hand. At the time she was holding the infant Austin Hart, Raymond
Hart's son (Raymond Hart is the brother of Bonnie Rivers). Terry
Rivers, Jr. also approached the scene. Surrounded by these
individuals, O'Brien did not feel in control of the situation,
and sprayed pepper spray into Steven Rivers' face, then sprayed
Terry Rivers, Jr. Bonnie Rivers and the infant may have also been
hit with the spray. Officer O'Brien then radioed for back-up.
Approximately twelve troopers and a Deputy Sheriff arrived at
the Rivers' residence. Among the backup who arrived were
defendants Sergeant Parker, Sergeant Hathaway and Trooper
Godfrey. While in the house, Bonnie Rivers telephoned her brother
Raymond Hart, telling him that his son, the infant Austin Hart,
had been sprayed with pepper spray during the arrest of Steven
Rivers. Raymond Hart quickly arrived at the Rivers' residence.
Upon his arrival, Raymond Hart demanded to know who was
responsible for spraying his son. Bonnie Rivers identified
Officer O'Brien as the responsible party.
When Hart approached Officer O'Brien, the other officers,
believing that Raymond Hart meant to harm O'Brien, intervened.
The officers brought Hart to the ground and arrested him. Hart
contends that he never acted aggressively during the incident.
Plaintiffs then commenced this action, alleging a deprivation
of rights pursuant to 42 U.S.C. § 1983, whereby Plaintiffs were
deprived of their "right to be free from unlawful assault and
battery, unlawful arrest and detention, and defamation."
A. Summary Judgment Standard of Review
Summary judgment must be granted when the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . 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." FED.R.CIV.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986); Lang v. Retirement Living Pub.
Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries
the initial burden of demonstrating an absence of a genuine issue
of material fact. FED.R.CIV.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). In deciding
the motion, all facts, inferences therefrom, and ambiguities must
be viewed in a light most favorable to the nonmoving party, and
draw all reasonable inferences in nonmovant's favor. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986); Thomas 165 F.3d at 142. A
genuine issue is an issue that, if resolved in favor of the
non-moving party, would permit a jury to return a verdict for
that party. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d
Cir. 1997), citing Liberty Lobby, 477 U.S. at 248, 106 S.Ct.
When the moving party has met the burden, the nonmoving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec., 475 U.S. at
586, 106 S.Ct. 1348. At that point, the nonmoving party "must set
forth specific facts showing that there is a genuine issue for
trial." FED.R.CIV.P. 56(e); Liberty Lobby Inc., 477 U.S. at
250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at
587, 106 S.Ct. 1348. To withstand a summary judgment motion,
evidence must exist upon which a reasonable jury could return a
verdict for the nonmovant. Liberty Lobby, 477 U.S. at 248-49,
106 S.Ct. 2505; Matsushita Elec., 475 U.S. at 587, 106 S.Ct.
1348. Thus, summary judgment is proper where there is "little or
no evidence . . . in support of the non-moving party's case."
Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24
(2d Cir. 1994) (citations omitted).
B. Section 1983
Section 1983 provides a civil claim for damages against any
person who, acting under color of state law, deprives another of
a right, privilege or immunity secured by the Constitution or the
laws of the United States. Section 1983 itself creates no
substantive rights, merely providing a procedure for redress for
the deprivation of rights established elsewhere. In order to
prevail on a § 1983 claim a plaintiff must establish that the
conduct of a person acting under color of state law deprived him
of a federal right. Plaintiff may fail to state a claim even if
he alleges facts which establish a deprivation of a federal right
if the defendant has immunity from liability. See Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999) (emphasis added).
C. Qualified Immunity
The doctrine of qualified immunity offers protection for police
officers and other "government officials performing discretionary
functions . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982); Thomas, 165 F.3d at 142. "This
policy is justified in part by the risk that the `fear of
personal monetary liability and harassing litigation will unduly
inhibit officials in the discharge of their duties.'" Thomas,
165 F.3d at 142, quoting Anderson v. Creighton, 483 U.S. 635,
638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
Anderson v. Creighton established that "the right the
official is alleged to have violated must have been `clearly
established' in a more particularized, and hence more relevant,
sense: The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is doing
violates that right." Creighton, 483 U.S. at 640, 107 S.Ct.
"Even where the plaintiff's federal rights and the scope of the
official's permissible conduct are clearly established, the
qualified immunity defense protects a government actor if it was
`objectively reasonable' for him to believe that his actions were
lawful at the time of the challenged act." Lennon v. Miller,
66 F.3d 416, 420 (2d Cir. 1995). The objective reasonableness test
is met — and the defendant is entitled to immunity — if "officers
of reasonable competence could disagree" on the legality of the
defendant's actions. Malley v. Briggs, 475 U.S. 335, 341, 106
S.Ct. 1092, 89 L.Ed.2d 271 (1986).
In order to trump qualified immunity, the Plaintiffs must
demonstrate that (1) Defendants' conduct violated any of the
Plaintiffs' clearly established rights; and (2) that these rights
would have been known to a reasonable person or that it was not
objectively reasonable for the defendant to believe that his
actions were lawful and not violative of Plaintiffs' clearly
established rights. See Lennon, 66 F.3d at 422.
