no genuine issue exists as to any material fact and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, U.S. , 113 S. Ct. 440 (1992). Once a motion for summary judgment, properly supported by documents, answers to interrogatories, affidavits, or depositions has been made, the burden shifts to the nonmoving party to show that a genuine issue as to a material fact does exist. To defeat an otherwise properly supported motion for summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Mazurkiewicz v. New York City Transit Auth., 810 F. Supp. 563, 566 (S.D.N.Y. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)). He may not rely on the bare assertions contained in his pleadings, Fed. R. Civ. P. 56(e), but must introduce affirmative evidence, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202 (1986), which supports "more than a 'metaphysical doubt as to the material facts.'" McCormack v. Cheers, 818 F. Supp. 584, 593 (S.D.N.Y. 1993) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1355, 89 L. Ed. 2d 538 (1986)). See also Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir. 1992).

 A dispute alleged in opposition to the motion must be genuine; "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510 (emphasis added). The evidence introduced in opposition must be such that "a jury [could] return a verdict for [the nonmoving] party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S. Ct. at 2511. However, the Court is not to resolve issues of fact but rather to see if there are fact issues which require resolution at trial. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). In determining whether there is a genuine issue for trial, evidence introduced by the nonmovant "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S. Ct. at 2513.

 B. Substantive Issues

 To defeat Defendants' motion for summary judgment, Plaintiff must offer evidence sufficient to support a reasonable finding that the elements of Plaintiff's Section 1983 claims, on which he would have the burden of proof at trial, have been established. A claim under 42 U.S.C. § 1983 requires proof by the plaintiff that the defendants (1) deprived him of a right, privilege, or immunity secured by the Constitution or federal laws; and (2) that the defendants were acting under color of state law. 42 U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986); Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994); Robinson v. City of Mt. Vernon, 654 F. Supp. 170, 171-172 (S.D.N.Y. 1987).

 Construing the pro se pleadings in this case liberally, it is apparent that Plaintiff complains of deprivations of his constitutional rights protected by the Fourth Amendment, due to unlawful arrest and excessive force, and the Fourteenth Amendment, due to denial of medical treatment. Further, although Lieutenant Irizarry was off-duty at the time of the events in issue, there is no dispute that both he and Officer Lafferty were acting under color of state law in arresting Plaintiff and taking him into custody. *fn8"

 To succeed on a claim of unlawful or false arrest, a plaintiff must show that there was a lack of probable cause for the arrest. Thomas v. Culberg, 741 F. Supp. 77, 79 (S.D.N.Y. 1990) (citing Alberts v. City of New York, 549 F. Supp. 227, 231 (S.D.N.Y. 1982)). Probable cause exists when officers "have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being committed (2) by the person to be arrested." United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983); see also Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964); Calamia v. City of New York, 879 F.2d 1025, 1032 (2d Cir. 1989); Thomas, 741 F. Supp. at 79. Probable cause should be assessed in light of the "totality of the circumstances," Illinois v. Gates, 462 U.S. 213, 230-232, 103 S. Ct. 2317, 2328-29, 76 L. Ed. 2d 527 (1983), measured at the moment of the arrest. *fn9" O'Neill v. Town of Babylon, 986 F.2d 646, 649-650 (2d Cir. 1993); Thomas, 741 F. Supp. at 79 (citing Beck v. Ohio, 379 U.S. 89, 93, 85 S. Ct. 223, 226, 13 L. Ed. 2d 142 (1964)). The rule of probable cause is a "practical, non-technical conception." Beck, 379 U.S. at 91, 85 S. Ct. at 226.

 Plaintiff holds the mistaken notion that an officer must himself have witnessed a suspect committing a crime in order to have probable cause to make the arrest. (Pl.'s Mem. at 9.) That is not the law. "Officers have probable cause to arrest if they receive 'information from some person . . . who it seems reasonable to believe is telling the truth.'" Thomas, 741 F. Supp. at 80 (quoting Daniels v. United States, 129 U.S. App. D.C. 250, 393 F.2d 359, 361 (D.C. Cir. 1968)). *fn10" Plaintiff is also mistaken in his view that it makes a difference in this action whether the tenants who informed Lieutenant Irizarry of the attack on Elise Cohen actually viewed the attack or heard it from Ms. Cohen herself. "Probable cause can exist even where it is based on mistaken information, so long as the arresting officer acted reasonably and in good faith in relying on that information." Bernard v. United States, 25 F.3d 98, slip op. 4273, 4280 (2d Cir. May 25, 1994) (citing Colon v. City of New York, 60 N.Y.2d 78, 455 N.E.2d 1248, 468 N.Y.S.2d 453 (1983)); Dirienzo v. United States, 690 F. Supp. 1149, 1156 (D. Conn. 1988).

 The uncontested facts demonstrate that Lieutenant Irizarry had sufficient information to justify an officer of reasonable caution in believing that Plaintiff had committed a crime. Irizarry heard a person screaming for help and witnessed a man descending the stairs from the direction of the screams who, after being asked what was going on and to wait, started trotting toward the door. Irizarry was also told by two of his co-tenants to stop Plaintiff because he had attacked another tenant. Under such circumstances, probable cause existed, because a person of reasonable ...

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