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MCALLISTER v. NEW YORK CITY POLICE DEPT.

June 10, 1999

CHARLES MCALLISTER, PLAINTIFF,
v.
NEW YORK CITY POLICE DEPARTMENT NEW YORK CITY POLICE DEPARTMENT CHIEF, WILLIAM BRATTON; AUGUSTIN RABASS; GORDON PEKUSIC; FRANCISCO VARGAS; CARLOS MARTINEZ; ANTHONY VENCE; KIMIO DAVID-RIVERA; JOSEPH RIVERA; PETER MALTALBANO; KEVIN BARRY; JOHN FREISEN; MICKEY FONTANEZ; MICHAEL PISANO; EDWARD LATORRES; SALLY HERNANDEZ-PINERO, NEW YORK CITY HOUSING AUTHORITY CHAIRWOMAN, DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, District Judge.

    ORDER

Plaintiff brought this action pursuant to 42 U.S.C. § 1983, contending that defendants denied him due process in the course of his arrest. All but one defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. In a Report and Recommendation dated March 22, 1999, familiarity with which is assumed, Magistrate Judge Andrew J. Peck recommended that defendants' motion for summary judgment be granted. Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews de novo those portions of the Reports to which plaintiff objects. For the reasons stated below, the Court adopts the Report and its Recommendation.

I. Discussion

Plaintiff raises five specific objections to the Report, which the Court will consider in turn.

First, plaintiff objects to the Report's conclusion that the complaint be dismissed as against Officers Pekusic and Rabassa, neither of whom were named in the amended complaint. The Report noted, and plaintiff does not disagree, that these two officers were first named in plaintiff's second affidavit opposing summary judgment. (See Report at 11.) As plaintiff did not allege that Officers Pekusic or Rabassa beat him either in the amended complaint or in his deposition, the Report concluded that claims against these defendants must be dismissed. (See Report at 11-12) (quoting Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997)) ("`[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony.'") (citation omitted); Harvey v. New York City Police Dep't, 93 Civ. 7563, 1997 WL 292112, *2 n. 2 (S.D.N.Y. June 3, 1997) ("To the extent plaintiff attempts to assert new claims in his opposition papers to defendants' motion, . . . the Court finds that `it is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment' and accordingly disregards such claims.") (citation omitted).

In his Objections, plaintiff argues that the reason he failed to name Pekusic or Rabassa as among those who physically assaulted him was because he learned only recently that these two individuals were on the scene of the arrest. (See Objections at 1-2.) The mere fact that these individuals were on the scene, however, does not mean that these two individuals participated in any physical assault on plaintiff. Plaintiff specifically identified those officers who were involved in the alleged assault in his deposition, and did not name either Pekusic or Rabassa. (See Report at 4 (quoting deposition testimony).) Plaintiff's assertion that if Pekusic or Rabassa were present, then they must have engaged in the assault upon plaintiff, is pure speculation.

Plaintiff's second objection is actually a request to re-serve defendants who have already been dismissed from this action for improper service. This objection is an effort to relitigate issues already addressed in Magistrate Judge Peck's Report and Recommendation of June 16, 1998, and October 21, 1998, which this Court adopted on December 14, 1998. As the Court has already ruled on this issue, plaintiff may not raise it once again in his objections at this stage.

Plaintiff's third objection simply reiterates his claim of deliberate indifference to his medical needs. The Report concluded that plaintiff's claim on this point should be dismissed because he never presented any evidence that he had sought medical treatment from a defendant who had been properly served in this action. (See Report at 17-20.) Plaintiff's objections do not address the analysis of the Report, but repeat complaints relating to defendants who have already been dismissed from this case. Accordingly, plaintiff's argument on this point provides no reason to reject the Report.

Plaintiff's fourth objection is that the circumstances surrounding his arrest were suspicious, raising an inference of conspiracy, negligence, and discrimination. As the Report pointed out, these vague allegations of a coverup and conspiracy are an attempt to relitigate plaintiff's underlying conviction. Plaintiff cannot prevail on such claims where the underling conviction or sentence has not been reversed or otherwise invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). As the Supreme Court has refused to "expand opportunities for collateral attack" of convictions via an action under § 1983, see id. at 484-85, 114 S.Ct. 2364, plaintiff's claim on this point is without merit.

Plaintiff's fifth objection is that the Report erroneously concludes that he has failed to show a policy or custom of unconstitutional behavior. (See Report at 24-31) (citing Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Plaintiff's objections attempt to show a policy or custom of unconstitutional behavior by pointing to highly publicized recent incidents of police misbehavior, emphasizing ongoing investigations into incidents of alleged brutality against African-Americans. (See Objections at 10.) Even if the Court were to accept the tenuous relation between these incidents and the facts of plaintiff's arrest and conviction, these incidents do not amount to a "custom or policy." Plaintiff must show either that "the municipality (1) so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within the jurisdiction, or (2) had notice of but repeatedly failed to make any meaningful investigation into . . . charges of misconduct by lower level employees. . . ." Covington v. City of New York, 916 F. Supp. 282, 288 (S.D.N.Y. 1996) (citations omitted). Plaintiff has failed to make this showing.

Plaintiff's final objection advances further complaints relating to defendants' alleged failure to provide discovery. The Court has repeatedly addressed this issue. In an Order dated January 5, 1999, the Court affirmed Magistrate Judge Peck's decision to close discovery, rejecting plaintiff's objections dated November 12, 1998 (two such letters of objection), a third objection (undated), a fourth objection dated December 15, 1998, and a fifth objection (undated). Just as the Court did in its Orders of December 14, 1998, and January 5, 1999, the Court confirms that discovery in this case is closed.

