For the reasons set forth below, certain of plaintiff's claims are dismissed as a matter of pleading and defendants are granted summary judgment on all remaining claims. Defendant Ruggio's counterclaim is dismissed.
The complaint details two separate and distinct events occurring some four months apart. In the first incident, occurring on January 2, 1992, plaintiff alleges that the individual defendants assaulted and tried to murder him. In the second incident, occurring on May 19, 1992, plaintiff claims that he was the victim of an assault and attempted murder by unidentified individuals acting in conspiracy with the individual defendants. (Compl. at 3).
On January 2, 1992 defendants Molina and Ruggio, police officer Eric Faucett, and an unidentified female officer stopped four men on the corner of East 122nd Street and Lexington Avenue. (See Pl. Statement of Facts Submitted Pro Se ("Pl. Statement") at 5). Plaintiff was not one of those initially stopped, but he apparently interceded on behalf of the others, challenging the authority of the police to conduct this stop and encouraging the detainees not to cooperate with the police. (Id. at 6-7).
Plaintiff soon became embroiled in a verbal melee that devolved into violence and resulted in the four initial suspects fleeing. (Id. at 5-7).
According to plaintiff, officer Ruggio yelled racist epithets and beat him with his fists and radio. (Compl. at 7). Ruggio claims that plaintiff resisted arrest so violently that the officer suffered physical injuries, which are the subject of his counterclaim in this action. (Affidavit of Spielberg dated 2/10/95 at 4, n.1 ("Spielberg Aff.")). During this apparent brawl, defendant Molina was apparently off to the side searching another detainee and then left the scene in pursuit of a fleeing suspect. (Pl. Statement at 7). There is no allegation in the complaint or elsewhere that defendant Molina struck Orraca.
Plaintiff was arrested and, after a jury trial, convicted of resisting arrest and attempted assault in the third degree on defendant Ruggio. (See Compl. at 6; Spielberg Aff. at 4-5). The jury was instructed that in order to convict Orraca, it had to find beyond a reasonable doubt that he was the initial aggressor and struck the first blow. (See Exh. K to the Spielberg Aff.).
The second incident allegedly occurred on May 19, 1992, and plaintiff has submitted widely diverging versions of this event. In the complaint, plaintiff alleges that he was standing near the intersection of 123rd St. and Lexington Avenue when he observed a single police officer standing on the "opposite corner." (Compl. at 3). Two unidentified men walked past the officer, crossed the street, approached plaintiff and shot him several times. (Id.). The assailants then ran back across the street and past the same police officer, who "casually walked up to plaintiff" and asked if he was okay. (Id.). The officer then smiled and walked away. (Id.).
Plaintiff's other sworn account of this incident, given at his deposition, is substantially different. He testified that at the time of the shooting he was sitting in his car with friends. (See Tr. dated 4/21/94 at 81-81, attached as Exh. L to Spielberg Aff.). In addition, he claimed his assailants began firing after coming out of a vehicle parked directly across the street from plaintiff, and that they fled in this same vehicle. (Id. at 82, 177-82). Lastly, plaintiff stated that the assailants passed by at least two police officers before and after the shooting. (Id. at 138).
Plaintiff does not allege that the individual defendants were present at his shooting in May 1992. Plaintiff purportedly believes, however, that defendants are nonetheless responsible for this attack, and the alleged basis for this belief is a threat by Ruggio, after the January 1992 incident, that he would shoot Orraca if he ever saw him near that corner again. (Compl. at 6-7).
Defendants now move to dismiss the complaint on the grounds that it fails to state a claim against the municipal defendants, and for summary judgment in favor of the remaining, individual defendants on the grounds that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law.
The standards for addressing defendants' motions are well-settled. First, a complaint will be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim only where it appears beyond doubt that plaintiff can prove no facts supporting his claim that entitles him to relief. See H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). The complaint must be construed in the light most favorable to plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Dacey v. New York County Lawyers' Assoc., 423 F.2d 188, 191 (2d Cir. 1969), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1819 (1970). Furthermore, pro se pleadings are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972).
Second, a court may grant summary judgment only where there is no genuine issue of material fact and the moving party is therefore entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but [to] determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, there exists a dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248-49, 106 S. Ct. at 2510-11 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S. Ct. 1598-1609, 26 L. Ed. 2d 142 (1970)); see Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991).
To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-11. As the Court held in Anderson, "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 (citations omitted).
1. Section 1983
Plaintiff brings this action under 42 U.S.C. § 1983 (1994), which states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . for redress . . . .