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MCALLISTER v. NEW YORK CITY POLICE DEPT.
June 10, 1999
CHARLES MCALLISTER, PLAINTIFF,
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.
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.
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
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
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.
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,
REPORT AND RECOMMENDATION
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
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.)
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?
Q: When you got out of the car, where you
immediately place[d] on the ground?
A: Yes. They just jumped on me.