used is also in dispute. While the plaintiff claims that Officer
Ryan pushed him down to the concrete and placed his knee over
the middle of his back, Officer Ryan claims he only placed one
hand on the plaintiff's back to prevent him from moving.
Accordingly, summary judgment on plaintiff's excessive force
claim against Officer Ryan must also be denied.
D. Denial of Medical Attention and Treatment
The defendants claim that the plaintiff has failed to
demonstrate that he was denied medical care or treatment at the
time of his arrest and while he was being detained pending
arraignment. To state a claim under § 1983 based on inadequate
medical treatment, plaintiff must allege that defendant acted
with "deliberate indifference to [a] serious medical need."
Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994) (in order for plaintiff's claim to succeed, he must
prove that defendants were "deliberately indifferent" to his
"serious medical needs"). To allege deliberate indifference,
plaintiff must assert facts establishing that either his access
to physicians for necessary medical care was unreasonably
delayed or denied, or that prescribed medical treatment was
withheld by a defendant for the sole purpose of causing
plaintiff unnecessary pain. See Gill v. Mooney, 824 F.2d 192,
196 (2d Cir. 1987); see also Tomarkin v. Ward, 534 F. Supp. 1224,
1230 (S.D.N.Y. 1982) (citing Todaro v. Ward, 431 F. Supp. 1129,
1133 (S.D.N.Y.), aff'd, 565 F.2d 48 (2d Cir. 1977)).
The parties dispute whether LaGrange was in observable
respiratory distress after his arrest and whether he asked for,
but was denied, his medication. Plaintiff alleges that while at
the police station, he was having noticeable difficulty
breathing and was denied his inhaler or any other medical
treatment. However, Sergeant Tremper and Lieutenant Gaston both
testified that they did not observe plaintiff having any
difficulty breathing, and Officer Ryan testified that he
provided plaintiff with his inhaler upon request. Due to these
discrepancies in the testimony, summary judgment cannot be
granted with respect to either plaintiffs claim of denial of
medical care at the time of his arrest or at the police station.
E. Search and Seizure
The defendants first argue that because LaGrange appeared at
his door at 1:30 a.m. with a loaded weapon pointed at Officer
Ryan, and his wife was still in the apartment, exigent
circumstances were present, warranting the need to ascertain the
presence of additional weapons in the apartment. They also point
to the fact that the search was limited to the bedroom, and only
items relating to the safety of the officers and others were
retrieved. However, summary judgment cannot be granted on this
issue. The defendants' claim that the plaintiff appeared at his
door pointing a loaded weapon at Officer Ryan is hotly disputed
by the plaintiff. In addition, the question of exigency is
further questionable in light of the fact that the elderly
LaGrange, clad only in his pajamas, immediately put his pistol
down upon request, and his elderly wife did not move from her
chair, as ordered.*fn6
F. Qualified Immunity
Officer Ryan seeks qualified immunity with respect to
plaintiffs claims of false arrest/unlawful imprisonment,
excessive force, and unlawful search and seizure. "The doctrine
of qualified immunity shields police officers acting in their
official capacity from suits for damages under 42 U.S.C. § 1983,
unless their actions violate clearly-established rights of which
an objectively reasonable official would have known." Thomas v.
Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982)); Ricciuti, 124 F.3d at 127). A decision in favor of a
public official based on qualified immunity is appropriate if
(1) the conduct attributed to him is not prohibited by federal
law, or, if such conduct is so prohibited; (2) if the plaintiffs
right not to be subjected to such conduct was not clearly
established at the time of the defendant's actions; or (3) if it
was not objectively reasonable for the official to know that his
conduct violated that right. See X-Men Sec., Inc. v. Pataki,
196 F.3d 56, 65-66 (2d Cir. 1999); see also Thomas, 165 F.3d
at 142-43. "The objective reasonableness test is met . . . if
`officers of reasonable competence could disagree' on the
legality of the defendant's actions." Thomas, 165 F.3d at 143
(quoting Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)
(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092,
89 L.Ed.2d 271 (1986)).
In the present case, due to the significant disparities in the
facts as alleged by both sides, and the fact that the facts must
be viewed in light most favorable to the nonmoving plaintiff,
Officer Ryan is not entitled to qualified immunity as a matter
of law. Whether or not questions of fact on this issue are to be
presented to a jury must await trial. See Golino v. City of New
Haven, 950 F.2d 864, 871 (2d Cir. 1991); see also Warren v.
Dwyer, 906 F.2d 70, 74 (2d Cir. 1990) (stating that, where
factual issues exist prior to trial, defense of qualified
immunity may be raised at the close of plaintiffs case on a
motion for a directed verdict and on a subsequent motion for
judgment notwithstanding the verdict) (citing Krause v.
Bennett, 887 F.2d 362, 365 (2d Cir. 1989)).