II. Conclusion

For the reasons stated above, the Court adopts the Report and its Recommendation. Defendants' motions are granted. [Docs. No. 70, 72.] All of plaintiff's claims except for plaintiff's claim of unlawful force against defendant Mickey Fontanez are dismissed. The Court deems this case trial ready as of June 7, 1999.

SO ORDERED.

REPORT AND RECOMMENDATION

Pro se plaintiff Charles McAllister brings this 42 U.S.C. § 1983 action seeking compensatory and punitive damages against New York City and several police officers, alleging due process violations of excessive force, false arrest, malicious prosecution and denial of medical treatment during McAllister's arrest and the subsequent police investigation of the events surrounding his arrest. Defendants have moved for summary judgment.*fn1

For the reasons set forth below, I recommend that defendants' summary judgment motion be granted. McAllister's excessive force and denial of medical treatment claims fail because McAllister has not shown that the served defendants were personally involved in either alleged violation. McAllister's false arrest and malicious prosecution claims are not cognizable under Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994), because his criminal conviction has not been reversed or otherwise declared invalid. Further, McAllister's Monell claims against the City and then Police Commissioner Bratton are without merit because McAllister did not allege that any specific municipal policy or practice caused his alleged constitutional deprivations.

FACTS

On June 2, 1994, McAllister was one of two passengers in the back seat of a car driven by Harvey Cousins, which stopped at a traffic light on Amsterdam Avenue near 181st Street. (McAllister 1/6/99 Br. at p. 2-3; McAllister 2/8/99 Rule 56.1 Stmt. ¶ 1; City Rule 56.1 Stmt. ¶ 3; Pekusic Aff. ¶¶ 3, 4; Pekusic Rule 56.1 Stmt. ¶¶ 1, 2.)*fn2 Defendant police officer Rabassa and defendant Housing Authority police officer Pekusic were informed separately by witnesses that gunshots had been fired by the people in that car. (City Rule 56.1 Stmt. ¶ 3; Baldwin Aff. Ex. D: Freisen Report at 12; Pekusic Rule 56.1 Stmt. ¶ 2; Pekusic Aff. ¶ 3.) Officers Rabassa and Pekusic radioed for assistance, and along with Officer Vargas, pursued the car. (McAllister 1/6/99 Aff. ¶ 6; City Rule 56.1 Stmt. ¶ 4; Baldwin Aff. Ex. D: Freisen Report at 12; Pekusic Rule 56.1 Stmt. ¶ 2; Pekusic Aff. ¶ 4.) According to defendants, when the three officers reached the car, McAllister pointed a gun out of the car's back window at the officers. (City Rule 56.1 Stmt. ¶ 5; Baldwin Aff.Ex. D: Freisen Report at 12; Pekusic Rule 56.1 Stmt. ¶ 3; Pekusic Aff. ¶¶ 4-5.) Officers Pekusic and Rabassa shot at McAllister, but did not hit him or any of the car's other occupants. (Baldwin Aff.Ex. B: McAllister Dep. at 104-05; City Rule 56.1 Stmt. ¶ 5; Baldwin Aff.Ex. D: Freisen Report at 12; Pekusic Rule 56.1 Stmt. ¶ 5; Pekusic Aff. ¶ 5.) According to McAllister, he was on the floor in the back of the car when defendant Officers David-Rivera and Rivera initially shot at the car, and that defendant Officers Rabassa, Vargas, Pekusic, Maltalbano, Fontanez, Vence and Martinez subsequently shot at the car. (Baldwin Aff.Ex. B: McAllister Dep. at 104; McAllister 1/6/99 Aff. ¶¶ 2, 11-12; McAllister 1/6/99 Br. at p. 2.)

As traffic cleared, the car McAllister was in headed toward an entrance ramp to the Harlem River Drive, where it stopped with a flat tire. (Pekusic Rule 56.1 Stmt. ¶ 4; Pekusic Aff. ¶ 6; City Rule 56.1 Stmt. ¶ 6; Baldwin Aff.Ex. D: Freisen Report at 12-13; Baldwin Aff.Ex. B: McAllister Dep. at 102-04, 106.) Police officers surrounded the car, ordered McAllister and the other occupants out of the car, and placed him under arrest. (City Rule 56.1 Stmt. ¶ 6; Baldwin Aff.Ex. D: Freisen Report at 12-13; Baldwin Aff.Ex. B: McAllister Dep. at 106-07; Pekusic Rule 56.1 Stmt. ¶ 4; Pekusic Aff. ¶ 6.) McAllister states that when he got out of the car, the police beat and kicked him, breaking his nose and cutting his lip. (Baldwin Aff.Ex. B: McAllister Dep. at 107-12; see also McAllister 1/6/99 Aff. ¶¶ 13-14.) McAllister also claims that defendants called him "racist names." (McAllister 1/6/99 Aff. ¶ 13.)*fn3 At his deposition, McAllister identified the officers who beat him, as follows:

  A [McAllister]: [After the car stopped] [t]hey told
    us to get our with our hands up.

Q [Defense Attorney]: Do you know who said that?

  A: All of them. There was about maybe four. Officer
  Martinez, Officer Peter Maltalbano, Rivera, Kimio,
  Joseph Rivera, Fontanez, Mickey.
  Q: How did you remember their names? Did you see
  their name tags?

A: Yes.

  Q: When you got out of the car, where you
  immediately place[d] on the ground?

A: Yes. They just jumped on me.

Q: Who did?

A: The ...


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