D. Application of the Summary Judgment Standard for Qualified
1. Grossly Negligent Supervision
Plaintiffs' first § 1983 claim alleges that Parker and Hathaway
were negligent in supervising the troopers on the scene. This
claim is being made only by plaintiff Raymond Hart regarding
"In this Circuit personal involvement of the defendants in
alleged constitutional deprivation is a prerequisite to an award
of damages under [42 U.S.C.] § 1983." Moffitt v. Town of
Brookfield, 950 F.2d 880, 886 (2d Cir. 1991). A defendant may be
personally involved in a constitutional deprivation within the
meaning of 42 U.S.C. § 1983 "if he or she was grossly negligent
in managing subordinates who caused the unlawful condition or
event." Moffitt, 950 F.2d at 886 (2d Cir. 1991); citing
Williams v. Smith, 781
334 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted) (emphasis
Plaintiffs' theory of grossly negligent supervision rests upon
(1) the rank of Officers Parker and Hathaway, (2) the fact that
Officer Parker knew Hart, (3) Officer Parker did not order Hart
to stay away from Officer O'Brien, (4) Officer Parker did not
stop Hart's arrest, and (5) Officer Parker was one of the
officers who stopped Hart as he approached Officer O'Brien.
None of these claims rise to the level of gross negligence by
Defendants. In order to show gross negligence Plaintiffs must
show "[a] conscious, voluntary act or omission in reckless
disregard of a legal duty and of the consequences to another
party . . ." BLACKS LAW DICTIONARY (7th ed. 1999) addition, or "a
`deliberate indifference' to the deprivation of the
[P]laintiffs' constitutional rights" Owens v. Haas,
601 F.2d 1242, 1246 (2nd Cir. 1979) citing Leite v. City of Providence,
463 F. Supp. 585, 590-91 (D.R.I. 1978). Plaintiffs' claim of
grossly negligent supervision is therefore dismissed in its
entirety against all Defendants.
2. False Arrest and False Imprisonment
Plaintiffs' second § 1983 claim alleges false arrest and false
imprisonment. As Officer O'Brien did not participate in the
arrest of Raymond Hart, any allegations of false arrest or false
imprisonment by Raymond Hart against officer O'Brien are
Under New York law, the elements of a false arrest claim are:
"(1) the defendant intended to confine [the plaintiff], (2) the
plaintiff was conscious of the confinement, (3) the plaintiff did
not consent to the confinement and (4) the confinement was not
otherwise privileged." See, e.g., Broughton v. State, 37 N.Y.2d 451,
456, 373 N.Y.S.2d 87, 335 N.E.2d 310, cert. denied,
423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 (1975).
The common law tort of false arrest is recognized under § 1983
only if it also includes a violation of federal statutory or
constitutional law. Cook v. Sheldon, 41 F.3d 73, 77 (2d Cir.
1994), citing Easton v. Sundram, 947 F.2d 1011, 1016 (2d. Cir.
1991). The Court believes that Plaintiffs allege that the
officers violated their Fourth Amendment right to be free from
"unreasonable . . . seizures" by arresting them without probable
cause. Cook, 41 F.3d at 77 (holding that false arrest supports
a claim against state police under § 1983 because it violates the
Fourth Amendment); See also Posr v. Doherty, 944 F.2d 91, 97
(2d Cir. 1991). "The plaintiff will not recover, however, if the
defendants are shielded by qualified immunity." Cook, 41 F.3d
Qualified immunity protects a government actor if it was
`objectively reasonable' for him to believe that his actions were
lawful at the time of the challenged act. Lennon v. Miller,
66 F.3d 416, 420 (2d Cir. 1995); Anderson v. Creighton,
483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523.
The objective reasonableness test is met for a false arrest
claim — and the defendant is entitled to immunity — if "either
(a) it was objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable competence
could disagree on whether the probable cause test was met."
Lennon 66 F.3d at 423, quoting Wachtler v. County of Herkimer
35 F.3d 77, 81 (2d Cir. 1994).
Probable cause exists when the arresting officer has "knowledge
or reasonably trustworthy information of facts and circumstances
that are sufficient to warrant a person of reasonable caution in
the belief that the person to be arrested has committed or is
committing a crime."
Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). Where an
arresting officer has probable cause, there can be no federal
civil rights claim for false arrest. See, e.g., Singer v. Fulton
County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995), cert. denied,
517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). In New
York, if the Grand Jury returns an indictment against the
plaintiff, a presumption exists that his arrest and indictment
were procured with probable cause. Bernard v. U.S., 25 F.3d 98,
104 (2d Cir. 1994), citing Colon v. City of New York, 60 N.Y.2d 78,
468 N.Y.S.2d 453, 456, 455 N.E.2d 1248 (1983) ("[T]he trial
court may not weigh the evidence upon which the police acted . .
. after the indictment has issued."). To rebut this presumption,
the Plaintiffs "must establish that the indictment was produced
by fraud, perjury, the suppression of evidence or other police
conduct undertaken in bad faith." Id., 468 N.Y.S.2d at 456,
455 N.E.2d 1248.
In this case, the officers had reason to believe that there was
probable cause to arrest Raymond Hart for disorderly conduct and
resisting arrest. Under the circumstances a person of reasonable
caution would have believed that Raymond Hart was committing the
crime of disorderly conduct by pushing through the police
officers, and would try to assault officer O'Brien. Raymond
Hart's own statements acknowledge the fact that the officers
suspected he would go after Officer O'Brien, see Deposition of
Raymond Hart taken June 10, 1997, 62 and 363 and that when he was
stopped by two of the officers he "didn't stop walking." See
Id. at 40.