G. Municipal Liability
Municipalities cannot be held liable under § 1983 based on the
theories of respondeat superior or vicarious liability. Monell
v. Department of Social Servs., 436 U.S. 658, 694-95, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). A municipality can be found liable
under § 1983 only where
[T]he action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and
promulgated by that body's officers. Moreover . . .
local governments . . . may be sued for
constitutional deprivations visited pursuant to
governmental `custom' even though such custom has not
reached formal approval through the body's official
Id. at 690-91, 98 S.Ct. 2018. Thus, an unconstitutional
governmental policy may be inferred either from the official
pronouncements and actions of the governmental agency, or from
custom. A municipal policy may also be imposed for a single
decision by a municipal official who has final policymaking
authority. See Pembaur v. Cincinnati, 475 U.S. 469, 480, 106
S.Ct. 1292, 89 L.Ed.2d 452 (1986); see also
Krulik v. Board of Educ. of New York, 781 F.2d 15, 23 (2d Cir.
1986) (stating that "an individual official's acts can rise to
the level of `policy' when `senior personnel' knowingly
`acquiesce' in their subordinates' behavior").
At the outset, it should be noted that the plaintiff makes no
claim of municipal policy due to a decision by a policymaking
official. Thus, the plaintiff relies upon the existence of a
municipal custom or policy for his assertion of municipal
liability. The plaintiff asserts that the City may be held
liable under four theories. Under the first and second theories,
plaintiff alleges that the City has a custom or policy of
deliberate indifference to the medical needs of detainees and
restricts detainees' use of their own medication.*fn7
Plaintiffs third theory is that detainees are not told that they
are permitted one telephone call. However, other than alleging
the particular facts of the instant case, which is insufficient
to raise an inference of a municipal custom or policy, see City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct.
2427, 85 L.Ed.2d 791 (1985), the plaintiff has failed to come
forward with any evidence that the challenged actions were taken
pursuant to a custom or policy attributable to the City.
Accordingly, plaintiffs first three arguments to impose
municipal liability are rejected.
Plaintiff's final theory challenges the physical restraint of
arrestees, and detainees. With respect to arrestees, the City of
Kingston Police Department has a written policy which provides:
"All persons taken into custody will be handcuffed with their
hands behind their back." (Sussman Aff. Ex. W.) Thus, clearly,
an official policy attributable to the City is at issue.
Regarding physical restraint of detainees, the defendants admit
that the City of Kingston Police Department has a policy of
securing detainees pending arraignment, but claim that the
plaintiff has failed to show municipal liability because that
policy is not unconstitutional. For obvious reasons, this
argument is unavailing. At this stage of the proceedings,
plaintiff need only make a showing that his alleged deprivation
was pursuant to a municipal custom or policy. The defendants
have admitted that such a policy exists. The constitutionality
of that policy is not relevant to the determination of whether
or not the plaintiff has stated a claim of municipal liability
under § 1983.
In summary, while the plaintiff has alleged four theories for
imposing municipal liability against the City, only his fourth
theory concerning the physical restraint of arrestees and
detainees can withstand the defendants' motion for summary
H. State Law Claims
The defendants argue that all state law claims against them
must be dismissed for failure to file a notice of claim,
pursuant to General Municipal Law § 50-e. The plaintiff concedes
that his state law claims against the City must be dismissed
because he never served a notice of claim, but alleges that a
notice of claim is not required for intentional tort actions
against police officers. However, under New York State law, no
action involving "any negligent act or tort" committed by a
police officer while acting within the scope of his employment
may be commenced against a municipality or said officer unless a
notice of claim has been served upon the municipality. N.Y. Gen.
Mun. Law § 50-j (McKinney 1999) (emphasis added); see also
Balduzzi v. City of Syracuse,
No. 96-CV-824, 1997 WL 52434, at *2 (N.D.N.Y. Feb. 4, 1997).
Thus, the statute does not limit the requirement of a notice of
claim to only negligent acts. Accordingly, plaintiffs state law
claims against Officer Ryan, Sergeant Tremper, Lieutenant
Gaston, and the City for assault, battery, false arrest,
unlawful imprisonment, and malicious prosecution must be
dismissed for failure to serve a notice of claim.*fn8
Questions of fact preclude summary judgment with respect to
the plaintiff's § 1983 claims for false arrest, excessive force,
denial of medical treatment, and unlawful search and seizure.
These disputed questions of fact also preclude a determination
that Officer Ryan is entitled to qualified immunity as a matter
of law. The plaintiff has sufficiently stated a claim for
municipal liability concerning the physical restraint of
arrestees and detainees. Finally, the plaintiffs state law
claims for assault, battery, false arrest, unlawful
imprisonment, and malicious prosecution must be dismissed for
failure to file a notice of claim.
Accordingly, it is
ORDERED that the motion for summary judgment by defendants
Michael Ryan, City of Kingston, and the John Doe defendants
(John Tremper and Douglas Gaston) is GRANTED in part and DENIED
1. The motion is GRANTED to the extent that
a. Plaintiff's § 1983 claim of excessive force
against defendants John Tremper and Douglas Gaston
are dismissed for lack of personal involvement; and
b. Plaintiff's state law claims for assault,
battery, false arrest, unlawful imprisonment, and
malicious prosecution are dismissed for failure to
file a notice of claim;
2. The motion is DENIED in all other respects.