The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants the City of New York (the "City"), Detective Gerard
Gardiner ("Gardiner"), Officer James Melendez ("Melendez") and Officer
Ravi Jamindar ("Jamindar") (collectively the "Defendants"), have moved
pursuant to Fed.R.Civ.P. 56(c) to dismiss the complaint of plaintiff
Brian Gill ("Gill") brought pursuant to 42 U.S.C. § 1983 alleging
violations of the Fourth, Fifth, Sixth and Fourteenth Amendments to the
United States Constitution and the laws of the State of New York.*fn1
For the reasons set forth below, the motion is granted in part and denied
Our manners have been corrupted by communication
with the saints.
Henry David Thoreau, Walden "Economy," (1854).
In this instance, St. Patrick's Day 2002 produced a celebration of
imbibition ending in a fight between members of two competing cults, the
New York City Police Department, and the New York City Fire Department.
This action arose out of that confrontation.
Prior Proceedings Gill filed his complaint on December 24, 2002. Issue was joined,
discovery undertaken, and an amended complaint was filed on July 14,
2003, alleging deliberate indifference to serious medical needs,
punishment without due process, denial of equal protection, infringement
of the Fifth Amendment right against self-incrimination, and false
arrest. Additional claims for malicious prosecution, an unduly suggestive
line-up, abuse of process, deprivation of Sixth Amendment rights, a claim
against the City based on Monell v. Dep't of Social Servs.,
436 U.S. 658 (1978), a claim of negligent hiring and retention of incompetent
employees, and a claim that Quinn was acting within the scope of his
employment were withdrawn following the filing of the instant motion.
The Defendants' motion was heard and marked fully submitted on November
The parties have submitted statements pursuant to Local Civil
Rule 56.1 from which the following statement of facts is drawn. The facts are
undisputed except as noted.
The St. Patrick's Day parade in Manhattan was held on March 16, 2002.
Gill, a member of the New York City Fire Department, and a resident of
Staten Island, initially intended to watch the parade but instead visited three bars in Manhattan,
ending up for the second time at Connolly's at 47th Street and Madison
Avenue where he intended to meet his friends Glenn Van Pelt ("Van Pelt")
and Duane Snell ("Snell"). In this process Gill consumed an amount of
beer. The quantity of his consumption is in dispute.
Quinn, an off-duty police officer who was in kilts, and Snell exchanged
words inside Connolly's and were asked to leave by the bouncer Alfred
Collins ("Collins"). Outside, a fight began, the origination of which is
in dispute, and when Gill arrived by taxi about 10:30 P.M. he saw a group
of men attacking Van Pelt, who was prone. Gill joined the fray to assist
Van Pelt and was punched and hit by a man wearing a kilt and by another
man with a moustache wearing glasses. According to Gill, Quinn and Snell
were fighting, the fighting stopped, Quinn and the men attacking Van Pelt
went up the block, and then returned to attack Gill, Van Pelt and Snell.
The details of the fight and its origins are in dispute.
Melendez, Jamindar and Gardiner arrived at the scene as did an
ambulance. Quinn was taken to Bellevue Hospital. According to Gill, he
asked for medical assistance, entered an ambulance, and then was ordered
out of the ambulance and was told he had to go to the police station to
fill out a statement. According to the Defendants, Gill voluntarily left
the ambulance. Gill and Van Pelt were taken to the Midtown North
Precinct, voluntarily according to the Defendants, by direction of the officers according to Gill.
Gill and Van Pelt were not handcuffed, and Gill believed he was going to
Midtown North to make a complaint.
According to Gill, after arrival at Midtown North he was standing in a
hallway and requested medical assistance and to go to a hospital and was
told that he was not under arrest and that an ambulance was coming. Gill
made telephone calls to friends. Whether he mentioned his request for
medical assistance is disputed.
Gardiner investigated the incident that night and was told that the
bouncer had identified Van Pelt and Gill as the perpetrators of the
incident. At some point Gill was told he was not free to leave and at
some time thereafter was placed in the squad cell with Van Pelt. At
approximately 12:20 A.M. Gardiner took statements from two witnesses, a
husband and wife from California, Diana DeRosa ("DeRosa") and Brian
Burkhalter ("Burkhalter"), who described the beating received by Gill and
the injuries received by the wearer of the kilt.
At approximately 10:30 A.M. the next morning, Gardiner gave Gill his
Miranda warning and provided him with a worksheet for him to
sign indicating that he had been advised of and understood his rights,
and that he was willing to answer questions. Shortly after Gill signed the worksheet, he gave both an oral and a written
statement to Gardiner.
Gardiner interviewed the bouncer Collins shortly after 2:00 P.M.
Collins had observed the beginning of the dispute between two males and a
male wearing a kilt. The bouncer asked the group to move on, which they
did, and he did not observe what happened among the men until he saw the
kilt-wearer on the ground being pummeled by the other two males, later
identified as Gill and Van Pelt.
Whether or not Gill requested medical assistance after being placed in
the holding cell is in dispute. Gill fell asleep according to the
Defendants, or became unconscious and vomited blood, according to Gill.
Whether or not he was visited by E.M.S. officers and whether or not he
refused treatment are matters in dispute.
According to Gill, Robert Cohen, his attorney, called the precinct
sometime between 12:00 A.M. and 6:00 A.M. on March 17, 2002, asked to
speak with Gill, and told the police that they were not permitted to
interrogate or take a statement from Gill without Cohen being present.
Gill was taken to 100 Centre Street for arraignment and was examined by
an officer of the E.M.S. Gill was charged with assault in the third
degree which charges were dismissed on June 26, 2002. On March 18, Gill
went to Staten Island University Hospital North for treatment. The extent of the
injuries of Gill and Quinn are in dispute.
The Defendants contend that the facts establish probable cause to
arrest Gill. Gill contends he was arrested because he was involved in ...